Last updated on April 11th, 2024 at 12:42 am
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 electronically.
(b) System for electronic filing. (1) The MSPB’s e-Appeal system is the exclusive system for electronic filing (e-filing) with the MSPB. Except as specifically provided, the MSPB will not accept pleadings filed by email. The link to e-Appeal is available at the MSPB’s website (https://www.mspb.gov).
(2) e-Appeal is a closed system that collects and maintains records as part of an MSPB system of records and is subject to the provisions of the Privacy Act of 1974. Access to cases in e-Appeal is limited to the parties participating in a Board proceeding who have registered as e-filers with the MSPB, and authorized individuals providing legal support to designated representatives.
(c) Matters subject to electronic filing. Subject to the registration requirement of paragraph (e) of this section, parties and representatives may use 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, including a new complaint, 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 request for attorney fees (§ 1201.203);
(5) File a request for compensatory, consequential, or liquidated damages (§ 1201.204);
(6) Designate a representative, revoke such a designation, or change such a designation (§ 1201.31);
(7) Notify the MSPB of a change in contact information such as address (geographic or email) or telephone number; or
(8) Receive a requested subpoena from the Board for issuance to a witness (§ 1201.83).
(d) Matters excluded from e-filing. E-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 on a witness (§ 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 intervene or participate as an amicus curiae or file a brief as amicus curiae pursuant to § 1201.34.
(e) Registration as an e-filer.
(1) The exclusive means to register as an e-filer is to follow the instructions at e-Appeal using a unique email address.
(2) Registration as an e-filer constitutes consent to accept electronic service of pleadings filed by other e-filers and documents issued by the MSPB. No one may electronically file a new appeal or a pleading with the MSPB, or view the case record in an assigned appeal, unless registered as an e-filer.
(3) Registration as an e-filer applies to all MSPB proceedings with which the e-filer is associated in their e-Appeal role (appellant, appellant representative, or agency representative). If an individual requires more than one e-Appeal role (e.g., appellant and appellant representative), they must register for each role separately using a different email address.
(4) All notices, orders, decisions, and other documents issued by the MSPB, as well as all pleadings filed by parties, will be made available for viewing and downloading at e-Appeal. Access to documents at e-Appeal is limited to the parties and representatives who are registered e-filers in the appeals in which they were filed.
(5) Agency representatives and appellant attorney representatives must register as e-filers.
(6) Each e-filer must promptly update their e-Appeal profile and notify the MSPB and other participants of any change in their address, telephone number, or email address by filing a pleading in each pending proceeding with which they are associated.
(7) An appellant or an appellant non-attorney representative may withdraw their registration as an e-filer pursuant to requirements set forth in e-Appeal policies posted to the MSPB’s website. Such withdrawal means that, effective upon the MSPB’s processing of a proper withdrawal, pleadings and MSPB documents will no longer be served on that person electronically and that person will no longer have electronic access to their case records through e-Appeal. A withdrawal of registration as an e-filer may preclude future re-registering as an e-filer.
(f) Pleadings by e-filers. Agency representatives and appellant attorney representatives must file all pleadings using e-Appeal, except those pleadings excluded from e-filing by paragraph (d) of this section. A pleading, or any part thereof, filed by non-electronic means, i.e., via postal mail, facsimile, or personal or commercial delivery, may be rejected.
(g) Agency Initial Contacts. (1) Agencies are required to designate a specific individual as an initial agency representative to whom the Board will serve a copy of an appeal when it is docketed. Agency initial contacts are responsible for monitoring case activity regularly at e-Appeal.
(2) Agency initial contacts must be designated pursuant to requirements set forth in e-Appeal policies posted to the MSPB’s website.
(h) Form of electronic pleadings—(1) Electronic formats allowed. E-Appeal accepts 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 is set forth in e-Appeal policies posted to the MSPB’s website. Pleadings filed via e-Appeal must be formatted so that they will print on 8
(2) Requirements for pleadings with electronic attachments. An e-filer who uploads supporting documents, in addition to the document that constitutes the primary pleading, must identify each attachment, either by bookmarking the document using e-Appeal, or by uploading the supporting documents in the form of one or more PDF files in which each attachment is bookmarked. Bookmark names must comply with requirements set forth in e-Appeal policies posted to the MSPB’s website and include information such as a brief descriptive label with dates (e.g., “Oct. 1, 2021—Decision Notice”).
(3) Submission of audio and video evidence. Audio and video evidence must be submitted according to the formatting and submission requirements set forth in e-Appeal policies posted to the MSPB’s website.
(i) Service of electronic pleadings and MSPB documents. (1) When MSPB documents are issued or when parties e-file any pleadings, e-Appeal will send an email notification to other parties who are e-filers. When using e-Appeal 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 email can encounter failure points. E-filers are responsible for ensuring that email from mspb.gov is not blocked by filters.
(3) E-filers are responsible for monitoring case activity regularly at e-Appeal to ensure that they have received all case-related documents.
(j) Documents requiring a signature. Electronic documents filed by an e-filer pursuant to this section shall be deemed to be signed by the e-filer for purposes of any regulation in part 1201, 1203, 1208, or 1209 of this chapter that requires a signature.
(k) Affidavits and declarations made under penalty of perjury. 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 signed affidavit or declaration should be uploaded as an image file or with an acceptable digital signature that complies with requirements set forth in e-Appeal policies posted to the MSPB’s website.
(l) 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 is the date of electronic submission. All pleadings filed via e-Appeal 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 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 e-filers are deemed received on the date of electronic transmission.
(m) Authority of MSPB to regulate e-filing. (1) A judge or the Clerk of the Board may issue orders regulating the method of submissions for a particular period or particular submissions.
(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.
(3) The MSPB may order any party or authorized individual to cease participation as an e-filer or access to e-Appeal in circumstances that constitute a misuse of the system or a failure to comply with law, rule, regulation, or policy governing use of a U.S. government information system.
(4) MSPB reserves the right to revert to traditional methods of service. The MSPB may serve documents via traditional means—postal mail, facsimile, commercial or personal 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 are e-filers.
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 electronically provided that the requirements of § 1201.14 have been satisfied. All appeals must contain the following:
(1) The name, address, telephone number, and email address 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, telephone number, and email address 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 e-Appeal 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 e-Appeal. MSPB Form 185 can be accessed at the MSPB’s website (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 Service of pleadings and response.
(a) Service—(1) Service by the Board. The appropriate office of the Board will notify each party to the proceeding that a new appeal has been docketed and will attach to the initial order in the proceeding a certificate of service, consisting of a list 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 electronic filing in accordance with § 1201.14, postal mail, facsimile, or commercial or personal delivery. Documents and pleadings must be served on each party and each representative. A certificate of service stating how and when service was made must accompany each pleading. The parties and their representatives must notify the appropriate Board office and one another, in a pleading, of any changes in their address, telephone number, or email address.
(b) Submission of documents. Pleadings and attachments filed via postal mail, facsimile, or commercial or personal delivery must be filed on 8
(c) Submission of audio and video evidence. Audio and video evidence must be submitted according to the formatting and submission requirements set forth in policies posted to the MSPB’s website.
§ 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 $1,330, 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. 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, 1601 Market Street, Suite 1700, Philadelphia, PA 19103, Facsimile No.: (215) 597-3456, (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 TSP record keeper will accept Roth funds that are transferred via direct rollover from an eligible employer plan that maintains a qualified Roth contribution program described in section 402A of the Internal Revenue Code.
(d) The TSP record keeper will accept a rollover only to the extent the rollover is permitted by the Internal Revenue Code.
§ 1600.31 Methods for rolling over eligible rollover distribution to the TSP.
(a) Direct rollover. (1) A participant may request that the administrator or trustee of an eligible employer plan or traditional IRA roll over any or all of his or her account directly to the TSP in the form and manner prescribed by the TSP record keeper. The administrator or trustee must provide to the TSP record keeper the distribution, information about the type of money included in the distribution (i.e., tax-deferred and/or Roth amounts), and sufficient evidence from which to reasonably conclude that a contribution is a valid rollover contribution (as defined by 26 CFR 1.401(a)(31)-1, Q&A-14). By way of example, sufficient evidence to conclude a contribution is a valid rollover contribution includes a copy of the plan’s determination letter, a letter or other statement from the plan administrator or trustee indicating that it is an eligible employer plan or traditional IRA, a check indicating that the contribution is a direct rollover, a payment confirmation, distribution statement or a tax notice from the plan to the participant indicating that the participant could receive a rollover from the plan.
(2) If the distribution is from a Roth account maintained by an eligible employer plan, the plan administrator must also provide to the TSP record keeper a statement indicating the first year of the participant’s Roth 5 year non-exclusion period under the distributing plan and either:
(i) The portion of the direct rollover amount that represents Roth contributions (i.e., basis); or
(ii) A statement that the entire amount of the direct rollover is a qualified Roth distribution (as defined by Internal Revenue Code section 402A(d)(2)).
(b) Indirect rollover by participant. A participant who has already received a distribution from an eligible employer plan or traditional IRA may request to roll over all or part of the distribution into the TSP in the form and manner prescribed by the TSP record keeper. However, the TSP record keeper will not accept a rollover by the participant of Roth funds distributed from an eligible employer plan. A distribution of Roth funds from an eligible employer plan may be rolled into the TSP by direct rollover only. The TSP record keeper will accept a rollover by the participant of tax-deferred amounts if the following requirements and conditions are satisfied:
(1) The participant must request to roll over the amounts in the form and manner prescribed by the TSP record keeper.
(2) The administrator or trustee must provide to the TSP record keeper information about the type of money included in the distribution (i.e., tax-deferred and/or Roth) and sufficient evidence from which to reasonably conclude that a contribution is a valid rollover contribution. By way of example, sufficient evidence to conclude a contribution is a valid rollover contribution includes a copy of the plan’s determination letter, a letter or other statement from the plan indicating that it is an eligible employer plan or traditional IRA, a check indicating that the contribution is a direct rollover, a payment confirmation, distribution statement or a tax notice from the plan to the participant indicating that the participant could receive a rollover from the plan.
(3) The participant must submit a certified check, cashier’s check, cashier’s draft, money order, treasurer’s check from a credit union, or personal check, made out to the “Thrift Savings Plan,” for the entire amount of the rollover, along with any other information required by the TSP record keeper. A participant may roll over the full amount of the distribution by making up, from his or her own funds, the amount that was withheld from the distribution for the payment of Federal taxes.
(4) The transaction must be completed within 60 days of the participant’s receipt of the distribution from his or her eligible employer plan or traditional IRA. The transaction is not complete until the TSP record keeper receives the guaranteed funds for the amount to be rolled over, information sufficient to conclude that the amount is a valid rollover contribution, and any other information required by the TSP record keeper.
(c) Participant’s certification. When rolling over a distribution to the TSP by either a direct or indirect rollover, the participant must certify that the distribution is eligible for roll over into the TSP, as follows:
(1) Distribution from an eligible employer plan. The participant must certify that the distribution:
(i) Is not one of a series of substantially equal periodic payments made over the life expectancy of the participant (or the joint lives of the participant and designated beneficiary, if applicable) or for a period of 10 years or more;
(ii) Is not a minimum distribution required by I.R.C. section 401(a)(9) (26 U.S.C. 401(a)(9));
(iii) Is not a hardship distribution;
(iv) Is not a plan loan that is deemed to be a taxed loan because of default;
(v) Is not a return of excess elective deferrals; and
(vi) If not rolled over, would be includible in gross income for the tax year in which the distribution is paid. This paragraph (c)(1)(vi) shall not apply to Roth funds distributed from an eligible employer plan.
(2) Distribution from a traditional IRA. The participant must certify that the distribution:
(i) Is not a minimum distribution required under I.R.C. section 401(a)(9) (26 U.S.C. 401(a)(9)); and
(ii) If not rolled over, would be includible in gross income for the tax year in which the distribution is paid.
§ 1600.32 Treatment accorded rollover funds.
(a) All funds rolled over to the TSP pursuant to §§ 1600.30 and 1600.31 will be treated as employee contributions.
(b) All funds rolled over to the TSP pursuant to §§ 1600.30 and 1600.31 will be invested in accordance with the participant’s investment election on file at the time the rollover is completed.
(c) Funds rolled over to the TSP pursuant to §§ 1600.30 and 1600.31 are not subject to the limits on contributions described in § 1600.22.
§ 1600.33 Combining uniformed services accounts and civilian accounts.
Uniformed services TSP account balances and civilian TSP account balances may be combined (thus producing one account), subject to paragraphs (a) through (g) of this section:
(a) An account balance can be combined with another once the TSP record keeper is informed (by the participant’s employing agency) that the participant has separated from Government service.
(b) Tax-exempt contributions may not be transferred from a uniformed services TSP account to a civilian TSP account.
(c) A traditional balance and a Roth balance cannot be combined.
(d) Funds transferred to the gaining account will be allocated among the TSP core funds according to the investment election in effect for the account into which the funds are transferred.
(e) Funds transferred to the gaining account will be treated as employee contributions and otherwise invested as described at 5 CFR part 1600.
(f) A uniformed service member must obtain the consent of his or her spouse before combining a uniformed services TSP account balance with his or her civilian account, even if the civilian account is not subject to FERS spousal rights. A request for an exception to the spousal consent requirement will be evaluated under the rules explained in 5 CFR part 1650.
(g) A loan cannot be transferred between accounts. Before the accounts can be combined, any outstanding loans from the losing account must be closed as described in 5 CFR part 1655.
Subpart E—Automatic Enrollment Program
§ 1600.34 Automatic enrollment program.
(a) All newly hired civilian employees who are eligible to participate in the Thrift Savings Plan and those civilian employees who are rehired after a separation in service of 31 or more calendar days and who are eligible to participate in the TSP will automatically have 5% of their basic pay contributed to the employee’s traditional TSP balance (default employee contribution) unless, by the end of the employee’s first pay period (subject to the agency’s processing time frames), they elect:
(1) To not contribute;
(2) To contribute at some other level; or
(3) To make Roth contributions in addition to, or in lieu of, traditional contributions.
(b) All uniformed service members who either enter service on or after January 1, 2018 or re-enter service after a separation in service of 31 or more calendar days after having been covered by BRS at the time of separation will automatically have 5% of their basic pay contributed to the member’s traditional TSP balance (default employee contribution) beginning the first full pay period following the date that is 60 days after the member’s PEBD unless they elect by the end of that 60 day period:
(1) To not contribute;
(2) To contribute at some other level; or
(3) To make Roth contributions in addition to, or in lieu of, traditional contributions.
(c) If, for any calendar year, a uniformed service member described in paragraph (b) of this section does not make a contribution in the final full pay period of such calendar year due to the member’s election to terminate contributions prior to the final full pay period, then that member will automatically have 5% of his or her basic pay contributed to his or her traditional TSP balance beginning the first full pay period of the following calendar year unless he or she makes a subsequent election by December 31st:
(1) To not contribute;
(2) To contribute at some other level;
(3) To make Roth contributions in addition to, or in lieu of, traditional contributions.
§ 1600.35 Refunds of default employee contributions.
(a) Subject to the limitations in paragraph (f) of this section, a participant may request a refund of any default employee contributions made on his or her behalf (i.e., the contributions made while under the automatic enrollment program) provided the request is received within 90 days after the date that the first default employee contribution was processed. The election may be made on the TSP website or by completing the TSP’s refund request form and must be received by the TSP’s record keeper prior to the expiration of the 90-day period.
(1) The distribution of a refund will be reported as income to the participant on IRS Form 1099-R, but it will not be subject to the additional tax under 26 U.S.C. 72(t) (the early withdrawal penalty tax).
(2) A participant who requests a refund will receive the amount of any default employee contributions (adjusted for allocable gains and losses).
(3) Processing of refunds will be subject to the rules set out at 5 CFR part 1650.
(b) A participant will no longer be considered to be covered by the automatic enrollment program if the participant files a contribution election. Consequently, if a participant makes a contribution election during the 90-day period, the participant will only be eligible to receive as a refund an amount equal to his or her default employee contributions (adjusted for allocable gains and losses).
(c) After the expiration of the period allowed for the refund, any withdrawal must be made pursuant to 5 U.S.C. 8433 and 5 CFR part 1650.
(d) A married participant may request a refund of default employee contributions without obtaining the consent of his or her spouse or having the TSP record keeper notify the spouse of the request.
(e) The rules applicable to frozen accounts (5 CFR 1650.3) and applicable to deceased participants (5 CFR 1650.6) also apply to refunds of the default employee contributions.
(f) A participant may not receive a refund of default employee contributions made pursuant to § 1600.34(c).
§ 1600.36 Matching contributions.
(a) A participant is not entitled to keep the matching contributions and their associated earnings that are attributable to refunded default employee contributions.
(b) The matching contributions and associated earnings attributable to refunded default employee contributions shall be forfeited to the TSP and used to offset administrative expenses.
§ 1600.37 Notice.
The TSP record keeper shall furnish all new employees and all rehired employees covered by the automatic enrollment program, and all employees described in paragraph (c) of § 1600.34, covered by the automatic enrollment program a notice that accurately describes:
(a) That default employee contributions equal to 5 percent of the employee’s basic pay will be deducted from the employee’s pay and contributed to the employee’s traditional TSP balance on the employee’s behalf if the employee does not make an affirmative contribution election;
(b) The employee’s right to elect to not have default employee contributions made to the TSP on the employee’s behalf, to elect to have a different percentage or amount of basic pay contributed to the TSP, or to make Roth contributions;
(c) The TSP core fund in which the default employee and agency contributions will be invested unless the employee makes an investment election;
(d) The employee’s ability (or inability) to request a refund of any default employee contributions (adjusted for allocable gains and losses) and the procedure to request such a refund; and
(e) That an investment in any fund other than the G Fund is made at the employee’s risk, that the employee is not protected by the United States Government or the Board against any loss on the investment, and that neither the United States Government nor the Board guarantees any return on the investment.
PART 1601—PARTICIPANTS’ CHOICES OF TSP FUNDS
Subpart A—General
§ 1601.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
Acknowledgment of risk means an acknowledgment that any investment in a TSP core fund other than the G Fund is made at the participant’s risk, that the participant is not protected by the United States Government or the Board against any loss on the investment, and that neither the United States Government nor the Board guarantees any return on the investment.
Fund reallocation means the total redistribution of a participant’s existing account balance among the TSP core funds.
Fund transfer means either:
(i) The transfer of money from one or more TSP core fund(s) to another TSP core fund(s); or
(ii) The transfer of money from the TSP core funds to the mutual fund window (and vice versa).
Subpart B—Investing Future Deposits
§ 1601.11 Applicability.
This subpart applies only to the investment of future deposits to the TSP core funds, including contributions, loan payments, and rollovers from traditional IRAs and eligible employer plans; it does not apply to fund reallocations or fund transfers within the TSP core funds, which is covered in subpart C of this part, or fund transfers to and from the mutual fund window, which is covered in subpart F of this part.
§ 1601.12 Investing future deposits in the TSP core funds.
(a) Allocation. Future deposits in the TSP, including contributions, loan payments, and rollovers from traditional IRAs and eligible employer plans, will be allocated among the TSP core funds based on the most recent investment election on file for the participant.
(b) TSP core funds availability. All participants may elect to invest all or any portion of their deposits in any of the TSP core funds.
§ 1601.13 Elections.
(a) Investment election. Each participant may indicate his or her choice of TSP core funds for the allocation of future deposits in the form and manner prescribed by the TSP record keeper. Paragraphs (a)(1) through (5) of this section apply to investment elections:
(1) Investment elections must be made in one percent increments. The sum of the percentages elected for all of the TSP core funds must equal 100 percent.
(2) The percentage elected by a participant for investment of future deposits in a TSP core fund will be applied to all sources of contributions and rollovers from traditional IRAs and eligible employer plans. A participant may not make different percentage elections for different sources of contributions.
(3) The following default investment rules shall apply to civilian participants:
(i) All deposits made on behalf of a civilian participant enrolled prior to September 5, 2015, who does not have an investment election in effect will be invested in the G Fund. A civilian participant who is enrolled prior to September 5, 2015, and subsequently rehired on or after September 5, 2015, and has a positive account balance will be considered enrolled prior to September 5, 2015 for purposes of this paragraph (a)(3)(i); and
(ii) All deposits made on behalf of a civilian participant first enrolled on or after September 5, 2015, who does not have an investment election in effect will be invested in the age-appropriate TSP Lifecycle Fund.
(iii) A civilian participant enrolled prior to September 5, 2015, who elects for the first time to invest in a TSP core fund other than the G Fund must execute an acknowledgement of risk in accordance with § 1601.33.
(4) The default investment rule in paragraphs (a)(4)(i) through (iv) of this section apply to uniformed services participants:
(i) All deposits made on behalf of a uniformed services participant who first entered service prior to January 1, 2018, has not elected to be covered by BRS, and does not have an investment election in effect will be invested in the G Fund.
(ii) All deposits made on behalf of a uniformed services participant who first entered service on or after January 1, 2018, and who does not have an investment election in effect will be invested in the age-appropriate TSP Lifecycle Fund.
(iii) If a uniformed services participant makes an election to be covered by BRS as described in 5 CFR 1600.14 and does not have an investment election in effect at the time of the election, then all deposits made after the date of such election will be invested in the age-appropriate TSP Lifecycle Fund. Deposits made prior to the date of the election will remain invested in the G Fund.
(iv) A uniformed services participant who first entered service prior to January 1, 2018, and has not made an election to be covered by the BRS who elects for the first time to invest in a TSP core fund other than the G Fund must execute an acknowledgement of risk in accordance with § 1601.33.
(5) Once an investment election becomes effective, it remains in effect until it is superseded by a subsequent investment election or the participant’s account balance is reduced to zero. If a rehired participant has a positive account balance and an investment election in effect, then the participant’s investment election will remain in effect until a new election is made. If, however, the participant (other than a participant described in paragraph (a)(4)(i) of this section) has a zero account balance, then the participant’s contributions will be allocated to the age-appropriate TSP Lifecycle Fund until a new investment election is made.
(b) Effect of rejection of investment election. If a participant does not correctly complete an investment election, the attempted investment election will have no effect. The TSP record keeper will provide the participant with a written statement of the reason the transaction was rejected.
(c) Contribution elections. A participant may designate the amount or type of employee contributions he or she wishes to make to the TSP or may stop contributions only in accordance with 5 CFR part 1600.
Subpart C—Fund Reallocations and Fund Transfers
§ 1601.21 Applicability.
This subpart applies only to fund reallocations and fund transfers involving the movement of money from TSP core fund to one (or more) TSP core fund(s); it does not apply to the investment of future deposits, which is covered in subpart B of this part, nor does it apply to fund transfers involving the movement of money from the TSP core funds to the mutual fund window (and vice versa), which is covered in subpart F of this part.
§ 1601.22 Methods of requesting a fund reallocation.
(a) Participants may make a fund reallocation in the form and manner prescribed by the TSP record keeper. Paragraphs (a)(1) and (2) of this section apply to a fund reallocation request:
(1) Fund reallocation requests must be made in whole percentages (one percent increments). The sum of the percentages elected for all of the TSP core funds must equal 100 percent.
(2) The percentages elected by the participant will be applied to the balances in each source of contributions and to both traditional and Roth balances and tax-deferred and tax-exempt balances on the effective date of the fund reallocation.
(b) A fund reallocation request has no effect on deposits made after the effective date of the fund reallocation request; subsequent deposits will continue to be allocated among the TSP core funds in accordance with the participant’s investment election made under subpart B of this part.
(c) If a fund reallocation is found to be invalid pursuant to § 1601.34, the purported fund reallocation will not be made.
§ 1601.23 Methods of requesting a fund transfer.
(a) Participants may make a fund transfer from one or more TSP core fund to a different TSP core fund(s) in the form and manner prescribed by the TSP record keeper. Paragraphs (a)(1) and (2) of this section apply to a fund transfer request:
(1) Fund transfer requests when selecting the TSP core funds to transfer out of, may be made in whole percentages or in dollars. When selecting the TSP core funds to transfer into, elections must be made in whole percentages (one percent increments). The sum of the percentages elected to transfer into for all of the TSP core funds must equal 100 percent.
(2) The percentages elected by the participant will be applied to the balances in each source of contributions and to both traditional and Roth balances and tax-deferred and tax-exempt balances on the effective date of the fund transfer.
(b) A fund transfer request has no effect on deposits made after the effective date of the fund transfer request; subsequent deposits will continue to be allocated among the TSP core funds in accordance with the participant’s investment election made under subpart B of this part.
(c) If a fund transfer is found to be invalid pursuant to § 1601.34, the purported fund transfer will not be made.
Subpart D—Investment Elections and Fund Reallocation and Fund Transfer Requests
§ 1601.31 Applicability.
This subpart applies to investment elections made under subpart B of this part, fund reallocations and fund transfers made under subpart C of this part, and fund transfers made under subpart F of this part.
§ 1601.32 Timing and posting dates.
(a) Posting dates. The date on which an investment election or fund reallocation or fund transfer request (transaction request) is processed is subject to a number of factors, including some that are outside of the control of the TSP, such as power outages, the failure of telephone service, unusually heavy transaction volume, and acts of God. These factors also could affect the availability of the TSP website and the ThriftLine. Therefore, the TSP cannot guarantee that a transaction request will be processed on a particular day. However, the TSP will process transaction requests under ordinary circumstances described in paragraphs (a)(1) through (4) of this section:
(1) A transaction request other than an investment election request entered into the TSP record keeping system by a participant who uses the TSP website or the ThriftLine, before 12 noon eastern time of any business day, will ordinarily be posted that business day. A transaction request other than an investment election request entered into the system at or after 12 noon eastern time of any business day will ordinarily be posted on the next business day. A transaction request that is an investment election request will ordinarily be posted immediately and be effective the next business day.
(2) A transaction request made on the TSP website or the ThriftLine on a non-business day will ordinarily be posted on the next business day.
(3) A transaction request made on a paper TSP form will ordinarily be posted under the rules in paragraph (a)(1) of this section, based on when the TSP record keeper enters the form into the TSP system. The TSP record keeper ordinarily enters such forms into the system within 48 hours of their receipt.
(4) In most cases, the share price(s) applied to a fund reallocation or fund transfer request is the value of the shares on the date the relevant transaction is posted. In some circumstances, such as error correction, the share price(s) for an earlier date will be used.
(b) Limit. There is no limit on the number of investment election requests. A participant may make a total of two unrestricted fund reallocations and/or fund transfers per account (e.g., civilian or uniformed services), per calendar month. A fund reallocation or fund transfer will count toward the monthly total on the date posted by the TSP record keeper and not on the date requested by a participant. After a participant has made a total of two fund reallocations and/or fund transfers in a calendar month, the participant may make additional fund reallocations or fund transfers only into the G Fund until the first day of the next calendar month.
§ 1601.33 Acknowledgment of risk.
(a) Uniformed services participants who first entered service prior to January 1, 2018, and who have not elected to be covered by BRS and civilian participants who enrolled prior to September 5, 2015, must execute an acknowledgement of risk in order to invest in a TSP core fund other than the G Fund. If a required acknowledgment of risk has not been executed, no transactions involving the fund(s) for which the acknowledgment is required will be accepted.
(b) The acknowledgment of risk may be executed in association with an investment election, a fund reallocation, or a fund transfer in the form and manner prescribed by the TSP record keeper.
§ 1601.34 Error correction.
Errors in processing investment elections and fund reallocation or fund transfer requests, or errors that otherwise cause money to be invested in the wrong investment fund, will be corrected in accordance with the error correction regulations found at 5 CFR part 1605.
Subpart E—Lifecycle Funds
§ 1601.40 Lifecycle Funds.
The Executive Director will establish TSP Lifecycle Funds, which are target date asset allocation portfolios. The TSP Lifecycle Funds will invest solely in the funds established pursuant to 5 U.S.C. 8438(b)(1)(A)-(E).
Subpart F—Mutual Fund Window
§ 1601.51 Applicability.
This subpart applies only to the transfer of amounts between the TSP core funds and the mutual fund window; it does not apply to the investment of future deposits, which is covered in subpart B of this part, or fund reallocations or fund transfers among the TSP core funds, which is covered in subpart C of this part.
§ 1601.52 Fund transfers.
(a) Fund transfers into mutual fund window. A participant may elect to make one or more fund transfers to the mutual fund window from the portion of his or her TSP balance invested in the TSP core funds, subject to the following rules:
(1) The participant must establish a mutual fund window account that is separate from his or her TSP account. A participant with more than one TSP account may establish a separate mutual fund window account for each TSP account, and the limitations and fees described in subpart will apply separately to each account;
(2) If the participant does not have an acknowledgment of risk on file as of the date of his or her initial fund transfer request to the mutual fund window, the participant must complete an acknowledgment of risk for the fund transfer to be processed;
(3) Fund transfers must be made in whole dollar increments (percentages are not permitted);
(4) The following limitations must be satisfied:
(i) A participant’s initial fund transfer into his or her mutual fund window account must be at least $10,000 and may not exceed 25 percent of the participant’s TSP account balance, as of the date of such transfer; and
(ii) Subsequent fund transfers into a participant’s mutual fund window account may not cause the balance in the participant’s mutual fund window account to exceed 25 percent of the participant’s total TSP balance, as of the date of any such transfer;
(5) Each fund transfer into the mutual fund window counts toward the monthly limit set forth in § 1601.32(b);
(6) Amounts transferred to a participant’s mutual fund window account will initially be invested in a sweep money market fund. Subsequently, the participant may direct the investment of the transferred amounts into any mutual fund(s) that are available through the mutual fund window;
(7) Fund transfers are subject to the fees set forth in § 1601.53; and
(8) A participant may not withdraw funds directly from his or her mutual fund window account. To make a withdrawal, the participant must elect a fund transfer back to the TSP core funds as described in paragraph (b) of this section. Upon completion of such fund transfer, the participant may make a withdrawal in accordance with 5 CFR part 1650.
(b) Fund transfers back to TSP core funds. A participant may elect to make a fund transfer to the TSP core funds from amounts invested in his or her mutual fund window account, subject to the following rules:
(1) Fund transfers must be made in whole dollar increments (percentages are not permitted);
(2) Amounts to be transferred from a participant’s mutual fund window account to the TSP core funds must first be transferred to the sweep money market fund. Subsequently, the participant may direct the investment of the transferred amounts into the TSP core funds;
(3) Each fund transfer back to the TSP core funds from the mutual fund window account counts toward the monthly limit set forth in § 1601.32(b); except, however, that a participant may always elect a fund transfer from the mutual fund window account to the G Fund; and
(4) Fund transfers are subject to the fees set forth in § 1601.53.
(c) Forced transfers. The TSP record keeper will force a transfer from the participant’s mutual fund window account to the TSP core funds in the following situations, and subject to the following rules:
(1) A forced transfer may occur if the balance invested in the TSP core funds is insufficient to cover:
(i) Amounts necessary to comply with a court order, legal process, or levy described in 5 CFR part 1653;
(ii) A beneficiary asset transfer;
(iii) A required minimum distribution;
(iv) An automatic cash out distribution; or
(v) Any other payment or transfer that the Board is required by law to make from the participant’s TSP account balance;
(2) The amount of the forced transfer shall be equal to the amount of the insufficiency described in paragraph (c)(1) of this section, plus $1,000; except, however, that if the participant’s mutual fund window account balance is less than $25,000, the entire mutual fund window account balance shall be transferred to the TSP core funds;
(3) Forced transfers shall be liquidated from the participant’s mutual fund window account first from amounts held in the sweep money market fund; and then from amounts invested in mutual funds, beginning with the position with the highest balance;
(4) Forced transfers from a participant’s mutual fund window account to the TSP core funds shall be invested according to the participant’s existing contribution allocation; and
(5) The participant shall be responsible for any fees incurred as a result of the forced transfer.
§ 1601.53 Fees.
(a) The Board will allocate a portion of the TSP’s administrative expenses to mutual fund users by charging an administrative fee of $55.00 annually. The amount of this fee will be redetermined once every three years by multiplying the average mutual fund window account balance by the TSP administrative expense ratio, as of the date of redetermination.
(b) The fee described in paragraph (a) of this section is in addition to any mutual fund window account maintenance fees, trading fees, and fees and expenses associated with the specific mutual fund(s) in which the participant chooses to invest.
PART 1603—VESTING
§ 1603.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
Civilian service means:
(1) Any non-military service that is creditable under either 5 U.S.C. chapter 83, subchapter III, or 5 U.S.C. 8411. However, that service is to be determined without regard to any time limitations, any deposit or redeposit requirements contained in those statutory provisions after performing the service involved, or any requirement that the individual give written notice of that individual’s desire to become subject to the retirement system established by 5 U.S.C. chapters 83 or 84; or
(2) Any military service creditable under the provisions of 5 U.S.C. 8432b(h)(1) and the regulations at 5 CFR part 1620, subpart H.
Uniformed services means the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service, and National Oceanic and Atmospheric Administration, as well as members of the Ready Reserve including the National Guard.
Military service means service that is creditable under 37 U.S.C. 205.
Vested means those amounts in an individual account which are nonforfeitable.
Year of service means one full calendar year of service.
§ 1603.2 Basic vesting rules.
(a) All amounts in a CSRS employee’s individual account are immediately vested.
(b) Except as provided in paragraph (c) of this section, all amounts in a FERS employee’s or uniformed service member’s individual account (including all first conversion contributions) are immediately vested.
(c) Except as provided in paragraph (d) of this section, upon separation from Government service without meeting the applicable service requirements of § 1603.3, a FERS employee’s or a BRS uniformed service member’s Agency Automatic (1%) Contributions and attributable earnings will be forfeited.
(d) If a FERS employee or uniformed service member dies (or died) after January 7, 1988, without meeting the applicable service requirements set forth in § 1603.3, the Agency Automatic (1%) Contributions and attributable earnings in his or her individual account are deemed vested and shall not be forfeited. If a FERS employee died on or before January 7, 1988, without meeting those service requirements, his or her Agency Automatic (1%) Contributions and attributable earnings are forfeited to the Thrift Savings Plan.
§ 1603.3 Service requirements.
(a) Except as provided under paragraph (b) of this section, FERS employees will be vested in their Agency Automatic (1%) Contributions and attributable earnings upon separating from Government only if, as of their separation date, they have completed three years of civilian service.
(b) FERS employees will be vested in their Agency Automatic (1%) Contributions and attributable earnings upon separating from Government service if, as of their separation date, they have completed two years of civilian service and they are serving in one of the following positions:
(1) A position in the Senior Executive Service as a non-career appointee (as defined in 5 U.S.C. 3132(a)(7));
(2) Positions listed in 5 U.S.C. 5312, 5313, 5314, 5315 or 5316;
(3) A position placed in level IV or level V of the Executive Schedule, pursuant to 5 U.S.C. 5317;
(4) A position in the Executive Branch which is excepted from the competitive service by the Office of Personnel Management because of the confidential and policy-determining character of the position; or
(5) A Member of Congress or a Congressional employee.
(c) Uniformed service members who are covered by BRS will be vested in their Agency Automatic (1%) Contributions and attributable earnings upon separation from the uniformed services only if, as of their separation date, they have completed two years of military service.
PART 1604 [RESERVED]
PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS
Subpart A—General
§ 1605.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
“As of” date means the date on which a TSP contribution or other transaction entailing acquisition of investment fund shares should have taken place. Employing agencies use this date on payment records to report makeup or late contributions or late loan payments.
Attributable pay date means:
(i) The pay date of a contribution that is being redesignated from traditional to Roth, or vice versa;
(ii) In the case of the uniformed services, the pay date of a contribution that is being recharacterized from tax-deferred to tax-exempt, or vice versa; or
(iii) The pay date of an erroneous contribution for which a negative adjustment is being made. However, if the erroneous contribution for which a negative adjustment is being made was a makeup or late contribution, the attributable pay date is the “as of” date of the erroneous makeup or late contribution.
Breakage means the loss incurred or the gain realized on makeup or late contributions.
BRS participant means any member of the Uniformed Services described in 5 U.S.C. 8440e(e)(1).
Earnings means both positive and negative fund performance attributable to differences in TSP core fund share prices.
Error means any act or omission by the Board, the TSP record keeper, or the participant’s employing agency that is not in accordance with applicable statutes, regulations, or administrative procedures that are made available to employing agencies and/or TSP participants. It does not mean an act or omission caused by events that are beyond the control of the Board, the TSP record keeper, or the participant’s employing agency.
FERCCA correction means the correction of a retirement coverage error pursuant to the Federal Erroneous Retirement Coverage Corrections Act, title II, Public Law 106-265, 114 Stat. 770.
Late contributions means:
(i) Employee contributions that were timely deducted from a participant’s basic pay but were not timely reported to the TSP record keeper for investment;
(ii) Employee contributions that were timely reported to the TSP record keeper but were not timely posted to the participant’s account by the TSP record keeper because the payment record on which they were submitted contained errors;
(iii) Agency matching contributions attributable to employee contributions referred to in paragraph (i) or (ii) of this definition; and
(iv) Delayed agency automatic (1%) contributions.
Makeup contributions are employee contributions that should have been deducted from a participant’s basic pay or employer contributions that should have been charged to an employing agency on an earlier date, but were not deducted or charged and, consequently, are being deducted or charged currently.
Negative adjustment means the removal of money from a participant’s TSP account by an employing agency.
Negative adjustment record means a data record submitted by an employing agency to remove from a participant’s TSP account money that the agency had previously submitted in error.
Non-BRS participant means any member of the Uniformed Services not described in 5 U.S.C. 8440e(e)(1).
Pay date means the date established by an employing agency for paying its employees or service members.
Payment record means a data record submitted by an employing agency to report contributions or loan payments to a participant’s TSP account.
Recharacterization means the process of changing a contribution that the employing agency erroneously submitted as a tax-deferred contribution to a tax-exempt contribution (or vice versa). Recharacterization is a method of error correction only. It applies only to the traditional balance of a uniformed services account.
Recharacterization record means a data record submitted by an employing agency to recharacterize a tax-deferred contribution that the employing agency erroneously submitted as a tax-exempt contribution (or vice versa).
Redesignation means the process of moving a contribution (and its associated positive earnings) from a participant’s traditional balance to the participant’s Roth balance or vice versa in order to correct an employing agency error that caused the contribution to be submitted to the wrong balance. Redesignation is a method of error correction only. A participant cannot request the redesignation of contributions unless the employing agency made an error in the submission of the contributions.
Redesignation record means a data record submitted by an employing agency to redesignate a contribution that the employing agency erroneously submitted to the wrong balance (traditional or Roth).
§ 1605.2 Calculating, posting, and charging breakage on late contributions and loan payments.
(a) General criteria. The TSP will calculate breakage on late contributions, makeup agency contributions, and loan payments as described by § 1605.15(b). This breakage calculation is subject to the criteria in paragraphs (a)(1) and (2) of this section:
(1) The TSP record keeper will not calculate breakage if contributions or loan payments are posted within 30 days of the “as of” date, or if the total amount on a late payment record or the total agency contributions on a current payment record is less than $1.00; and
(2) The TSP record keeper will not take the participant’s fund reallocations and fund transfers into account when determining breakage.
(b) Calculating breakage. The TSP record keeper will calculate breakage for all contributions or loan payment corrections as follows:
(1) Use the participant’s investment election on file for the “as of” date to determine how the funds would have been invested, going back to the earliest daily share prices available. If there is no investment election on file, or one cannot be derived based on the investment of contributions, the TSP record keeper will consider the funds to have been invested in the default investment fund in effect for the participant on the “as of” date;
(2) Determine the number of shares of the applicable investment funds the participant would have received had the contributions or loan payments been made on time. If the “as of” date is before TSP account balances were converted to shares, this determination will be the number of shares the participant would have received on the conversion date, and will include the daily earnings the participant would have received had the contributions or loan payments been made on the “as of” date;
(3) Determine the dollar value on the posting date of the number of shares the participant would have received had the contributions or loan payments been made on time. If the contributions or loan payments would have been invested in a Lifecycle fund that is retired on the posting date, the share price of the L Income Fund will be used. The dollar value shall be the number of shares the participant would have received had the contributions or loan payments been made on time multiplied by the share price; and
(4) The difference between the dollar value of the contribution or loan payment on the posting date and the dollar value of the contribution or loan payment on the “as of” date is the breakage.
(c) Posting contributions and loan payments. Makeup and late contributions, late loan payments, and breakage, will be posted to the participant’s account according to his or her investment election on file for the posting date. If there is no investment election on file for the posting date, they will be posted to the default investment fund in effect for the participant.
(d) Charging breakage. If the dollar amount posted to the participant’s account is greater than the dollar amount of the makeup or late contribution or late loan payment, the TSP record keeper will charge the agency the additional amount. If the dollar amount posted to the participant’s account is less than the dollar amount of the makeup or late contribution, or late loan payment, the difference between the amount of the contribution and the amount posted will be forfeited to the TSP.
(e) Posting of multiple contributions. If the TSP record keeper posts multiple makeup or late contributions or late loan payments with different “as of” dates for a participant on the same business day, the amount of breakage charged to the employing agency or forfeited to the TSP will be determined separately for each transaction, without netting any gains or losses attributable to different “as of” dates. In addition, gains and losses from different sources of contributions or different TSP core funds will not be netted against each other. Instead, breakage will be determined separately for each as-of date, TSP core fund, and source of contributions.
§ 1605.3 Calculating, posting, and charging breakage on errors involving investment in the wrong fund.
(a) The TSP record keeper will calculate and post breakage on date of birth errors that result in default investment in the wrong L Fund, investment election errors, and fund reallocation and fund transfer errors.
(b) The TSP record keeper will charge the employing agency for positive breakage on incorrect dates of birth caused by employing agency error that result in default investment in the wrong L Fund. A date of birth change received from an employing agency will not trigger corrective action other than to update the date of birth. To initiate a breakage calculation for an employee, the employing agency must notify the TSP record keeper that the participant is entitled to breakage.
(c) If a uniformed services participant’s retirement system is misclassified and the error results in default investment in the wrong fund, when the error is corrected pursuant to § 1605.14(f)-(g), the TSP record keeper will charge the employing agency for any positive breakage that results from the incorrect default investment. The retirement misclassification correction received from an employing agency will not trigger corrective action other than to update the participant’s retirement system coverage. To initiate a breakage calculation for the uniformed service member, the employing agency must notify the TSP record keeper that the participant is entitled to breakage.
Subpart B—Employing Agency Errors
§ 1605.11 Makeup of missed or insufficient contributions.
(a) Applicability. This section applies whenever, as the result of an employing agency error, a participant does not receive all of the TSP contributions to which he or she is entitled. This includes situations in which an employing agency error prevents a participant from making an election to contribute to his or her TSP account, in which an employing agency fails to implement a contribution election properly submitted by a participant, in which an employing agency fails to make agency automatic (1%) contributions or agency matching contributions that it is required to make, or in which an employing agency otherwise erroneously contributes less to the TSP for a participant’s account than it should have. The corrections required by this section must be made in accordance with this part and the procedures provided to employing agencies by the Board and/or the TSP record keeper in bulletins or other guidance. It is the responsibility of the employing agency to determine whether it has made an error that entitles a participant to error correction under this section.
(b) Employer makeup contributions. If an employing agency has failed to make agency automatic contributions that are required under 5 U.S.C. 8432(c)(1)(A) and 5 U.S.C. 8440e(e)(3)(A), or agency matching contributions that are required under section 8432(c)(2) and 5 U.S.C. 8440e(e)(3)(B), the following rules apply:
(1) The employing agency must promptly submit all missed contributions to the TSP record keeper on behalf of the affected participant. For each pay date involved, the employing agency must submit a separate payment record showing the “as of” date for the contributions.
(2) The TSP record keeper will calculate the breakage due to the participant and post both the contributions and the associated breakage to the participant’s account in accordance with § 1605.2.
(c) Employee makeup contributions. Within 30 days of receiving information from his or her employing agency indicating that the employing agency acknowledges that an error has occurred which has caused a smaller amount of employee contributions to be made to the participant’s account than should have been made, a participant may elect to establish a schedule to make up the deficient contributions through future payroll deductions. Employee makeup contributions can be made in addition to any TSP contributions that the participant is otherwise entitled to make. The following rules apply to employee makeup contributions:
(1) The schedule of makeup contributions elected by the participant must establish the dollar amount of the contributions and the type of employee contributions (traditional or Roth) to be made each pay period over the duration of the schedule. The contribution amount per pay period may vary during the course of the schedule, but the total amount to be contributed must be established when the schedule is created. After the schedule is created, a participant may, with the agreement of his or heremploying agency, elect to change his or her payment amount (e.g., to accelerate payment) or elect to change the type of employee contributions (traditional or Roth). The length of the schedule may not exceed four times the number of pay periods over which the error occurred.
(2) At its discretion, an employing agency may set a ceiling on the length of a schedule of employee makeup contributions which is less than four times the number of pay periods over which the error occurred. The ceiling may not, however, be less than twice the number of pay periods over which the error occurred.
(3) The employing agency must implement the participant’s schedule of makeup contributions as soon as practicable.
(4) For each pay date involved, the employing agency must submit a separate payment record showing the “as of” date for which the employee contribution should have been made.
(5) Employee makeup contributions will be invested in accordance with the participant’s currentinvestment election. The number of shares of each TSP core fund which will be purchased will be determined by dividing the amount of the makeup contributions by the share price of the applicable fund(s) on the posting date.
(6) Employee makeup contributions will be included for purposes of applying the annual limit contained in Internal Revenue Code (I.R.C.) section 402(g) (26 U.S.C. 402(g)(1)). For purposes of applying that limit, employee makeup contributions will be applied against the limit for the year of the “as of” date.
(i) Before establishing a schedule of employee makeup contributions, the employing agency must review any schedule proposed by the affected participant, as well as the participant’s prior TSP contributions, if any, to determine whether the makeup contributions, when combined with prior contributions for the same year, would exceed the annual contribution limit(s) contained in I.R.C. section 402(g) for the year(s) with respect to which the contributions are being made.
(ii) The employing agency must not permit contributions that, when combined with prior contributions, would exceed the applicable annual contribution limit contained in I.R.C. section 402(g).
(7) A schedule of employee makeup contributions may be suspended if a participant has insufficient net pay to permit the makeup contributions. If this happens, the period of suspension should not be counted against the maximum number of pay periods to which the participant is entitled in order to complete the schedule of makeup contributions.
(8) A participant may elect to terminate a schedule of employee makeup contributions at any time, but a termination is irrevocable. If a participant separates from Government service, the participant may elect to accelerate the payment schedule by a lump sum contribution from his or her final paycheck.
(9) At the same time that a participant makes up missed employee contributions, the employing agency must make any agency matching contributions that would have been made had the error not occurred. Agency matching contributions must be submitted pursuant to the rules set forth in paragraph (b) of this section. A participant may not receive agency matching contributions associated with any employee contributions that are not actually made up. If employee makeup contributions are suspended in accordance with paragraph (c)(7) of this section, the payment of agency matching contributions must also be suspended.
(10) If a participant transfers to an employing agency different from the one by which the participant was employed at the time of the missed contributions, it remains the responsibility of the former employing agency to determine whether employing agency error was responsible for the missed contributions. If it is determined that such an error has occurred, the current agency must take any necessary steps to correct the error. The current agency may seek reimbursement from the former agency of any amount that would have been paid by the former agency had the error not occurred.
(11) Employee makeup contributions may be made only by payroll deduction from basic pay or, for uniformed services participants, from basic pay, incentive pay, or special pay, including bonus pay. Contributions by check, money order, cash, or other form of payment directly from the participant to the TSP, or from the participant to the employing agency for deposit to the TSP, are not permitted.
(12) A participant is not eligible to contribute makeup contributions with an “as of” date occurring prior to May 5, 2012 to his or her Roth balance.
(13) If the “as of” date of a Roth contribution that is submitted as a makeup contribution is earlier than the participant’s existing Roth initiation date, the TSP record keeper will adjust the participant’s Roth initiation date.
(d) Missed bonus contributions. This paragraph (d) applies when an employing agency fails to implement a contribution election that was properly submitted by a uniformed service member requesting that a TSP contribution be deducted from bonus pay. Within 30 days of receiving the employing agency’s acknowledgment of the error, a uniformed service member may establish a schedule of makeup contributions with his or her employing agency to replace the missed contribution through future payroll deductions. These makeup contributions can be made in addition to any TSP contributions that the uniformed service member is otherwise entitled to make.
(1) The schedule of makeup contributions may not exceed four times the number of months it would take for the uniformed service member to earn basic pay equal to the dollar amount of the missed contribution. For example, a uniformed service member who earns $29,000 yearly in basic pay and who missed a $2,500 bonus contribution to the TSP can establish a schedule of makeup contributions with a maximum duration of 8 months. This is because it takes the uniformed service member 2 months to earn $2,500 in basic pay (at $2,416.67 per month).
(2) At its discretion, an employing agency may set a ceiling on the length of a schedule of employee makeup contributions. The ceiling may not, however, be less than twice the number of months it would take for the uniformed service member to earn basic pay equal to the dollar amount of the missed contribution.
§ 1605.12 Removal of erroneous contributions.
(a) Applicability. This section applies to the removal of funds erroneously contributed to the TSP. This action is called a negative adjustment, and agencies may only request negative adjustments of erroneous contributions made on or after January 1, 2000. Excess contributions addressed by this section include, for example, excess employee contributions that result from employing agency error and excess employer contributions. This section does not address excess contributions resulting from a FERCCA correction; those contributions are addressed in § 1605.14.
(b) Method of correction. Negative adjustment records must be submitted by employing agencies in accordance with this part and any other procedures provided by the Board and/or the TSP record keeper.
(1) To remove money from a participant’s account, the employing agency must submit, for each attributable pay date involved, a negative adjustment record stating the attributable pay date and the amount, by source, of the erroneous contribution.
(2) A negative adjustment record may be for any part of the contributions made for the attributable pay date. However, for each source of contributions, the negative adjustment may not exceed the amount of the contributions made for that date, minus any prior negative adjustments for the same date.
(c) Processing negative adjustments. To determine current value, a negative adjustment will be allocated among the TSP core funds as it would have been allocated on the attributable pay period (as reported by the employing agency). The TSP record keeper will, for each source of contributions and TSP core fund:
(1) If the attributable pay date for the erroneous contribution is on or before the date TSP accounts were converted to shares (and on or after January 1, 2000), the TSP record keeper will, for each source of contributions and investment fund:
(i) Determine the dollar value of the amount to be removed by using the daily returns for the applicable TSP core fund;
(ii) Determine the number of shares that the dollar value determined in paragraph (c)(1)(i) of this section would have purchased on the conversion date; and
(iii) Multiply the price per share for the date the adjustment is posted by the number of shares calculated in paragraph (c)(1)(ii) of this section.
(2) If the attributable pay date of the negative adjustment is after the date TSP accounts were converted to shares, the TSP record keeper will, for each source of contributions and TSP core fund:
(i) Determine the number of shares that represent the amount of the contribution to be removed using the share price on the attributable pay date; and
(ii) Multiply the price per share on the date the adjustment is posted by the number of shares calculated in paragraph (c)(2)(i) of this section. If the contribution was erroneously contributed to a Lifecycle fund that is retired on the date the adjustment is posted, the share price of the L Income Fund will be used.
(d) Employee contributions. The following rules apply to negative adjustments involving employee contributions:
(1) If, on the posting date, the amount calculated under paragraph (c) of this section is equal to or greater than the amount of the proposed negative adjustment, the full amount of the adjustment will be removed from the participant’s account and returned to the employing agency. Earnings on the erroneous contribution will remain in the participant’s account. However, positive earnings on an erroneous contribution to the participant’s Roth balance will be moved to the participant’s traditional balance;
(2) If, on the posting date, the amount calculated under paragraph (c) of this section is less than the amount of the proposed negative adjustment, the amount of the adjustment, reduced by the investment loss, will be removed from the participant’s account and returned to the employing agency. However, the employing agency must refund to the participant the full amount of the erroneous contribution;
(3) If an employing agency requests the removal of erroneous employee contributions from a participant’s account, it must also request the removal, under paragraph (e) of this section, of any attributable agency matching contributions; and
(4) If all employee contributions are removed from a participant’s account under the rules set forth in this section, the earnings attributable to those contributions will remain in the account until the participant removes them with a TSP withdrawal. If the participant is not eligible to maintain a TSP account, the employing agency must submit an employee data record to the TSP record keeper indicating that the participant has separated from Government service (this will allow the TSP-ineligible participant to make a post-employment distribution election).
(e) Employer contributions. The following rules apply to negative adjustments involving erroneous employer contributions:
(1) The amount calculated under paragraph (c) of this section will be removed from the participant’s account.
(2) Erroneous employer contributions will be returned to the employing agency only if the negative adjustment record is posted by the TSP record keeper within one year of the date the erroneous contribution was posted. If one year or more has elapsed when the negative adjustment record is posted, the amount computed under paragraph (c) of this section will be removed from the participant’s account and used to offset TSP administrative expenses;
(3) If the erroneous contribution has been in the participant’s account for less than one year when the negative adjustment record is posted and the amount computed under paragraph (c) of this section is equal to or greater than the amount of the adjustment, the employing agency will receive the full amount of the erroneous contribution. Any earnings attributable to the erroneous contribution will be removed from the participant’s account and used to offset TSP administrative expenses;
(4) If the erroneous contribution has been in the participant’s account for less than one year when the negative adjustment record is posted, and the amount computed under paragraph (c) of this section is less than the amount of the adjustment, the employing agency will receive the amount of the erroneous contribution reduced by the investment loss; and
(5) An employing agency’s obligation to submit negative adjustment records to remove erroneous contributions from a participant’s account is not affected by the length of time the contributions have been in the account.
(f)Multiple negative adjustments. (1) If multiple negative adjustments for the same attributable pay date for a participant are posted on the same business day, the amount removed from the participant’s account and used to offset TSP administrative expenses, or returned to the employing agency, will be determined separately for each adjustment. Earnings and losses for erroneous contributions made on different dates will not be netted against each other. In addition, for a negative adjustment for any attributable pay date, gains and losses from different sources of contributions or different TSP core funds will not be netted against each other. Instead, for each attributable pay date each source of contributions and each TSP core fund will be treated separately for purposes of these calculations. The amount computed by applying the rules in this section will be removed from the participant’s account pro rata from all funds, by source, based on the allocation of the participant’s account among the TSP core funds when the transaction is posted; and
(2) If there is insufficient money in the same source of contributions to cover the amount to be removed or the amount of the requested adjustment, the negative adjustment record will be rejected.
§ 1605.13 Back pay awards and other retroactive pay adjustments.
(a) Participant not employed. The following rules apply to participants who receive a back pay award or other retroactive pay adjustment for a period during which the participant was separated from Government service or was not appointed to a position that is covered by FERS, CSRS, or an equivalent system under which TSP participation is authorized:
(1) If the participant is reinstated or retroactively appointed to a hich TSP participation is authorized, immediately upon reinstatement or retroactive appointment the employing agency must give the participant the opportunity to submit a contribution election to make current contributions. The contribution election will be effective as soon as administratively feasible, but no later than the first day of the first full pay period after it is received.
(2) The employing agency must give a reinstated or retroactively appointed participant the following options for electing makeup contributions:
(i) The reinstated or retroactively appointed participant may submit a new contribution election for purposes of makeup contributions if he or she would have been eligible to make such an election but for the erroneous separation or erroneous failure to appoint; or
(ii) If a reinstated participant had a contribution election on file when he or she separated, the contribution election the participant had on file when he or she separated may be reinstated for purposes of makeup contributions.
(3) All contributions made under this paragraph (a) and associated breakage will be invested according to the participant’s investment election on the posting date. Breakage will be calculated using the share prices for the default investment fund in effect for the participant in accordance with § 1605.2 unless otherwise required by the employing agency or the court or other tribunal with jurisdiction over the back pay case.
(b) Participant employed. The following rules apply to participants who receive a back pay award or other retroactive pay adjustment for a period during which the participant was employed in a position that is covered by FERS, CSRS, or an equivalent system under which TSP participation is authorized:
(1) The participant will be entitled to make up contributions for the period covered by the back pay award or retroactive pay adjustment only if for that period—
(i) The participant had designated a percentage of basic pay to be contributed to the TSP; or
(ii) The participant had designated a dollar amount of contributions each pay period which equaled the applicable ceiling (FERS or CSRS) on contributions per pay period, and which, therefore, was limited as a result of the reduction in pay that is made up by the back pay award or other retroactive pay adjustment;
(2) The employing agency must compute the amount of additional employee contributions, agency matching contributions, and agency automatic (1%) contributions that would have been contributed to the participant’s account had the reduction in pay leading to the back pay award or other retroactive pay adjustment not occurred; and
(3) All contributions under this paragraph (b) and associated breakage will be posted to the participant’s account based on the participant’s investment election on the posting date. Breakage will be calculated in accordance with § 1605.2.
(c) Contributions to be deducted before payment or other retroactive pay adjustment. Employee makeup contributions required under paragraphs (a) and (b) of this section:
(1) Must be computed before the back pay award or other retroactive pay adjustment is paid, deducted from the back pay or other retroactive pay adjustment, and submitted to the TSP record keeper;
(2) Must not cause the participant to exceed the annual contribution limit(s) contained in sections 402(g), 415(c), or 414(v) of the I.R.C. (26 U.S.C. 402(g), 415(c), 414(v)) for the year(s) with respect to which the contributions are being made, taking into consideration the TSP contributions already made in (or with respect to) that year; and
(3) Must be accompanied by attributable agency matching contributions. In any event, regardless of whether a participant elects to make up employee contributions, the employing agency must make all appropriate agency automatic (1%) contributions associated with the back pay award or other retroactive pay adjustment.
(d) Prior withdrawal of TSP account. If a participant has received a post-employment distribution in any form other than an annuity, and the separation from Government service upon which the post-employment distribution was based is reversed, resulting in reinstatement of the participant without a break in service, the participant will have the option to restore the amount distributed to his or her TSP account. The right to restore the distributed funds will expire if the participant does not notify the TSP record keeper within 90 days of reinstatement. If the participant returns the funds that were distributed, the number of shares purchased will be determined by using the share price of the applicable investment fund on the posting date. Restored funds will not incur breakage.
(e) Reinstating a loan. Participants who are covered by paragraph (d) of this section and who elect to return funds that were distributed may also elect to reinstate a loan which was previously declared to be a loan foreclosure.
§ 1605.14 Misclassified retirement system coverage.
(a) If a CSRS participant is misclassified by an employing agency as a FERS participant, when the misclassification is corrected:
(1) Employee contributions that exceed the applicable contribution percentage for the pay period(s) involved may remain in the participant’s account. The participant may request the return of excess employee contributions made on or after January 1, 2000; those contributed before January 1, 2000, must remain in the participant’s account. If the participant requests a refund of employee contributions, the employing agency must submit a negative adjustment record to remove these funds under the procedure described in § 1605.12.
(2) All agency contributions that were made to a CSRS participant’s account will be forfeited. An employing agency may submit a negative adjustment record to request the return of an erroneous contribution that has been in the participant’s account for less than one year.
(b) If a FERS participant is misclassified by an employing agency as a CSRS participant, when the misclassification is corrected:
(1) The participant may not elect to have the contributions made while classified as CSRS removed from his or her account;
(2) The participant may, under the rules of § 1605.11, elect to make up contributions that he or she would have been eligible to make as a FERS participant during the period of misclassification;
(3) The employing agency must, under the rules of § 1605.11, make agency automatic (1%) contributions and agency matching contributions on employee contributions that were made while the participant was misclassified;
(4) If the retirement coverage correction is a FERCCA correction, the employing agency must submit makeup employee contributions on late payment records. The participant is entitled to breakage on contributions from all sources. Breakage will be calculated pursuant to § 1605.2. If the retirement coverage correction is not a FERCCA correction, the employing agency must submit makeup employee contributions on current payment records; in such cases, the employee is not entitled to breakage. Agency makeup contributions may be submitted on either current or late payment records; and
(5) If employee contributions were made up before the Office of Personnel Management implemented its regulations on FERCCA correction, and the correction is considered to be a FERCCA correction, an amount to replicate TSP lost earnings will be calculated by the Office of Personnel Management pursuant to its regulations and provided to the employing agency for transmission to the TSP record keeper.
(c) If a participant was misclassified as either FERS or CSRS and the retirement coverage is corrected to FICA only, the participant is no longer eligible to participate in the TSP.
(1) Employee contributions in the account are subject to the rules in paragraph (a)(1) of this section.
(2) Employer contributions in the account are subject to the rules in paragraph (a)(2) of this section.
(3) The TSP record keeper will consider a participant to be separated from Government service for all TSP purposes and the employing agency must submit an employee data record to reflect separation from Government service. If the participant has an outstanding loan, it will be subject to the provisions of part 1655 of this chapter. The participant may make a TSP post-employment distribution election pursuant to 5 CFR part 1650, subpart B, and the distribution will be subject to the provisions of 5 CFR 1650.60(b).
(d) If a FERS or CSRS participant is misclassified by an employing agency as FICA only, when the misclassification is corrected the participant may, pursuant to § 1605.11 of this part, elect to make up contributions that he or she would have been eligible to make as a FERS or CSRS participant during the period of misclassification. If the participant makes up employee contributions, the rules in paragraph (b)(5) of this section apply. If the participant is corrected to FERS, the rules in paragraphs (b)(3) and (b)(4) of this section also apply.
(e) The provisions of paragraph (c) of this section shall apply to any TSP contributions relating to a period for which an employee elects retroactive Nonappropriated Fund retirement coverage.
(f) If a BRS participant is misclassified by an employing agency as a non-BRS participant, when the misclassification is corrected:
(1) The participant may not elect to have the contributions made while classified as non-BRS removed from his or her account;
(2) The participant may, under the rules of § 1605.11, elect to make up contributions that he or she would have been eligible to make as a BRS participant during the period of misclassification;
(3) The employing agency must, under the rules of § 1605.11, make agency automatic (1%) contributions and agency matching contributions on employee contributions that were made while the participant was misclassified; and
(4) The employing agency must submit makeup employee contributions on current payment records and service makeup contributions may be submitted on either current or late payment records.
(g) If a non-BRS participant is misclassified by an employing agency as a BRS participant, when the misclassification is corrected:
(1) Employee contributions may remain in the participant’s account. If the participant requests a refund of employee contributions, the employing agency must submit a negative adjustment record to remove these funds under the procedure described in § 1605.12.
(2) All agency contributions that were made to a non-BRS participant’s account will be forfeited. An employing service may submit a negative adjustment record to request the return of an erroneous contribution that has been in the participant’s account for less than one year.
§ 1605.15 Reporting and processing late contributions and late loan payments.
(a) The employing agency must promptly submit late contributions to the TSP record keeper on behalf of the affected participant on late payment records as soon as the error is discovered. For each pay date involved, the employing agency must submit a separate record showing the “as of” date for the contributions. Breakage for both employee and agency contributions will be calculated, posted, and charged to the agency or forfeited to the TSP in accordance with § 1605.2.
(b) If an employing agency deducts loan payments from a participant’s pay, but fails to submit those payments to the TSP record keeper for the pay date for which they were deducted (or submits them in a manner that prevents them from being timely credited to the participant’s account), the employing agency will be responsible for paying breakage using the procedure described in § 1605.2. The loan payment record must contain the “as of” date for which the loan payment was deducted.
(c) All contributions or loan payments on payment records contained in a payroll submission that was received from an employing agency more than 30 days after the pay date associated with the payroll submission (as reported on the appropriate journal voucher), will be subject to breakage calculated, posted, and charged to the employing agency (or forfeited to the TSP) in accordance with § 1605.2. The employing agency will be apprised of the breakage due for each record reported on the late submission.
(d) If the “as of” date of a late Roth contribution is earlier than the participant’s existing Roth initiation date, the TSP record keeper will adjust the participant’s Roth initiation date.
§ 1605.16 Claims for correction of employing agency errors; time limitations.
(a) Agency’s discovery of error.
(1) Upon discovery of an error made within the past six months involving the correct or timely remittance of payments to the TSP record keeper (other than a retirement system misclassification error, as covered in paragraph (c) of this section), an employing agency must promptly correct the error on its own initiative. If the error was made more than six months before it was discovered, the agency may exercise sound discretion in deciding whether to correct it, but, in any event, the agency must act promptly in doing so.
(2) For errors involving incorrect dates of birth caused by employing agency error that result in default investment in the wrong L Fund, the employing agency must promptly notify the TSP record keeper that the participant is entitled to breakage if the error is discovered within 30 days of either the date the TSP record keeper provides the participant with a notice reflecting the error or the date the TSP or its record keeper makes available on its website a participant statement reflecting the error, whichever is earlier. If it is discovered after that time, the employing agency may use its sound discretion in deciding whether to pay breakage, but, in any event, must act promptly in doing so.
(b) Participant’s discovery of error. (1) If an agency fails to discover an error of which a participant has knowledge involving the correct or timely remittance of a payment to the TSP record keeper (other than a retirement system misclassification error as covered by paragraph (c) of this section), the participant may file a claim with his or her employing agency to have the error corrected without a time limit. The agency must promptly correct any such error for which the participant files a claim within six months of its occurrence; if the participant files a claim to correct any such error after that time, the agency may do so at its sound discretion.
(2) For errors involving incorrect dates of birth that result in default investment in the wrong L Fund of which a participant or beneficiary has knowledge, he or she may file a claim for breakage with the employing agency no later than 30 days after either the date the TSP record keeper provides the participant with a notice reflecting the error or the date the TSP or its record keeper makes available on its website a participant statement reflecting the error, whichever is earlier. The employing agency must promptly notify the TSP record keeper that the participant is entitled to breakage.
(3) If a participant or beneficiary fails to file a claim for breakage for errors involving incorrect dates of birth in a timely manner, the employing agency may nevertheless, in its sound discretion, pay breakage on any such error that is brought to its attention.
(c) Retirement system misclassification error. Errors arising from retirement system misclassification must be corrected no matter when they are discovered, whether by an agency or a participant.
(d) Agency procedures. Each employing agency must establish procedures for participants to submit claims for correction under this subpart. Each employing agency’s procedures must include the following:
(1) The employing agency must provide the participant with a decision on any claim within 30 days of its receipt, unless the employing agency provides the participant with good cause for requiring a longer period to decide the claim. A decision to deny a claim in whole or in part must be in writing and must include the reasons for the denial, citations to any applicable statutes, regulations, or procedures, a description of any additional material that would enable the participant to perfect the claim, and a statement of the steps necessary to appeal the denial;
(2) The employing agency must permit a participant at least 30 days to appeal the employing agency’s denial of all or any part of a claim for correction under this subpart. The appeal must be in writing and addressed to the agency official designated in the initial decision or in procedures promulgated by the agency. The participant may include with his or her appeal any documentation or comments that the participant deems relevant to the claim;
(3) The employing agency must issue a written decision on a timely appeal within 30 days of receipt of the appeal, unless the employing agency provides the participant with good cause for requiring a longer period to decide the appeal. The employing agency decision must include the reasons for the decision, as well as citations to any applicable statutes, regulations, or procedures; and
(4) If the agency decision on the appeal is not issued in a timely manner, or if the appeal is denied in whole or in part, the participant will be deemed to have exhausted his or her administrative remedies and will be eligible to file suit against the employing agency under 5 U.S.C. 8477. There is no administrative appeal to the Board of a final agency decision.
§ 1605.17 Redesignation and recharacterization.
(a) Applicability. This section applies to the redesignation of contributions which, due to employing agency error, were contributed to the participant’s traditional balance when they should have been contributed to the participant’s Roth balance or were contributed to the participant’s Roth balance when they should have been contributed to the participant’s traditional balance. This section also applies to the recharacterization of contributions which, due to employing agency error, were contributed as tax-deferred contributions when they should have been contributed as tax-exempt contributions (or vice versa). It is the responsibility of the employing agency to determine whether it has made an error that entitles a participant to error correction under this section.
(b) Method of correction. The employing agency must promptly submit a redesignation record or a recharacterization record in accordance with this part and the procedures provided to employing agencies by the Board and/or the TSP record keeper in bulletins or other guidance.
(c) Processing redesignations and recharacterizations. (1) Upon receipt of a properly submitted redesignation record, the TSP record keeper shall treat the erroneously submitted contribution (and associated positive earnings) as if the contribution had been made to the correct balance on the date that it was contributed to the wrong balance. The TSP record keeper will adjust the participant’s traditional balance and the participant’s Roth balance accordingly. The TSP record keeper will also adjust the participant’s Roth initiation date as necessary.
(2) Upon receipt of a properly submitted recharacterization record or recharacterization request, the TSP record keeper will update the tax characterization of the erroneously characterized contribution.
(3) Agency automatic (1%) contributions and agency matching contributions cannot be redesignated as Roth contributions or recharacterized as tax-exempt contributions.
(4) There is no breakage associated with redesignation or recharacterization actions.
Subpart C—Board or TSP Record Keeper Errors
§ 1605.21 Plan-paid breakage and other corrections.
(a) Plan-paid breakage. (1) Subject to paragraph (a)(3) of this section, if, because of an error committed by the Board or the TSP record keeper, a participant’s account is not credited or charged with the investment gains or losses the account would have received had the error not occurred, the account will be credited accordingly.
(2) Errors that warrant the crediting of breakage under paragraph (a)(1) of this section include, but are not limited to:
(i) Delay in crediting contributions or other money to a participant’s account;
(ii) Improper issuance of a loan or TSP withdrawal payment to a participant or beneficiary which requires the money to be restored to the participant’s account; and
(iii) Investment of all or part of a participant’s account in the wrong investment fund(s).
(3) A participant will not be entitled to breakage under paragraph (a)(1) of this section if the participant had the use of the money on which the investment gains would have accrued.
(4) If the participant continued to have a TSP account, or would have continued to have a TSP account but for the Board or TSP record keeper’s error, the TSP record keeper will compute gains or losses under paragraph (a)(1) of this section for the relevant period based upon the investment funds in which the affected money would have been invested had the error not occurred. If the participant did not have, and should not have had, a TSP account during this period, then the TSP will use the rate of return set forth in § 1605.2(b) for the relevant period and return the money to the participant.
(b) Other corrections. The Executive Director may, in his or her discretion and consistent with the requirements of applicable law, correct any other errors not specifically addressed in this section, including payment of breakage, if the Executive Director determines that the correction would serve the interests of justice and fairness and equity among all participants of the TSP.
§ 1605.22 Claims for correction of Board or TSP record keeper errors; time limitations.
(a) Filing claims. Claims for correction of Board or TSP record keeper errors under this subpart may be submitted initially either to the TSP record keeper or the Board. The claim must be in writing and may be from the affected participant or beneficiary.
(b) Board’s or TSP record keeper’s discovery of error. (1) Upon discovery of an error made within the past six months involving a receipt or a disbursement, the Board or TSP record keeper must promptly correct the error on its own initiative. If the error was made more than six months before its discovery, the Board or the TSP record keeper may exercise sound discretion in deciding whether to correct the error, but, in any event, must act promptly in doing so.
(2) For errors involving an investment in the wrong fund caused by Board or TSP record keeper error, the Board or the TSP record keeper must promptly pay breakage if it is discovered within 30 days of the issuance of the most recent TSP participant (or loan) statement, transaction confirmation, or other notice that reflected the error, whichever is earlier. If it is discovered after that time, the Board or TSP record keeper may use its sound discretion in deciding whether to pay breakage, but, in any event, must act promptly in doing so.
(c) Participant’s or beneficiary’s discovery of error. (1) If the Board or TSP record keeper fails to discover an error of which a participant or beneficiary has knowledge involving a receipt or a disbursement, the participant or beneficiary may file a claim for correction of the error with the Board or the TSP record keeper without time limit. The Board or the TSP record keeper must promptly correct any such error for which the participant or beneficiary filed a claim within six months of its occurrence; the correction of any such error for which the participant or beneficiary filed a claim after that time is in the sound discretion of the Board or TSP record keeper.
(2) For errors involving an investment in the wrong fund of which a participant or beneficiary has knowledge, he or she may file a claim for breakage with the Board or TSP record keeper no later than 30 days after the TSP provides the participant with a transaction confirmation or other notice reflecting the error, or makes available on its Web site a participant statement reflecting the error, whichever is earlier. The Board or TSP record keeper must promptly pay breakage for such errors.
(3) If a participant or beneficiary fails to file a claim for breakage concerning an error involving an investment in the wrong fund in a timely manner, the Board or TSP record keeper may nevertheless, in its sound discretion, pay breakage for any such error that is brought to its attention.
(d) Processing claims. (1) If the initial claim is submitted to the TSP record keeper, the TSP record keeper may either respond directly to the claimant, or may forward the claim to the Board for response. If the TSP record keeper responds to a claim, and all or any part of the claim is denied, the claimant may request review by the Board within 90 days of the date of the TSP record keeper’s response.
(2) If the Board denies all or any part of a claim (whether upon review of a TSP record keeper denial or upon an initial review by the Board), the claimant will be deemed to have exhausted his or her administrative remedy and may file suit under 5 U.S.C. 8477. If the claimant does not submit a request to the Board for review of a claim denial by the TSP record keeper within the 90 days permitted under paragraph (d)(1) of this section, the claimant will be deemed to have accepted the TSP record keeper’s decision.
Subpart D—Miscellaneous Provisions
§ 1605.31 Contributions missed as a result of military service.
(a) Applicability. This section applies to employees who meet the conditions specified at 5 CFR 1620.40 and who are eligible to make up employee contributions or to receive employing agency contributions missed as a result of military service.
(b) Missed employee contributions. An employee who separates or enters nonpay status to perform military service may be eligible to make up TSP contributions when he or she is reemployed or restored to pay status in the civilian service. Eligibility for making up missed employee contributions will be determined in accordance with the rules specified at 5 CFR part 1620, subpart E. Missed employee contributions must be made up in accordance with the rules set out in § 1605.11(c) and 5 CFR 1620.42.
(c) Missed agency contributions. This paragraph (c) applies only to an employee who would have been eligible to receive agency contributions had he or she remained in civilian service or pay status. A FERS employee who separates or enters nonpay status to perform military service is eligible to receive agency makeup contributions when he or she is reemployed or restored to pay status in the civilian service, as follows:
(1) The employee is entitled to receive the agency automatic (1%) contributions that he or she would have received had he or she remained in civilian service or pay status. Within 60 days of the employee’s reemployment or restoration to pay status, the employing agency must calculate the makeup agency automatic (1%) contributions and report those contributions to the record keeper, subject to any reduction in agency automatic (1%) contributions required by paragraph (c)(5) of this section.
(2) An employee who contributed to a uniformed services TSP account during the period of military service is also immediately entitled to receive makeup agency matching contributions to his or her civilian account for the employee contributions to the uniformed services account that were deducted from his or her basic pay, subject to any reduction in agency matching contributions required by paragraph (c)(4) of this section. However, an employee is not entitled to receive makeup agency matching makeup contributions on contributions that were deducted from his or her incentive pay or special pay, including bonus pay, while performing military service.
(3) An employee who makes up missed contributions is entitled to receive attributable makeup agency matching contributions (unless the employee has already received the maximum amount of matching contributions, as described in paragraphs (c)(2) and (4) of this section).
(4) If the employee received uniformed services agency matching contributions, the makeup agency matching contributions will be reduced by the amount of the uniformed services agency matching contributions.
(5) If the employee received uniformed services agency automatic (1%) contributions, the agency automatic (1%) contributions will be reduced by the amount of the uniformed services agency automatic (1%) contributions.
(d) Breakage. The employee is entitled to breakage on agency contributions made under paragraph (c) of this section. Breakage will be calculated based on the investment election(s) on file for the participant during the period of military service.
PART 1606 [RESERVED]
PART 1620—EXPANDED AND CONTINUING ELIGIBILITY
Subpart C also issued under 5 U.S.C. 8440a(b)(7), 8440b(b)(8), and 8440c(b)(8). Subpart D also issued under sec. 1043(b) of Pub. L. 104-106, 110 Stat. 186, and sec. 7202(m)(2) of Pub. L. 101-508, 104 Stat. 1388. Subpart E also issued under 5 U.S.C. 8432b(1) and 8440e.
Subpart A—General
§ 1620.1 Application.
The Federal Employees’ Retirement System Act of 1986 (codified as amended largely at 5 U.S.C. 8351 and 8401 through 8479) originally limited TSP eligibility to specifically named groups of employees. On various occasions, Congress has since expanded TSP eligibility to other groups. Depending on the circumstances, that subsequent legislation requires retroactive contributions or provides other special features. Where necessary, this part describes those special features. The employees and employing agencies covered by this part are also governed by the other regulations in 5 CFR chapter VI to the extent that they do not conflict with the regulations of this part.
§ 1620.2 Definitions.
The definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
§ 1620.3 Contributions.
The employing agency is responsible for transmitting to the TSP record keeper, in accordance with the TSP record keeper’s procedures, any employee and employer contributions that are required by this part.
§ 1620.4 Notices.
An employing agency must notify affected employees of the application of this part as soon as practicable.
Subpart B—Cooperative Extension Service, Union, and Intergovernmental Personnel Act Employees
§ 1620.10 Definition.
As used in this subpart, employing authority means the entity that employs an individual described in § 1620.11 and which has the authority to make personnel compensation decisions for such employee.
§ 1620.11 Scope.
This subpart applies to any individual participating in CSRS or FERS who:
(a) Has been appointed or otherwise assigned to one of the cooperative extension services, as defined in 7 U.S.C. 3103(5);
(b) Has entered on approved leave without pay to serve as a full-time officer or employee of an organization composed primarily of employees as defined by 5 U.S.C. 8331(1) and 8401(11); or
(c) Has been assigned, on an approved leave-without-pay basis, from a Federal agency to a state or local government under 5 U.S.C. chapter 33, subchapter VI.
The employing authority, at its sole discretion, may choose to make employer contributions under 5 U.S.C. 8432(c) for employees who are covered under FERS. Such contributions may be made for any period of eligible service after January 1, 1984, provided that the employing agency must treat all its employees who are eligible to receive employer contributions in the same manner. The employing authority can commence or terminate employer contributions at any time after providing all affected employees with notice of a decision to commence or terminate such contributions at least 45 days before the beginning of the applicable election period. The employing authority may not contribute to the TSP on behalf of CSRS employees.
§ 1620.13 Retroactive contributions.
(a) An employing authority can make retroactive employer contributions on behalf of FERS employees described in this subpart, but cannot duplicate employer contributions already made to the TSP.
(b) An employing authority making retroactive employing agency contributions on behalf of a FERS employee described in § 1620.12 must continue those contributions (but only to the extent they relate to service with the employing authority) if the employee returns to his or her agency of record or is transferred to another Federal agency without a break in service.
(c) CSRS and FERS employees covered by this subpart can make retroactive employee contributions relating to periods of service described in § 1620.12, unless they already have been given the opportunity to make contributions for these periods of service.
§ 1620.14 Payment to the TSP record keeper.
(a) The employing authority of a cooperative extension service employee (described at § 1620.11(a)) is responsible for transmitting employer and employee contributions to the TSP record keeper.
(b) The employing authority of a union employee or an Intergovernmental Personnel Act employee (described at § 1620.11(b) and (c), respectively) is responsible for transmitting employer and employee contributions to the employee’s Federal agency of record. Employee contributions will be deducted from the employee’s actual pay. The employee’s agency of record is responsible for transmitting the employer and employee’s contributions to the TSP record keeper in accordance with its procedures. The employee’s election form (TSP-1) will be filed in the employee’s official personnel folder or other similar file maintained by the employing authority.
Subpart C—Justices and Judges
§ 1620.20 Scope.
(a) This subpart applies to:
(1) A justice or judge of the United States as defined in 28 U.S.C. 451;
(2) A bankruptcy judge appointed under 28 U.S.C. 152 or a United States magistrate judge appointed under 28 U.S.C. 631 who has chosen to receive a judges’ annuity described at 28 U.S.C. 377 or section 2(c) of the Retirement and Survivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988, Public Law 100-659, 102 Stat. 3910-3921;
(3) A judge of the United States Court of Federal Claims appointed under 28 U.S.C. 171 whose retirement is covered by 28 U.S.C. 178; and
(4) A judge of the Court of Veterans Appeals appointed under 38 U.S.C. 7253.
(b) This subpart does not apply to a bankruptcy judge or a United States magistrate judge who has not chosen a judges’ annuity, or to a judge of the United States Court of Federal Claims who is not covered by 28 U.S.C. 178. Those individuals may participate in the TSP only if they are otherwise covered by CSRS or FERS.
§ 1620.21 Contributions.
(a) An individual covered under this subpart can make contributions to the TSP from basic pay in the amount described at 5 CFR 1600.22(a)(1). Unless stated otherwise in this subpart, he or she is covered by the same rules that apply to a CSRS participant in the TSP.
(b) The following amounts are not basic pay and no TSP contributions can be made from them:
(1) An annuity or salary received by a justice or judge of the United States (as defined in 28 U.S.C. 451) who is retired under 28 U.S.C. 371(a) or (b), or 372(a);
(2) Amounts received by a bankruptcy judge or a United States magistrate judge under a judges’ annuity described at 28 U.S.C. 377;
(3) An annuity or salary received by a judge of the United States Court of Federal Claims under 28 U.S.C. 178; and
(4) Retired pay received by a judge of the United States Court of Veterans Appeals under 38 U.S.C. 7296.
§ 1620.22 Withdrawals.
(a) Post-employment distribution. An individual covered under this subpart can make a post-employment distribution election described at 5 U.S.C. 8433(b):
(1) Upon separation from Government employment.
(2) In addition to the circumstance described in paragraph (a)(1) of this section, a post-employment distribution election can be made by:
(i) A justice or judge of the United States (as defined in 28 U.S.C. 451) who retires under 28 U.S.C. 317(a) or (b) or 372(a);
(ii) A bankruptcy judge or a United States magistrate judge receiving a judges’ annuity under 28 U.S.C. 377;
(iii) A judge of the United States Court of Federal Claims receiving an annuity or salary under 28 U.S.C. 178; and
(iv) A judge of the United States Court of Veterans Appeals receiving retired pay under 38 U.S.C. 7296.
(b) In-service withdrawals. An individual covered under this subpart can request an in-service withdrawal described at 5 U.S.C. 8433(h) if he or she:
(1) Has not separated from Government employment; and
(2) Is not receiving retired pay as described in paragraph (a)(2) of this section.
§ 1620.23 Spousal rights.
(a) The current spouse of a justice or judge of the United States (as defined in 28 U.S.C. 451), or of a Court of Veterans Appeals judge, possesses the rights described at 5 U.S.C. 8351(b)(5).
(b) A current or former spouse of a bankruptcy judge, a United States magistrate judge, or a judge of the United States Court of Federal Claims, possesses the rights described at 5 U.S.C. 8435 and 8467 if the judge is covered under this subpart.
Subpart D—Nonappropriated Fund Employees
§ 1620.30 Scope.
This subpart applies to any employee of a Nonappropriated Fund (NAF) instrumentality of the Department of Defense (DOD) or the U.S. Coast Guard who elects to be covered by CSRS or FERS and to any employee in a CSRS- or FERS-covered position who elects to be covered by a retirement plan established for employees of a NAF instrumentality pursuant to the Portability of Benefits for Nonappropriated Fund Employees Act of 1990, Public Law 101-508, 104 Stat. 1388, 1388-335 to 1388-341, as amended (codified largely at 5 U.S.C. 8347(q) and 8461(n)).
§ 1620.31 Definition.
As used in this subpart, move means moving from a position covered by CSRS or FERS to a NAF instrumentality of the DOD or Coast Guard, or vice versa, without a break in service of more than one year.
§ 1620.32 Employees who move to a NAF instrumentality on or after August 10, 1996.
Any employee who moves from a CSRS- or FERS-covered position to a NAF instrumentality on or after August 10, 1996, and who elects to continue to be covered by CSRS or FERS, will be eligible to contribute to the TSP as determined in accordance with 5 CFR part 1600.
§ 1620.33 [Reserved]
§ 1620.34 Employees who move from a NAF instrumentality to a Federal Government agency.
(a) An employee of a NAF instrumentality who moves from a NAF instrumentality to a Federal Government agency and who elects to be covered by a NAF retirement system is not eligible to participate in the TSP. Any TSP contributions relating to a period for which an employee elects retroactive NAF retirement coverage must be removed from the TSP as required by the regulations at 5 CFR part 1605.
(b) An employee of a NAF instrumentality who moves from a NAF instrumentality to a Federal Government agency and who elects to be covered by CSRS or FERS will become eligible to participate in the TSP as determined in accordance with 5 CFR part 1600.
§ 1620.35 Loan payments.
NAF instrumentalities must deduct and transmit TSP loan payments for employees who elect to be covered by CSRS or FERS to the TSP record keeper in accordance with 5 CFR part 1655 and the TSP record keeper’s procedures. Loan payments may not be deducted and transmitted for employees who elect to be covered by the NAF retirement system. Such employees will be considered to have separated from Government service and may continue making loan repayments in accordance with 5 CFR part 1655 and the TSP record keeper’s procedures.
§ 1620.36 Transmission of information.
Any employee who moves to a NAF instrumentality must be reported by the losing Federal Government agency to the TSP record keeper as having transferred to a NAF instrumentality of the DOD or Coast Guard rather than as having separated from Government service. If the employee subsequently elects not to be covered by CSRS or FERS, the NAF instrumentality must submit an Employee Data Record to report the employee as having separated from Federal Government service as of the date of the move.
Subpart E—Uniformed Services Employment and Reemployment Rights Act (USERRA)—Covered Military Service
§ 1620.40 Scope.
To be covered by this subpart, an employee must have:
(a) Separated from Federal civilian service or entered leave-without-pay status in order to perform military service; and
(b) Become eligible to seek reemployment or restoration to duty by virtue of a release from military service, discharge from hospitalization, or other similar event that occurred on or after August 2, 1990; and
(c) Been reemployed in, or restored to, a position covered by CSRS or FERS pursuant to the provisions of 38 U.S.C. chapter 43.
§ 1620.41 Definitions.
As used in this subpart:
Current contributions means contributions that must be made for the current pay date which is reported on the journal voucher that accompanies the payroll submission.
Nonpay status means an employer-approved temporary absence from duty.
Reemployed or returned to pay status means reemployed in or returned to a pay status, pursuant to 38 U.S.C. chapter 43, to a position that is subject to 5 U.S.C. 8351 or chapter 84.
Retroactive period means the period for which an employee can make up missed employee contributions and receive missed agency contributions. It begins the day after the employee separates or enters nonpay status to perform military service and ends when the employee is reemployed or returned to pay status.
Separate from civilian service means to cease employment with the Federal Government, the U.S. Postal Service, or with any other employer from a position that is deemed to be civilian Government employment for purposes of participating in the TSP, for 31 or more full calendar days.
§ 1620.42 Processing TSP contribution elections.
(a) Current contribution election. If the employee entered nonpay status with a valid contribution election on file, the agency must immediately reinstate that election for current contributions when the employee returns to pay status, unless the employee files a new contribution election. If the employee separated to perform military service, he or she must make a new contribution election to begin current contributions.
(b) Makeup contribution election. Upon reemployment or return to pay status, an employee has 60 days to elect to make up missed contributions. An employee’s right to make retroactive TSP contributions will expire if an election is not made within 60 days of the participant’s reemployment or return to pay status.
(c) Makeup contributions. Makeup contributions will be processed as follows:
(1) If the employee had a valid contribution election on file when he or she separated or entered nonpay status to perform military service, that election will be reinstated for purposes of determining the makeup contributions, unless the employee submits a new contribution election which he or she could otherwise have made but for the performance of military service.
(2) An employee who terminated contributions within two months of entering military service will also be eligible to make a retroactive contribution election to be effective on the date the contributions were terminated.
§ 1620.43 Agency payments to TSP record keeper; agency ultimately responsible.
(a) Agency making payments to TSP record keeper. The current employing agency is responsible for making payments to the TSP record keeper for all contributions, regardless of whether some of that expense is ultimately chargeable to a prior employing agency.
(b) Agency ultimately chargeable with expense. The agency that reemployed the participant is ordinarily the agency ultimately chargeable with the expense of agency contributions and the breakage attributable to them. However, if an employee changed agencies during the period between the date of reemployment and October 13, 1994, the employing agency as of October 13, 1994, is the agency ultimately chargeable with the expense.
(c) Reimbursement by agency ultimately chargeable with expense. If the agency that made the payments to the TSP record keeper for agency contributions is not the agency ultimately chargeable for that expense, the agency that made the payments to the TSP record keeper may, but is not required to, obtain reimbursement from the agency ultimately chargeable with the expense.
§ 1620.44 Restoring forfeited agency automatic (1%) contributions.
If an employee’s agency automatic (1%) contributions were forfeited because the employee was not vested when he or she separated to perform military service, the employee must notify the employing agency that a forfeiture occurred. The employing agency will follow the procedure described in § 1620.46(e) to have those funds restored.
§ 1620.45 Suspending TSP loans, restoring post-employment distributions, and reversing loan foreclosures..
(a) Suspending TSP loans during nonpay status. If the TSP record keeper is notified that an employee entered into a nonpay status to perform military service, any outstanding TSP loan from a civilian TSP account will be suspended, that is, it will not be declared a loan foreclosure while the employee is performing military service.
(1) Interest will accrue on the loan balance during the period of suspension. When the employee returns to civilian pay status, the employing agency will resume deducting loan payments from the participant’s basic pay and the TSP record keeper will reamortize the loan (which will include interest accrued during the period of military service). The maximum loan repayment term will be extended by the employee’s period of military service. Consequently, when the employee returns to pay status, the TSP record keeper must receive documentation to show the beginning and ending dates of military service.
(2) The TSP record keeper may close the loan account and declare it to be a loan foreclosure if the TSP record keeper does not receive documentation that the employee entered into nonpay status. However, this can be reversed in accordance with paragraph (c) of this section.
(b) Restoring post-employment distributions. An employee who separates from civilian service to perform military service and who receives an automatic payment pursuant to § 1650.11 may return to the TSP an amount equal to the amount of the payment. The employee must notify the TSP record keeper of his or her intent to return the distributed funds within 90 days of the date the employee returns to civilian service or pay status; if the employee is eligible to return a distribution, the TSP record keeper will then inform the employee of the actions that must be taken to return the funds.
(c) Reversing loan foreclosures. An employee may request that a loan foreclosure be reversed it resulted from the employee’s separation or placement in nonpay status to perform military service. The TSP record keeper will reverse the loan foreclosure under the process described as follows:
(1) An employee who received a post-employment distribution when he or she separated to perform military service can have a loan foreclosure reversed only if the distributed amount is returned as described in paragraph (b) of this section;
(2) A loan foreclosure can be reversed either by reinstating the loan or by repaying it in full. The TSP loan can be reinstated only if the employee agrees to repay the loan within the maximum loan repayment term plus the length of military service, and if, after reinstatement of the loan, the employee will have no more than two outstanding loans, only one of which is a residential loan; and
(3) The employee must notify the TSP record keeper of his or her intent to reverse a loan foreclosure within 90 days of the date the employee returns to civilian service or pay status; if the employee is eligible to reverse a loan foreclosure, the TSP record keeper will then inform the employee of the actions that must be taken to reverse the distribution.
(d) Breakage. Employees will not receive breakage on amounts returned to their accounts under this section.
§ 1620.46 Agency responsibilities.
(a) General. Each employing agency must establish procedures for implementing these regulations. These procedures must at a minimum require agency personnel to identify eligible employees and notify them of their options under these regulations and the time period within which these options must be exercised.
(b) Agency records; procedure for reimbursement. The agency making payments to the record keeper for all contributions and attributable breakage will obtain from prior employing agencies whatever information is necessary to make accurate payments. If a prior employing agency is ultimately chargeable under § 1620.43(b) for all or part of this expense, the agency making the payments to the TSP record keeper will determine the procedure to follow in order to collect amounts owed to it by the agency ultimately chargeable with the expense.
(c) Payment schedule; matching contributions report. Agencies will, with the employee’s consent, prepare a payment schedule for making retroactive employee contributions which will be consistent with the procedures established at 5 CFR part 1605 for the correction of employing agency errors.
(d) Agency automatic (1%) contributions. Employing agencies must calculate the agency automatic (1%) contributions for all reemployed (or restored) FERS employees and report those contributions to the TSP record keeper within 60 days of reemployment.
(e) Forfeiture restoration. When notified by an employee that a forfeiture of the agency automatic (1%) contributions occurred after the employee separated to perform military service, the employing agency must complete and file the appropriate paper TSP form with the TSP record keeper in accordance with the form’s instructions to have those funds restored.
(f) Thrift Savings Plan Service Computation Date. The agencies must include the period of military service in the Thrift Savings Plan Service Computation Date (TSP-SCD) of all reemployed FERS employees. If the period of military service has not been credited, the agencies must submit an employee data record to the TSP record keeper containing the correct TSP Service Computation Date.
PART 1630—PRIVACY ACT REGULATIONS
§ 1630.1 Purpose and scope.
These regulations implement the Privacy Act of 1974, 5 U.S.C. 552a. The regulations apply to all records maintained by the Federal Retirement Thrift Investment Board that are contained in a system of records and that contain information about an individual. The regulations establish procedures that (a) authorize an individual’s access to records maintained about him or her; (b) limit the access of other persons to those records; and (c) permit an individual to request the amendment or correction of records about him or her.
§ 1630.2 Definitions.
For the purposes of this part—
(a) Account number means the number assigned by the Agency to each participant’s TSP account which serves as the primary identification mechanism for a participant’s account. The participant’s Social Security number will remain the identifier for the submission of data and funds from agency and uniformed services payroll offices, for the submission of information to the Internal Revenue Service about distributions, and for some other administrative purposes.
(b) Agency means agency as defined in 5 U.S.C. 552(e);
(c) Board means the Federal Retirement Thrift Investment Board;
(d) Case reference number means the number assigned by the Agency to the recipient of a court order payment or a death benefit payment.
(e) Individual means a citizen of the United States or an alien lawfully admitted for permanent residence;
(f) Maintain means to collect, use, or distribute;
(g) Privacy Act Officer means the Board’s General Counsel or his or her designee;
(h) Record means any item, collection, or grouping of information about an individual that is maintained by the Board or the record keeper, including but not limited to education, financial transactions, medical history, and criminal or employment history and that contains the individual’s name, identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
(i) Record keeper means the entity that is engaged by the Board to perform record keeping services for the TSP;
(j) Routine use means, with respect to the disclosure of a record, the use of that record for a purpose which is compatible with the purpose for which it was collected;
(k) System manager means the official of the Board who is responsible for the maintenance, collection, use, distribution, or disposal of information contained in a system of records;
(l) System of records means a group of any records under the control of the Board from which information is retrieved by the name of the individual or other identifying particular assigned to the individual;
(m) Statistical record means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by 13 U.S.C. 8;
(n) Subject individual means the individual by whose name or other identifying particular a record is maintained or retrieved;
(o) TSP means the Thrift Savings Plan which is administered by the Board pursuant to 5 U.S.C. 8351 and chapter 84 (subchapters III and VII);
(p) TSP participant means any individual for whom a TSP account has been established. This includes former participants, i.e., participants whose accounts have been closed;
(q) TSP records means those records maintained by the record keeper;
(r) VRS (Voice Response System) means the fully automated telephone information system for TSP account records;
(s) Work days as used in calculating the date when a response is due, includes those days when the Board is open for the conduct of Government business and does not include Saturdays, Sundays and Federal holidays.
§ 1630.3 Publication of systems of records maintained.
(a) Prior to the establishment or revision of a system of records, the Board will publish in the
(b) When a system of records is established or revised, the Board will publish in the
(1) The system name,
(2) The system location,
(3) The categories of individuals covered by the system,
(4) The categories of records in the system,
(5) The Board’s authority to maintain the system,
(6) The routine uses of the system,
(7) The Board’s policies and practices for maintenance of the system,
(8) The system manager,
(9) The procedures for notification, access to and correction of records in the system, and
(10) The sources of information for the system.
§ 1630.4 Request for notification and access.
(a) Within 20 work days of receiving the request for review, the Executive Director will make a final determination on appeal. A participant or a spouse, former spouse, or beneficiary of a participant must make his or her inquiry in accordance with the chart set forth in this paragraph. The mailing address of the Thrift Savings Plan is provided at http://www.tsp.gov. Telephone inquiries are subject to the verification procedures set forth in § 1630.7. A written inquiry from a participant must include the participant’s name and the participant’s account number or Social Security number. A written inquiry from a spouse or former spouse or a beneficiary of the participant must include the inquiring party’s name and Social Security number or, if available, the case reference number as well as the name and Social Security number or account number of the participant. Other third party inquiries (e.g., from other Federal agencies authorized to obtain information about the participant’s account) must include, at a minimum, the participant’s name and Social Security number.
| If you want: | If you are a participant who is a current Federal employee: | If you are a participant who has separated from Federal employment or a spouse, former spouse, or beneficiary: |
|---|---|---|
| To make inquiry as to whether you are a subject of this system of records. | Call or write to your employing agency in accordance with agency procedures for personnel or payroll records | Call or write to TSP record keeper. |
| To gain access to a record about you | Call or write to your employing agency to request access to personnel and payroll records regarding the agency’s and the participant’s contributions, and adjustments to contributions. Call or write to the TSP record keeper to gain access to loan status and repayments, earnings, contributions allocation elections, interfund transfers, and withdrawal records | Call or write to TSP record keeper. |
| To learn the history of disclosures of records about you to entities other than the participant’s employing agency or the Board or auditors see § 1630.4 (a)(4) | Write to TSP record keeper. | Write to TSP record keeper. |
(2) Participants may also inquire whether this system contains records about them and access certain records through the account access section of the TSP website and the ThriftLine (the TSP’s automated telephone system). The TSP website is www.tsp.gov. To use the TSP ThriftLine, the participant must have a touch-tone telephone and call (877) 968-3778. Information such as account balance and transaction status is available on the TSP website and the ThriftLine. To access these features, the participant may be required to verify his or her identity by providing identifying particulars.
(3) A Privacy Act request which is incorrectly submitted to the Board will not be considered received until received by the record keeper. The Board will submit such a Privacy Act request to the record keeper within three workdays. A Privacy Act request which is incorrectly submitted to the record keeper will not be considered received until received by the employing agency. The record keeper will submit such a Privacy Act request to the employing agency within three workdays.
(4) No disclosure history will be made when the Board contracts for an audit of TSP financial statements (which includes the review and sampling of TSP account balances).
(5) No disclosure history will be made when the Department of Labor or the General Accounting Office audits TSP financial statements (which includes the review and sampling of TSP account balances) in accordance with their responsibilities under chapter 84 of title 5 of the U.S. Code. Rather, a requester will be advised that these agencies have statutory obligations to audit TSP activities and that in the course of such audits they randomly sample individual TSP accounts to test for account accuracy.
(b) Non-TSP Board records. An individual who wishes to know if a specific system of records maintained by the Board contains a record pertaining to him or her, or who wishes access to such records, shall address a written request to the Privacy Act Officer, Federal Retirement Thrift Investment Board, 77 K Street, NE., Suite 1000, Washington, DC 20002. The request letter should contain the complete name and identifying number of the pertinent system as published in the annual
§ 1630.5 Granting access to a designated individual.
(a) An individual who wishes to have a person of his or her choosing review a record or obtain a copy of a record from the Board or the TSP record keeper shall submit a signed statement authorizing the disclosure of his or her record before the record will be disclosed. The authorization shall be maintained with the record.
(b) The Board or the TSP record keeper will honor any Privacy Act request (e.g., a request to have access or to amend a record) which is accompanied by a valid power of attorney from the subject of the record.
§ 1630.6 Action on request.
(a) For TSP records, the record keeper designee, and for non-TSP records, the Privacy Act Officer will answer or acknowledge the inquiry within 10 work days of the date it is received. When the answer cannot be made within 10 work days, the record keeper or Privacy Act Officer will provide the requester with the date when a response may be expected and, whenever possible, the specific reasons for the delay.
(b) At a minimum, the acknowledgement to a request for access shall include:
(1) When and where the records will be available;
(2) Name, title and telephone number of the official who will make the records available;
(3) Whether access will be granted only by providing a copy of the record through the mail, or only by examination of the record in person if the Privacy Act Officer after consulting with the appropriate system manager has determined the requester’s access would not be unduly impeded;
(4) Fee, if any, charged for copies (See § 1630.16); and
(5) If necessary, documentation required to verify the identity of the requester (See § 1630.7).
§ 1630.7 Identification requirements.
(a) In person. An individual should be prepared to identify himself or herself by signature, i.e., to note by signature the date of access, Social Security number, and to produce one photographic form of identification (driver’s license, employee identification, annuitant card, passport, etc.). If an individual is unable to produce adequate identification, the individual must sign a statement asserting his or her 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 (see § 1630.18). In addition, depending upon the sensitivity of the records, the Privacy Act Officer or record keeper designee after consulting with the appropriate system manager may require further reasonable assurances, such as statements of other individuals who can attest to the identity of the requester.
(b) In writing. A participant shall provide his or her name, date of birth, and account number or Social Security number and shall sign the request. Most other individuals shall provide the participant’s account number or Social Security number, shall provide a statement of relationship to the participant unless it is clearly identified in the nature of the correspondence, and shall sign the request. If a request for access is granted by mail and, in the opinion of the Privacy Act Officer or record keeper designee after consulting with the appropriate system manager, the disclosure of the records through the mail may result in harm or embarrassment (if a person other than the subject individual were to receive the records), a notarized statement of identity or some other similar assurance of identity will be required.
(c) By telephone. (1) Telephone identification procedures apply only to requests from participants and spouses, former spouses, or beneficiaries of participants for information in FRTIB-1, Thrift Savings Plan Records, which is retrieved by their respective account numbers (or case reference numbers) or Social Security numbers.
(2) A participant or a spouse, former spouse, or beneficiary of a participant must identify himself or herself by providing to the record keeper designee his or her name, account number (or case reference number) or Social Security number, and any other information requested. If the record keeper designee determines that any of the information provided by telephone is incorrect, the requester will be required to submit a request in writing.
(3) A participant may also access the TSP website or call the TSP ThriftLine to obtain account information. These systems may require identity and account verification information and may require the participant to verify his or her identity by providing identifying particulars.
§ 1630.8 Access of others to records about an individual.
(a) The Privacy Act provides for access to records in systems of records in those situations enumerated in 5 U.S.C. 552a(b) and are set forth in paragraph (b) of this section.
(b) No official or employee of the Board, or any contractor of the Board or other Federal agency operating a Board system of records under an interagency agreement, shall disclose any record to any person or to another agency without the express written consent of the subject individual, unless the disclosure is:
(1) To officers or employees (including contract employees) of the Board or the record keeper who need the information to perform their official duties;
(2) Pursuant to the requirements of the Freedom of Information Act, 5 U.S.C. 552;
(3) For a routine use that has been published in a notice in the
(4) To the Bureau of the Census for uses under title 13 of the United States Code;
(5) To a person or agency which has given the Board or the record keeper advance written notice of the purpose of the request and certification that the record will be used only for statistical purposes. (In addition to deleting personal identifying information from records released for statistical purposes, the Privacy Act Officer or record keeper designee shall ensure that the identity of the individual cannot reasonably be deduced by combining various statistical records);
(6) To the National Archives of the United States if a record has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
(7) In response to a written request that identifies the record and the purpose of the request made by another agency or instrumentality of any Government jurisdiction within or under the control of the United States for civil or criminal law enforcement activity, if that activity is authorized by law;
(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, if upon such disclosure a notification is transmitted to the last known address of the subject individual;
(9) To either House of Congress, or to a Congressional committee or subcommittee if the subject matter is within its jurisdiction;
(10) To the Comptroller General, or an authorized representative, in the course of the performance of the duties of the General Accounting Office;
(11) Pursuant to the order of a court of competent jurisdiction; or
(12) To a consumer reporting agency in accordance with section 3711(f) of Title 31.
§ 1630.9 Access to the history (accounting) of disclosures from records.
Rules governing access to the accounting of disclosures are the same as those for granting access to the records as set forth in § 1630.4.
§ 1630.10 Denials of access.
(a) The Privacy Act Officer or the record keeper designee for records covered by system FRTIB-1, may deny an individual access to his or her record if:
(1) In the opinion of the Privacy Act Officer or the record keeper designee, the individual seeking access has not provided proper identification to permit access; or
(2) The Board has published rules in the
(b) If access is denied, the requester shall be informed of the reasons for denial and the procedures for obtaining a review of the denial.
§ 1630.11 Requirements for requests to amend records.
(a) TSP records. (1) A spouse, former spouse or beneficiary of a TSP participant who wants to correct or amend his or her record must write to the TSP record keeper. A participant in the TSP who wants to correct or amend a TSP record pertaining to him or her shall submit a written request in accordance with the following chart:
| To correct or amend a TSP record | ||
|---|---|---|
| If the type of record is: | If you are a participant who is a current Federal employee write to: | If you are a participant who has separated from Federal employment write to: |
| Personnel or personal records (e.g., age, address, Social Security number, date of birth). | Write to your employing agency. | Write to TSP record keeper. |
| The agency’s and the participant’s contributions, and adjustments to contributions. | Write to your employing agency. | Write to your former employing agency. |
| Earnings, investment allocation, interfund transfers, loans, loan repayments, and withdrawals | Write to TSP record keeper. | Write to TSP record keeper. |
(2) The address of the record keeper is listed in § 1630.4(a).
(3) Requests for amendments which are claims for money because of administrative error will be processed in accordance with the Board’s Error Correction regulations found at 5 CFR part l605. Sections 1630.12(b)-1630.14 of this part do not apply to such money claim amendments to TSP records as the Error Correction regulations are an equivalent substitute. Non-money claim TSP record appeals are covered by §§ 1630.12-1630.14, or if covered by the above chart the employing, or former employing, agency’s Privacy Act procedures.
(4) Corrections to TSP account records which are made by the Board, its recordkeeper or the employing agency or the former employing agency on its own motion because of a detected administrative error will be effected without reference to Privacy Act procedures.
(5) A participant in the TSP who is currently employed by a Federal agency should be aware that the employing agency provides to the Board personal and payroll records on the participant, such as his or her date of birth, Social Security number, retirement code, address, loan repayments, the amount of participant’s contribution, amount of the Government’s contribution, if the participant is covered by the Federal Employees’ Retirement System Act (FERSA, 5 U.S.C. Chapter 84), and adjustments to contributions. Requests submitted to the Board, or its recordkeeper, to correct information provided by the employing Federal agency will be referred to the employing agency. The reason for this referral is that the Board receives information periodically for the TSP accounts; if the employing agency does not resolve the alleged error, the Board will continue to receive the uncorrected information periodically regardless of a one-time Board correction. The employing agency also has custody of the election form (which is maintained in the Official Personnel Folder). Requests for amendment or correction of records described in this paragraph should be made to the employing agency.
(b) Non-TSP records. (1) Any other individual who wants to correct or amend a record pertaining to him or her shall submit a written request to the Board’s Privacy Act Officer whose address is listed in § 1630.4. The words “Privacy Act—Request to Amend Record” should be written on the letter and the envelope.
(2) The request for amendment or correction of the record should, if possible, state the exact name of the system of records as published in the
(3) If the individual’s identity has not been previously verified, the Board may require documentation of identification as described in § 1630.7.
§ 1630.12 Action on request to amend a record.
(a) For TSP records, the record keeper will acknowledge a request for amendment of a record, which is to be decided by that office in accordance with the chart in § 1630.11, within 10 work days. Requests received by the record keeper which are to be decided by the current or former employing agency will be sent to that agency by the record keeper within 3 work days of the date of receipt. A copy of the transmittal letter will be sent to the requester.
(b) For non-TSP records, the Privacy Act Officer will acknowledge a request for amendment of a record within 10 work days of the date the Board receives it. If a decision cannot be made within this time, the requester will be informed by mail of the reasons for the delay and the date when a reply can be expected, normally within 30 work days from receipt of the request.
(c) The final response will include the decision whether to grant or deny the request. If the request is denied, the response will include:
(1) The reasons for the decision;
(2) The name and address of the official to whom an appeal should be directed;
(3) The name and address of the official designated to assist the individual in preparing the appeal;
(4) A description of the appeal process with the Board; and
(5) A description of any other procedures which may be required of the individual in order to process the appeal.
§ 1630.13 Procedures for review of determination to deny access to or amendment of records.
(a) Individuals who disagree with the refusal to grant them access to or to amend a record about them should submit a written request for review to the Executive Director, Federal Retirement Thrift Investment Board, 77 K Street, NE., Suite 1000, Washington, DC 20002. The words “PRIVACY ACT—APPEAL” should be written on the letter and the envelope. Individuals who need assistance preparing their appeal should contact the Board’s Privacy Act Officer.
(b) The appeal letter must be received by the Board within 30 calendar days from the date the requester received the notice of denial. At a minimum, the appeal letter should identify:
(1) The records involved;
(2) The date of the initial request for access to or amendment of the record;
(3) The date of the Board’s denial of that request; and
(4) The reasons supporting the request for reversal of the Board’s decision.
(c) The Board reserves the right to dispose of correspondence concerning the request to access or amend a record if no request for review of the Board’s decision is received within 180 days of the decision date. Therefore, a request for review received after 180 days may, at the discretion of the Privacy Act Officer, be treated as an initial request to access or amend a record.
§ 1630.14 Appeals process.
(a) Within 20 work days of receiving the request for review, the Executive Director will make a final determination on appeal. If a final decision cannot be made in 20 work days, the Privacy Act Officer will inform the requester of the reasons for the delay and the date on which a final decision can be expected. Such extensions are unusual, and should not exceed an additional 30 work days.
(b) If the original request was for access and the initial determination is reversed, the procedures in § 1630.7 will be followed. If the initial determination is upheld, the requester will be so informed and advised of the right to judicial review pursuant to 5 U.S.C. 552a(g).
(c) If the initial denial of a request to amend a record is reversed, the Board or the record keeper will correct the record as requested and inform the individual of the correction. If the original decision is upheld, the requester will be informed and notified in writing of the right to judicial review pursuant to 5 U.S.C. 552a(g) and the right to file a concise statement of disagreement with the Executive Director. The statement of disagreement should include an explanation of why the requester believes the record is inaccurate, irrelevant, untimely, or incomplete. The Executive Director shall maintain the statement of disagreement with the disputed record, and shall include a copy of the statement of disagreement to any person or agency to whom the record has been disclosed, if the disclosure was made pursuant to § 1630.9.
§ 1630.15 Exemptions.
(a) Pursuant to subsection (k) of the Privacy Act, 5 U.S.C. 552a, the Board may exempt certain portions of records within designated systems of records from the requirements of the Privacy Act, (including access to and review of such records pursuant to this part) if such portions are:
(1) Subject to the provisions of section 552(b)(1) of the Freedom of Information Act, 5 U.S.C. 552;
(2) Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of the Privacy Act, 5 U.S.C. 552a: Provided, however, that if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence;
(3) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18 of the United States Code;
(4) Required by statute to be maintained and used solely as statistical records;
(5) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosures of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence;
(6) Test or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(7) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence.
(b) Those designated systems of records which are exempt from the requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f) of the Privacy Act, 5 U.S.C. 552a, include FRTIB-2, Personnel Security Investigation Files; FRTIB-13, Fraud and Forgery Records; FRTIB-14, FRTIB Legal Case Files; FRTIB-15, Internal Investigations of Harassment and Hostile Work Environment Allegations; and FRTIB-23, Insider Threat Program Records.
(c) Nothing in this part will allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
§ 1630.16 Fees.
(a) Individuals will not be charged for:
(1) The search and review of the record; and
(2) Copies of ten (10) or fewer pages of a requested record.
(b) Records of more than 10 pages will be photocopied for 15 cents a page. If the record is larger than 8
(c) Fees must be paid in full before requested records are disclosed. Payment shall be by personal check or money order payable to the Federal Retirement Thrift Investment Board, and mailed or delivered to the record keeper or to the Privacy Act Officer, depending upon the nature of the request, at the address listed in § 1630.4.
(d) The Executive Director or the Privacy Act Officer may waive the fee if:
(1) The cost of collecting the fee exceeds the amount to be collected; or
(2) The production of the copies at no charge is in the best interest of the Board.
(e) A receipt will be furnished on request.
§ 1630.17 Federal agency requests.
Employing agencies needing automated data processing services from the Board in order to reconcile agency TSP records for TSP purposes may be charged rates based upon the factors of:
(a) Fair market value;
(b) Cost to the TSP; and
(c) Interests of the participants and beneficiaries.
§ 1630.18 Penalties.
(a) Title 18, U.S.C. 1001, Crimes and Criminal Procedures, makes it a criminal offense, subject to a maximum fine of $10,000 or imprisonment for not more than five years, or both, to knowingly and willfully make or cause to be made any false or fraudulent statements or representation in any matter within the jurisdiction of any agency of the United States. Section (i)(3) of the Privacy Act, 5 U.S.C. 552a(i)(3), makes it a misdemeanor, subject to a maximum fine of $5,000 to knowingly and willfully request or obtain any record concerning an individual under false pretenses. Sections (i) (1) and (2) of 5 U.S.C. 552a provide penalties for violations by agency employees of the Privacy Act or regulations established thereunder.
(b) [Reserved]
PART 1631—AVAILABILITY OF RECORDS
Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552
§ 1631.1 Definitions.
(a) Board means the Federal Retirement Thrift Investment Board.
(b) Agency means agency as defined in 5 U.S.C. 552(e).
(c) Executive Director means the Executive Director of the Federal Retirement Thrift Investment Board, as defined in 5 U.S.C. 8401(13) and as further described in 5 U.S.C. 8474.
(d) FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.
(e) FOIA Officer means the Board’s General Counsel or his or her designee.
(f) General Counsel means the General Counsel of the Federal Retirement Thrift Investment Board.
(g) Working days or workdays means those days when the Board is open for the conduct of Government business, and does not include Saturdays, Sundays, and Federal holidays.
(h) Requester means a person making a FOIA request.
(i) Submitter means any person or entity which provides confidential commercial information to the Board. The term includes, but is not limited to, corporations, state governments, and foreign governments.
(j) FOIA Public Liaison means the Board official who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
(k) Requestor category means one of the three categories that agencies place requesters in for the purpose of determining whether a requester will be charged fees for search, review, and/or duplication, including:
(1) Commercial use requestors,
(2) Non-commercial scientific or educational institutions or news media requesters, and
(3) All other requestors.
(l) Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied including that the information is in the public interest and is not requested for a commercial interest.
§ 1631.2 Purpose and scope.
This subpart contains the regulations of the Federal Retirement Thrift Investment Board, implementing 5 U.S.C. 552. The regulations of this subpart describe the procedures by which records may be obtained from all organizational units within the Board and from its recordkeeper. Official records of the Board, except those already published in bulk by the Board, available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public only as prescribed by this subpart. To the extent that it is not prohibited by other laws the Board also will make available records which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the interest of the Thrift Savings Plan.
§ 1631.3 Organization and functions.
(a) The Federal Retirement Thrift Investment Board was established by the Federal Employees’ Retirement System Act of 1986 (Pub. L. 99-335, 5 U.S.C. 8401 et seq.). Its primary function is to manage and invest the Thrift Savings Fund for the exclusive benefit of its participants (e.g., participating Federal employees, Federal judges, and Members of Congress). The Board is responsible for investment of the assets of the Thrift Savings Fund and the management of the Thrift Savings Plan. The Board consists of:
(1) The five part-time members who serve on the Board;
(2) The Office of the Executive Director;
(3) The Office of Participant Experience;
(4) The Office of General Counsel;
(5) The Office of Investments;
(6) The Office of Planning and Risk;
(7) The Office of External Affairs;
(8) The Office of Chief Financial Officer;
(9) The Office of Resource Management; and
(10) The Office of Technology Services.
(b) The Board has no field organization; however, it provides for its recordkeeping responsibility by contract or interagency agreement. The recordkeeper may be located outside of the Washington, DC area. Thrift Savings Plan records maintained for the Board by its recordkeeper are Board records subject to these regulations. Board offices are presently located at 77 K Street, NE., Suite 1000, Washington, DC 20002.
§ 1631.4 Proactive disclosure of Board records.
(a) Records that are required by the FOIA to be made available for public inspection and copying may be accessed through the Board’s Web site at https://www.frtib.gov. The Board is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Board shall ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. The Board has a FOIA Public Liaison who can assist individuals in locating records particular to a component. The FOIA Public Liaison can be contacted at [email protected].
(b) The FOIA Officer shall maintain an index of Board regulations, directives, bulletins, and published materials.
(c) The FOIA officer shall also maintain a file open to the public, which shall contain copies of all grants or denials of FOIA requests, appeals, and appeal decisions by the Executive Director. The materials shall be filed by chronological number of request within each calendar year, indexed according to the exceptions asserted, and, to the extent feasible, indexed according to the type of records requested.
§ 1631.5 Records of other agencies.
Requests for records that originated in another agency and that are in the custody of the Board may, in appropriate circumstances, be referred to that agency for consultation or processing, and the requestor shall be notified of the part or parts of the request that have been referred and provided with a point of contact within the receiving agency.
§ 1631.6 How to request records—form and content.
(a) A request made under the FOIA may be submitted by one of the following methods:
(1) In writing addressed to FOIA Officer, Federal Retirement Thrift Investment Board, 77 K Street NE., Suite 1000, Washington, DC 20002. The words “FOIA Request” should be clearly marked on both the letter and the envelope.
(2) By electronic mail at [email protected]. The subject should include the words “FOIA Request.”
(3) By facsimile, Attn: FOIA Officer, at 202-942-1676. The facsimile should be clearly marked with the words “FOIA Request.”
(b) Each request must reasonably describe the record(s) sought, including, when known: Entity/individual originating the record, date, subject matter, type of document, location, and any other pertinent information which would assist in promptly locating the record(s). Each request should also describe the type of entity the requester is for fee purposes. See § 1631.11.
(c) When a request is not considered reasonably descriptive, or requires the production of voluminous records, or places an extraordinary burden on the Board, seriously interfering with its normal functioning to the detriment of the Thrift Savings Plan, the Board may require the person or agent making the FOIA request to confer with a Board representative in order to attempt to verify, and, if possible, narrow the scope of the request.
(d) Upon initial receipt of the FOIA request, the FOIA Officer will determine which official or officials within the Board shall have the primary responsibility for collecting and reviewing the requested information and drafting a proposed response.
(e) Any Board employee or official who receives a FOIA request shall promptly forward it to the FOIA Officer, at the above address. Any Board employee or official who receives an oral request for records shall inform the requestor that FOIA requires requests to be in writing according to the procedures set out herein.
(f) When a person requesting expedited access to records has demonstrated a compelling need, or when the Board has determined that it is appropriate to expedite its response, the Board will process the request ahead of other requests.
(g) To demonstrate compelling need in accordance with paragraph (f) of this section, the requester must submit a written statement that contains a certification that the information provided therein is true and accurate to the best of the requester’s knowledge and belief. The statement must demonstrate that:
(1) The failure to obtain the record on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) The requester is a person primarily engaged in the dissemination of information, and there is an urgent need to inform the public concerning an actual or alleged Federal Government activity that is the subject of the request.
§ 1631.7 Initial determination.
The FOIA Officer shall have the authority to approve or deny requests received pursuant to these regulations. The decision of the FOIA Officer shall be final, subject only to administrative review as provided in § 1631.10.
§ 1631.8 Prompt response.
(a)(1) When the FOIA Officer receives a request for expedited processing, he or she will determine within 10 work days whether to process the request on an expedited basis.
(2) When the FOIA Officer receives a request for records which he or she, in good faith, believes is not reasonably descriptive, he or she will so advise the requester within 5 work days. The time limit for processing such a request will not begin until receipt of a request that reasonably describes the records being sought.
(b) The FOIA Officer will either approve or deny a reasonably descriptive request for records within 20 workdays after receipt of the request. Whenever the Board cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined in the FOIA, and the Board extends the time limit on that basis, the Board must, 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 the Board estimates processing of the request will be completed. Where the extension exceeds 10 working days, the Board must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request through the Board’s FOIA Public Liaison or FOIA Officer.
(c) When additional time is required for one of the reasons stated in paragraph (b) of this section, the FOIA Officer will extend this time period for an additional 10 work days by written notice to the requester. If the Board will be unable to process the request within this additional time period, the requester will be notified and given the opportunity to—
(1) Limit the scope of the request; or
(2) Arrange with the FOIA Officer an alternative time frame for processing the request.
§ 1631.9 Responses—form and content.
(a) When a requested record has been identified and is available, the FOIA officer shall notify the person making the request as to where and when the record is available for inspection or that copies will be made available. The notification shall also provide the requestor with an estimated amount of fees assessed under § 1631.13 of this part, including a breakdown of the fees for search, review, and/or duplication.
(b) A denial or partial denial of a request for a record shall be in writing signed by the FOIA Officer and shall include:
(1) The name and title of the person making the determination;
(2) A statement of fees assessed, if any; and
(3) A reference to the specific exemption under the FOIA authorizing the withholding of the record, and a brief explanation of how the exemption applies to the record withheld; or
(4) If appropriate, a statement that, after diligent effort, the requested records have not been found or have not been adequately examined during the time allowed by § 1631.8, and that the denial will be reconsidered as soon as the search or examination is complete; and
(5) A statement that the denial may be appealed to the Executive Director within 90 calendar days of receipt of the denial or partial denial, that the requestor has the option to contact the Agency’s FOIA Liaison at [email protected], and that the requestor has the option to contact the Office of Government Information Service (OGIS) as a non-exclusive alternative to litigation.
(c) If, after diligent effort, existing requested records have not been found, or are known to have been destroyed or otherwise disposed of, the FOIA Officer shall so notify the requester.
§ 1631.10 Appeals to the Executive Director from initial denials.
(a) A requestor may appeal any adverse determinations to the Executive Director. The appeal must be made in writing and for it to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days of receipt of the denial or partial denial. The appeal should be addressed to the Executive Director, Federal Retirement Thrift Investment Board, 77 K Street NE., Suite 1000, Washington, DC 20002, and should be clearly labeled as a “Freedom of Information Act Appeal.”
(b)(1) The Executive Director will act upon the appeal of a denial of a request for expedited processing within 5 work days of its receipt.
(2) The Executive Director will act upon the appeal of a denial of a request for records within 20 work days of its receipt.
(c) The Executive Director will decide the appeal in writing and mail the decision to the requester.
(d) If the appeal concerns an expedited processing request and the decision is in favor of the person making the request, the Executive Director will order that the request be processed on an expedited basis. If the decision concerning a request for records is in favor of the requester, the Executive Director will order that the subject records be promptly made available to the person making the request.
(e) If the appeal of a request for expedited processing of records is denied, in whole or in part, the Executive Director’s decision will set forth the basis for the decision. If the appeal of a request for records is denied, in whole or in part, the Executive Director’s decision will set forth the exemption relied on and a brief explanation of how the exemption applies to the records withheld and the reasons for asserting it, if different from the reasons described by the FOIA Officer under § 1631.9. The denial of a request for records will state that the person making the request may, if dissatisfied with the decision on appeal, file a civil action in Federal court. (A Federal court does not have jurisdiction to review a denial of a request for expedited processing after the Board has provided a complete response to the request.) The denial will also inform the requester of the mediation services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the FOIA Officer’s decision is remanded or modified on appeal, the requestor will be notified of that determination in writing.
(f) No personal appearance, oral argument, or hearing will ordinarily be permitted in connection with an appeal of a request for expedited processing or an appeal for records.
(g) On appeal of a request concerning records, the Executive Director may reduce any fees previously assessed.
(h) Seeking mediation and dispute resolution services through OGIS is a voluntary process. If the requestor chooses to use these services, the Board will work with OGIS to resolve disputes between requestors and the Board as a non-exclusive alternative to litigation.
(i) Before seeking review by a court of the FOIA Officer’s adverse determination, a requestor generally must first submit a timely administrative appeal to the Executive Director.
§ 1631.11 Fees to be charged—categories of requesters.
(a) In general, the Board will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees there are three categories of FOIA requestors—commercial use requestors, non-commercial scientific or educational institutions or news media requesters, and all other requestors.
(1) Fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use. Commercial users are not entitled to two hours of free search time or 100 free pages of reproduction of documents. The full allowable direct cost of searching for, and reviewing records will be charged even if there is ultimately no disclosure of records. A commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The Board’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information. The Board will notify requesters of their placement in this category.
(2) Fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by a representative of the news media. A representative of the news media is 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. The term “news” means information that is about current events or that would be of current interest to the public. The Board will advise requesters of their placement in this category.
(3) Fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research. A noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (a)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which 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. The Board will advise requesters of their placement in this category.
(4) For any request which does not meet the criteria contained in paragraphs (a)(1) through (3) of this section, fees shall be limited to reasonable standard charges for document search and duplication, except that the first 100 pages of reproduction and the first two hours of search time will be furnished without charge. If computer search time is required, the first two hours of computer search time will be based on the hourly cost of operating the central processing unit and the operator’s hourly salary plus 23.5 percent. When the cost of the computer search, including the operator time and the cost of operating the computer to process the request, equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, the Board shall begin assessing charges for computer search. Requests from individuals requesting records about themselves filed in the Board’s systems of records shall continue to be treated under the provisions of the Privacy Act of 1974, which permit fees only for reproduction. The Board’s fee schedule is set out in § 1631.14 of this part.
(b) Except for requests that are for a commercial use, the Board may not charge for the first two hours of search time or for the first 100 pages of reproduction. However, a requestor may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When the Board believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Board may aggregate any such requests and charge accordingly. For example, it would be reasonable to presume that multiple requests of this type made within a 30 calendar day period had been made to avoid fees. For requests made over a long period, however, the Board must have a reasonable basis for determining that aggregation is warranted in such cases. Before aggregating requests from more than one requester, the Board must have a reasonable basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case may the Board aggregate multiple requests on unrelated subjects from one requester.
(c) In accordance with the prohibition of section (4)(A)(iv) of the Freedom of Information Act, as amended, the Board shall not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself.
(1) For commercial use requesters, if the direct cost of searching for, reviewing for release, and duplicating the records sought would not exceed $25, the Board shall not charge the requester any costs.
(2) For requests from representatives of news media or educational and noncommercial scientific institutions, excluding the first 100 pages which are provided at no charge, if the duplication cost would not exceed $25, the Board shall not charge the requester any costs.
(3) For all other requests not falling within the category of commercial use requests, representatives of news media, or educational and noncommercial scientific institutions, if the direct cost of searching for and duplicating the records sought, excluding the first two hours of search time and first 100 pages which are free of charge, would not exceed $25, the Board shall not charge the requester any costs.
(d) Except as provided in paragraphs (d)(1) through (d)(3) of this section, the Board will not assess any search fees (or duplication fees for requesters under (a)(2) or (3) of this section) if the Board fails to comply with the time limits set forth in § 1631.8.
(1) If the Board determines that “unusual circumstances,” as defined in the FOIA, apply and the Board provided a timely written notice to the requester in accordance with § 1631.8, the Board is excused for an additional 10 days from the restrictions of this section.
(2) If the Board has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Board may charge search fees (or duplication fees for requesters under (a)(2) or (3) of this section) if the Board provided a timely written notice to the requester in accordance with § 1631.8 and the Board has discussed with the requester, or made not less than 3 good-faith attempts to do so, how the requester could effectively limit the scope of the request.
(3) If a court has determined that exceptional circumstances exist, as defined in the FOIA, the Agency’s delay shall be excused in accordance with the court order.
§ 1631.12 Waiver or reduction of fees.
(a) The Board may waive all fees or levy a reduced fee when disclosure of the information requested is deemed to be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Board or Federal Government and is not primarily in the commercial interest of the requester. In making its decision on waiving or reducing fees, the Board will consider the following factors:
(1) Whether the subject of the requested records concerns the operations or activities of the Board or the Government,
(2) Whether the disclosure is likely to contribute to an understanding of Government operations or activities (including those of the Board),
(3) Whether the disclosure is likely to contribute significantly to public understanding of TSP or Government operations or activities,
(4) Whether the requester has a commercial interest that would be furthered by the requested disclosure, and
(5) Whether the magnitude of 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.
(b) A fee waiver request must indicate the existence and magnitude of any commercial interest that the requester has in the records that are the subject of the request.
§ 1631.13 Prepayment of fees over $250.
(a) When the Board estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the Board may require a requester to make an advance payment of the entire fee before continuing to process the request.
(b) When a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days of the date of the billing), the Board may require the requester to pay the full amount owed plus any applicable interest as provided in § 1631.14(d), and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.
(c) When the Board acts under paragraph (a) or (b) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 20 working days from the receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after the Board has received fee payments under paragraph (a) or (b) of this section.
§ 1631.14 Fee schedule.
(a) Manual searches for records. The Board will charge at the salary rate(s) plus 23.5 percent (to cover benefits) of the employee(s) conducting the search. The Board may assess charges for time spend searching, even if the Board fails to locate the records or if records located are determined to be exempt from disclosure.
(b) Computer searches for records. The Board will charge the actual direct cost of providing the service. This will include the cost of operating the central processing unit (CPU) for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and operator/programmer salary, plus 23.5 percent, apportionable to the search. The Board may assess charges for time spent searching, even if the Board fails to locate the records or if records located are determined to be exempt from disclosure.
(c) Duplication costs. (1) For copies of documents reproduced on a standard office copying machine in sizes up to 8
(2) The fee for reproducing copies of records over 8
(3) For copies prepared by computer, such as tapes, printouts, or CD’s the Board shall charge the actual cost, including operator time, of producing the tapes, printouts, or CD’s. If the Board estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.
(4) For other methods of reproduction or duplication, the Board shall charge the actual direct costs of producing the document(s). If the Board estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.
(d) Interest may be charged to those requesters who fail to pay fees charged. The Board may begin assessing interest charges on the amount billed starting on the 31st calendar day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code, and it will accrue from the date of the billing.
(e) The Board shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. The Board may choose to contract with private sector services to locate, reproduce, and disseminate records in response to FOIA requests when that is the most efficient and least costly method. When documents responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs, such as, but not limited to, the Government Printing Office or the National Technical Information Service, the Board will inform requesters of the steps necessary to obtain records from those sources.
§ 1631.15 Information to be disclosed.
(a) In general, all records of the Board are available to the public, as required by the Freedom of Information Act. However, the Board claims the right, where it is applicable, to withhold material under the provisions specified in the Freedom of Information Act as amended (5 U.S.C. 552(b)). Nevertheless, the Board will consider whether partial disclosure of information is possible whenever full disclosure of the record is not and take reasonable steps to segregate and release nonexempt information.
(b) Records from non-U.S. Government source. (1)(i) Board personnel will generally consider two of the nine exemptions in the FOIA in deciding whether to withhold from disclosure material from a non-U.S. Government source.
(ii) Exemption 4 permits withholding of “trade secrets and commercial or financial information obtained from a person as privileged or confidential.” The term “person” refers to individuals as well as to a wide range of entities, including corporations, banks, state governments, agencies of foreign governments, and Native American tribes or nations, who provide information to the government. Exemption 6 permits withholding certain information, the disclosure of which ”would constitute a clearly unwarranted invasion of personal privacy.”
(2)(i) Exemption 4. Commencing January 1, 1988, the submitter of confidential commercial information must, at the time the information is submitted to the Board or within 30 calendar days of such submission, designate any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. The submitter as part of its submission, must explain the rationale for the designation of the information as commercial and confidential.
(ii) Confidential commercial information means records provided to the Board by a submitter that arguably contains material exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(iii) After January 1, 1988, a submitter who does not designate portions of a submission as confidential commercial information waives that basis for nondisclosure unless the Board determines that it has substantial reason to believe that disclosure of the requested records would result in substantial harm to the competitive position of the submitter.
(3) When the Board determines that it has substantial reason to believe that disclosure of the requested records would result in substantial competitive harm to the submitter, and has no designation from the submitter, it shall notify the submitter of the following:
(i) That a FOIA request has been received seeking the record,
(ii) That disclosure of the record may be required,
(iii) That disclosure of the record could result in competitive harm to the submitter,
(iv) That the submitter has a period of seven workdays from date of notice within which it or a designee may object to the disclosure its records, and
(v) That a detailed explanation should be submitted setting forth all grounds as to why the disclosure would result in substantial competitive harm, such as, the general custom or usage in the business of the information in the record, the number and situation of the persons who have access to the record, the type and degree of risk of financial injury that release would cause, and the length of time the record needs to be kept confidential.
(4) In exceptional circumstances, the Board may extend by seven workdays the time for a submitter’s response for good cause.
(5) The Board shall give careful consideration to all specified grounds for nondisclosure prior to making an administrative determination on the issue of competitive harm.
(6) Should the Board determine to disclose the requested records, it shall provide written notice to the submitter, explaining briefly why the submitter’s objections were not sustained and setting forth the date for disclosure, which date may be less than 10 calendar days after the date of the letter to the submitter.
(7) A submitter who provided records to the Board prior to January 1, 1988, and did not designate which records contain confidential commercial information, shall be notified as provided in § 1631.15(b)(3). After making such notification, the Board will follow the procedures set forth in § 1631.15(b)(4)-(6).
(8) The Board will, as a general rule, look favorably upon recommendations for withholding information about ideas, methods, and processes that are unique; about equipment, materials, or systems that are potentially patentable; or about a unique use of equipment which is specifically outlined.
(9) The Board will not withhold information that is known through custom or usage in the relevant trade, business, or profession, or information that is generally known to any reasonably educated person. Self-evident statements or reviews of the general state of the art will not ordinarily be withheld.
(10) The Board will withhold all cost data submitted, except the total estimated costs from each year of a contract. It will release these total estimated costs and ordinarily release explanatory material and headings associated with the cost data, withholding only the figures themselves. If a contractor believes that some of the explanatory material should be withheld, that material must be identified and a justification be presented as to why it should not be released.
(11) Exemption 6. This exemption is not a blanket exemption for all personal information submitted by a non-U.S. Government source. The Board will balance the need to keep a person’s private affairs from unnecessary public scrutiny with the public’s right to information on Board records. As a general practice, the Board will release information about any person named in a contract itself or about any person who signed a contract as well as information given in a proposal about any officer of a corporation submitting that proposal. Depending upon the circumstances, the Board may release most information in resumes concerning employees, including education and experience. Efforts will be made to identify information that should be deleted and offerors are urged to point out such material for guidance. Any information in the proposal, such as the names of staff persons, which might, if released, constitute an unwarranted invasion of personal privacy if released should be identified and a justification for non-release provided in order to receive proper consideration.
§ 1631.16 Exemptions.
The Freedom of Information Act exempts from all of its publication and disclosure requirements nine categories of records which are described in 5 U.S.C. 552(b). These categories include such matters as national defense and foreign policy information, investigatory files, internal procedures and communications, materials exempted from disclosure by other statutes, information given in confidence and matters involving personal privacy.
§ 1631.17 Deletion of exempted information.
Where requested records contain matters which are exempted under 5 U.S.C. 552(b) but which matters are reasonably segregable from the remainder of the records, they shall be disclosed by the Board with deletions. To each such record, the Board shall indicate, if technically feasible, the precise amount of information deleted and the exemption under which the deletion is made, at the place in the records where the deletion is made, unless including that indication would harm an interest protected by the exemption.
§ 1631.18 Annual report.
The Executive Director will submit annually, on or before February 1, a Freedom of Information report covering the preceding fiscal year to the Attorney General of the United States. The report will include matters required by 5 U.S.C. 552(e).
§ 1631.19 Preservation of records.
(a) The Board must preserve all correspondence pertaining to the requests that it receives as well as copies of all requested records, until disposition or destruction is authorized by the Board’s General Records Schedule of the National Archives and Records Administration (NARA) or other NARA-approved records retention schedule.
(b) Materials that are identified as responsive to a FOIA request will not be disposed of or destroyed while the request or a related appeal of lawsuit is pending. This is true even if they would otherwise be authorized for disposition under the Board’s General Records Schedule of NARA or other NARA-approved records schedule.
Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities
§ 1631.30 Applicability.
This subpart applies to demands and requests to a Board employee for factual or expert testimony relating to official information, or for production of official records or information, in legal proceedings in which neither the Board or nor the Board employee is a named party. However, it does not apply to:
(a) Demands upon, or requests for, a current Board 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 Board;
(b) 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. 552(a); and
(c) Congressional demands and requests for testimony of records.
§ 1631.31 Definitions.
Demand means a subpoena, or an order 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 a Board employee that is issued in a legal proceeding.
General Counsel means the General Counsel of the Board or his or her delegatee.
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.
Board employee or employee means:
(1) Any current or former officer or employee of the Board;
(2) Any other individual hired through contractual agreement by or on behalf of the Board or who has performed or is performing services under such an agreement for the Board; and
(3) Any individual who served or is serving in any consulting or advisory capacity to the Board, whether formal or informal.
(4) Provided, that this definition does not include persons who are no longer employed by the Board and who are retained or hired as expert witnesses or who agree to testify about general matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the Board.
Records or official records and information mean:
(1) All documents and materials which are Board records under the Freedom of Information Act, 5 U.S.C. 552;
(2) All other documents and materials contained in Board files; and
(3) All other information or materials acquired by a Board employee in the performance of his or her official duties or because of his or her official status.
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 or other competent authority.
Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, recorded interviews, and statements made by an individual in connection with a legal proceeding.
§ 1631.32 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.
§ 1631.33 Factors the General Counsel will consider.
(a) 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 an appropriate demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether:
(1) Allowing such testimony or production of records would assist or hinder the Board in performing its statutory duties or use Board resources in a way that will interfere with the ability of Board employees to do their regular work;
(2) Allowing such testimony or production of records would be in the best interest of Thrift Savings Plan participants and beneficiaries;
(3) The records or testimony can be obtained from other sources;
(4) The Board has an interest in the decision that may be rendered in the legal proceeding;
(5) The demand improperly seeks to compel a Board employee to serve as an expert witness for a private interest;
(6) The demand improperly seeks to compel a Board employee to testify as to a matter of law;
(7) Disclosure would result in the Board appearing to favor one private litigant over another private litigant;
(8) Disclosure relates to documents that were produced by another government agency; and
(9) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose.
(b) The factors listed in paragraph (a) of this section are illustrative and not exhaustive.
§ 1631.34 Filing requirements for demands or requests for testimony.
You must comply with the following requirements whenever you send a demand or request for testimony to the Board or a Board employee. If you serve a subpoena on the Board or a Board employee that is not accompanied by a written request that complies with the requirements in this section, the General Counsel may oppose the subpoena on grounds that your request was not submitted in accordance with this subpart.
(a) Your request must be in writing and 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 specific description of the substance of the testimony sought;
(4) 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 a Board employee, such as a retained expert;
(5) An explanation as to why no document could be provided and used in lieu of testimony;
(6) If oral testimony is sought, an explanation as to why a written declaration or affidavit cannot be used in lieu of oral testimony;
(7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested 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 with each Board employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(b) The Board reserves the right to require additional information to complete your request where appropriate.
(c) Your request should be submitted at least 45 days before the date that the testimony is required. Requests submitted in less than 45 days before testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for requesting expedited processing.
(d) 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 your request.
§ 1631.35 Certification (authentication) of copies of records.
The Board may certify that copies of records are true copies in order to facilitate their use as evidence. The records custodian or other qualified individual shall certify copies of books, records, papers, writings, and documents by attaching a written declaration that complies with current Federal Rules of Evidence. No seal or notarization shall be required.
§ 1631.36 Fees.
(a) Generally. The Board may condition the production, disclosure, or release of records or the appearance and testimony of a Board employee upon advance payment of a reasonable estimate of the costs to the Board.
(b) Fees for records. Fees for the production, disclosure, or release of records are the same as those charged by the Board in its Freedom of Information Act regulations in subpart A of this part.
(c) Fees for oral testimony. 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 court closest to the location where the witness will appear. Such fees will include cost of time spent by the witness to prepare for testimony, in travel, and for attendance in the legal proceeding.
(d) Fees for written testimony. For time spent by each employee preparing affidavits or declarations (including declarations to authenticate records), the Board may assess charges at the rate described in § 1631.14(a).
Subpart C—Administrative Subpoenas
The Executive Director or General Counsel may issue subpoenas pursuant to 5 U.S.C. 8480. The General Counsel may delegate this authority to a Deputy General Counsel, Associate General Counsel, or Assistant General Counsel.
§ 1631.41 Production of records.
A subpoena may require the production of designated books, documents, records, electronically stored information, or tangible materials in the possession or control of the subpoenaed party when the individual signing the subpoena has determined that production is necessary to carry out any of the Agency’s functions.
§ 1631.42 Service.
(a) Return of service. Each subpoena shall be accompanied by a Return of Service certificate stating the date and manner of service and the names of the persons served.
(b) Methods of service. Subpoenas shall be served by one of the following methods:
(1) Certified or registered mail, return receipt requested to the principal place of business or the last known residential address of the subpoenaed party.
(2) Fax or electronic transmission to the subpoenaed party or the subpoenaed party’s counsel, provided the subpoenaed party gives prior approval.
(3) Personal delivery at the principal place of business or residence of the subpoenaed party during normal business hours.
§ 1631.43 Enforcement.
Upon the failure of any party to comply with a subpoena, the General Counsel shall request that the Attorney General seek enforcement of the subpoena in the appropriate United States district court.
PART 1632—RULES REGARDING PUBLIC OBSERVATION OF MEETINGS
§ 1632.1 Purpose and scope.
This part is issued by the Federal Retirement Thrift Investment Board (Board) under section 552b of title 5 of the United States Code, the Government in the Sunshine Act, to carry out the policy of the Act that the public is entitled to the fullest practicable information regarding the decision making processes of the Board while at the same time preserving the rights of individuals and the ability of the Board to carry out its responsibilities. These regulations fulfill the requirement of subsection (g) of the Act that each agency subject to the provisions of the Act shall promulgate regulations to implement the open meeting requirements of subsections (b) through (f) of the Act.
§ 1632.2 Definitions.
For purposes of this part, the following definitions shall apply:
(a) The term Act means the Government in the Sunshine Act, 5 U.S.C. 552b.
(b) The term Board means the Federal Retirement Thrift Investment Board and subdivisions thereof.
(c) The term meeting means the deliberations of at least the number of individual agency members required to take action on behalf of the Board where such deliberations determine or result in the joint conduct or disposition of official Board business. However, this term does not include—
(1) Deliberations required or permitted by subsection (d) or (e) of the Act (relating to decisions to close all or a portion of a meeting, or to decisions on the timing or content of an announcement of a meeting), or
(2) The conduct or disposition of official agency business by circulating written material to individual members.
(d) The term number of individual agency members required to take action on behalf of the agency means three members.
(e) The term member means a member of the Board appointed under section 101 of the Federal Employees’ Retirement System Act of 1986, 5 U.S.C. 8472.
(f) The term public observation means that the public shall have the right to listen and observe but not the right to participate in the meeting or to record any of the meeting by means of cameras or electronic or other recording devices unless approval in advance is obtained from the Secretary of the Board.
§ 1632.3 Conduct of agency business.
Members shall not jointly conduct or dispose of official Board business other than in accordance with this part.
§ 1632.4 Meetings open to public observation.
(a) Except as provided in § 1632.5 of this part, every portion of every meeting of the agency shall be open to public observation.
(b) The Freedom of Information Act, 5 U.S.C. 552, and the Board’s implementing regulations, 5 CFR part 1611, shall govern the availability to the public of copies of documents considered in connection with the Board’s discussion of agenda items for a meeting that is open to public observation.
(c) The annual Board meeting schedule will be maintained on frtib.gov. In addition, agency announcements of meetings open to public observation will be published in the
§ 1632.5 Exemptions.
(a) Except in a case where the Board finds that the public interest requires otherwise, the Board may close a meeting or a portion or portions of a meeting under the procedures specified in § 1632.7 or § 1632.8 of this part, and withhold information under the provisions of §§ 1632.6, 1632.7, 1632.8, or 1632.11 of this part, where the Board properly determines that such meeting or portion of its meeting or the disclosure of such information is likely to:
(1) Disclose matters that are:
(i) Specifically authorized under criteria established by an Executive Order to be kept secret in the interests of national defense or foreign policy, and
(ii) In fact properly classified pursuant to such Executive Order;
(2) Relate solely to internal personnel rules and practices;
(3) Disclose matters specifically exempted from disclosure by statute (other than section 552 of title 5 of the United States Code), provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(ii) Established particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Involve accusing any person of a crime, or formally censuring any person;
(6) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by a Federal agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement personnel;
(8) Disclose information contained in or related to examination, operating, or condition reports prepared by or on behalf of, or for the use of the Board or other Federal agency responsible for the regulation or supervision of financial institutions;
(9) Disclose information the premature disclosure of which would:
(i) Be likely to (A) lead to significant speculation in currencies, securities, or commodities, or (B) significantly endanger the stability of any financial institution; or
(ii) Be likely to significantly frustrate implementation of a proposed action except that paragraph (a)(9)(ii) of this section shall not apply in any instance where the Board has already disclosed to the public the content or nature of its proposed action, or where the Board is required by law to make such disclosure on its own initiative prior to taking final action on such proposal; or
(10) Specifically concern the issuance of a subpoena, participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition of a particular case of formal agency adjudication pursuant to the procedures in section 554 of title 5 of the United States Code or otherwise involving a determination on the record after opportunity for a hearing.
(b) [Reserved]
§ 1632.6 Public announcement of meetings.
(a) Except as otherwise provided by the Act, public announcement of meetings open to public observation and meetings to be partially or completely closed to public observation pursuant to § 1632.7 of this part will be made at least one week in advance of the meeting. Except to the extent such information is determined to be exempt from disclosure under § 1632.5 of this part, each such public announcement will state the time, place and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated to respond to requests for information about the meeting.
(b) If a majority of the members of the Board determines by a recorded vote that Board business requires that a meeting covered by paragraph (a) of this section be called at a date earlier than that specified in paragraph (a) of this section, the Board shall make a public announcement of the information specified in paragraph (a) of this section at the earliest practicable time.
(c) Changes in the subject matter of a publicly announced meeting, or in the determination to open or close a publicly announced meeting or any portion of a publicly announced meeting to public observation, or in the time or place of a publicly announced meeting made in accordance with the procedures specified in § 1632.9 of this part, will be publicly announced at the earliest practicable time.
(d) Public announcements required by this section will be posted at the Board’s External Affairs Office and may be made available by other means or at other locations as may be desirable.
(e) Immediately following each public announcement required by this section, notice of the time, place and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding announcements and the name and telephone number of the official designated by the Board to respond to requests about the meeting, shall also be submitted for publication in the
§ 1632.7 Meetings closed to public observation.
(a) A meeting or a portion of a meeting will be closed to public observation, or information as to such meeting or portion of a meeting will be withheld, only by recorded vote of a majority of the Members of the Board when it is determined that the meeting or the portion of the meeting or the withholding of information qualifies for exemption under § 1632.5. Votes by proxy are not allowed.
(b) Except as provided in paragraph (c) of this section, a separate vote of the Members of the Board will be taken with respect to the closing or the withholding of information as to each meeting or portion thereof which is proposed to be closed to public observation or with respect to which information is proposed to be withheld pursuant to this section.
(c) A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to public observation or with respect to any information concerning such series of meetings proposed to be withheld, so long as each meeting or portion thereof in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series.
(d) Whenever any person’s interests may be directly affected by a portion of the meeting for any of the reasons referred to in exemption (a)(5), (a)(6) or (a)(7) of § 1632.5 of this part, such person may request in writing to the Secretary of the Board that such portion of the meeting be closed to public observation. The Secretary, or in his or her absence, the Acting Secretary of the Board, shall transmit the request to the members and upon the request of any one of them a recorded vote shall be taken whether to close such meeting to public observation.
(e) Within one day of any vote taken pursuant to paragraphs (a) through (d) of this section, the agency will make publicly available at the Board’s External Affairs Office a written copy of such vote reflecting the vote of each member on the question. If a meeting or a portion of a meeting is to be closed to public observation, the Board, within one day of the vote taken pursuant to paragraphs (a) through (d) of this section, will make publicly available at the Board’s External Affairs Office a full written explanation of its action closing the meeting or portion of the meeting together with a list of all persons expected to attend the meeting and their affiliation, except to the extent such information is determined by the Board to be exempt from disclosure under subsection (c) of the Act and § 1632.5 of this part.
(f) Any person may request in writing to the Secretary of the Board that an announced closed meeting, or portion of the meeting, be held open to public observation. The Secretary, or in his or her absence, the Acting Secretary of the Board, will transmit the request to the members of the Board and upon the request of any member a recorded vote will be taken whether to open such meeting to public observation.
§ 1632.8 Changes with respect to publicly announced meetings.
The subject matter of a meeting or the determination to open or close a meeting or a portion of a meeting to public observation may be changed following public announcement under § 1632.6 only if a majority of the Members of the Board determines by a recorded vote that that agency business so requires and that no earlier announcement of the change was possible. Public announcement of such change and the vote of each member upon such change will be made pursuant to § 1632.6(c). Changes in time, including postponements and cancellations of a publicly announced meeting or portion of a meeting or changes in the place of a publicly announced meeting will be publicly announced pursuant to § 1632.6(c) by the Secretary of the Board or, in the Secretary’s absence, the Acting Secretary of the Board.
§ 1632.9 Certification of General Counsel.
Before every meeting or portion of a meeting closed to public observation under § 1632.7 of this part, the General Counsel, or in the General Counsel’s absence, the Acting General Counsel, shall publicly certify whether or not in his or her opinion the meeting may be closed to public observation and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting and the persons present, will be retained for the time prescribed in § 1632.10(d).
§ 1632.10 Transcripts, recordings, and minutes.
(a) The Board will maintain a complete transcript or electronic recording or transcription thereof adequate to record fully the proceedings of each meeting or portion of a meeting closed to public observation pursuant to exemption (a)(1), (a)(2), (a)(3), (a)(5), (a)(6), (a)(7), or (a)(9)(ii) of § 1632.5 of this part. Transcriptions of recordings will disclose the identity of each speaker.
(b) The Board will maintain either such a transcript, recording or transcription thereof, or a set of minutes that will fully and clearly describe all matters discussed and provide a full and accurate summary of any actions taken and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflecting the vote of each member on the question), for meetings or portions of meetings closed to public observation pursuant to exemptions (a)(8), (a)(9)(i)(A) or (a)(10) of § 1632.5 of this part. The minutes will identify all documents considered in connection with any action taken.
(c) Transcripts, recordings or transcriptions thereof, or minutes will promptly be made available to the public in the External Affairs Office except for such item or items of such discussion or testimony as may be determined to contain information that may be withheld under subsection (c) of the Act and § 1632.5 of this part. These documents, disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription.
(d) A complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording or verbatim copy of a transcription thereof of each meeting or portion of a meeting closed to public observation will be maintained for a period of at least two years, or one year after the conclusion of any Board proceeding with respect to which the meeting or portion thereof was held, whichever occurs later.
§ 1632.11 Procedures for inspection and obtaining copies of transcriptions and minutes.
(a) Any person may inspect or copy a transcript, a recording or transcription, or minutes described in § 1632.10(c) of this part.
(b) Requests for copies of transcripts, recordings or transcriptions of recordings, or minutes described in § 1632.10(c) of this part shall specify the meeting or the portion of meeting desired and shall be submitted in writing to the Secretary of the Board, Federal Retirement Thrift Investment Board, 77 K Street, NE., Suite 1000, Washington, DC 20002. Copies of documents identified in minutes may be made available to the public upon request under the provisions of 5 CFR part 1630 (the Board’s Freedom of Information Act regulations).
PART 1633—STANDARDS OF CONDUCT
§ 1633.1 Cross-reference to employee ethical conduct standards and financial disclosure regulations.
Employees of the Federal Retirement Thrift Investment Board (Board) are subject to the executive branch-wide Standards of Ethical conduct at 5 CFR part 2635, the Board regulations at 5 CFR part 8601 which supplement the executive branch-wide standards, and the executive branch-wide financial disclosure regulations at 5 CFR part 2634.
PART 1636—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
§ 1636.101 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 handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 1636.102 Application.
This part (§§ 1636.101-1636.170) 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 handicaps in the United States.
§ 1636.103 Definitions.
For purposes of this part, the term—
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
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 (TTD’s), interpreters, notetakers, written materials, and other similar services and devices.
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.
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.
Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.
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.
Individual with handicaps 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. As used in this definition, the phrase:
(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. The term “physical or 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, HIV disease (whether symptomatic or asymptomatic), 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 (1) of this definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means—
(1) With respect to preschool, elementary, or secondary education services provided by the agency, an individual with handicaps who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with handicaps 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;
(3) With respect to any other program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4) Qualified handicapped person as that term is defined for purposes of employment in 29 CFR 1614.203(a)(6), which is made applicable to this part by § 1636.140.
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. As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.
§§ 1636.104-1636.109 [Reserved]
§ 1636.110 Self-evaluation.
(a) The agency shall, by November 28, 1994, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
§ 1636.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons 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.
§§ 1636.112-1636.129 [Reserved]
§ 1636.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of handicap, 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 handicap—
(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps 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 handicaps with an aid, benefit, or service that is not as effective in according 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 handicaps or to any class of individuals with handicaps than is provided to others unless such action is necessary to provide qualified individuals with handicaps with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the opportunity to participate in programs or activities that are no separate or different, despite the existence of permissibly separate or different programs or activities.
(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 handicaps to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.
(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 handicaps 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 handicaps.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimination on the basis of handicap. 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 nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive order to a different class of individuals with handicaps 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 handicaps.
§§ 1636.131-1636.139 [Reserved]
§ 1636.140 Employment.
No qualified individual with handicaps shall, on the basis of handicap, be subjected 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.
§§ 1636.141-1636.148 [Reserved]
§ 1636.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 1636.150, no qualified individual with handicaps shall, because the agency’s facilities are inaccessible to or unusable by individuals with handicaps, 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.
§ 1636.150 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 handicaps. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;
(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 § 1636.150(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 result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps 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 handicaps. 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 handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 1636.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to individuals with handicaps. In cases where a physical alteration to an historic property is not required because of § 1636.150(a)(2) or (a)(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 handicaps into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by January 24, 1994, except that where structural changes in facilities are undertaken, such changes shall be made by November 26, 1996, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by May 26, 1994, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—
(1) Identify physical obstacles in the agency’s facilities that limit the accessibility of its programs or activities to individuals with handicaps;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 1636.151 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 handicaps. 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.
§§ 1636.152-1636.159 [Reserved]
§ 1636.160 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 handicaps 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 handicaps.
(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 applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD’s) 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 § 1636.160 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 handicaps receive the benefits and services of the program or activity.
§§ 1636.161-1636.169 [Reserved]
§ 1636.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the agency.
(b) 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).
(c) The Assistant General Counsel (Administration) shall be responsible for coordinating implementation of this section. Complaints may be sent to the Executive Director.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(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 Government entity.
(f) 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 handicaps.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1636.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) 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.
§§ 1636.171-1636.999 [Reserved]
PART 1639—CLAIMS COLLECTION
Subpart A—Administrative Collection, Compromise, Termination, and Referral of Claims
§ 1639.1 Authority.
The regulations of this part are issued under 5 U.S.C. 8474 and 31 U.S.C. 3711, 3716, 3720A, and 3720D.
§ 1639.2 Application of other regulations; scope.
All provisions of the Federal Claims Collection Standards, 4 CFR chapter II, apply to the regulations of this part. This part supplements 4 CFR chapter II by the prescription of procedures and directives necessary and appropriate for operations of the Federal Retirement Thrift Investment Board. The Federal Claims Collection Standards and this part do not apply to any claim as to which there is an indication of fraud or misrepresentation, as described in 4 CFR 101.3, unless returned by the Department of Justice to the Board for handling.
§ 1639.3 Application to other statutes.
(a) The Executive Director may exercise his or her compromise authority for those debts not exceeding $100,000, excluding interest, in conformity with the Federal Claims Collection Act of 1966, the Federal Claims Collection Standards issued thereunder, and this part, except where standards are established by other statutes or authorized regulations issued pursuant to them.
(b) The authority of the Executive Director of the Board to remit or mitigate a fine, penalty, or forfeiture will be exercised in accordance with the standards for remission or mitigation established in the governing statute. In the absence of such standards, the Federal Claims Collection Standards will be followed to the extent applicable.
§ 1639.4 Definitions.
As used in this part:
Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means withholding funds payable by the United States (including funds payable to the United States on behalf of a State government) to, or held by the United States for, a person to satisfy a debt owed to the United States.
Agency means executive departments and agencies, the United States Postal Service, the Postal Rate Commission, the United States Senate, the United States House of Representatives, and any court, court administrative office, or instrumentality in the judicial or legislative branches of the Government, and Government corporations.
Board means the Federal Retirement Thrift Investment Board, which administers the Thrift Savings Plan and the Thrift Savings Fund.
Certification means a written debt claim form received from a creditor agency which requests the paying agency to offset the salary of an employee.
Creditor agency means an agency of the Federal Government to which the debt is owed.
Debt means money owed by an individual to the United States including a debt owed to the Thrift Savings Fund or to a Federal agency, but does not include a Thrift Savings Plan loan.
Delinquent debt means a debt that has not been paid within the time limit prescribed by the Board.
Disposable pay means that part of current basic pay, special pay, incentive pay, retirement pay, retainer pay, or, in the case of an employee not entitled to basic pay, other authorized pay remaining after the deduction of any amount required by law to be withheld, excluding any garnishment under 5 CFR parts 581, 582. The Board will include the following deductions in determining disposable pay subject to salary offset:
(1) Federal Social Security and Medicare taxes;
(2) Federal, state, or local income taxes, but no more than would be the case if the employee claimed all dependents to which he or she is entitled and any additional amounts for which the employee presents evidence of a tax obligation supporting the additional withholding;
(3) Health insurance premiums;
(4) Normal retirement contributions as explained in 5 CFR 581.105(e);
(5) Normal life insurance premiums, excluding optional life insurance premiums; and
(6) Levies pursuant to the Internal Revenue Code, as defined in 5 U.S.C. 5514(d).
Employee means a current employee of an agency, including a current member of the Armed Forces or Reserve of the Armed Forces of the United States.
Executive Director means the Executive Director of the Federal Retirement Thrift Investment Board, or his or her designee.
Federal Claims Collection Standards means the standards published at 4 CFR chapter II.
Hearing official means an individual responsible for conducting any hearing with respect to the existence or amount of a debt claimed, and rendering a decision on the basis of the hearing.
Net Assets Available for Thrift Savings Plan Benefits means all funds owed to Thrift Savings Plan participants and beneficiaries.
Notice of intent to offset or notice of intent means a written notice from a creditor agency to an employee which alleges that the employee owes a debt to the creditor agency and which apprises the employee of certain administrative rights.
Notice of salary offset means a written notice from the paying agency to an employee informing the employee that it has received a certification from a creditor agency and intends to begin salary offset.
Participant means any person with an account in the Thrift Savings Plan, or who would have an account but for an employing agency error.
Paying agency means the agency of the Federal Government which employs the individual who owes a debt to the United States. In some cases, the Federal Retirement Thrift Investment Board may be both the creditor agency and the paying agency.
Payroll office means the payroll office in the paying agency which is primarily responsible for the payroll records and the coordination of pay matters with the appropriate personnel office with respect to an employee.
Person includes a natural person or persons, profit or non-profit corporation, partnership, association, trust, estate, consortium, State and local governments, or other entity that is capable of owing a debt to the United States Government; however, agencies of the United States, are excluded.
Private collection contractor means a private debt collector under contract with an agency to collect a non-tax debt owed to the United States.
Salary offset means an offset to collect a debt under 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 or her consent.
Tax refund offset means the reduction of a tax refund by the amount of a past-due legally enforceable debt owed to the Board or a Federal agency.
Thrift Savings Fund means the Fund described in 5 U.S.C. 8437.
Thrift Savings Plan means the Federal Retirement Thrift Savings Plan established by the Federal Employees’ Retirement System Act of 1986, codified in pertinent part at 5 U.S.C. 8431 et seq..
Waiver means the cancellation, remission, forgiveness, or non-recovery of a debt allegedly owed by a person to the Board or a Federal agency as permitted or required by 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or any other law.
§ 1639.5 Use of credit reporting agencies.
(a) The Board may report delinquent debts to appropriate credit reporting agencies by providing the following information:
(1) A statement that the debt is valid and is overdue;
(2) The name, address, taxpayer identification number, and any other information necessary to establish the identity of the debtor;
(3) The amount, status, and history of the debt; and
(4) The program or pertinent activity under which the debt arose.
(b) Before disclosing debt information to a credit reporting agency, the Board will:
(1) Take reasonable action to locate the debtor if a current address is not available; and
(2) If a current address is available, notify the debtor by certified mail, return receipt requested:
(i) That a designated Board official has reviewed the claim and has determined that the claim is valid and over-due;
(ii) That within 60 days the Board intends to disclose to a credit reporting agency the information authorized for disclosure by this section; and
(iii) That the debtor can request an explanation of the claim, can dispute the information in the Board’s records concerning the claim, and can file for an administrative review, waiver, or reconsideration of the claim, where applicable.
(c) At the time debt information is submitted to a credit reporting agency, the Board will provide a written statement to the reporting agency that all required actions have been taken. In addition, the Board will, thereafter, ensure that the credit reporting agency is promptly informed of any substantive change in the conditions or amount of the debt, and promptly verify or correct information relevant to the claim.
(d) If a debtor disputes the validity of the debt, the credit reporting agency will refer the matter to the appropriate Board official. The credit reporting agency will exclude the debt from its reports until the Board certifies in writing that the debt is valid.
§ 1639.6 Contracting for collection services.
The Board will use the services of a private collection contractor where it determines that such use is in the best interest of the Board. When the Board determines that there is a need to contract for collection services, it will—
(a) Retain sole authority to:
(1) Resolve any dispute by the debtor regarding the validity of the debt;
(2) Compromise the debt;
(3) Suspend or terminate collection action;
(4) Refer the debt to the Department of Justice for litigation; and
(5) Take any other action under this part which does not result in full collection of the debt;
(b) Require the contractor to comply with the Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C. 552a(m), with applicable Federal and State laws pertaining to debt collection practices (e.g., the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.)), and with applicable regulations of the Board;
(c) Require the contractor to account accurately and fully for all amounts collected; and
(d) Require the contractor to provide to the Board, upon request, all data and reports contained in its files relating to its collection actions on a debt.
§ 1639.7 Initial notice to debtor.
(a) When the Executive Director determines that a debt is owed the Board, he will send a written notice to the debtor. The notice will inform the debtor of the following:
(1) The amount, nature, and basis of the debt;
(2) That payment is due immediately after receipt of the notice;
(3) That the debt is considered delinquent if it is not paid within 30 days of the date the notice is mailed or hand-delivered;
(4) That interest charges (except for State and local governments and Indian tribes), penalty charges, and admini strative costs may be assessed against a delinquent debt;
(5) Any rights available to the debtor to dispute the validity of the debt or to have recovery of the debt waived (citing the available review or waiver authority, the conditions for review or waiver, and the effects of the review or waiver request on the collection of the debt); and
(6) The address, telephone number, and name of the Board official available to discuss the debt.
(b) The Board will respond promptly to communications from the debtor.
(c) Subsequent demand letters also will notify the debtor of any interest, penalty, or administrative costs which have been assessed and will advise the debtor that the debt may be referred to a credit reporting agency (see § 1639.5), a collection agency (see § 1639.6), the Department of Justice (see § 1639.10), or the Department of the Treasury (see § 1639.11), if it is not paid.
§ 1639.8 Interest, penalty, and administrative costs.
(a) Interest. The Board will assess interest on all delinquent debts unless prohibited by statute, regulation, or contract.
(1) Interest begins to accrue on all debts from the date the initial notice is mailed or hand-delivered to the debtor. The Board will not recover interest if the debt is paid within 30 days of the date of the initial notice. The Board will assess an annual rate of interest that is equal to the rate of the current value of funds to the United States Treasury (i.e., the Treasury tax and loan account rate) as prescribed and published by the Secretary of the Treasury in the
(2) The Executive Director may extend the 30-day period for payment where he determines that such action is in the best interest of the Board. A decision to extend or not to extend the payment period is final and is not subject to further review.
(b) Penalty. The Board will assess a penalty charge, not to exceed six percent a year, on any portion of a debt that is not paid within 90 days of the initial notice.
(c) Administrative costs. The Board will assess charges to cover administrative costs incurred as the result of the debtor’s failure to pay a debt within 30 days of the date of the initial notice. Administrative costs include the additional costs incurred in processing and handling the debt because it became delinquent, such as costs incurred in obtaining a credit report, or in using a private collection contractor, or service fees charged by a Federal agency for collection activities undertaken on behalf of the Board.
(d) Allocation of payments. A partial payment by a debtor will be applied first to outstanding administrative costs, second to penalty assessments, third to accrued interest, and then to the outstanding debt principal.
(e) Waiver. (1) The Executive Director may (without regard to the amount of the debt) waive collection of all or part of accrued interest, penalty, or administrative costs, if he determines that collection of these charges would be against equity and good conscience or not in the best interest of the Board.
(2) A decision to waive interest, penalty charges, or administrative costs may be made at any time before a debt is paid. However, where these charges have been collected before the waiver decision, they will not be refunded. The Executive Director’s decision to waive or not waive collection of these charges is final and is not subject to further review.
§ 1639.9 Charges pending waiver or review.
Interest, penalty charges, and administrative costs will continue to accrue on a debt during administrative appeal, either formal or informal, and during waiver consideration by the Board, unless specifically prohibited by a statute or a regulation.
§ 1639.10 Referrals to the Department of Justice.
The Executive Director will refer to the Department of Justice for litigation all claims on which aggressive collection actions have been taken but which could not be collected, compromised, suspended, or terminated. Referrals will be made as early as possible, consistent with aggressive Board collection action, and within the period for bringing a timely suit against the debtor.
§ 1639.11 Cross-servicing agreement with the Department of the Treasury.
The Board will enter into a cross-servicing agreement with the Department of the Treasury which will authorize Treasury to take all of the debt collection actions described in this part. These debt collection services will be provided to the Board in accordance with 31 U.S.C. 3701 et seq.
§ 1639.12 Deposit of funds collected.
All funds owed to the Board and collected under this part will be deposited in the Thrift Savings Fund. Funds owed to other agencies and collected under this part will be credited to the account designated by the creditor agency for the receipt of the funds.
§ 1639.13 Antialienation of funds in Thrift Savings Plan participant accounts.
In accordance with 5 U.S.C. 8437, net assets available for Thrift Savings Plan benefits will not be used to satisfy a debt owed by a participant to an agency under the regulations of this part or under the debt collection regulations of any agency.
Subpart B—Salary Offset
§ 1639.20 Applicability and scope.
(a) The regulations in this subpart provide Board procedures for the collection by salary offset of a Federal employee’s pay to satisfy certain debts owed to the Board or to Federal agencies.
(b) The regulations in this subpart apply to collections by the Executive Director, from:
(1) Federal employees who owe debts to the Board; and
(2) Employees of the Board who owe debts to Federal agencies.
(c) The regulations in this subpart do not apply to debts arising under the Internal Revenue Code of 1986, as amended (title 26, United States Code); the Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the United States; or to any case where collection of a debt by salary offset is explicitly provided for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108).
(d) Nothing in the regulations in this subpart precludes the compromise, suspension, or termination of collection actions under the standards implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq., 4 CFR Parts 101-105, 38 CFR 1.900-1.994).
(e) A levy pursuant to the Internal Revenue Code takes precedence over a salary offset under this subpart, as provided in 5 U.S.C. 5514(d).
(f) This subpart does not apply to any adjustment to pay arising out of an employee’s election 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.
§ 1639.21 Waiver requests.
The regulations in this subpart do not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or under other statutory provisions pertaining to the particular debts being collected.
§ 1639.22 Notice requirements before offset.
Deductions under the authority of 5 U.S.C. 5514 may be made if, a minimum of 30 calendar days before salary offset is initiated, the Board provides the employee with written notice that he or she owes a debt to the Board. This notice of intent to offset an employee’s salary will be hand-delivered or sent by certified mail to the most current address that is available to the Board. The notice provided under this section will state:
(a) That the Board has reviewed the records relating to the claim and has determined that a debt is owed, the amount of the debt, and the facts giving rise to the debt;
(b) The Board’s intention to collect the debt by deducting money from the employee’s current disposable pay account until the debt, and all accumulated interest, penalties, and administrative costs, is paid in full;
(c) The amount, frequency, approximate beginning date, and duration of the intended deductions;
(d) An explanation of the Board’s policy concerning interest, penalties, and administrative costs, including a statement that such assessments must be made unless excused in accordance with the Federal Claims Collection Standards, 4 CFR chapter II;
(e) The employee’s right to inspect and copy all records pertaining to the debt claimed or to receive copies of those records if personal inspection is impractical;
(f) The right to a hearing conducted by an administrative law judge or other impartial hearing official (i.e., a hearing official not under the supervision or control of the Executive Director), with respect to the existence and amount of the debt claimed or the repayment schedule (i.e., the percentage of disposable pay to be deducted each pay period), so long as a request is filed by the employee as prescribed in § 1639.23;
(g) If not previously provided, the opportunity (under terms agreeable to the Board) to establish a schedule for the voluntary repayment of the debt or to enter into a written agreement to establish a schedule for repayment of the debt in lieu of offset. The agreement must be in writing and signed by both the employee and the Executive Director;
(h) The name, address, and telephone number of an officer or employee of the Board who may be contacted concerning procedures for requesting a hearing;
(i) The method and time period for requesting a hearing;
(j) That the timely filing of a request for a hearing on or before the 15th calendar day following receipt of the notice of intent will stay the commencement of collection proceedings;
(k) The name and address of the officer or employee of the Board to whom the request for a hearing should be sent;
(l) That the Board will initiate certification procedures to implement a salary offset, as appropriate, (which may not exceed 15 percent of the employee’s disposable pay) not less than 30 days from the date the employee receives the notice of debt, unless the employee files a timely request for a hearing;
(m) That a final decision on the hearing (if one is requested) will be issued at the earliest practical date, but 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;
(n) That any knowingly false or frivolous statements, representations, or evidence may subject the employee to:
(1) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 CFR part 752, or any other applicable statute or regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3733, or any other applicable statutory authority; and
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 102, or any other applicable statutory authority;
(o) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(p) That unless there are applicable contractual or statutory provisions to the contrary, amounts paid on or deducted for the debt which are later waived or found not owed will be promptly refunded to the employee; and
(q) That proceedings with respect to the debt are governed by 5 U.S.C. 5514.
§ 1639.23 Hearing.
(a) Request for hearing. Except as provided in paragraph (b) of this section, an employee who desires a hearing concerning the existence or amount of the debt or the proposed offset schedule must send such a request to the Board office designated in the notice of intent. See § 1639.22(k).
(1) The request for hearing must be signed by the employee and fully identify and explain with reasonable specificity all the facts, evidence, and witnesses, if any, that support his or her position.
(2) The request for hearing must be received by the designated office on or before the 15th calendar day following the employee’s receipt of the notice. Timely filing will stay the commencement of collection procedures.
(3) The employee must also specify whether an oral or written hearing is requested. If an oral hearing is desired, the request should explain why the matter cannot be resolved by review of the documentary evidence alone.
(b) Failure to timely submit. (1) If the employee files a request for a hearing after the expiration of the 15th calendar day period provided for in paragraph (a) of this section, the Board will accept the request if the employee can show that the delay was the result of circumstances beyond his or her control or because of a failure to receive notice of the filing deadline (unless the employee had actual notice of the filing deadline).
(2) An employee waives the right to a hearing, and will have his or her disposable pay offset in accordance with the Board’s offset schedule, if the employee:
(i) Fails to file a request for a hearing and the failure is not excused; or
(ii) Fails to appear at an oral hearing of which he or she was notified and the hearing official does not determine that failure to appear was due to circumstances beyond the employee’s control.
(c) Representation at the hearing. The creditor agency may be represented by legal counsel. The employee may represent himself or herself or may be represented by an individual of his or her choice and at his or her own expense.
(d) Review of Board records related to the debt. (1) In accordance with § 1639.22(e), an employee who intends to inspect or copy Board records related to the debt must send a letter to the official designated in the notice of intent to offset stating his or her intention. The letter must be received within 15 calendar days after the employee’s receipt of the notice.
(2) In response to a timely request submitted by the debtor, the designated official will notify the employee of the location and time when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, arrangements will be made to send copies of those records to the employee.
(e) Hearing official. The Board may request an administrative law judge to conduct the hearing or the Board may obtain a hearing official who is not under the supervision or control of the Executive Director.
(f) Procedure—(1) General. After the employee requests a hearing, the hearing official will notify the employee of the form of the hearing to be provided. If the hearing will be oral, the notice will set forth the date, time, and location of the hearing. If the hearing will be written, the employee will be notified that he or she should submit arguments in writing to the hearing official by a specified date after which the record will be closed. This date will give the employee reasonable time to submit documentation.
(2) Oral hearing. An employee who requests an oral hearing will be provided an oral hearing, if the hearing official determines that the matter cannot be resolved by review of documentary evidence alone (e.g., when an issue of credibility is involved). The hearing is not an adversarial adjudication and need not take the form of an evidentiary hearing. Witnesses who testify in oral hearings will do so under oath or affirmation. Oral hearings may take the form of, but are not limited to:
(i) Informal conferences with the hearing official, in which the employee and agency representative will be given full opportunity to present evidence, witnesses, and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral presentation.
(3) Record determination. If the hearing official determines that an oral hearing is not necessary, he or she will make the determination based upon a review of the available written record.
(4) Record. The hearing official must maintain a summary record of any hearing provided by this subpart.
(g) Date of decision. The hearing official will issue a written decision, based upon documentary evidence and information developed at the hearing, as soon as practical after the hearing, but not later than 60 days after the date on which the petition was received by the creditor agency, unless the employee requests a delay in the proceedings. In that case, the 60 day decision period will be extended by the number of days by which the hearing was postponed.
(h) Content of decision. The written decision will include:
(1) A statement of the facts presented to support the origin, nature, and amount of the debt;
(2) The hearing official’s findings, analysis, and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(i) Failure to appear. (1) In the absence of good cause shown (e.g., excused illness), an employee who fails to appear at a hearing will be deemed, for the purpose of this subpart, to admit the existence and amount of the debt as described in the notice of intent.
(2) If the representative of the creditor agency fails to appear, the hearing official will proceed with the hearing as scheduled, and make his or her determination based upon the oral testimony presented by the representative(s) of the employee and the documentary documentation submitted by both parties.
(3) At the request of both parties, the hearing official will schedule a new hearing date. Both parties will be given reasonable notice of the time and place of this new hearing.
§ 1639.24 Certification.
(a) The Board will provide a certification to the paying agency in all cases in which:
(1) The hearing official determines that a debt exists;
(2) The employee admits the existence and amount of the debt by failing to request a hearing; or
(3) The employee admits the existence of the debt by failing to appear at a hearing.
(b) The certification must be in writing and must include:
(1) A statement that the employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Board’s right to collect the debt first accrued;
(4) A statement that the Board’s regulations have been approved by the Office of Personnel Management under 5 CFR part 550, subpart K;
(5) The amount and date of the collection, if only a one-time offset is required;
(6) If the collection is to be made in installments, the number of installments to be collected, the amount of each installment, and the date of the first installment, if a date other than the next officially established pay period is required; and
(7) Information regarding the completion of procedures required by 5 U.S.C. 5514, including the dates of notices and hearings provided to the employee, or, if applicable, the employee’s signed consent to salary offset or a signed statement acknowledging receipt of required procedures.
§ 1639.25 Voluntary repayment agreements as alternative to salary offset.
(a) In response to a notice of intent to offset against an employee’s salary to recover a debt owed to the Board, an employee may propose to the Board that he or she be allowed to repay the debt through direct payments as an alternative to salary offset. Any employee who wishes to repay a debt without salary offset must submit in writing a proposed agreement to repay the debt. The proposal must admit the existence of the debt and set forth a proposed repayment schedule. The employee’s proposal must be received by the official designated in the notice of intent within 15 calendar days after the employee received the notice.
(b) In response to a timely proposal by the debtor, the Executive Director will notify the employee whether the employee’s proposed written agreement for repayment is acceptable. It is within the Executive Director’s discretion to accept a repayment agreement instead of proceeding by salary offset.
(c) If the Executive Director decides that the proposed repayment agreement is unacceptable, the employee will have 15 days from the date he or she received notice of the decision to file a petition for a hearing.
(d) If the Executive Director decides that the proposed repayment agreement is acceptable, the alternative arrange ment must be in writing and signed by both the employee and the Executive Director.
§ 1639.26 Special review.
(a) An employee subject to salary offset or a voluntary repayment agreement in connection with a debt owed to the Board may, at any time, request that the Board conduct a special review of the amount of the salary offset or voluntary payment, based on materially changed circumstances, such as catastrophic illness, divorce, death, or disability.
(b) To assist the Board in determining whether an offset would prevent the employee from meeting essential subsistence expenses (costs incurred for food, housing, clothing, transportation, and medical care), the employee will submit a detailed statement and supporting documents for the employee, his or her spouse, and dependents, indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing, and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) If the employee requests a special review under this section, the employee must file an alternative proposed salary offset or payment schedule and a statement, with supporting documents, showing why the current salary offset or payments result in an extreme financial hardship to the employee.
(d) The Executive Director will evaluate the statement and supporting documents, and determine whether the original offset or repayment schedule imposes an extreme financial hardship on the employee. The Executive Director will notify the employee in writing of his determination, including, if appropriate, a revised offset or payment schedule.
(e) If the special review results in a revised offset or repayment schedule, the Board will provide a new certification to the paying agency.
§ 1639.27 Procedures for salary offset.
(a) The Board will coordinate salary deductions under this subpart.
(b) The Board’s payroll office will determine the amount of an employee’s disposable pay and will implement the salary offset.
(c) Deductions will begin within three official pay periods following receipt by the Board’s payroll office of certification for the creditor agency.
(d) Types of collection—
(1) Lump-sum offset. If the amount of the debt is equal to or less than 15 percent of disposable pay, the debt generally will be collected through one lump-sum offset.
(2) Installment deductions. Installment deductions will be made over a period not greater than the anticipated period of employment. The size and frequency of installment deductions will bear a reasonable relation to the size of the debt and the employee’s ability to pay. However, the amount deducted from any period will not exceed 15 percent of the disposable pay from which the deduction is made unless the employee has agreed in writing to the deduction of a greater amount.
(3) Deductions from final check. A deduction exceeding the 15 percent disposable pay limitation may be made from any final salary payment under 31 U.S.C. 3716 and the Federal Claims Collection Standards, 4 CFR chapter II, in order to liquidate the debt, whether the employee is being separated voluntarily or involuntarily.
(4) Deductions from other sources. If an employee subject to salary offset is separated from the Board, and the balance of the debt cannot be liquidated by offset of the final salary check, the Board may offset any later payments of any kind against the balance of the debt, as allowed by 31 U.S.C. 3716 and the Federal Claims Collection Standards, 4 CFR chapter II.
(e) Multiple debts. In instances where two or more creditor agencies are seeking salary offsets, or where two or more debts are owed to a single creditor agency, the Board’s payroll office may, at its discretion, determine whether one or more debts should be offset simultaneously within the 15 percent limitation.
(f) Precedence of debts owed to the Board. For Board employees, debts owed to the Board generally take precedence over debts owed to other agencies. In the event that a debt to the Board is certified while an employee is subject to a salary offset to repay another agency, the Board may decide whether to have the first debt repaid in full before collecting the claim or whether changes should be made in the salary deduction being sent to the other agency. If debts owed the Board can be collected in one pay period, the Board payroll office may suspend the salary offset to the other agency for that pay period in order to liquidate the debt to the Board. When an employee owes two or more debts, the best interests of the Board will be the primary con sideration in the payroll office’s determination of the order in which the debts should be collected.
§ 1639.28 Coordinating salary offset with other agencies.
(a) Responsibility of the Board as the creditor agency. (1) The Board will coordinate debt collections with other agencies and will, as appropriate:
(i) Arrange for a hearing or special review upon proper petitioning by the debtor; and
(ii) Prescribe, upon consultation with the General Counsel, the additional practices and procedures that may be necessary to carry out the intent of this subpart.
(2) The Board will ensure:
(i) That each notice of intent to offset is consistent with the requirements of § 1639.22;
(ii) That each certification of debt that is sent to a paying agency is consistent with the requirements of § 1639.24; and
(iii) That hearings are properly scheduled.
(3) Requesting recovery from current paying agency. Upon completion of the procedures established in these regulations and pursuant to 5 U.S.C. 5514, the Board will provide the paying agency with a certification as provided in § 1639.24.
(4) If the employee is in the process of separating and has not received a final salary check or other final payment(s) from the paying agency, the Board must submit a debt claim to the paying agency for collection under 31 U.S.C. 3716. The paying agency must certify the total amount of its collection on the debt and notify the employee and the Board. If the paying agency’s collection does not fully satisfy the debt, and the paying agency is aware that the debtor is entitled to payments from the Civil Service Retirement and Disability Fund or other similar payments that may be due the debtor employee from other Federal Government sources, the paying agency will provide written notice of the outstanding debt to the agency responsible for making the other payments to the debtor employee. The written notice will state that the employee owes a debt, the amount of the debt, and that the provisions of this section have been fully complied with. The Board must submit a properly certified claim to the agency responsible for making the payments before the collection can be made.
(5) Separated employee. If the employee is already separated and all payments due from his or her former paying agency have been paid, the Board may request, unless otherwise prohibited, that money due and payable to the employee from the Civil Service Retirement and Disability Fund (5 CFR part 831, subpart R, or 5 CFR part 845, subpart D) or other similar funds, be administratively offset to collect the debt.
(6) Employee transfer. When an employee transfers from one paying agency to another paying agency, the Board will not repeat the due process procedures described in 5 U.S.C. 5514 and this subpart to resume the collection. The Board will submit a properly certified claim to the new paying agency and will subsequently review the debt to make sure the collection is resumed by the new paying agency.
(b) Responsibility of the Board as the paying agency—(1) Complete claim. When the Board receives a certified claim from a creditor agency, deductions should be scheduled to begin within three officially established pay intervals. Before deductions can begin, the employee will receive a written notice from the Board including:
(i) A statement that the Board has received a certified debt claim from the creditor agency;
(ii) The amount of the debt claim;
(iii) The date salary offset deductions will begin, and
(iv) The amount of such deductions.
(2) Incomplete claim. When the Board receives an incomplete certification of debt from a creditor agency, the Board will return the debt claim with a notice that procedures under 5 U.S.C. 5514 and 5 CFR part 550, subpart K, must be followed and a properly certified debt claim received before action will be taken to collect from the employee’s current pay account.
(3) Review. The Board is not authorized to review the merits of the creditor agency’s determination with respect to the amount or validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If, after the creditor agency has submitted the debt claim to the Board, the employee transfers from the Board to a different paying agency before the debt is collected in full, the Board will certify the total amount collected on the debt and notify the employee and the creditor agency in writing. The notification to the creditor agency will include information on the employee’s transfer.
§ 1639.29 Refunds.
(a) If the Board is the creditor agency, it will promptly refund any amount deducted under the authority of 5 U.S.C. 5514, when:
(1) The debt is waived or all or part of the funds deducted are otherwise found not to be owed; or
(2) An administrative or judicial order directs the Board to make a refund.
(b) Unless required or permitted by law or contract, refunds under this section will not bear interest.
§ 1639.30 Non-waiver of rights by payments.
An employee’s involuntary payment of all or any portion of a debt being collected under this subpart must not be construed as a waiver of any rights which the employee may have under 5 U.S.C. 5514 or any other provisions of a written contract or law, unless there are statutory or con tractual provisions to the contrary.
Subpart C—Tax Refund Offset
§ 1639.40 Applicability and scope.
(a) The regulations in this subpart implement 31 U.S.C. 3720A which authorizes the Department of the Treasury to reduce a tax refund by the amount of a past-due legally enforceable debt owed to a Federal agency.
(b) For purposes of this section, a past-due legally enforceable debt referable to the Department of the Treasury is a debt that is owed to the Board; and:
(1) Is at least $25.00 dollars;
(2) Except in the case of a judgment debt, has been delinquent for at least three months and will not have been delinquent more than 10 years at the time the offset is made;
(3) Cannot be currently collected under the salary offset provisions of 5 U.S.C. 5514;
(4) Is ineligible for administrative offset under 31 U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by administrative offset under 31 U.S.C. 3716(a) by the Board against amounts payable to the debtor by the Board;
(5) With respect to which the Board has given the debtor at least 60 days to present evidence that all or part of the debt is not past due or legally enforceable, has considered evidence presented by the debtor, and has determined that an amount of the debt is past due and legally enforceable;
(6) Which has been disclosed by the Board to a credit reporting agency as authorized by 31 U.S.C. 3711(e), unless the credit reporting agency would be prohibited from reporting information concerning the debt by reason of 15 U.S.C. 1681c;
(7) With respect to which the Board has notified or has made a reasonable attempt to notify the debtor that:
(i) The debt is past due, and
(ii) Unless repaid within 60 days thereafter, the debt will be referred to the Department of the Treasury for offset against any overpayment of tax; and
(8) All other requirements of 31 U.S.C. 3720A and the Department of Treasury regulations relating to the eligibility of a debt for tax return offset have been satisfied.
§ 1639.41 Procedures for tax refund offset.
(a) The Board will be the point of contact with the Department of the Treasury for administrative matters regarding the offset program.
(b) The Board will ensure that the procedures prescribed by the Department of the Treasury are followed in developing information about past-due debts and submitting the debts to the IRS.
(c) The Board will submit a notification of a taxpayer’s liability for past-due legally enforceable debt to the Department of the Treasury which will contain:
(1) The name and taxpayer identifying number (as defined in section 6109 of the Internal Revenue Code, 26 U.S.C. 6109) of the person who is responsible for the debt;
(2) The dollar amount of the past-due and legally enforceable debt;
(3) The date on which the original debt became past due;
(4) A statement certifying that, with respect to each debt reported, all of the requirements of eligibility of the debt for referral for the refund offset have been satisfied. See § 1639.40(b).
(d) The Board shall promptly notify the Department of the Treasury to correct Board data submitted when it:
(1) Determines that an error has been made with respect to a debt that has been referred;
(2) Receives or credits a payment on the debt; or
(3) Receives notice that the person owing the debt has filed for bankruptcy under Title 11 of the United States Code or has been adjudicated bankrupt and the debt has been discharged.
(e) When advising debtors of an intent to refer a debt to the Department of the Treasury for offset, the Board will also advise the debtors of all remedial actions available to defer or prevent the offset from taking place.
§ 1639.42 Notice requirements before tax refund offset.
(a) The Board must notify, or make a reasonable attempt to notify, the person:
(1) The amount of the debt and that the debt is past due; and
(2) Unless repaid within 60 days, the debt will be referred to the Department of the Treasury for offset against any refund of overpayment of tax.
(b) The Board will provide a mailing address for forwarding any written correspondence and a contact name and telephone number for any questions concerning the offset.
(c) The Board will give the individual debtor at least 60 days from the date of the notice to present evidence that all or part of the debt is not past due or legally enforceable. The Board will consider the evidence presented by the individual and will make a determination whether any amount of the debt is past due and legally enforceable. For purposes of this section, evidence that collection of the debt is affected by a bankruptcy proceeding involving the individual will bar referral of the debt to the Department of the Treasury.
(d) Notice given to a debtor under paragraphs (a), (b), and (c) of this section shall advise the debtor of how he or she may present evidence to the Board that all or part of the debt is not past due or legally enforceable. Such evidence may not be referred to, or considered by, individuals who are not officials, employees, or agents of the United States in making the determination required under paragraph (c) of this section. Unless such evidence is directly considered by an official or employee of the Board, and the determination required under paragraph (c) of this section has been made by an official or employee of the Board, any unresolved dispute with the debtor regarding whether all or part of the debt is past due or legally enforceable must be referred to the Board for ultimate administrative disposition, and the Board must directly notify the debtor of its determination.
Subpart D—Administrative Offset
§ 1639.50 Applicability and scope.
(a) The regulations in this subpart apply to the collection of debts owed to the Board, or from a request for an offset received by the Board from a Federal agency. Administrative offset is authorized under section 5 of the Federal Claims Collection Act of 1966, as amended by the Debt Collection Act of 1982 (31 U.S.C. 3716). The regulations in this subpart are consistent with the Federal Claims Collection Standards on administrative offset issued jointly by the Department of Justice and the General Accounting Office as set forth in 4 CFR 102.3.
(b) The Executive Director, after attempting to collect a debt owed to the Board under section 3(a) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(a)), may collect the debt by administrative offset, subject to the following:
(1) The debt is certain in amount; and
(2) It is in the best interest of the Board to collect the debt by administrative offset because of the decreased costs of collection and acceleration in the payment of the debt.
(c) The Executive Director may initiate administrative offset with regard to debts owed by a person to a Federal agency, so long as the funds to be offset are not payable from net assets available for Thrift Savings Plan benefits. The head of the creditor agency, or his or her designee, must submit a written request for the offset with a certification that the debt exists and that the person has been afforded the necessary due process rights.
(d) The Executive Director may request another agency that holds funds payable to a Fund debtor to pay the funds to the Board in settlement of the debt. The Board will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(e) If the six-year period for bringing action on a debt provided in 28 U.S.C. 2415 has expired, then administrative offset may be used to collect the debt only if the costs of bringing such an action are likely to be less than the amount of the debt.
(f) No collection by administrative offset will be made on any debt that has been outstanding for more than 10 years unless facts material to the Board or a Federal agency’s right to collect the debt were not known, and reasonably could not have been known, by the official or officials responsible for discovering and collecting the debt.
(g) The regulations in this subpart do not apply to:
(1) A case in which administrative offset of the type of debt involved is explicitly provided for or prohibited by another statute; or
(2) Debts owed to the Board by Federal agencies or by any State or local government.
§ 1639.51 Notice procedures.
Before collecting any debt through administrative offset, the Board will send a notice of intent to offset to the debtor by certified mail, return receipt requested, at the most current address that is available to the Board. The notice will provide:
(a) A description of the nature and amount of the debt and the intention of the Board to collect the debt through administrative offset;
(b) An opportunity to inspect and copy the records of the Board with respect to the debt;
(c) An opportunity for review within the Board of the determination of the Board with respect to the debt; and
(d) An opportunity to enter into a written agreement for repaying the amount of the debt.
§ 1639.52 Board review.
(a) A debtor may dispute the existence of the debt, the amount of debt, or the terms of repayment. A request to review a disputed debt must be submitted to the Board official who provided the notice of intent to offset within 30 calendar days of the debtor’s receipt of the written notice described in § 1639.51.
(b) If the debtor requests an opportunity to inspect or copy the Board’s records concerning the disputed claim, the Board will grant 10 business days for the review. The time period will be measured from the time the request for inspection is granted or from the time the debtor receives a copy of the records.
(c) Pending the resolution of a dispute by the debtor, transactions in any of the debtor’s account(s) maintained in the Board may be temporarily suspended to the extent of the debt that is owed. Depending on the type of transaction, the suspension could preclude its payment, removal, or transfer, as well as prevent the payment of interest or discount due on the transaction. Should the dispute be resolved in the debtor’s favor, the suspension will be immediately lifted.
(d) During the review period, interest, penalties, and administrative costs authorized by law will continue to accrue.
(e) If the debtor does not exercise the right to request a review within the time specified in this section or if, as a result of the review, it is determined that the debt is due and no written agreement is executed, then administrative offset will be ordered in accordance with the regulations in this subpart without further notice.
§ 1639.53 Written agreement for repayment.
A debtor who admits liability but elects not to have the debt collected by administrative offset will be afforded an opportunity to negotiate a written agreement for repaying the debt. If the financial condition of the debtor does not support the ability to pay in one lump sum, the Board may consider reasonable installments. No installment arrangement will be considered unless the debtor submits a financial statement, executed under penalty of perjury, reflecting the debtor’s assets, liabilities, income, and expenses. The financial statement must be submitted within 10 business days of the Board’s request for the statement. At the Board’s option, a confess-judgment note or bond of indemnity with surety may be required for installment agreements. Notwithstanding the provisions of this section, any reduction or compromise of a claim will be governed by 31 U.S.C. 3711.
§ 1639.54 Requests for offset to Federal agencies.
The Executive Director may request that funds due and payable to a debtor by another Federal agency be paid to the Board in payment of a debt owed to the Board by that debtor. In requesting administrative offset, the Board, as creditor, will certify in writing to the Federal agency holding funds of the debtor:
(a) That the debtor owes the debt;
(b) The amount and basis of the debt; and
(c) That the Board has complied with the requirements of 31 U.S.C. 3716, its own administrative offset regulations in this subpart, and the applicable provisions of 4 CFR part 102 with respect to providing the debtor with due process.
§ 1639.55 Requests for offset from Federal agencies.
Any Federal agency may request that funds due and payable to its debtor by the Board be administratively offset in order to collect a debt owed to that agency by the debtor, so long as the funds are not payable from net assets available for Thrift Savings Plan benefits. The Board will initiate the requested offset only:
(a) Upon receipt of written certification from the creditor agency stating:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt;
(3) That the agency has prescribed regulations for the exercise of administrative offset; and
(4) That the agency has complied with its own administrative offset regulations and with the applicable provisions of 4 CFR part 102, including providing any required hearing or review; and
(b) Upon a determination by the Board that collection by offset against funds payable by the Board would be in the best interest of the United States as determined by the facts and circumstances of the particular case, and that such an offset would not otherwise be contrary to law.
§ 1639.56 Expedited procedure.
The Board may effect an administrative offset against a payment to be made to the debtor before completion of the procedures required by §§ 1639.51 and 1639.52 if failure to take the offset would substantially jeopardize the Board’s ability to collect the debt and the time before the payment is to be made does not reasonably permit the completion of those procedures. An expedited offset will be promptly followed by the completion of those procedures. Amounts recovered by offset, but later found not to be owed to the Board, will be promptly refunded.
Subpart E—Administrative Wage Garnishment
§ 1639.60 Administrative wage garnishment.
(a) General. The Board may use administrative wage garnishment to collect debts from non-Federal employees in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. This subpart adopts and incorporates all of the provisions of 31 CFR 285.11 concerning administrative wage garnishment, including the hearing procedures described in 31 CFR 285.11(f). This section does not apply to collection of debt by Federal salary offset, under 5 U.S.C. 5514, the process by which the Board collects debts from the salaries of Federal employees.
(b) [Reserved]
PART 1640—PERIODIC PARTICIPANT STATEMENTS
§ 1640.1 Definitions.
Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
§ 1640.2 Information regarding account.
The TSP or its record keeper will provide to each participant four (4) times each calendar year the information described in §§ 1640.3, 1640.4, and 1640.5. Plan participants can obtain account balance information on a more frequent basis from the TSP Web site and the ThriftLine.
§ 1640.3 Statement of individual account.
In the quarterly statements, the TSP or its record keeper will furnish each participant with the following information concerning the participant’s individual account:
(a) Name and account number under which the account is established.
(b) Statement whether the participant has a beneficiary designation on file with the TSP record keeper.
(c) Investment election that is current at the end of the statement period.
(d) Beginning and ending dates of the period covered by the statement.
(e) The following information for and, as of the close of business on the ending date of, the period covered by the statement:
(1) The total account balance and tax-exempt balance, if applicable;
(2) The account balance for each source of contributions;
(3) The account balance and activity in each TSP core fund, including the dollar amount of the transaction, the share price, and the number of shares;
(4) Loan information and activity, if applicable; and
(5) The mutual fund window account balance, if applicable.
(f) Any other information concerning the account that the Executive Director determines should be included in the statement.
§ 1640.4 Account transactions.
(a) Where relevant, the following transactions will be reported in each individual account statement:
(1) Contributions;
(2) Withdrawals;
(3) Forfeitures;
(4) Loan disbursements and repayments;
(5) Fund reallocations and fund transfers among TSP core funds;
(6) Adjustments to prior transactions;
(7) Rollovers from traditional individual retirement accounts (IRAs) and eligible employer plans within the meaning of section 402(c) of the Internal Revenue Code (26 U.S.C. 402(c)); and
(8) Any other transaction that the Executive Director determines will affect the status of the individual account.
(b) Where relevant, the statement will contain the following information concerning each transaction identified in paragraph (a) of this section:
(1) Type of transaction;
(2) TSP core funds affected;
(3) Amount of the transaction (in dollars); and
(4) Any other information the Executive Director deems relevant.
§ 1640.5 TSP core fund information.
The TSP or its record keeper will provide to each participant each calendar year information concerning each of the TSP core funds, including:
(a) A summary description of the type of investments made by the fund, written in a manner that will allow the participant to make an informed decision; and
(b) The performance history of the type of investments made by the fund, covering the five-year period preceding the date of the evaluation.
§ 1640.6 Methods of providing information.
The TSP or its record keeper will furnish the information described in this part to participants by making it available on the TSP website. A participant can request paper copies of that information by calling the ThriftLine, submitting a request through the TSP website, or by writing to the TSP record keeper.
PART 1645—CALCULATION OF SHARE PRICES
§ 1645.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
Accrued means that income is accounted for when earned and expenses are accounted for when incurred.
Administrative expenses means expenses described in 5 U.S.C. 8437(c)(3).
Basis means the number of shares of an investment fund upon which the calculation of a share price is based.
Business day means any calendar day for which share prices are calculated.
Forfeitures means amounts forfeited to the TSP pursuant to 5 U.S.C. 8432(g)(2) and other non-statutory forfeited amounts, net of restored forfeited amounts.
§ 1645.2 Posting of transactions.
Contributions, loan payments, loan disbursements, withdrawals, fund reallocations, fund transfers, and other transactions will be posted in dollars and in shares by source and by TSP core fund to the appropriate individual account by the TSP record keeper, using the share price for the date the transaction is posted.
§ 1645.3 Calculation of total net earnings for each TSP core fund.
(a) Each business day, net earnings will be calculated separately for each TSP core fund.
(b) Net earnings for each fund will equal:
(1) The sum of the following items, if any, accrued since the last business day:
(i) Interest on money of that fund which is invested in the Government Securities Investment Fund;
(ii) Interest on other short-term investments of the fund;
(iii) Other income (such as dividends, interest, or securities lending income) on investments of the fund; and
(iv) Capital gains or losses on investments of the fund, net of transaction costs.
(2) Minus the accrued administrative expenses of the fund, determined in accordance with § 1645.4.
(c) The net earnings for each TSP core fund determined in accordance with paragraph (b) of this section will be added to the residual net earnings for that fund from the previous business day, as described in § 1645.5(b), to produce the total net earnings. The total net earnings will be used to calculate the share price for that business day.
§ 1645.4 Administrative expenses attributable to each TSP core fund.
A portion of the administrative expenses accrued during each business day will be charged to each TSP core fund. A fund’s respective portion of administrative expenses will be determined as follows:
(a) Accrued administrative expenses (other than those described in paragraph (b) of this section) will be reduced by:
(1) Accrued forfeitures;
(2) The fees described in §§ 1601.53(a) (relating to the mutual fund window), 1655.21 (relating to loans), 1653.6 (relating to retirement benefits court orders), and 1653.16 (relating to child support court orders) of this chapter; and
(3) Accrued earnings on forfeitures, abandoned accounts, unapplied deposits, and fees described in paragraph (a)(2) of this section.
(b) Investment management fees and other accrued administrative expenses attributable only to a particular fund will be charged solely to that fund.
(c) The amount of accrued administrative expenses not covered by forfeitures, fees, and earnings under paragraph (a) of this section, and not described in paragraph (b) of this section, will be charged on a pro rata basis to all TSP core funds, based on the respective fund balances on the last business day of the prior month end.
(a) Calculation of share price. The share price for each TSP core fund for each business day will apply to all sources of contributions for that fund. The total net earnings (as computed under § 1645.3) for each fund will be divided by the total fund basis (as computed under § 1645.6) for that fund. The resulting number, computed to ten decimal places, represents the incremental change in the value of that fund from the last business day to the current business day. The share price for that fund for the current business day is the sum of the incremental change in the share price for the current business day plus the share price for the prior business day, truncated to four decimal places.
(b) Residual net earnings. When the total net earnings for each business day for each TSP Fund are divided by the total fund basis in that fund, there will be residual net earnings attributable to the truncation described in paragraph (a) of this section which will not be included in the incremental change in the share price of the fund for that business day. The residual net earnings that are not included in the incremental share price for the fund may be added to the earnings for that fund on the next business day.
The total fund basis for a TSP core fund will be the sum of the number of shares in all individual accounts from all sources of contributions in that fund as of the opening of business on each business day.
PART 1650—METHODS OF WITHDRAWING FUNDS FROM THE THRIFT SAVINGS PLAN
Subpart A—General
§ 1650.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
In-service withdrawal means an age-based or financial hardship withdrawal from the TSP that may be available to a participant who has not yet separated from Government service.
Post-employment distribution means a distribution from the TSP that is available to a participant who is separated from Government service.
Required beginning date means the required beginning date as defined in Internal Revenue Code section 401(a)(9) and the regulations and guidance promulgated thereunder.
Required minimum distribution means the amount required to be distributed to a participant beginning on the required beginning date and every year thereafter pursuant to Internal Revenue Code section 401(a)(9) and the regulations promulgated thereunder, as applicable.
TSP withdrawal means a post-employment distribution and/or an in-service withdrawal.
§ 1650.2 Eligibility and general rules for a TSP withdrawal.
(a) A participant who is separated from Government service can elect a distribution of all or a portion of his or her account balance by one or a combination of the distribution methods described in subpart B of this part.
(b) A post-employment distribution will not be paid unless TSP records indicate that the participant is separated from Government service. The TSP record keeper will, when possible, cancel a pending post-employment distribution election upon receiving information from an employing agency that a participant is no longer separated.
(c) A participant cannot make a full post-employment distribution of his or her account until any outstanding TSP loan has either been repaid in full or declared to be a loan foreclosure. An outstanding TSP loan will not affect a participant’s eligibility for a partial post-employment distribution or an in-service withdrawal.
(d) A separated participant who is reemployed in a position in which he or she is eligible to participate in the TSP is subject to the following rules:
(1) A participant who is reemployed in a TSP-eligible position on or before the 31st full calendar day after separation is not eligible to withdraw his or her TSP account in accordance with subpart B of this part.
(2) A participant who is reemployed in a TSP-eligible position more than 31 full calendar days after separation and who made a post-employment withdrawal while separated may not withdraw any remaining portion of his or her account balance in accordance with subpart B of this part until he or she again separates from Government service.
(e) A participant who has not separated from Government service may be eligible to withdraw all or a portion of his or her account in accordance with subparts D and E of this part.
(f) A participant can elect to have any portion of a single or installment payment that is not rolled over to an eligible employer plan, traditional IRA, or Roth IRA deposited directly, by electronic funds transfer (EFT), into a savings or checking account at a financial institution in the United States.
(g) If a participant has a civilian TSP account and a uniformed services TSP account, the rules in this part apply to each account separately. For example, the participant is eligible to make four age-based in-service withdrawals from the civilian account and four age-based in-service withdrawals from the uniformed services account per calendar year. A separate withdrawal request must be made for each account.
(h) A participant may elect to have his or her TSP withdrawal distributed from the participant’s traditional balance only, Roth balance only, or pro rata from the participant’s traditional and Roth balances. Any distribution from the traditional balance will be prorated between the tax-deferred balance and any tax-exempt balance. Any distribution from the Roth balance will be prorated between contributions in the Roth balance and earnings in the Roth balance. In addition, all TSP withdrawals will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All prorated amounts will be based on the balances in each TSP core fund or source of contributions on the day the TSP withdrawal is processed.
§ 1650.3 Frozen accounts.
(a) All distributions from the TSP are subject to the rules relating to spousal rights (found in subpart G of this part) and to domestic relations orders, alimony and child support legal process, and child abuse enforcement orders (found in 5 CFR part 1653).
(b) A participant may not take a distribution of any portion of his or her account balance if the account is frozen due to a pending retirement benefits court order, an alimony or child support enforcement order, or a child abuse enforcement order, or because a freeze has been placed on the account by the TSP record keeper for another reason.
§ 1650.4 Certification of truthfulness.
By completing a TSP withdrawal request, the participant certifies, under penalty of perjury, that all information provided to the TSP record keeper during the withdrawal process is true and complete, including statements concerning the participant’s marital status and, where applicable, the spouse’s email or physical address at the time the application is filed or the current spouse’s consent to the withdrawal.
§ 1650.5 Returned funds.
If a TSP withdrawal is returned as undeliverable, the TSP record keeper will attempt to locate the participant. If the participant does not respond within 90 days, the returned funds will be forfeited to the TSP. The participant can claim the forfeited funds, although they will not be credited with TSP investment fund returns.
§ 1650.6 Deceased participant.
(a) The TSP record keeper will cancel a pending TSP withdrawal request if it receives notice, in the form and manner prescribed by the TSP record keeper, that a participant is deceased. The TSP record keeper will also cancel an annuity purchase made on or after the participant’s date of death but before annuity payments have begun, and the annuity vendor will return the funds to the TSP.
(b) If the TSP record keeper processes a TSP withdrawal request before being notified that a participant is deceased, the funds cannot be returned to the TSP.
Subpart B—Post-Employment Withdrawals
§ 1650.11 Post-employment distribution elections.
(a) Subject to the restrictions in this subpart, participants may elect a distribution of all or a portion of their TSP accounts in a single payment, a series of installment payments, a life annuity, or any combination of these options.
(b) If a participant’s account balance is less than $5.00 when he or she separates from Government service, the balance will automatically be forfeited to the TSP. The participant can reclaim the money by contacting the TSP record keeper and requesting the amount that was forfeited; however, TSP investment earnings will not be credited to the account after the date of the forfeiture.
(c) Provided that the participant has not submitted a post-employment distribution election prior to the date the automatic payment is processed, if a participant’s vested account balance is less than $200 when he or she separates from Government service, the TSP record keeper will automatically pay the balance in a single payment to the participant at his or her TSP address of record. The participant will not be eligible for any other payment option or be allowed to remain in the TSP.
(d) Only one post-employment distribution election per account will be processed in any 30-calendar-day period.
§ 1650.12 Single payment.
Provided that, in the case of a partial distribution, the amount elected is not less than $1,000, a participant can elect a distribution of all or a portion of his or her account balance in a single payment.
§ 1650.13 Installment payments.
(a) A participant can elect a distribution of all or a portion of the account balance in a series of substantially equal installment payments, to be paid on a monthly, quarterly, or annual basis in one of the following manners:
(1) A specific dollar amount. The amount elected must be at least $25 per installment; if the amount elected is less than $25 per installment, the request will be rejected. Payments will be made in the amount requested each installment period.
(2) An installment payment amount calculated based on life expectancy. Payments based on life expectancy are determined using the factors set forth in the Internal Revenue Service life expectancy tables codified at 26 CFR 1.401(a)(9)-9(b) and (c). The installment payment amount is calculated by dividing the account balance by the factor from the IRS life expectancy tables based upon the participant’s age as of his or her birthday in the year payments are to begin. This amount is then divided by the number of installment payments to be made per calendar year to yield the installment payment amount. In subsequent years, the installment payment amount is recalculated in January by dividing the prior December 31 account balance by the factor in the IRS life expectancy tables based upon the participant’s age as of his or her birthday in the year payments will be made. There is no minimum amount for an installment payment calculated based on this method.
(b) A participant can make the following changes at any time as described in § 1650.17(c):
(1) A participant receiving installment payments calculated based on life expectancy can elect to change to fixed dollar installment payments;
(2) A participant receiving installment payments based on a fixed dollar amount can elect to stop these payments and make a new election to receive installment payments calculated based on life expectancy;
(3) A participant receiving installment payments based on a fixed dollar amount can elect to change the amount of his or her fixed payments; and
(4) A participant receiving fixed dollar installment payments can elect to change the frequency of his or her installment payments.
(c) If a participant elects to receive installments pro rata from his or her traditional and Roth balances, installment payments will be made until the participant’s entire account balance is expended, unless the participant elects to change or stop installment payments as described in in § 1650.17(c). If a participant elects to receive installment payments from his or her traditional balance only or Roth balance only, installment payments will automatically continue from the non-elected balance once the elected balance has been expended, unless the participant elects to change or stop installment payments as described in § 1650.17(c).
(d) A participant receiving installment payments, regardless of the calculation method, can elect at any time to receive the remainder or part of his or her account balance in a single payment.
(e) A participant may only have one installment payment series in place at a time.
(f) A participant receiving installment payments may change the investment of his or her account balance among the TSP core funds and may invest through the mutual fund window as provided in 5 CFR part 1601.
(g) Upon receiving information from an employing agency that a participant receiving installment payments is no longer separated, the TSP record keeper will cancel all pending and future installment payments.
§ 1650.14 Annuities.
(a) A participant electing a post-employment distribution can use all or a portion of his or her total account balance, traditional balance only, or Roth balance only to purchase a life annuity.
(b) If a participant has a traditional balance and a Roth balance and elects to use all or a portion of his or her total account balance to purchase a life annuity, the TSP record keeper must purchase two separate annuity contracts for the participant: One from the portion of the withdrawal distributed from his or her traditional balance and one from the portion of the withdrawal distributed from his or her Roth balance.
(c) A participant cannot elect to purchase an annuity contract with less than $3,500.
(d) Unless an amount must be paid directly to the participant to satisfy any applicable minimum distribution requirement of the Internal Revenue Code, the TSP record keeper will purchase the annuity contract(s) from the TSP’s annuity vendor using the participant’s entire account balance or the portion specified. In the event that a minimum distribution is required by section 401(a)(9) of the Internal Revenue Code before the date of the first annuity payment, the TSP record keeper will compute that amount prior to purchasing the annuity contract(s) and pay it directly to the participant.
(e) An annuity will provide a payment for life to the participant and, if applicable, to the participant’s survivor, in accordance with the type of annuity chosen. The TSP annuity vendor will make the first annuity payment approximately 30 days after the TSP record keeper purchases the annuity.
(f) The amount of an annuity payment will depend on the type of annuity chosen, the participant’s age when the annuity is purchased (and the age of the joint annuitant, if applicable), the amount used to purchase the annuity, and the interest rate available when the annuity is purchased.
(g) Participants may choose among the following types of annuities:
(1) A single life annuity with level payments. This annuity provides monthly payments to the participant as long as the participant lives. The amount of the monthly payment remains constant.
(2) A joint life annuity for the participant and spouse with level payments. This annuity provides monthly payments to the participant, as long as both the participant and spouse are alive, and monthly payments to the survivor, as long as the survivor is alive. The amount of the monthly payment remains constant, although the amount received will depend on the type of survivor benefit elected.
(3) A joint life annuity for the participant and another person with level payments. This annuity provides monthly payments to the participant as long as both the participant and the joint annuitant are alive, and monthly payments to the survivor as long as the survivor is alive. The amount of the monthly payment remains constant. The joint annuitant must be either a former spouse or a person who has an insurable interest in the participant.
(i) A person has an “insurable interest in the participant” if the person is financially dependent on the participant and could reasonably expect to derive financial benefit from the participant’s continued life.
(ii) A relative (either blood or adopted, but not by marriage) who is closer than a first cousin is presumed to have an insurable interest in the participant.
(iii) A participant can establish that a person not described in paragraph (g)(3)(ii) of this section has an insurable interest in him or her by submitting, with the annuity request, an affidavit from a person other than the participant or the joint annuitant that demonstrates that the designated joint annuitant has an insurable interest in the participant (as described in paragraph (g)(3)(i) of this section).
(4) Either a single life or joint (with spouse) life annuity with increasing payments. This annuity provides monthly payments to the participant only, or to the participant and spouse, as applicable. The monthly payments are increased once each year on the anniversary of the first payment by a fixed rate of 2 percent. If the participant chooses a joint life annuity, the annual 2 percent increase also applies to benefits received by the survivor.
(h) For each distribution election in which the participant elects to purchase an annuity with some or all of the amount distributed, if the TSP record keeper must purchase two annuity contracts, the type of annuity, the annuity features, and the joint annuitant (if applicable) selected by the participant will apply to both annuities purchased. For each distribution election, a participant cannot elect more than one type of annuity by which to receive a distribution, or portion thereof, from any one account.
(i) A participant who chooses a joint life annuity (with a spouse, a former spouse, or a person with an insurable interest) must choose either a 50 percent or a 100 percent survivor benefit. The survivor benefit applies when either the participant or the joint annuitant dies.
(1) A 50 percent survivor benefit provides a monthly payment to the survivor which is 50 percent of the amount of the payment that is made when both the participant and the joint annuitant are alive.
(2) A 100 percent survivor benefit provides a monthly payment to the survivor, which is equal to the amount of the payment that is made when both the participant and the joint annuitant are alive.
(3) Either the 50 percent or the 100 percent survivor benefit may be combined with any joint life annuity option. However, the 100 percent survivor benefit can only be combined with a joint annuity with a person other than the spouse (or a former spouse, if required by a retirement benefits court order) if the joint annuitant is not more than 10 years younger than the participant.
(j) The following features are mutually exclusive, but can be combined with certain types of annuities, as indicated:
(1) Cash refund. This feature provides that, if the participant (and joint annuitant, where applicable) dies before an amount equal to the balance used to purchase the annuity has been paid out, the difference between the balance used to purchase the annuity and the sum of monthly payments already made will be paid to the beneficiary(ies) designated by the participant (or by the joint annuitant, where applicable). This feature can be combined with any type of annuity.
(2) Ten-year certain. This feature provides that, if the participant dies before annuity payments have been made for 10 years (120 payments), monthly payments will be made to the beneficiary(ies) until 120 payments have been made. This feature can be combined with any single life annuity, but cannot be combined with a joint life annuity.
(k) Once an annuity has been purchased, the type of annuity, the annuity features, and the identity of the joint annuitant cannot be changed, and the annuity cannot be terminated.
§ 1650.16 Required minimum distributions.
(a) A separated participant must receive required minimum distributions from his or her account commencing no later than the required beginning date and, for each year thereafter, no later than December 31.
(b) A separated participant may elect to withdraw from his or her account or to begin receiving payments before the required beginning date, but is not required to do so.
(c) In the event that a separated participant does not withdraw from his or her account an amount sufficient to satisfy his or her required minimum distribution for the year, the TSP record keeper will automatically distribute the necessary amount on or before the applicable date described in paragraph (a) of this section.
(d) [Reserved]
(e) The rules set forth in paragraphs (a) through (d) of this section shall apply to a separated participant who reclaims an account balance that was declared abandoned.
§ 1650.17 Changes and cancellation of a post-employment distribution request.
(a) Before processing. A pending post-employment distribution request can be cancelled if the cancellation is received and can be processed before the TSP record keeper processes the request. However, the TSP record keeper processes post-employment distribution requests each business day and those that are entered into the record keeping system by 12 noon eastern time will ordinarily be processed that night; those entered after 12 noon eastern time will be processed the next business day. Consequently, a cancellation request must be received and entered into the system before the cut-off for the day the request is submitted for processing in order to be effective to cancel the post-employment distribution.
(b) After processing. A post-employment distribution election cannot be changed or cancelled after the withdrawal request has been processed. Consequently, funds disbursed cannot be returned to the TSP.
(c) Change in installment payments. If a participant is receiving a series of installment payments, with appropriate supporting documentation as required by the TSP record keeper, the participant can change at any time: The payment amount or frequency (including stopping installment payments), the address to which the payments are mailed, the amount of federal tax withholding, whether or not a payment will be rolled over (if permitted) and the portion to be rolled over, the method by which direct payments to the participant are being sent (EFT or check), the identity of the financial institution to which payments are rolled over or sent directly to the participant by EFT, or the identity of the EFT account.
Subpart C—Procedures for Post-Employment Distributions
§ 1650.21 Information provided by employing agency or service.
When a TSP participant separates from Government service, his or her employing agency or service must report the separation and the date of separation to the TSP record keeper. Until the TSP record keeper receives this information from the employing agency or service, it will not pay a post-employment distribution.
§ 1650.22 Accounts of $200 or more.
A participant whose account balance is $200 or more must submit a properly completed distribution election to request a post-employment distribution of his or her account balance.
§ 1650.23 Accounts of less than $200.
Upon receiving information from the employing agency that a participant has been separated for more than 60 days and that any outstanding loans have been closed, provided the participant has not made a distribution election before the distribution is processed, if the account balance is $5.00 or more but less than $200, the TSP record keeper will automatically distribute the entire amount of his or her account balance. The TSP record keeper will not pay this amount by EFT. The participant may not elect to leave this amount in the TSP, nor will the TSP record keeper roll over any automatically distributed amount to an eligible employer plan, traditional IRA, or Roth IRA. However, the participant may make an indirect rollover of this payment into an eligible employer plan, traditional IRA, or Roth IRA to the extent the roll over is permitted by the Internal Revenue Code.
§ 1650.24 How to obtain a post-employment distribution.
To request a post-employment distribution, a participant must initiate a request in the form and manner prescribed by the TSP record keeper.
§ 1650.25 Rollovers from the TSP.
(a) The TSP record keeper will, at the participant’s election, roll over all or any portion of an eligible rollover distribution (as defined by section 402(c) of the Internal Revenue Code) directly to an eligible employer plan or an IRA.
(b) If a post-employment distribution includes a payment from a participant’s traditional balance and a payment from the participant’s Roth balance, the TSP record keeper will, at the participant’s election, roll over all or a portion of the payment from the traditional balance to a single plan or IRA and all or a portion of the payment from the Roth balance to another plan or IRA. The TSP record keeper will also allow the traditional and Roth portions of a payment to be rolled over to the same plan or IRA but, for each type of balance, the election must be made separately by the participant and each type of balance will be rolled over separately. However, the TSP record keeper will not roll over portions of the participant’s traditional balance to two different institutions or portions of the participant’s Roth balance to two different institutions.
(c) If a post-employment distribution includes an amount from a participant’s Roth balance and the participant elects to roll over that amount to another eligible employer plan or Roth IRA, the TSP record keeper will inform the plan administrator or trustee of the start date of the participant’s Roth 5 year non-exclusion period or the participant’s Roth initiation date, and the portion of the distribution that represents Roth contributions. If a post-employment distribution includes an amount from a participant’s Roth balance and the participant does not elect to roll over the amount, the TSP record keeper will inform the participant of the portion of the distribution that represents Roth contributions.
(d) Tax-exempt contributions can be rolled over only if the IRA or plan accepts such funds.
(e) The TSP record keeper will roll over distributions only to the extent that the rollover is permitted by the Internal Revenue Code.
Subpart D—In-Service Withdrawals
§ 1650.31 Age-based withdrawals.
(a) A participant who has reached age 59
(b) An age-based withdrawal is an eligible rollover distribution, so a participant may request that the TSP record keeper roll over all or a portion of the withdrawal to a traditional IRA, an eligible employer plan, or a Roth IRA in accordance with § 1650.25.
(c) A participant is permitted four age-based withdrawals per calendar year for an account. Only one age-based withdrawal election per account will be processed in any 30-calendar-day-period.
§ 1650.32 Financial hardship withdrawals.
(a) A participant who has not separated from Government service and who can certify that he or she has a financial hardship is eligible to withdraw all or a portion of his or her own contributions to the TSP (and their attributable earnings) in a single payment to meet certain specified financial obligations. The amount of a financial hardship withdrawal request must be at least $1,000.
(b) To be eligible for a financial hardship withdrawal, a participant must have a financial need that results from at least one of the following five conditions:
(1) The participant’s monthly cash flow is negative (i.e., the participant’s income is less than his or her monthly expenses on a recurring basis);
(2) The participant has incurred medical expenses as a result of a medical condition, illness, or injury to the participant, the participant’s spouse, or the participant’s dependents. Generally, eligible expenses are those that would be eligible for deduction as medical expenses for Federal income tax purposes. Eligible medical expenses include the cost of household improvements required as a result of a medical condition, illness or injury. Household improvements are structural improvements to the participant’s living quarters or the installation of special equipment that is necessary to accommodate the circumstances of the incapacitated person.
(3) The participant must have paid the cost of repair or replacement resulting from a personal casualty loss that would be eligible for deduction for Federal income tax purposes, but without regard to the IRS income limitations on deductibility, fair market value of the property, or number of events. Personal casualty loss includes damage, destruction, or loss of property resulting from a sudden, unexpected, or unusual event, such as an earthquake, hurricane, tornado, flood, storm, fire, or theft.
(4) The participant must have paid attorney fees and court costs associated with separation or divorce. Court-ordered payments to a spouse or former spouse and child support payments are not allowed, nor are costs of obtaining prepaid legal services or other coverage for legal services.
(5) The participant has incurred expenses and losses (including loss of income) on account of a disaster declared by the Federal Emergency Management Agency (FEMA) under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, provided that the participant’s principal residence or principal place of employment at the time of the disaster was located in an area designated by FEMA for individual assistance with respect to the disaster.
(c) When determining financial hardship needs, a participant cannot use any expenses that are already paid or are reimbursable to the participant by insurance or otherwise.
(d) The amount of a participant’s financial hardship withdrawal cannot exceed the smallest of the following:
(1) The amount requested; or
(2) The amount in the participant’s account that is equal to his or her own contributions and attributable earnings.
(e) The participant must certify that he or she has a financial hardship as described on the hardship withdrawal request, and that the dollar amount of the withdrawal request does not exceed the actual amount of the financial hardship.
(f) A participant is not eligible for an in-service hardship withdrawal based solely on monthly negative cash flow (as described in paragraph (b)(1) of this section) during the time he or she has pending a petition in bankruptcy under Chapter 13 of the Bankruptcy Code (11 U.S.C. chapter 13).
§ 1650.33 [Reserved]
§ 1650.34 Uniqueness of loans and in-service withdrawals.
An outstanding TSP loan cannot be converted into an in-service withdrawal or vice versa. Funds distributed as an in-service withdrawal cannot be returned or repaid.
Subpart E—Procedures for In-Service Withdrawals
§ 1650.41 How to obtain an age-based withdrawal.
To request an age-based withdrawal, a participant must initiate a request in form and manner prescribed by the TSP record keeper.
§ 1650.42 How to obtain a financial hardship withdrawal.
(a) To request a financial hardship withdrawal, a participant must initiate a request in the form and manner prescribed by the TSP record keeper.
(b) There is no limit on the number of financial hardship withdrawals a participant can make; however, the TSP record keeper will not accept a financial hardship withdrawal request for a period of six months after a financial hardship disbursement is made.
§ 1650.43 [Reserved]
Subpart F [Reserved]
Subpart G—Spousal Rights
§ 1650.61 Spousal rights applicable to post-employment withdrawals.
(a) The spousal rights described in this section apply to total post-employment distributions when the married participant’s vested TSP account balance exceeds $3,500, to partial post-employment distributions without regard to the amount of the participant’s account balance, and to any change in the amount or frequency of an existing installment payment series, including a change from payments calculated based on life expectancy to payments based on a fixed-dollar amount.
(b) Unless the participant was granted an exception under this subpart to the spousal notification requirement within 90 days of the date the distribution request is processed by the TSP record keeper, the spouse of a CSRS participant is entitled to notice when the participant applies for a post-employment distribution or makes a change to the amount or frequency of an existing installment payment series. The participant must provide the TSP record keeper with the spouse’s correct email or physical address to which to send the required notice.
(c) The spouse of a FERS or uniformed services participant has a right to a joint and survivor annuity with a 50 percent survivor benefit, level payments, and no cash refund based on the participant’s entire account balance when the participant elects a total post-employment distribution.
(1) The participant may make a different total post-employment distribution election only if his or her spouse consents to that election and waives the right to this annuity.
(2) A participant’s spouse must consent to any partial post-employment distribution election (other than an election to purchase this type of an annuity with such amount) and waive his or her right to this annuity with respect the amount distributed.
(3) A spouse must consent to any change in the amount or frequency of an existing installment payment series and waive his or her right to this annuity with respect to the applicable amount. Spousal consent is not required to stop installment payments.
(4) Unless the participant was granted an exception under this subpart to the spousal consent requirement within 90 days of the date the distribution request is processed by the TSP record keeper, to show that the spouse has consented to a different total or partial post-employment distribution election or installment payment change and waived the right to this annuity with respect to the applicable amount, the participant must submit to the TSP record keeper a properly completed distribution request, signed by his or her spouse.
(5) The spouse’s consent and waiver is irrevocable for the applicable distribution or installment payment change once the TSP record keeper has received it.
§ 1650.62 Spousal rights applicable to in-service withdrawals.
(a) The spousal rights described in this section apply to all in-service withdrawals and do not depend on the amount of the participant’s vested account balance or the amount requested for withdrawal.
(b) Unless the participant was granted an exception under this subpart to the spousal notification requirement within 90 days of the date on which the withdrawal request is processed by the TSP record keeper, the spouse of a CSRS participant is entitled to notice when the participant applies for an in-service withdrawal. The participant must provide the TSP record keeper with the spouse’s correct email or physical address to which to send the required notice.
(c) Unless the participant was granted an exception under this subpart to the spousal consent requirement within 90 days of the date the withdrawal request is processed by the TSP record keeper, before obtaining an in-service withdrawal, a participant who is covered by FERS or who is a member of the uniformed services must obtain the consent of his or her spouse and waiver of the spouse’s right to a joint and survivor annuity described in § 1650.61(c) with respect to the applicable amount. To show the spouse’s consent and waiver, a participant must submit to the TSP record keeper a properly completed withdrawal request, signed by his or her spouse. Once a request containing the spouse’s consent and waiver has been submitted to the TSP record keeper, the spouse’s consent is irrevocable for that withdrawal.
§ 1650.63 Executive Director’s exception to the spousal notification requirement.
(a) Whenever this subpart requires the Executive Director to give notice of an action to the spouse of a CSRS participant, an exception to this requirement may be granted if the participant establishes to the satisfaction of the Executive Director that the spouse’s whereabouts cannot be determined. A request for such an exception must be submitted to the TSP record keeper in the form and manner prescribed by the TSP record keeper, accompanied by the following:
(1) A court order stating that the spouse’s whereabouts cannot be determined;
(2) A police or governmental agency determination, signed by the appropriate department or division head, which states that the spouse’s whereabouts cannot be determined; or
(3) Statements by the participant and two other persons, which meet the following requirements:
(i) The participant’s statement must give the full name of the spouse, declare the participant’s inability to locate the spouse, state the last time the spouse’s location was known, explain why the spouse’s location is not known currently, and describe the good faith efforts the participant has made to locate the spouse in the 90 days before the request for an exception was received by the TSP record keeper. Examples of attempting to locate the spouse include, but are not limited to, checking with relatives and mutual friends or using telephone directories and directory assistance for the city of the spouse’s last known address. Negative statements, such as, “I have not seen nor heard from him,” or “I have not had contact with her,” are not sufficient.
(ii) The statements from two other persons must support the participant’s statement that he or she does not know the spouse’s whereabouts, and substantiate the participant’s description of the efforts he or she made to locate the spouse, including the dates the participant made those efforts.
(iii) All statements must be signed and dated and must include the following certification: “I understand that a false statement or willful misrepresentation is punishable under Federal law (18 U.S.C. 1001) by a fine or imprisonment or both.”.
(b) A TSP withdrawal election will be processed within 90 days of an approved exception so long as the spouse named on the TSP withdrawal request is the spouse for whom the exception has been approved.
(c) The TSP and/or its record keeper may require a participant to provide additional information before granting a waiver. The TSP and/or its record keeper may use any of the information provided to conduct its own search for the spouse.
§ 1650.64 Executive Director’s exception to the spousal consent requirement.
(a) Whenever this subpart requires the consent of a spouse of a FERS or uniformed services participant to a loan or TSP withdrawal or a waiver of the right to a survivor annuity, an exception to this requirement may be granted if the participant establishes to the satisfaction of the Executive Director that:
(1) The spouse’s whereabouts cannot be determined in accordance with the provisions of this subpart; or
(2) Due to exceptional circumstances, requiring the spouse’s signature would be inappropriate.
(i) An exception to the requirement for a spouse’s signature may be granted based on exceptional circumstances only when the participant presents a court order or government agency determination that contains a finding or a recitation of exceptional circumstances regarding the spouse which would warrant an exception to the signature requirement.
(ii) Exceptional circumstances are narrowly construed, but are exemplified by a court order or government agency determination that:
(A) Indicates that the spouse and the participant have been maintaining separate residences with no financial relationship for three or more years;
(B) Indicates that the spouse abandoned the participant, but for religious or similarly compelling reasons, the parties chose not to divorce; or
(C) Expressly states that the participant may obtain a loan from his or her TSP account or make a TSP withdrawal notwithstanding the absence of the spouse’s signature.
(b) A post-employment distribution election or an in-service withdrawal request processed within 90 days of an approved exception will be accepted by the TSP record keeper so long as the spouse named on the request is the spouse for whom the exception has been approved.
PART 1651—DEATH BENEFITS
§ 1651.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this subpart:
Administrative finding means an evidence-based determination reached by a hearing, inquiry, investigation, or trial before an administrative agency of competent jurisdiction in any State, territory or possession of the United States.
Death benefit means the portion of a deceased participant’s account that is payable under FERSA’s order of precedence.
Order of precedence means the priority of entitlement to a TSP death benefit specified in 5 U.S.C. 8424(d).
Required beginning date means the required beginning date as defined in Internal Revenue Code section 401(a)(9) and the regulations and guidance promulgated thereunder.
Required minimum distribution means the amount required to be distributed to a beneficiary participant beginning on the required beginning date and every year thereafter pursuant to Internal Revenue Code section 401(a)(9) and the regulations promulgated thereunder, as applicable.
§ 1651.2 Entitlement to funds in a deceased participant’s account.
(a) Death benefits. Except as provided in paragraph (b) of this section, the account balance of a deceased participant will be paid as a death benefit to the individual or individuals surviving the participant, in the following order of precedence:
(1) To the beneficiary or beneficiaries designated by the participant in accordance with § 1651.3;
(2) If there is no designated beneficiary, to the spouse of the participant in accordance with § 1651.5;
(3) If there are no beneficiaries or persons as described in paragraphs (a)(1) and (a)(2) of this section, to the child or children of the participant and descendants of deceased children by representation in accordance with § 1651.6;
(4) If there are no beneficiaries or persons as described in paragraphs (a)(1) through (a)(3) of this section, to the parents of the participant in equal shares or entirely to the surviving parent in accordance with § 1651.7;
(5) If there are no beneficiaries or persons as described in paragraphs (a)(1) through (a)(4) of this section, to the duly appointed executor or administrator of the estate of the participant in accordance with § 1651.8; or
(6) If there are no beneficiaries or persons as described in paragraphs (a)(1) through (a)(5) of this section, to the next of kin of the participant who is or are entitled under the laws of the state of the participant’s domicile on the date of the participant’s death in accordance with § 1651.9.
(b) TSP withdrawals. If the TSP record keeper processes a notice that a participant has died, it will cancel any pending request by the participant to withdraw his or her account. The TSP record keeper will also cancel an annuity purchase made on or after the participant’s date of death but before annuity payments have begun, and the annuity vendor will return the funds to the TSP. The funds designated by the participant for the withdrawal will be paid as a death benefit in accordance with paragraph (a) of this section, unless the participant elected to withdrawal his or her account in the form of an annuity, in which case the funds designated for the purchase of the annuity will be paid as described in paragraphs (b)(1) through (5) of this section:
(1) If the participant requested a single life annuity with no cash refund or 10-year certain feature, the TSP record keeper will pay the funds as a death benefit in accordance with paragraph (a) of this section.
(2) If the participant requested a single life annuity with a cash refund or 10-year certain feature, the TSP record keeper will pay the funds as a death benefit to the beneficiary or beneficiaries designated by the participant on the annuity portion of the TSP post-employment distribution request, or as a death benefit in accordance with paragraph (a) of this section if no beneficiary designated on the withdrawal request survives the participant.
(3) If the participant requested a joint life annuity without additional features, the TSP record keeper will pay the funds as a death benefit to the joint life annuitant if he or she survives the participant, or as a death benefit in accordance with paragraph (a) of this section if the joint life annuitant does not survive the participant.
(4) If the participant requested a joint life annuity with a cash refund or 10-year certain feature, the TSP record keeper will pay the funds as a death benefit to the joint life annuitant if he or she survives the participant, or as a death benefit to the beneficiary or beneficiaries designated by the participant on the annuity portion of the TSP post-employment distribution request if the joint life annuitant does not survive the participant, or as a death benefit in accordance with paragraph (a) of this section if neither the joint life annuitant nor any designated beneficiary survives the participant.
(5) If a participant dies after annuity payments have begun, the annuity vendor will make or stop the payments in accordance with the annuity method selected.
(c) TSP loans. If the TSP record keeper processes a notice that a participant has died, any pending loan disbursement will be cancelled and the funds designated for the loan will be distributed as a death benefit in accordance with paragraph (a) of this section. If a TSP loan has been disbursed, but the check has not been negotiated (or an electronic funds transfer (EFT) has been returned), the loan proceeds will be used to pay off the loan. If the loan check has been negotiated (or the EFT has been processed), the funds cannot be returned to the TSP and the TSP record keeper will declare the loan balance as a loan foreclosure in accordance with part 1655 of this chapter.
(d) TSP investments. Upon a participant’s death, his or her TSP account will remain invested in the same TSP core funds as the account balance was invested on his or her date of death. If any portion of the participant’s TSP account is invested through the mutual fund window at the time of his or her death, his or her mutual fund window account will be closed and the balance will be transferred back to the TSP core funds in the participant’s TSP account in accordance with his or her most recent investment election until it is paid out or a beneficiary participant account is established under this part.
§ 1651.3 Designation of beneficiary.
(a) Designation requirements. A participant may designate one or more beneficiaries for his or her TSP account. A valid TSP designation of beneficiary remains in effect until it is properly changed as described in § 1651.4.
(b) Eligible beneficiaries. Any individual, firm, corporation, or legal entity, including the U.S. Government, may be designated as a beneficiary. A participant can name up to 20 total (primary and contingent) beneficiaries to share the death benefit. A beneficiary may be designated without the knowledge or consent of that beneficiary or the knowledge or consent of the participant’s spouse.
(c) Validity requirements. To be valid and accepted by the TSP record keeper, a TSP designation of beneficiary must:
(1) Be received by the TSP record keeper on or before the date of the participant’s death;
(2) Identify the participant in such a manner so that the TSP record keeper can locate his or her TSP account;
(3) Be signed and properly dated by the participant and signed and properly dated by one witness:
(i) The participant must either sign the designation of beneficiary in the presence of the witness or acknowledge his or her signature on the designation of beneficiary to the witness;
(ii) A witness must be age 21 or older; and
(iii) A witness designated as a beneficiary will not be entitled to receive a death benefit payment; if a witness is the only named beneficiary, the designation of the beneficiary is invalid. If more than one beneficiary is named, the share of the witness beneficiary will be allocated among the remaining beneficiaries pro rata;
(4) Designate primary beneficiary shares which when summed equal 100%;
(5) Contain no substantive alterations (e.g., struck-through shares or scratched-out names of beneficiaries);
(6) Designate each primary and each contingent beneficiary in such a manner so that the TSP record keeper can identify the individual or entity;
(7) Not attempt to designate beneficiaries for the participant’s traditional balance and the participant’s Roth balance separately; and
(8) Be received by the TSP record keeper not more than 365 calendar days after the date of the participant’s most recent signature.
(d) Will. A participant cannot use a will to designate a TSP beneficiary.
§ 1651.4 How to change a designation of beneficiary.
(a) Change. To change a designation of beneficiary, the participant must submit to the TSP record keeper a new TSP designation of beneficiary meeting the requirements of § 1651.3 to the TSP record keeper. If the TSP record keeper receives more than one valid designation of beneficiary, it will honor the designation with the latest date signed by the participant. A participant may change a TSP beneficiary at any time, without the knowledge or consent of any person, including his or her spouse.
(b) [Reserved]
(c) Will. A participant cannot use a will to change a TSP designation of beneficiary.
§ 1651.5 Spouse of participant.
(a) For purposes of payment under § 1651.2(a)(2) and establishment of beneficiary participant accounts under § 1651.19, the spouse of the participant is the person to whom the participant was married on the date of death. A person is considered to be married even if the parties are separated, unless a court decree of divorce or annulment has been entered. The laws of the jurisdiction in which the marriage was initially established will be used to determine whether the participant was married on the date of death.
(b) If a person claims to have a marriage at common law with a deceased participant, the TSP record keeper will pay benefits to the putative spouse under § 1651.2(a)(2) in accordance with the marital status shown on the most recent Federal income tax return filed by the participant. Alternatively, the putative spouse may submit a court order or administrative adjudication determining that the common law marriage is valid.
§ 1651.6 Child or children.
If the account is to be paid to the child or children, or to descendants of deceased children by representation, as provided in § 1651.2(a)(3), the following rules apply:
(a) Child. A child includes a natural or adopted child of the deceased participant.
(b) Descendants of deceased children. “By representation” means that, if a child of the participant dies before the participant, all descendants of the deceased child at the same level will equally divide the deceased child’s share of the participant’s account.
(c) Adoption by another. A natural child of a TSP participant who has been adopted by someone other than the participant during the participant’s lifetime will not be considered the child of the participant, unless the adopting parent is the spouse of the TSP participant.
(d) Parentage disputes. If the identity of the father or mother of a child is in dispute or otherwise unclear (e.g., only one parent is listed on a birth certificate), the purported child must submit to the TSP record keeper either:
(1) A court order or other administrative finding establishing parentage; or
(2) Documentation sufficient for establishing parentage under the law of the state in which the participant was domiciled at the time of death.
§ 1651.7 Parent or parents.
If the account is to be paid to the participant’s parent or parents under § 1651.2(a)(4), the following rules apply:
(a) Amount. If both parents are alive at the time of the participant’s death, each parent will be separately paid fifty percent of the account. If only one parent is alive at the time of the participant’s death, he or she will receive the entire account balance.
(b) Step-parent. A step-parent is not considered a parent unless the step-parent adopted the participant.
§ 1651.8 Participant’s estate.
If the account is to be paid to the duly appointed executor or administrator of the participant’s estate under § 1651.2(a)(5), the following rules apply:
(a) Appointment by court. The executor or administrator must provide documentation of court appointment.
(b) Appointment by operation of law. If state law provides procedures for handling small estates, the TSP record keeper will accept the person authorized to dispose of the assets of the deceased participant under those procedures as a duly appointed executor or administrator. Documentation which demonstrates that the person is properly authorized under state law must be submitted to the TSP record keeper.
§ 1651.9 Participant’s next of kin.
If the account is to be paid to the participant’s next of kin under § 1651.2(a)(6), the next of kin of the participant will be determined in accordance with the state law of the participant’s domicile at the time of death.
§ 1651.10 Deceased and non-existent beneficiaries.
(a) Designated beneficiary dies before participant. The share of any designated beneficiary who predeceases the participant will be paid pro rata to the participant’s other designated beneficiary or beneficiaries. If no designated beneficiary survives the participant, the account will be paid according to the order of precedence set forth in § 1651.2(a).
(b) Trust designated as beneficiary but not in existence. If a participant designated a trust or other entity as a beneficiary and the entity does not exist on the date of the participant’s death, or is not created by will or other document that is effective upon the participant’s death, the amount designated to the entity will be paid in accordance with the rules of paragraph (a) of this section, as if the trust were a beneficiary that predeceased the participant.
(c) Non-designated beneficiary dies before participant. If a beneficiary other than a beneficiary designated on a TSP designation of beneficiary dies before the participant, the beneficiary’s share will be paid equally to other living beneficiaries bearing the same relationship to the participant as the deceased beneficiary. However, if the deceased beneficiary is a child of the participant, payment will be made to the deceased child’s descendants, if any. If there are no other beneficiaries bearing the same relationship or, in the case of children, there are no descendants of deceased children, the deceased beneficiary’s share will be paid to the person(s) next in line according to the order of precedence.
(d) Beneficiary dies after participant but before payment. If a beneficiary dies after the participant, the beneficiary’s share will be paid to the beneficiary’s estate. A copy of a beneficiary’s certified death certificate is required in order to establish that the beneficiary has died, and when.
§ 1651.11 Simultaneous death.
If a beneficiary dies at the same time as the participant, the beneficiary will be treated as if he or she predeceased the participant and the account will be paid in accordance with § 1651.10. The same time is considered to be the same hour and minute as indicated on a death certificate. If the participant and beneficiary are killed in the same event, death is presumed to be simultaneous, unless evidence is presented to the contrary.
§ 1651.12 Homicide.
If the participant’s death is the result of a homicide, a beneficiary will not be paid as long as the beneficiary is under investigation by local, state or Federal law enforcement authorities as a suspect. If the beneficiary is implicated in the death of the participant and the beneficiary would be precluded from inheriting under state law, the beneficiary will not be entitled to receive any portion of the participant’s account. The TSP record keeper will follow the state law of the participant’s domicile as that law is set forth in a civil court judgment (that, under the law of the state, would protect the TSP record keeper from double liability or payment) or, in the absence of such a judgment, will apply state law to the facts after all criminal appeals are exhausted. The TSP record keeper will treat the beneficiary as if he or she predeceased the participant and the account will be paid in accordance with § 1651.10.
§ 1651.13 How to apply for a death benefit.
To apply for a TSP death benefit, a potential beneficiary must contact the ThriftLine for instructions on providing a certified copy of the participant’s death certificate, along with any other information as required by the TSP.
§ 1651.14 How payment is made.
(a) In general. Each beneficiary’s death benefit will be disbursed pro rata from the participant’s traditional and Roth balances. The payment from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The payment from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, all death benefits will be disbursed pro rata from all TSP core funds in which the deceased participant’s account is invested. All pro rated amounts will be based on the balances in each TSP core fund or source of contributions on the day the disbursement is made. Disbursement will be made separately for each entitled beneficiary.
(b) Spouse beneficiaries. The TSP record keeper will automatically transfer a surviving spouse’s death benefit to a beneficiary participant account (described in § 1651.19) established in the spouse’s name. The TSP record keeper will not maintain a beneficiary participant account if the balance of the beneficiary participant account is less than $200 on the date the account is established. The TSP record keeper also will not transfer this amount or pay it by electronic funds transfer. Instead, the spouse will receive an immediate distribution in the form of a check.
(c) Nonspouse beneficiaries. The TSP record keeper will send notice of pending payment to each beneficiary. Payment will be sent to the address that is provided on the participant’s TSP designation of beneficiary unless the TSP record keeper receives notice of a more recent address. All individual beneficiaries must provide the TSP record keeper with a Social Security number. The following additional rules apply to payments to nonspouse beneficiaries:
(1) Payment to minor child or incompetent beneficiary. Payment will be made in the name of a minor child or incompetent beneficiary. A parent or other guardian may direct where the payment should be sent and may make any permitted tax withholding election. A guardian of a minor child or incompetent beneficiary must submit court documentation showing his or her appointment as guardian.
(2) Payment to executor or administrator. If payment is to the executor or administrator of an estate, the check will be made payable to the estate of the deceased participant, not to the executor or administrator. A taxpayer identification number must be provided for all estates.
(3) Payment to trust. If payment is to a trust, the payment will be made payable to the trust and mailed in care of the trustee. A taxpayer identification number must be provided for the trust.
(4) Payment to inherited IRA on behalf of a nonspouse beneficiary. If payment is to an inherited IRA on behalf of a nonspouse beneficiary, the check will be made payable to the account. Information pertaining to the inherited IRA must be submitted by the IRA trustee. A payment to an inherited IRA will be made only in accordance with the rules set forth in 5 CFR 1650.25.
(5) Undeliverable payments. If a death benefit payment is returned as undeliverable, the TSP record keeper will attempt to contact the beneficiary. If the beneficiary does not respond within 90 days, the death benefit payment will be forfeited to the TSP. The beneficiary can claim the forfeited funds, although they will not be credited with investment returns.
(6) Proper payments. A properly paid death benefit payment cannot be returned to the TSP.
§ 1651.15 Claims referred to the Board.
(a) Contested claims. Any challenge to a proposed death benefit payment must be filed in writing with the TSP record keeper before payment. All contested claims will be referred to the Board. The Board may also consider issues on its own.
(b) Payment deferred. No payment will be made until the Board has resolved the claim.
§ 1651.16 Missing and unknown beneficiaries.
(a) Locate and identify beneficiaries. (1) The TSP record keeper will attempt to identify and locate all potential beneficiaries.
(2) If a beneficiary is not identified and located, and at least one year has passed since the date of the participant’s death, the beneficiary will be treated as having predeceased the participant and the beneficiary’s share will be paid in accordance with § 1651.10
(b) Payment to known beneficiaries. If all potential beneficiaries are known but one or more beneficiaries (and not all) appear to be missing, payment of part of the participant’s account may be made to the known beneficiaries. The lost or unidentified beneficiary’s share may be paid in accordance with paragraph (a) of this section at a later date.
(c) Abandoned account. If no beneficiaries of the account are located, the account will be considered abandoned and the funds will revert to the TSP. If there are multiple beneficiaries and one or more of them refuses to cooperate in the TSP record keeper’s search for the missing beneficiary, the missing beneficiary’s share will be considered abandoned. In such circumstances, the account can be reclaimed if the missing beneficiary is found at a later date. However, earnings will not be credited from the date the account is abandoned. The TSP may require the beneficiary to apply for the death benefit in the form and manner prescribed by the TSP record keeper and submit proof of identity and relationship to the participant.
§ 1651.17 Disclaimer of benefits.
(a) Right to disclaim. The beneficiary of a TSP account may disclaim his or her right to receive all or part of a TSP death benefit. If the disclaimant is a minor, the parent or guardian of the minor must sign the disclaimer.
(b) Valid disclaimer. The disclaimer must expressly state that the beneficiary is disclaiming his or her right to receive either all or a stated percentage of the death benefit payable from the TSP account of the named participant and must be:
(1) Submitted in writing;
(2) Signed or acknowledged, in the presence of a notary, by the person (or legal representative) disclaiming the benefit; and
(3) Received before the TSP pays the death benefit.
(c) Invalid disclaimer. A disclaimer is invalid if it:
(1) Is revocable;
(2) Directs to whom the disclaimed benefit should be paid; or
(3) Specifies which balance (traditional, Roth, or tax-exempt) is to be disclaimed.
(d) Disclaimer effect. The disclaimed share will be paid as though the beneficiary predeceased the participant, according to the rules set forth in § 1651.10. Any part of the death benefit which is not disclaimed will be paid to the disclaimant pursuant to § 1651.14.
§ 1651.18 Payment to one bars payment to another.
Payment made to a beneficiary(ies) in accordance with this part, based upon information received before payment, bars any claim by any other person.
§ 1651.19 Beneficiary participant accounts.
(a) Initial investment allocation. Each beneficiary participant account, once established, will be allocated to the TSP core funds in which the deceased participant’s account balance was invested on his or her date of death. A beneficiary participant may redistribute his or her beneficiary participant account balance among the TSP core funds by making a fund reallocation or fund transfer request described in part 1601, subpart C, of this chapter. A beneficiary participant may move a portion of his or her beneficiary account balance from the TSP core funds to the mutual fund window by making a fund transfer request described in part 1601, subpart F.
(b) Contributions. A beneficiary participant may not make contributions or rollovers to his or her beneficiary participant account. The TSP record keeper will not accept an investment election request described in part 1601, subpart B, of this chapter for a beneficiary participant account.
(c) Required minimum distributions. (1) A beneficiary participant must receive required minimum distributions from his or her beneficiary participant account commencing no later than the required beginning date and, for each year thereafter, no later than December 31.
(2) A beneficiary participant may elect to withdraw from his or her account or to begin receiving payments before the required beginning date, but is not required to do so.
(3) In the event that a beneficiary participant does not withdraw from his or her beneficiary participant account an amount sufficient to satisfy his or her required minimum distribution for the year, the TSP record keeper will automatically distribute the necessary amount on or before the applicable date described in paragraph (c)(1) of this section.
(4) The TSP record keeper will disburse required minimum distributions described in paragraph (c)(3) of this section pro rata from the beneficiary participant’s traditional balance and the beneficiary participant’s Roth balance.
(d) Withdrawal elections. A beneficiary participant may elect any withdrawal option is available to separated participants. The provisions of § 1650.12, § 1650.13, and § 1650.14 shall apply as if all references to a participant are references to a beneficiary participant and all references to an account balance are references to a beneficiary participant account balance.
(e) Ineligibility for certain withdrawals. A beneficiary participant is ineligible to request the following types of withdrawals from his or her beneficiary participant account: Age-based withdrawals described in § 1650.31 of this chapter, financial hardship withdrawals described in § 1650.32 of this chapter, or loans described in part 1655 of this chapter.
(f) Spousal rights. The spousal rights described in 5 U.S.C. 8351, 5 U.S.C. 8435, and § 1650.61 of this chapter do not apply to beneficiary participant accounts.
(g) Rollovers. A beneficiary participant may request that the TSP record keeper roll over all or a portion of an eligible rollover distribution (within the meaning of I.R.C. section 402(c)) from his or her beneficiary participant account to a traditional IRA, Roth IRA or eligible employer plan (including a civilian or uniformed services TSP account other than a beneficiary participant account) in the form and manner prescribed by the TSP record keeper.
(h) Periodic statements. The TSP or its record keeper will furnish beneficiary participants with periodic statements in a manner consistent with part 1640 of this chapter.
(i) Privacy Act. Part 1630 of this chapter shall apply with respect to a beneficiary participant as if the beneficiary participant is a TSP participant.
(j) Error correction. If, because of an error committed by the Board or the TSP record keeper, a beneficiary participant’s account is not credited or charged with the investment gains or losses the account would have received had the error not occurred, the account will be credited subject to and in accordance with the rules and procedures set forth in § 1605.21. A beneficiary participant may submit a claim for correction of Board or TSP record keeper error pursuant to the procedures described in § 1605.22.
(k) Court orders. Court orders relating to a civilian beneficiary participant account or uniformed services beneficiary participant account shall be processed pursuant to the procedures set forth in part 1653 of this chapter as if all references to a TSP participant are references to a beneficiary participant and all references to a TSP account or account balance are references to a beneficiary participant account or beneficiary participant account balance. Notwithstanding any provision of part 1653, a payee of a court-ordered distribution from a beneficiary participant account cannot request a rollover of the court-ordered distribution to an eligible employer plan or IRA.
(l) Death of beneficiary participant. To the extent it is not inconsistent with this § 1651.19, a beneficiary participant account shall be disbursed upon the death of the beneficiary participant in accordance with part 1651 as if any reference to a participant is a reference to a beneficiary participant. For example, a beneficiary participant may designate a beneficiary for his or her beneficiary participant account in accordance with §§ 1651.3 and 1651.4. No individual who is entitled to a death benefit from a beneficiary participant account shall be eligible to keep the death benefit in the TSP or request that the TSP record keeper roll over all or a portion of the death benefit to an IRA or eligible employer plan.
(m) Uniformed services beneficiary participant accounts. Uniformed services beneficiary participant accounts are subject to the following additional rules and procedures:
(1) Uniformed services beneficiary participant accounts are established and maintained separately from civilian beneficiary participant accounts. Beneficiary participants who have a uniformed services beneficiary participant account and a civilian beneficiary participant account will be issued two separate TSP account numbers. A beneficiary participant must submit separate fund allocation, fund transfer, re and/or TSP withdrawal requests for each account and submit separate beneficiary designations for each account;
(2) A uniformed services beneficiary participant account and a civilian beneficiary participant account cannot be combined;
(3) If a uniformed services beneficiary participant account contains tax-exempt contributions, any payments or withdrawals from the account will be distributed pro rata from the tax-deferred balance and the tax-exempt balance;
(4) A beneficiary participant may roll over all or any portion of an eligible rollover distribution (within the meaning of I.R.C. section 402(c)) from a uniformed services beneficiary participant account into a civilian or uniformed services TSP participant account. However, tax-exempt money attributable to combat zone contributions cannot be rolled over from a uniformed services beneficiary participant account to a civilian TSP participant account.
(n) Multiple beneficiary accounts. Each beneficiary participant account is maintained separately from all other beneficiary participant accounts. If an individual has multiple beneficiary participant accounts, each of the individual’s beneficiary participant accounts will have a unique account number. A beneficiary participant must submit separate fund reallocation, fund transfer, and/or TSP withdrawal requests and submit separate beneficiary designations for each beneficiary participant account that the TSP maintains for him or her. A beneficiary participant account cannot be combined with another beneficiary participant account.
PART 1653—COURT ORDERS AND LEGAL PROCESSES AFFECTING THRIFT SAVINGS PLAN ACCOUNTS
Subpart A—Retirement Benefits Court Orders
§ 1653.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this subpart:
Court means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court as defined by 25 U.S.C. 1301(3).
Effective date of a court order means the date it was entered by the clerk of the court or, if the order does not show a date entered, the date it was filed by the clerk of the court or, if the order does not contain a date entered or a date filed, the date it was signed by the judge.
Payment date refers to the date on which earnings are determined and is generally two business days prior to the date of an award’s disbursement.
Retirement benefits court order or order means a court decree of divorce, annulment or legal separation, or a court order or court-approved property settlement agreement incident to such a decree. Orders may be issued at any stage of a divorce, annulment, or legal separation proceeding.
TSP investment earnings or earnings means both positive and negative fund performance attributable to differences in TSP core fund share prices.
§ 1653.2 Qualifying retirement benefits court orders.
(a) To be qualifying, and thus enforceable against the TSP, a retirement benefits court order must meet the following requirements:
(1) The order must expressly relate to the Thrift Savings Plan account of a TSP participant. This means that:
(i) The order must expressly refer to the “Thrift Savings Plan” or describe the TSP in such a way that it cannot be confused with other Federal Government retirement benefits or non-Federal retirement benefits;
(ii) The order must be written in terms appropriate to a defined contribution plan rather than a defined benefit plan. For example, it should generally refer to the participant’s TSP account or TSP account balance rather than a benefit formula or the participant’s eventual benefits; and
(iii) If the participant has a civilian TSP account and a uniformed services TSP account, the order must expressly identify the account to which it relates.
(2) The order must either require the TSP to freeze the participant’s account to preserve the status quo pending final resolution of the parties’ rights to the participant’s TSP account, or to make a payment from the participant’s account to a permissible payee.
(3) If the order requires a payment from the participant’s account, the award must be for:
(i) A specific dollar amount;
(ii) A stated percentage of the account; or
(iii) A survivor annuity as provided in 5 U.S.C. 8435(d).
(iv) The following examples would qualify to require payment from the TSP, although ambiguous or conflicting language used elsewhere could cause the order to be rejected.
(A) Example 1. ORDERED: [payee’s name, Social Security number (SSN), and address] is awarded $____ from the [civilian or uniformed services] Thrift Savings Plan account of [participant’s name, account number or SSN, and address].
(B) Example 2. ORDERED: [payee’s name, SSN, and address] is awarded ____ % of the [civilian and/or uniformed services] Thrift Savings Plan account[s] of [participant’s name, account number or SSN, and address] as of [date].
The following optional language can be used in conjunction with any of the above examples. FURTHER ORDERED: Earnings will be paid on the amount of the entitlement under this ORDER until payment is made.
(4) A court order can require a payment only to a spouse, former spouse, child or dependent of a participant.
(b) The following retirement benefits court orders are not qualifying and thus are not enforceable against the TSP:
(1) An order relating to a TSP account that has been closed;
(2) An order relating to a TSP account that contains only nonvested money;
(3) An order requiring the return to the TSP of money that was properly paid pursuant to an earlier court order;
(4) An order requiring the TSP to make a payment in the future, unless the present value of the payee’s entitlement can be calculated, in which case the TSP will make the payment currently;
(5) An order that does not specify the account to which the order applies, if the participant has both a civilian TSP account and a uniformed services TSP account;
(6) An order that requires the TSP to calculate the payee’s entitlement or earnings in a manner that is inconsistent with § 1653.4 of this part; and
(7) An order that designates the TSP core fund, source of contributions, or balance (e.g., traditional, Roth, or tax-exempt) from which the payment or portions of the payment shall be made.
§ 1653.3 Processing retirement benefits court orders.
(a) The payment of a retirement benefits court order from the TSP is governed solely by FERSA and by the terms of this subpart. The TSP record keeper will honor retirement benefits court orders properly issued and certified by a court (as defined in § 1653.1). However, those courts have no jurisdiction over the TSP and the TSP cannot be made a party to the underlying domestic relations proceedings.
(b) The TSP record keeper will review a retirement benefits court order to determine whether it is enforceable against the TSP only after the TSP record keeper has received a complete copy of the document. Receipt by an employing agency or any other agency of the Government does not constitute receipt by the TSP record keeper. Retirement benefits court orders should be submitted to the TSP record keeper at the current address as provided at https://www.tsp.gov. Receipt by the TSP record keeper is considered receipt by the TSP. To be complete, a court order must be written in English or be accompanied by a certified English translation and contain all pages and attachments; it must also provide (or be accompanied by a document that provides):
(1) The participant’s account number or Social Security number (SSN);
(2) The name and last known mailing address of each payee covered by the order; and
(3) The payee’s SSN and state of legal residence if he or she is the current or former spouse of the participant.
(c) As soon as practicable after the TSP record keeper receives a document that purports to be a qualifying retirement benefits court order, whether or not complete, the participant’s account will be frozen. After the account is frozen, no withdrawals or loan disbursements (other than a required minimum distribution pursuant to section 401(a)(9) of the Internal Revenue Code, 26 U.S.C. 401(a)(9)) will be allowed until the account is unfrozen. All other account activity will be permitted.
(d) The following documents do not purport to be qualifying retirement benefits court orders, and accounts of participants to whom such orders relate will not be frozen:
(1) A court order relating to a TSP account that has been closed;
(2) A court order dated before June 6, 1986;
(3) A court order that does not award all or any part of the TSP account to someone other than the participant; and
(4) A court order that does not mention retirement benefits.
(e) After the participant’s account is frozen, the TSP record keeper will review the document further to determine if it is complete; if the document is not complete, it will be rejected, the account will be unfrozen, all parties will be notified, and no further action will be taken with respect to the document.
(f) The TSP record keeper will review a complete copy of an order to determine whether it is a qualifying retirement benefits court order as described in § 1653.2. The TSP record keeper will mail a decision letter to all parties containing the following information:
(1) A determination regarding whether the court order is qualifying;
(2) A statement of the applicable statutes and regulations;
(3) An explanation of the effect the court order has on the participant’s TSP account; and
(4) If the qualifying order requires payment, the letter will provide:
(i) An explanation of how the payment will be calculated and an estimated amount of payment;
(ii) The anticipated date of payment;
(iii) Tax and withholding information to the person responsible for paying Federal income tax on the payment;
(iv) Information on how to roll over the payment to an eligible employer plan within the meaning of section 402(c) of the Internal Revenue Code (26 U.S.C. 402(c)), traditional IRA, or Roth IRA (if the payee is the current or former spouse of the participant); and
(v) Information on how to receive the payment through an electronic funds transfer (EFT).
(g)[Reserved]
(h) An account frozen under this section will be unfrozen as follows:
(1) If the account was frozen in response to an order issued to preserve the status quo pending final resolution of the parties’ rights to the participant’s TSP account, the account will be unfrozen if the TSP record keeper receives a court order that vacates or supersedes the previous order (unless the order vacating or superseding the order itself qualifies to place a freeze on the account). A court order that purports to require a payment from the TSP supersedes an order issued to preserve the status quo, even if it does not qualify to require a payment from the TSP;
(2) If the account was frozen in response to an order purporting to require a payment from the TSP, the freeze will be lifted:
(i) Once payment is made, if the court order is qualifying; or
(ii) Eighteen (18) months after the date of the decision letter if the court order is not qualifying. The 18-month period will be terminated, and the account will be unfrozen, if both parties submit to the TSP record keeper a written request for such a termination.
(i) The TSP record keeper will hold in abeyance the processing of a court-ordered payment if the TSP record keeper is notified in writing that the underlying court order has been appealed, and that the effect of the filing of the appeal is to stay the enforceability of the order.
(1) In the notification, the TSP record keeper must be provided with proper documentation of the appeal and citations to legal authority, which address the effect of the appeal on the enforceability of the underlying court order.
(i) If the TSP record keeper receives proper documentation and citations to legal authority which demonstrate that the underlying court order is not enforceable, the TSP record keeper will inform the parties that the payment will not occur until resolution of the appeal, and the account will remain frozen for loans and withdrawals.
(ii) In the absence of proper documentation and citations to legal authority, the TSP record keeper will presume that the provisions relating to the TSP in the court order remain valid and will proceed with the payment process.
(2) The TSP record keeper must be notified in writing of the disposition of the appeal before the freeze will be removed from the participant’s account or a payment will be made. The notification must include a complete copy of an order from the appellate court explaining the effect of the appeal on the participant’s account.
(j) Multiple qualifying court orders relating to the same TSP account and received by the TSP record keeper will be processed as follows:
(1) If the orders make awards to the same payee or payees and do not indicate that the awards are cumulative, the TSP record keeper will only honor the order bearing the latest effective date.
(2) If the orders relate to different former spouses of the participant and award survivor annuities, the TSP record keeper will honor them in the order of their effective dates.
(3) If the orders relate to different payees and award fixed dollar amounts, percentages of an account, or portions of an account calculated by the application of formulae, the orders will be honored:
(i) In the order of their receipt by the TSP record keeper, if received by the TSP record keeper on different days; or
(ii) In the order of their effective dates, if received by the TSP record keeper on the same day.
(4) In all other cases, the TSP record keeper will honor multiple qualifying court orders relating to the same TSP account in the order of their receipt by the TSP record keeper.
§ 1653.4 Calculating entitlements.
(a) For purposes of computing the amount of a payee’s entitlement under this section, a participant’s TSP account balance will include any loan balance outstanding as of the date used for calculating the payee’s entitlement, unless the court order provides otherwise.
(b) If the court order awards a percentage of an account as of a specific date, the payee’s entitlement will be calculated based on the account balance as of that date. If the date specified in the order is not a business day, the TSP record keeper will use the participant’s account balance as of the last preceding business day.
(c) If the court order awards a percentage of an account but does not contain a specific date as of which to apply that percentage, the TSP record keeper will use the liquidation date.
(d) If the court order awards a specific dollar amount, the payee’s entitlement will be the lesser of:
(1) The dollar amount stated in the court order; or
(2) The vested account balance on the date of disbursement.
(e) If a court order describes a payee’s entitlement in terms of a fixed dollar amount and a percentage or fraction of the account, the TSP will pay the fixed dollar amount, even if the percentage or fraction, when applied to the account balance, would yield a different result.
(f) The payee’s entitlement will be credited with TSP investment earnings as described:
(1) The entitlement calculated under this section will not be credited with TSP investment earnings unless the court order specifically provides otherwise. The court order may not specify a rate for earnings.
(2) If earnings are awarded and a rate is specified, the rate must be expressed as an annual percentage rate or as a per diem dollar amount added to the payee’s entitlement.
(3) If earnings are awarded, the TSP record keeper will calculate the amount to be awarded by:
(i) Determining the payee’s award amount (e.g., the percentage of the participant’s account);
(ii) Determining, based on the participant’s investment allocation as of the date used to calculate the entitlement, the number and composition of shares that the payee’s award amount would have purchased as of the date used to calculate the entitlement.
(iii) Multiplying the price per share as of the payment date by the number and composition of shares calculated in paragraph (f)(3)(ii) of this section.
(g) The TSP record keeper will estimate the amount of a payee’s entitlement when it prepares the decision letter and will recalculate the entitlement at the time of payment. The recalculation may differ from the initial estimation because:
(1) The estimation of the payee’s entitlement includes both vested and nonvested amounts in the participant’s account. If, at the time of payment, the nonvested portion of the account has not become vested, the recalculated entitlement will apply only to the participant’s vested account balance;
(2) After the estimate of the payee’s entitlement is prepared, the TSP record keeper may process account transactions that have an effective date on or before the date used to compute the payee’s entitlement. Those transactions will be included when the payee’s entitlement is recalculated at the time of payment; and
(3) The amount available for payment from the account may be reduced due to changes in share price (i.e., investment losses).
§ 1653.5 Payment.
(a) Payment date. Payment pursuant to a qualifying retirement benefits court order will generally be made:
(1) As soon as administratively practicable after the date of the decision letter when the payee is the current or former spouse of the participant, but in no event earlier than 30 days after the date of the decision letter.
(2) As soon as administratively practicable after the date of the decision letter when the payee is someone other than the current or former spouse of the participant.
(b) In no case will payment exceed the participant’s vested account balance, minus any outstanding loan balance.
(c) The entire amount of a court order payee’s entitlement must be disbursed at one time. A series of payments will not be made, even if the court order provides for such a method of payment. A payment pursuant to a court order extinguishes all rights to any further payment under that order, even if the entire amount of the entitlement cannot be paid. Any further award must be contained in a separate court order.
(d) Payment will be made pro rata from the participant’s traditional and Roth balances. The distribution from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The payment from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, all payments will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All pro rated amounts will be based on the balances in each fund or source of contributions on the day the disbursement is made. The TSP record keeper will not honor provisions of a court order that require payment to be made from a specific TSP core fund, source of contributions, or balance.
(e) Payment will be made only to the person or persons specified in the court order. However, if the court order specifies a third-party mailing address for the payment, the TSP record keeper will mail to the address specified any portion of the payment that is not rolled over to a traditional IRA, Roth IRA, or eligible employer plan within the meaning of section 402(c) of the Internal Revenue Code (26 U.S.C. 402(c)).
(f) Payment will not be made jointly to two or more persons. If the court order requires payments to more than one person, the order must separately indicate the amount to be paid to each.
(g) If there are insufficient funds to pay each court order payee, payment will be made as follows:
(1) If the order specifies an order of precedence for the payments, the TSP record keeper will honor it.
(2) If the order does not specify an order of precedence for the payments, the TSP record keeper will pay a current or former spouse first and a dependent second.
(h) If the payee dies before a payment is disbursed, payment will be made to the estate of the payee, unless otherwise specified by the court order. A distribution to the estate of a deceased court order payee will be reported as income to the decedent’s estate. If the participant dies before payment is made, the order will be honored so long as it is submitted to the TSP record keeper before the TSP account has been closed.
(i) If the parties to a divorce or annulment have remarried each other, or a legal separation is terminated, a new court order will be required to prevent payment pursuant to a previously submitted qualifying retirement benefits court order.
(j) Payment to a person (including the estate of the payee) pursuant to a qualifying retirement benefits court order made in accordance with this subpart bars recovery by any other person claiming entitlement to the payment.
(k) If a court ordered payment is returned as undeliverable, the TSP record keeper will attempt to locate the payee by writing to the address provided on the court order. If the payee does not respond within 90 days, the funds will be forfeited to the TSP. The payee can claim the forfeited funds, although they will not be credited with TSP investment fund returns.
(m) A payee who is a current or former spouse of the participant may elect to roll over a court-ordered payment to a traditional IRA, eligible employer plan within the meaning of section 402(c) of the Internal Revenue Code (26 U.S.C. 402(c)), or Roth IRA. Any election permitted by this paragraph (m) must be made pursuant to the rules described in 5 CFR 1650.25.
(n) If a court order payee who is the current or former spouse of the participant has their own TSP account (other than a beneficiary participant account), the payee can request that the TSP record keeper roll over the court-ordered payment to the payee’s TSP account in accordance with the rules described in 5 CFR 1650.25. However, any pro rata share attributable to tax-exempt contributions cannot be rolled over; instead, it will be paid directly to the payee.
§ 1653.6 Fees.
The TSP record keeper will charge a participant a $600.00 court order processing fee as follows:
(a) Upon receipt of a complete court order document (whether draft or final) and prior to reviewing the order to determine whether it is a qualifying retirement benefits court order, the fee will be deducted from his or her TSP account balance on a pro rata basis from the participant’s traditional and Roth balances. The portion of the fee deducted from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The portion of the fee deducted from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, the entire fee will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All pro rated amounts will be based on the balances in each fund or source of contributions on the day the fee is deducted;
(b) The fee will be charged only once per court order. However, it will not be refunded in the event that the court order is never determined to be a qualifying retirement benefits court order; and
(c)(1) If the court order:
(i) Is determined to be a qualifying retirement benefits court order; and
(ii) Explicitly requires the fee to be split between the participant and the payee;
(2) The TSP record keeper will deduct the payee’s portion of the fee from his or her payment and credit that amount back to the participant’s TSP account balance.
Subpart B—Legal Process for the Enforcement of a Participant’s Legal Obligations To Pay Child Support or Alimony Currently
§ 1653.11 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this subpart:
Alimony means the payment of funds for the support and maintenance of a spouse or former spouse. Alimony includes separate maintenance, alimony pendente lite, maintenance, and spousal support. Alimony can also include attorney fees, interest, and court costs, but only if these items are expressly made recoverable by qualifying legal process, as described in § 1653.12.
Child support means payment of funds for the support and maintenance of a child or children of the participant. Child support includes payments to provide for health care, education, recreation, clothing, or to meet other specific needs of a child or children. Child support can also include attorney fees, interest, and court costs, but only if these items are expressly made recoverable by qualifying legal process, as described in § 1653.12.
Competent authority means a court or an administrative agency of competent jurisdiction in any State, territory or possession of the United States; a court or administrative agency of competent jurisdiction in any foreign country with which the United States has entered into an agreement that requires the United States to honor the process; or an authorized official pursuant to an order of such a court or an administrative agency of competent jurisdiction pursuant to state or local law.
Legal process means a writ, order, summons, or other similar process in the nature of a garnishment, which is brought to enforce a participant’s legal obligations to pay child support or alimony currently.
§ 1653.12 Qualifying legal processes.
(a) The TSP record keeper will only honor the terms of a legal process that is qualifying under paragraph (b) of this section.
(b) A legal process must meet each of the following requirements to be considered qualifying:
(1) A competent authority must have issued the legal process;
(2) The legal process must expressly relate to the Thrift Savings Plan account of a TSP participant, as described in § 1653.2(a)(1);
(3) The legal process must require the TSP to:
(i) Pay a stated dollar amount from a participant’s TSP account; or
(ii) Freeze the participant’s account in anticipation of an order to pay from the account.
(c) The following legal processes are not qualifying:
(1) A legal process relating to a TSP account that has been closed;
(2) A legal process relating to a TSP account that contains only nonvested money;
(3) A legal process requiring the return to the TSP of money that was properly paid pursuant to an earlier legal process;
(4) A legal process requiring the TSP to make a payment in the future; and
(5) A legal process requiring a series of payments.
(6) A legal process that designates the specific TSP core fund, source of contributions, or balance from which the payment or portions of the payment shall be made.
§ 1653.13 Processing legal processes.
(a) The payment of legal processes from the TSP is governed solely by the Federal Employees’ Retirement System Act, 5 U.S.C. chapter 84, and by the terms of this subpart. Although the TSP record keeper will honor legal processes properly issued by a competent authority, those entities have no jurisdiction over the TSP and the TSP cannot be made a party to the underlying proceedings.
(b) The TSP record keeper will review a legal process to determine whether it is enforceable against the TSP only after the TSP record keeper has received a complete copy of the document. Receipt by an employing agency or any other agency of the Government does not constitute receipt by the TSP. Legal processes should be submitted to the TSP record keeper at the current address as provided at https://www.tsp.gov. Receipt by the TSP record keeper is considered receipt by the TSP. To be complete, a legal process must contain all pages and attachments; it must also provide (or be accompanied by a document that provides):
(1) The participant’s account number or Social Security number (SSN);
(2) The name and last known mailing address of each payee covered under the order; and
(3) The SSN and state of legal residence of the payee if he or she if the current or former spouse of the participant.
(c) As soon as practicable after the TSP record keeper receives a document that purports to be a qualifying legal process, whether or not complete, the participant’s account will be frozen. After the account is frozen, no TSP withdrawal or loan disbursements will be allowed until the account is unfrozen. All other account activity will be permitted, including contributions, loan repayments, adjustments, investment elections, fund reallocations, and fund transfers.
(d) The following documents will not be treated as purporting to be a qualifying legal processes, and accounts of participants to whom such orders relate will not be frozen:
(1) A document that does not indicate on its face (or accompany a document that establishes) that it has been issued by a competent authority;
(2) A legal process relating to a TSP account that has been closed; and
(3) A legal process that does not relate either to the TSP or to the participant’s retirement benefits.
(e) After the participant’s account is frozen, the TSP record keeper will review the document further to determine if it is complete; if the document is not complete, it will be rejected, the account will be unfrozen, all parties will be notified, and no further action will be taken with respect to the document.
(f) As soon as practicable after receipt of a complete copy of a legal process, the TSP record keeper will review it to determine whether it is a qualifying legal process as described in § 1653.12. The TSP record keeper will mail a decision letter to all parties containing the same information described at § 1653.3(f).
(g) [Reserved]
(h) An account frozen under this section will be unfrozen as follows:
(1) If the account was frozen pursuant to a legal process requiring the TSP to freeze the participant’s account in anticipation of an order to pay from the account, the account will be unfrozen if any one of the following events occurs:
(i) As soon as practicable after the TSP record keeper receives a complete copy of an order vacating or superseding the preliminary order (unless the order vacating or superseding the preliminary order qualifies to place a freeze on the account);
(ii) Upon payment pursuant to the order to pay from the account, if the TSP record keeper determines that the order is qualifying; or
(iii) As soon as practicable after the TSP issues a decision letter informing the parties that the order to pay from the account is not a qualifying legal process;
(2) If the account was frozen after the TSP record keeper received a document that purports to be a legal process requiring payment from the participant’s account, the account will be unfrozen:
(i) Upon payment pursuant to a qualifying legal process; or
(ii) As soon as practicable after the TSP record keeper informs the parties that the document is not a qualifying legal process.
(i) The TSP record keeper will hold in abeyance the processing of a payment required by legal process if the TSP record keeper is notified in writing that the legal process has been appealed, and that the effect of the filing of the appeal is to stay the enforceability of the legal process. The notification must be accompanied by the documentation and citations to legal authority described at § 1653.3(i).
(j) Multiple qualifying legal processes relating to the same TSP account and received by the TSP record keeper will be processed as follows:
(1) If the legal processes make awards to the same payee or payees and do not indicate that the awards are cumulative, the TSP record keeper will only honor the legal process bearing the latest effective date.
(2) If the legal processes relate to different payees, the legal process will be honored:
(i) In the order of their receipt by the TSP record keeper, if received by the TSP record keeper on different days; or
(ii) In the order of their effective dates, if received by the TSP record keeper on the same day.
§ 1653.14 Calculating entitlements.
A qualifying legal process can only require the payment of a specified dollar amount from the TSP. Payment pursuant to a qualifying legal process will be calculated in accordance with § 1653.4(a), (d), (f) and (g).
§ 1653.15 Payment.
Payment pursuant to a qualifying legal process will be made in accordance with § 1653.5.
§ 1653.16 Fees.
The TSP record keeper will charge a participant a $600.00 legal process processing fee as follows:
(a) Upon receipt of a complete legal process document (whether draft or final) and prior to reviewing order to determine whether it is a qualifying legal process, the fee will be deducted from his or her TSP account balance on a pro rata basis from the participant’s traditional and Roth balances. The portion of the fee deducted from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The portion of the fee deducted from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, the entire fee will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All pro rated amounts will be based on the balances in each fund or source of contributions on the day the fee is deducted; and
(b) The fee will be charged only once per legal process. However, it will not be refunded in the event that the court order is never determined to be a qualifying legal process.
Subpart C—Child Abuse Court Orders
§ 1653.21 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this subpart:
Child means an individual less than 18 years of age.
Judgment against a participant for physically, sexually, or emotionally abusing a child means any legal claim perfected through a final enforceable judgment which is based in whole or in part upon the physical, sexual, or emotional abuse of a child, whether or not that abuse is accompanied by other actionable wrongdoing, such as sexual exploitation or gross negligence.
§ 1653.22 Purpose.
Under 5 U.S.C. 8437(e)(3) and 8467(a)(2), the TSP record keeper will honor a court order or other similar process in the nature of a garnishment that is brought to enforce a judgment against a participant for physically, sexually, or emotionally abusing a child.
§ 1653.23 Processing and payment.
To the maximum extent consistent with sections 8437(e)(3) and 8467(a)(2), child abuse court orders will be processed by the TSP record keeper under the procedures described in subparts A and B of this part.
Subpart D—Process for the Enforcement of a Participant’s Legal Obligation To Pay a Federal Tax Levy or Criminal Restitution Order
§ 1653.31 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this subpart:
Criminal restitution order means a complete copy of a judgment in a criminal case issued by a federal court ordering restitution for a crime under 18 U.S.C. 3663A.
Enforcement letter means a letter received from the Department of Justice requesting a payment from a participant’s TSP account to enforce a criminal restitution order.
§ 1653.32 Qualifying Federal tax levy.
(a) The TSP record keeper will only honor the terms of a tax levy that is qualifying under paragraph (b) of this section.
(b) A tax levy must meet each of the following requirements to be considered qualifying:
(1) The Internal Revenue Service issued the levy.
(2) The levy includes a signature certifying that it attaches to a retirement plan.
(3) The levy requires the TSP to pay a stated dollar amount from a TSP participant’s account.
(4) The levy is dated no earlier than thirty (30) days before receipt.
(5) The levy is issued in the name of the participant only.
(6) The levy expressly refers to the “Thrift Savings Plan” or describes the TSP in such a way that it cannot be confused with other Federal Government retirement benefits or non-Federal retirement benefits.
(c) The following levies will not be considered qualifying:
(1) A levy relating to a TSP account with a zero dollar account balance;
(2) A levy relating to a TSP account that contains only nonvested money, unless the money will become vested within 30 days of the date the TSP receives the order if the participant were to remain in Government service;
(3) A levy requiring the TSP to make a payment at a specified date in the future;
(4) A levy that does not contain a signature certifying that it applies to retirement plans;
(5) A levy requiring a series of payments;
(6) A levy that designates the specific TSP core fund, source of contributions, or balance from which the payment or portions of the payment shall be made.
§ 1653.33 Qualifying criminal restitution order.
(a) The TSP record keeper will only honor the terms of a criminal restitution order that is qualifying under paragraph (b) of this section.
(b) A criminal restitution order must meet each of the following requirements to be considered qualifying:
(1) The restitution must be ordered in the sentencing of the participant as required by 18 U.S.C. 3663A and 18 U.S.C. 3664.
(2) The criminal restitution order must require the participant to pay a stated dollar amount as restitution.
(3) The criminal restitution order must be accompanied by an enforcement letter that states the restitution is ordered under 18 U.S.C. 3663A. The enforcement letter must expressly refer to the “Thrift Savings Plan” or describe the TSP in such a way that it cannot be confused with other Federal Government retirement benefits or non-Federal retirement benefits.
(c) The following orders will not be considered qualifying:
(1) A criminal restitution order relating to a TSP account with a zero dollar account balance;
(2) A criminal restitution order relating to a TSP account that contains only nonvested money, unless the money will become vested within 30 days of the date the TSP record keeper receives the order if the participant were to remain in Government service;
(3) A criminal restitution order accompanied by an enforcement letter that requires the TSP to make a payment in the future;
(4) A forfeiture order related to a monetary garnishment of funds;
(5) A criminal restitution order accompanied by an enforcement letter that requires TSP to make a series of payments;
(6) A criminal restitution order accompanied by an enforcement letter that designates the specific TSP core fund, source of contributions, or balance from which the payment or portions of the payment shall be made.
§ 1653.34 Processing Federal tax levies and criminal restitution orders.
(a) The payment of tax levies and criminal restitution orders from the TSP is governed solely by the Federal Employees’ Retirement Systems Act, 5 U.S.C. chapter 84, and by the terms of this subpart. Although the TSP record keeper will honor tax levies or criminal restitution orders properly issued, those entities have no jurisdiction over the TSP and the TSP cannot be made a party to the underlying proceedings.
(b) The TSP record keeper will review a tax levy or criminal restitution order to determine whether it is enforceable against the TSP record keeper only after it has received a complete copy of the document. Receipt by an employing agency or any other agency of the Government does not constitute receipt by the TSP record keeper. Tax levies and criminal restitution orders should be submitted to the TSP record keeper at the current address as provided at https://www.tsp.gov. Receipt by the TSP record keeper is considered receipt by the TSP. To be complete, a tax levy or criminal restitution order must meet all the requirements of § 1653.32 or § 1653.33; it must also provide (or be accompanied by a document or enforcement letter that provides):
(1) The participant’s TSP account number or Social Security number (SSN); and
(2) The name and mailing address of the payee.
(c) As soon as practicable after the TSP record keeper receives a document that purports to be a qualifying tax levy or criminal restitution order, the participant’s account will be frozen. After the participant’s account is frozen, no TSP withdrawal or loan disbursements will be allowed until the account is unfrozen. All other account activity will be permitted, including contributions, loan repayments, adjustments, investment elections, fund reallocations, and fund transfers. Once a disbursement from the account is made in accordance with the restitution order or levy, the hold will be removed from the participant’s account.
(d) As soon as practicable after receipt of a complete copy of a tax levy or criminal restitution order, the TSP record keeper will review it to determine whether it is qualifying as described in § 1653.32 or § 1653.33. The TSP record keeper will mail a decision letter to all parties containing the following information:
(1) A determination regarding whether the restitution order or levy is qualifying;
(2) A statement of the applicable statutes and regulations;
(3) An explanation of the effect the restitution order or levy has on the participant’s TSP account; and
(4) If the qualifying restitution order or levy requires payment, the letter will provide:
(i) An explanation of how the payment will be calculated and an estimated amount of payment;
(ii) The anticipated date of payment.
§ 1653.35 Calculating entitlement.
A tax levy or criminal restitution order can only require the payment of a stated dollar amount from the TSP. The payee’s entitlement will be the lesser of:
(a) The dollar amount stated in the tax levy or enforcement letter; or
(b) The vested account balance on the date of disbursement, minus any outstanding loan balance.
§ 1653.36 Payment.
(a) Payment pursuant to a qualifying tax levy or criminal restitution order will be made 30 days after the decision letter.
(b) In no case will payment exceed the participant’s calculated entitlement.
(c) The entire amount of a criminal restitution order or tax levy entitlement must be disbursed at one time. A series of payments will not be made. A payment pursuant to a criminal restitution order or tax levy extinguishes all rights to any further payment under that order or tax levy, even if the entire amount of the entitlement cannot be paid. Any further award must be contained in a separate criminal restitution order or tax levy.
(d) If a participant has funds in more than one type of account, payment will be made from each account in the following order, until the amount required by the tax levy or stated in the enforcement letter is reached:
(1) Civilian account;
(2) Uniformed services account;
(3) Beneficiary participant account.
(e) Payment will be made pro rata from the participant’s traditional and Roth balances. The distribution from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The payment from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, all payments will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All pro rated amounts will be based on the balances in each fund or source of contributions on the day the disbursement is made.
(f) The payment is taxable to the participant and is subject to Federal income tax withholding. The tax withholding will be taken from the payee’s entitlement and the gross amount of the payment (i.e., the net payment distributed to the payee plus the amount withheld from the payment for taxes) will be reported to the IRS as income to the participant.
(g) A properly paid tax levy or restitution order cannot be returned to the TSP.
(h) The TSP will not hold a payment pending appeal of a criminal restitution order or the underlying conviction. The TSP will treat the criminal restitution order as a final judgment pursuant to 18 U.S.C. 3664(o) and process payment as provided by this subpart.
PART 1655—LOAN PROGRAM
§ 1655.1 Definitions.
(a) Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
(b) As used in this part:
Amortization means the reduction in a loan by periodic payments of principal and interest according to a schedule of payments.
Cure period means the period set forth at § 1655.14(e).
Deemed distribution means a deemed distribution under Internal Revenue Code section 72(p) and the regulations promulgated thereunder. Also referred to as a loan taxation or taxed loan, it means the amount of outstanding principal and interest on a loan that must be reported to the Internal Revenue Service as taxable income as a result of the failure of a participant who has not separated from Government service to:
(i) Make timely loan repayments before the end of the cure period; or
(ii) Repay the loan in full by the maximum term limit.
General purpose loan means any TSP loan other than a loan for the purchase or construction of a primary residence.
Guaranteed funds means a cashier’s check, money order, certified check (i.e., a check certified by the financial institution on which it is drawn), cashier’s draft, or treasurer’s check from a credit union.
Loan direct debit repayment means a loan repayment made directly from a participant’s personal savings or checking account.
Loan issue date means the date on which the TSP record keeper disburses funds from the participant’s account for the loan amount.
Loan offset means a loan offset under Internal Revenue Code section 72(p) and the regulations promulgated thereunder. Also referred to as a loan foreclosure, it means the amount of outstanding principal and interest on a loan that must be reported to the Internal Revenue Service as taxable income as the result of the failure of a participant who has separated from Government service to repay his or her loan in full or begin making repayments by the deadline imposed by the TSP record keeper.
Loan repayment period means the time over which payments that are required to repay a loan in full are scheduled.
Principal or principal amount means the amount borrowed by a participant from his or her individual account, or, after reamortization, the amount financed.
Reamortization means the recalculation of periodic payments of principal and interest.
Residential loan means a TSP loan for the purchase or construction of a primary residence.
§ 1655.2 Eligibility for loans.
A participant can apply for a TSP general purpose or residential loan if:
(a) More than 30 business days have elapsed since the participant has repaid in full any TSP loan;
(b) The participant is in pay status;
(c) The participant is eligible to contribute to the TSP; and
(d) The participant has at least $1,000 in employee contributions and attributable earnings in his or her account. Paragraph (b) of this section shall not apply to loan requests made during a Government shutdown by participants who are furloughed or excepted from furlough due to the Government shutdown.
§ 1655.3 Information concerning the cost of a loan.
Information concerning the cost of a loan is provided in the booklet TSP Loan Program (available on the TSP Web site, from the participant’s personnel office or service, or from the TSP). From this information, a participant can determine the effects of a loan on his or her final account balance and can compare the cost of a loan to that of other sources of financing.
§ 1655.4 Number of loans.
A participant may have no more than two loans outstanding from his or her TSP account at any time. No more than one outstanding loan from an account may be a residential loan. A participant with both a civilian TSP account and a uniformed services TSP account may have two outstanding loans from each account.
§ 1655.5 Loan repayment period.
(a) Minimum. The minimum repayment period a participant may request for a general purpose loan is 12 months of scheduled payments. The minimum repayment period a participant may request for a residential loan is 61 months of scheduled payments.
(b) Maximum. The maximum repayment period a participant may request for a general purpose loan is 60 months of scheduled payments. The maximum repayment period a participant may request for a residential loan is 180 months years of scheduled payments.
§ 1655.6 Amount of loan.
(a) Minimum amount. The initial principal amount of any loan may not be less than $1,000.
(b) Maximum amount. The principal amount of a new loan must be less than or equal to the smallest of the following:
(1) The portion of the participant’s individual account balance that is attributable to employee contributions and attributable earnings (not including any outstanding loan principal);
(2) 50 percent of the participant’s vested account balance that is attributable to employee contributions and attributable earnings (including any outstanding loan balance) or $10,000, whichever is greater, minus any outstanding loan balance; or
(3) $50,000 minus the participant’s highest outstanding loan balance (if any) during the last 12 months.
(c) If a participant has both a civilian TSP account and a uniformed services TSP account, the maximum loan amount available will be based on a calculation that takes into consideration the account balances and outstanding loan balances for both accounts.
(d) Any amount invested through the mutual fund window at the time the participant makes a loan request will not be considered for purposes of determining either the minimum or maximum loan amounts.
§ 1655.7 Interest rate.
(a) Except as provided in paragraph (b) of this section, loans will bear interest at the monthly G Fund interest rate established by the Department of the Treasury in effect on the 15th of the month prior to the date the loan request is made.
(b) The interest rate calculated under this section remains fixed until the loan is repaid, unless a civilian participant informs the TSP record keeper that he or she entered into active duty military service, and, as a result, requests that the interest rate on a loan issued before entry into active duty military service be reduced to an annual rate of 6 percent for the period of such service. The civilian participant must provide the record keeper with the beginning and ending dates of active duty military service.
§ 1655.8 [Reserved]
§ 1655.9 Effect of loans on individual account.
(a) The amount borrowed will be removed from the participant’s account when the loan is disbursed. Consequently, these funds will no longer generate earnings.
(b) The loan principal will be disbursed from that portion of the account represented by employee contributions and attributable earnings, pro rata from each TSP core fund in which the account is invested and pro rata from tax-deferred and tax-exempt balances.
(c) The loan principal will be disbursed pro rata from the participant’s traditional and Roth balances. The disbursement from the traditional balance will be further pro rated between the tax-deferred balance and tax-exempt balance. The disbursement from the Roth balance will be further pro rated between contributions in the Roth balance and earnings in the Roth balance. In addition, all loan disbursements will be distributed pro rata from all TSP core funds in which the participant’s account is invested. All pro rated amounts will be based on the balances in each TSP core fund or source of contributions on the day the disbursement is processed.
(d) Loan payments, including both principal and interest, will be credited to the participant’s individual account. Loan payments will be credited to the appropriate TSP Fund in accordance with the participant’s most recent contribution allocation. Loan payments will be credited to the participant’s traditional and Roth balances in the same proportion that the loan was distributed from the participant’s account.
(e) Loan disbursements will not be made from any amounts invested through the mutual fund window and loan payments will not be credited to a participant’s mutual fund window account.
§ 1655.10 Loan request process.
(a) Any participant may apply for a loan by submitting a completed TSP loan request in the form and manner prescribed by the TSP record keeper.
(b) If a participant has a uniformed services account and a civilian account, a separate loan request must be made for each account.
§ 1655.11 Loan acceptance.
If the requirements set forth in §§ 1655.2, 1655.4, and 1655.6(a) are satisfied, the TSP record keeper will nevertheless reject a loan request if:
(a) The participant has failed to provide all required information on the loan request;
(b) The participant has a pending loan request or in-service withdrawal request; or
(c) A hold has been placed on the account pursuant to 5 CFR 1653.3(c).
§ 1655.12 Loan agreement.
(a) Upon determining that a loan request meets the requirements of this part, the TSP record keeper will provide the participant with the terms and conditions of the loan.
(b) By accepting the loan agreement, the participant agrees to be bound by all of its terms and conditions, agrees to repay the loan by payroll deduction, and certifies, under penalty of perjury, to the truth and completeness of all statements made in the loan request and loan agreement to the best of his or her knowledge.
(c) For loan requests not completed on the TSP website, the TSP record keeper must receive the completed loan agreement (including any required supporting documentation) before the expiration date stated on the loan agreement or the agreement will not be processed.
(d) The signed loan agreement must be accompanied by:
(1) In the case of a residential loan, supporting materials that document the purchase or construction of the residence and the amount requested (as described in § 1655.20); and
(2) Any other information that the Executive Director may require.
(e) A participant may request, in the form and manner prescribed by the TSP record keeper, that the loan be disbursed by direct deposit to a checking or savings account maintained by the participant in a financial institution.
§ 1655.13 Loan approval and issuance.
(a) When the completed loan agreement is signed electronically or returned by the participant to the TSP record keeper, together with any documentation required to be submitted, the loan will be initially approved or denied by the TSP record keeper based upon the requirements of this part, including the following conditions:
(1) The participant has signed the promise to repay the loan, has agreed to repay the loan through payroll deductions, and has certified that the information given is true and complete to the best of the participant’s knowledge;
(2) Processing of the loan would not be prohibited by § 1655.19 relating to court orders;
(3) The spouse of a FERS or uniformed services participant has consented to the loan or, if the spouse’s whereabouts are unknown or exceptional circumstances make it inappropriate to secure the spouse’s consent, an exception to the spousal requirement described in § 1655.18 has been granted;
(4) The spouse of a CSRS participant has been given notice or, if the spouse’s whereabouts are unknown, an exception to the spousal requirement described in § 1655.18 has been granted;
(5) When a paper agreement is required, the completed loan agreement, including all required supporting documentation, was received by the TSP record keeper before the expiration date specified on the loan agreement; and
(6) The participant has met any other conditions that the Executive Director may require.
(b) If approved, the loan will be issued unless:
(1) The participant’s employing agency has reported the participant’s separation from Government service;
(2) The TSP record keeper receives written notice that the participant has died;
(3) The participant’s account balance on the loan issue date does not contain sufficient employee contributions and associated earnings to make a loan of at least $1,000;
(4) A hold on the account is processed before the loan is disbursed; or
(c) If the loan is otherwise acceptable but the amount available to borrow is less than the requested amount (but is at least $1,000), the loan will be issued in the maximum amount available at the time of the disbursement. In such a case, the periodic payment amount will remain the same and the loan term may be shortened.
(d) The loan issue date is considered to be the date the loan was made.
(e) If a loan disbursement is returned as undeliverable, the TSP record keeper will attempt to locate the participant. If the participant does not respond within 90 days, the TSP record keeper will repay the loan with the returned loan proceeds.
§ 1655.14 Loan payments.
(a) In the case of a participant who has not separated from Government service, loan payments must be made through payroll deduction in accordance with the loan agreement. Once loan payments begin, the employing agency cannot terminate the payroll deductions at the employee’s request, unless the TSP or its record keeper instructs it to do so.
(b) The participant may make additional payments by mailing a check or guaranteed funds to the TSP record keeper or by enrolling in loan direct debit repayments from his or her personal savings or checking account. If the TSP record keeper receives a payment that repays the outstanding loan amount and overpays the loan by $10.00 or more, the overpayment will be refunded to the participant. Overpayments of less than $10.00 will be applied to the participant’s account and will not be refunded. If a loan overpayment refund is returned as undeliverable, the TSP record keeper will attempt to locate the participant. If the participant does not respond within 90 days, the overpayment refund will be forfeited to the TSP. The participant can claim the forfeited funds, although they will not be credited with TSP investment fund returns.
(c) The initial payment on a loan is due on or before the 60th day following the loan issue date. Interest accrues on the loan from the date of issuance.
(d) Subsequent payments are due at regular intervals as prescribed in the loan agreement, or most recent amortization, according to the participant’s pay cycle.
(e) In the case of a participant who has not separated from Government service, if a payment is not made when due, the TSP record keeper will notify the participant of the missed payment and the participant must make up the payment in full. The participant’s make-up payment must be in the form of a check, guaranteed funds, or a one-time payment via loan direct debit from his or her personal savings or checking account. If the participant does not make up all missed payments by the end of the calendar quarter following the calendar quarter in which the first payment was missed, the TSP record keeper will declare the loan to be a deemed distribution in accordance with § 1655.15(a). The declaration of a deemed distribution does not relieve the participant of his or her obligation to repay the amount.
(f) Interest will accrue on all missed payments and will be included in the calculation of any deemed distribution subsequently declared in accordance with § 1655.15(a). Interest will also accrue on payments missed while a participant is in nonpay status and on any deemed distribution until it is repaid in full.
(g) A participant who has separated from Government service with an outstanding loan balance may continue making loan repayments via check, guaranteed funds, or loan direct debit repayments. If a separated participant does not begin making post-separation loan repayments or pay off the loan in full by the deadline imposed by the TSP record keeper, the TSP record keeper will declare the outstanding loan balance and accrued interest to be a loan offset in accordance with § 1655.15(b). In the case of a separated participant who commences post-separation loan repayments, if a payment is not made when due, the TSP record keeper will notify the separated participant of the missed payment and he or she must make up the payment in full. The make-up payment must be in the form of a check, guaranteed funds, or a one-time payment via loan direct debit from his or her personal savings or checking account. If the participant does not make up all missed payments by the end of the calendar quarter following the calendar quarter in which the first payment was missed, the TSP record keeper will declare the outstanding loan balance and accrued interest to be a loan offset in accordance with § 1655.15(b).
§ 1655.15 Deemed Distributions and Loan Offsets.
(a) The TSP record keeper will ensure that all requirements set forth in section 72(p) of the Internal Revenue Code and the regulations promulgated thereunder with respect to deemed distributions are satisfied.
(1) The TSP record keeper will declare the entire unpaid balance of an outstanding loan (including interest) to be a deemed distribution if:
(i) The participant misses two or more loan payments or the participant’s payments are made for less than the required amount, and the delinquency is not cured within the cure period;
(ii) The loan is not repaid in full by the maximum term limit; or
(iii) A participant is in a confirmed nonpay status for a period of one year or more, has not advised the TSP record keeper that he or she is serving on active military duty, and payments are not resumed after the participant is notified the loan has been reamortized.
(2) Loan taxation does not relieve a participant of his or her obligation to repay the taxed loan amount. A participant may repay a taxed loan in full (including accrued interest) via check or money order up until the time he or she separates from Government service. The tax basis in a participant’s TSP account will be adjusted to reflect the repayment of a taxed loan.
(3) If a participant does not repay a taxed loan:
(i) His or her account balance will be permanently reduced; and
(ii) The taxed loan will count as one of the two loans the participant is permitted per account and is treated as an outstanding loan balance when calculating the participant’s maximum loan amount.
(b) The TSP record keeper will ensure that all requirements set forth in section 72(p) of the Internal Revenue Code and the regulations promulgated thereunder with respect to loan offsets are satisfied.
(1) The TSP record keeper will declare a loan offset in the following situations:
(i) A participant separates from Government service and does not begin making loan repayments or repay the outstanding loan principal and interest in full within the period specified by the notice to the participant from the TSP record keeper explaining the participant’s repayment options; or
(ii) The participant dies.
(2) [Reserved]
(c) If a deemed distribution or loan offset occurs in accordance with paragraph (a) or (b) of this section, as applicable, the TSP record keeper will notify the participant of the amount and date of the distribution. The TSP record keeper will report the distribution to the Internal Revenue Service as income for the year in which it occurs.
(d) If a participant dies and a loan offset occurs in accordance with paragraph (b) of this section, the TSP record keeper will notify the participant’s estate of the amount and date of the distribution. Neither the estate nor any other person, including a beneficiary, may repay the loan of a deceased participant, nor can the funds be returned to the TSP.
(e) If, because of Board or TSP record keeper error, a TSP loan is declared a deemed distribution or loan offset under circumstances that make such a declaration inconsistent with this part, or inconsistent with other procedures established by the Board or TSP record keeper in connection with the TSP loan program, the distribution will be reversed. The participant will be provided an opportunity to reinstate loan payments or repay in full the outstanding balance on the loan.
§ 1655.16 Reamortization.
(a) When a participant’s pay cycle changes for any reason, he or she must notify the TSP record keeper of the change in the form and manner prescribed by the TSP record keeper. Upon notification, the participant’s loan will be reamortized to adjust the scheduled payment to an equivalent amount in the new pay cycle. If the new pay cycle results in fewer payments per year and the participant does not reamortize the loan, the loan may be declared a deemed distribution pursuant to § 1655.15(a)(1).
(b) Upon reamortization, the outstanding principal balance remains the same. Any accrued interest is paid off first before payments are applied to principal and current interest.
(c) The interest rate on a reamortized loan will be the same as the interest rate on the original loan.
§ 1655.17 Prepayment.
(a) A participant may repay a loan in full, without a penalty, at any time before the declaration of a deemed distribution or loan foreclosure under § 1655.15. Repayment in full means receipt by the TSP record keeper of a payment, by check or guaranteed funds made payable to the Thrift Savings Plan or via loan direct debit repayments, of all principal and interest due on the loan.
(b) If a participant returns a loan check to the TSP record keeper, it will be treated as a repayment; however, additional interest may be owed, which, if not paid, could result in a deemed distribution. The loan, even though repaid, will also be taken into account in determining the maximum amount available for future loans, in accordance with § 1655.6(b).
(c) The amount outstanding on a loan can be obtained from the TSP website, the ThriftLine, or by a written request to the TSP record keeper.
§ 1655.18 Spousal rights.
(a) Spouse of CSRS participant. (1) Before a loan is disbursed to a CSRS participant, the TSP record keeper will send a notice to the participant’s current spouse that the participant has applied for a loan.
(2) A CSRS participant may obtain an exception to the requirement described in paragraph (a)(1) of this section if the participant establishes, to the satisfaction of the Executive Director, that the spouse’s whereabouts are unknown as described in paragraph (c) of this section.
(b) Spouse of FERS or uniformed services participant. (1) Before a loan agreement is approved for a FERS or uniformed services participant, the spouse must consent to the loan by signing the loan agreement.
(2) A FERS or uniformed services participant may obtain an exception to the requirement described in paragraph (b)(1) of this section if the participant establishes, to the satisfaction of the Executive Director, that:
(i) The spouse’s whereabouts are unknown; or
(ii) Exceptional circumstances prevent the participant from obtaining the spouse’s consent.
(c) Exception to spousal requirements. The procedures for obtaining an exception to the spousal requirements described in paragraphs (a)(1) and (b)(1) of this section are the same as the procedures described in 5 CFR part 1650, subpart G.
(d) Certification of truthfulness. By completing a loan request, the participant certifies, under penalty of perjury, that all information provided to the TSP record keeper during the loan process is true and complete, including statements concerning the participant’s marital status, the spouse’s email or physical address at the time the application is filed, or the current spouse’s consent to the loan.
§ 1655.19 Effect of court order on loan.
Upon receipt of a document that purports to be a qualifying retirement benefits court order, qualifying legal process relating to a participant’s legal obligation to provide child support or to make alimony payments, or a qualifying child abuse order, the participant’s TSP account will be frozen. After the account is frozen, no loan will be allowed until the account is unfrozen. The Board’s procedures for processing court orders and legal processes are explained in 5 CFR part 1653.
§ 1655.20 Residential loans.
(a) A residential loan will be made only for the purchase or construction of the primary residence of the participant, or for the participant and his or her spouse, and for the amount required to close on the purchase. The participant must actually bear all or part of the cost of the purchase. If the participant purchases a primary residence with someone other than his or her spouse, only the portion of the purchase costs that is borne by the participant will be considered in making the loan. A residential loan will not be made for the purpose of paying off an existing mortgage or otherwise providing financing for a previously purchased primary residence.
(b) The participant’s primary residence is his or her principal residence. A primary residence may include a house, a townhouse, a condominium, a share in a cooperative housing corporation, or a mobile home; a primary residence does not include a second home or vacation home. A participant cannot have more than one primary residence.
(c) Purchase of a primary residence means acquisition of the residence through the exchange of cash or other property or through the total construction of a new residence. A residential loan will not be made for a lease-to-buy option, unless the option to buy is being exercised and the documentation states that the funds are being used to purchase the primary residence. Construction of an addition to or the renovation of a residence or the purchase of land only does not constitute the purchase of a primary residence.
(d) The amount required to close on the purchase of a primary residence does not include points or loan origination fees charged for a loan. In addition, real estate taxes cannot be included.
(e) The documentation required for a loan under this section is as follows:
(1) For all purchases, except for construction, a signed sale/purchase contract/settlement offer or agreement or addendum; or
(2) For construction, a signed builder’s agreement/contract; and
(3) For requests including closing costs and/or settlement charges, a loan estimate/worksheet/statement/closing disclosure from a mortgage company.
(f) The documentation provided under this section must meet the requirements set forth by the TSP record keeper.
§ 1655.21 Loan fee.
The TSP will charge a participant a $50.00 loan fee when it disburses a general purpose loan and a $100.00 loan fee when it disburses a residential loan and will deduct the applicable fee from the proceeds of the loan.
PART 1690—THRIFT SAVINGS PLAN
Subpart A—General
§ 1690.1 Definitions.
As used in this chapter:
Agency automatic (1%) contributions means any contributions made under 5 U.S.C. 8432(c)(1) and (c)(3). It also includes service automatic (1%) contributions made under 5 U.S.C. 8440e(e)(3)(A).
Agency matching contributions means any contributions made under 5 U.S.C. 8432(c)(2). It also includes service matching contributions under 5 U.S.C. 8440e(e)(3)(B).
Basic pay means basic pay as defined in 5 U.S.C. 8331(3). For CSRS and FERS employees, it is the rate of pay used in computing any amount the individual is otherwise required to contribute to the Civil Service Retirement and Disability Fund as a condition of participating in the Civil Service Retirement System or the Federal Employees’ Retirement System, as the case may be. For members of the uniformed services, it is basic pay payable under 37 U.S.C. 204 and compensation received under 37 U.S.C. chapter 206.
Beneficiary participant means a spouse beneficiary for whom the TSP maintains a beneficiary participant account pursuant to 5 U.S.C. 8433(e) and in accordance with 5 CFR 1651.19.
Beneficiary participant account means an account maintained pursuant to 5 U.S.C. 8433(e) and in accordance with 5 CFR 1651.19. The term includes both civilian beneficiary participant accounts and uniformed services beneficiary participant accounts.
Board means the Federal Retirement Thrift Investment Board established under 5 U.S.C. 8472.
Bonus contributions means contributions made by a participant from any part of any special or incentive pay that the participant receives under chapter 5 of title 37.
BRS means the blended retirement system as established by the National Defense Authorization Act for FY 2016, Public Law 114-92, secs. 631-635 (2015).
BRS participant means a TSP participant covered by BRS.
C Fund means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).
Catch-up contributions means TSP contributions from basic pay that are made by participants age 50 and over, which exceed the elective deferral limit of 26 U.S.C. 402(g) and meet the requirements of 5 CFR 1600.23.
Civilian account means a TSP account to which contributions have been made by or on behalf of a civilian employee.
Civilian beneficiary participant account means a beneficiary participant account that is established with a death benefit payment from a TSP account to which contributions were made by or on behalf of a civilian employee.
Civilian employee or civilian participant means a TSP participant covered by the Federal Employees’ Retirement System, the Civil Service Retirement System, or equivalent retirement plan.
Contribution election means a request by an employee to start contributing to the TSP, to change the amount or type of contributions (traditional or Roth) made to the TSP each pay period, or to terminate contributions to the TSP.
Court of competent jurisdiction means the court of any state, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court as defined by 25 U.S.C. 1301(3).
CSRS means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent Federal retirement system.
CSRS employee or CSRS participant means any employee or participant covered by CSRS.
Date of appointment means the effective date of an employee’s accession as established by the current employing agency.
Day means calendar day, unless otherwise stated.
Eligible employer plan means a plan qualified under I.R.C. section 401(a) (26 U.S.C. 401(a)), including a section 401(k) plan, profit-sharing plan, defined benefit plan, stock bonus plan, and money purchase plan; an annuity plan described in I.R.C. section 403(a) (26 U.S.C. 403(a)); an annuity contract described in I.R.C. section 403(b) (26 U.S.C. 403(b)); and an eligible deferred compensation plan described in I.R.C. section 457(b) (26 U.S.C. 457(b)) which is maintained by an eligible employer described in I.R.C. section 457(e)(1)(A) (26 U.S.C. 457(e)(1)(A)).
Employee contributions means traditional contributions and Roth contributions. Employee contributions are made at the participant’s election pursuant to § 1600.12 and are deducted from compensation paid to the employee.
Employer contributions means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1), 8432(c)(3), or 5 U.S.C. 8440e(e)(3)(A) and agency matching contributions under 5 U.S.C. 8432(c)(2) or 5 U.S.C. 8440e(e)(3)(B).
Employing agency means the organization (or the payroll office that services the organization) that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual. It includes the employing service for members of the uniformed services.
Executive Director means the Executive Director of the Federal Retirement Thrift Investment Board under 5 U.S.C. 8474.
F Fund means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).
Federal civilian retirement system means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, or any equivalent Federal civilian retirement system.
FERS means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84 or any equivalent Federal retirement system.
FERS employee or FERS participant means any employee or TSP participant covered by FERS.
FERSA means the Federal Employees’ Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The provisions of FERSA that govern the TSP are codified primarily in subchapters III and VII of Chapter 84 of Title 5, United States Code.
Former spouse means (as defined at 5 U.S.C. 8401(12)) the former spouse of a TSP participant if the participant performed at least 18 months of civilian service creditable under 5 U.S.C. 8411 as an employee or member, and if the participant and former spouse were married to one another for at least nine months.
G Fund means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).
G Fund interest rate means the interest rate computed under 5 U.S.C. 8438(e)(2).
I Fund means the International Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(E).
In-service withdrawal request means a properly completed withdrawal election for either an age-based in-service withdrawal under 5 CFR 1650.41 or a financial hardship in-service withdrawal under 5 CFR 1650.42.
Investment election means the participant’s apportionment of his or her future contributions, loan payments, and rollovers from eligible employer plans or traditional IRAs among the TSP core funds.
L Fund means the Lifecycle Funds described in 5 CFR part 1601, subpart E.
PEBD means the pay entry base date (or pay entry basic date for some services), which is determined by each uniformed service and is used to calculate how much time in service a member has for the purpose of determining longevity pay rates.
Plan participant or participant means any person with an account (other than a beneficiary participant account) in the Thrift Savings Plan or who would have an account (other than a beneficiary account) but for an employing agency error.
Post-employment distribution request means a properly completed distribution withdrawal election under 5 CFR 1650.24.
Posting means the process of crediting or debiting transactions to an individual account.
Posting date means the date on which a transaction is credited or debited to a participant’s account.
Ready Reserve means those members of the uniformed services described at 10 U.S.C. 10142.
Regular employee contributions mean TSP contributions from taxable basic pay that are subject to the Internal Revenue Code limits on elective deferrals and contributions to qualified plans (26 U.S.C. 402(g) and 415(c), respectively), and the maximum contribution percentage limits of 5 U.S.C. 8351(b), 5 U.S.C. 8432(a), or 5 U.S.C. 8440f(a).
Roth 5 year non-exclusion period means the period of five consecutive calendar years beginning on the first day of the calendar year in which the participant’s Roth initiation date occurs. It is the period described in section 402A(d)(2)(B) of the Internal Revenue Code.
Roth balance means the sum of:
(1) Roth contributions and associated earnings; and
(2) Amounts rolled over to the TSP from a Roth account maintained by an eligible employer plans and earnings on those amounts.
Roth contributions means employee contributions made to the participant’s Roth balance which are authorized by 5 U.S.C. 8432d. Roth contributions may be deducted from taxable pay on an after-tax basis or from pay exempt from taxation under 26 U.S.C. 112.
Roth initiation date means
(1) The earlier of:
(i) The actual date of a participant’s first Roth contribution to the TSP;
(ii) The “as of” date or attributable pay date (as defined in § 1605.1 of this subchapter) that established the date of the participant’s first Roth contribution to the TSP; or
(iii) The date used, by a plan from which the participant directly rolled over Roth money into the TSP, to measure the participant’s Roth 5 year non-exclusion period.
(2) If a participant has a civilian account and a uniformed services account, the Roth initiation date for both accounts will be the same.
Roth IRA means an individual retirement plan described in Internal Revenue Code section 408A (26 U.S.C. 408A).
S Fund means the Small Capitalization Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(D).
Separation from Government service means generally the cessation of employment with the Federal Government. For civilian employees it means termination of employment with the U.S. Postal Service or with any other employer from a position that is deemed to be Government employment for purposes of participating in the TSP for 31 or more full calendar days. For uniformed services members, it means the discharge from active duty or the Ready Reserve or the transfer to inactive status or to a retired list pursuant to any provision of title 10 of the United States Code. The discharge or transfer may not be followed, before the end of the 31-day period beginning on the day following the effective date of the discharge, by resumption of active duty, an appointment to a civilian position covered by the Federal Employees’ Retirement System, the Civil Service Retirement System, or an equivalent retirement system, or continued service in or affiliation with the Ready Reserve. Reserve component members serving on full-time active duty who terminate their active duty status and subsequently participate in the drilling reserve are said to continue in the Ready Reserve. Active component members who are released from active duty and subsequently participate in the drilling reserve are said to affiliate with the Ready Reserve.
Share means a portion of a TSP Fund. Transactions are posted to accounts in shares at the share price of the date the transaction is posted. The number of shares for a transaction is calculated by dividing the dollar amount of the transaction by the share price of the appropriate date for the fund in question. The number of shares is computed to four decimal places.
Share price means the value of a share in a TSP Fund. The share price is calculated separately for each fund for each business day. The share price includes the cumulative net earnings or losses for each fund through the date the share price is calculated.
Source of contributions means traditional contributions, Roth contributions, agency automatic (1%) contributions, or agency matching contributions. All amounts in a participant’s account are attributed to one of these four sources. Catch-up contributions, rollovers, and loan payments are included in the traditional contribution source or the Roth contribution source.
Special or incentive pay means pay payable as special or incentive pay under 37 U.S.C. chapter 5.
Spouse means the person to whom a TSP participant is married on the date he or she signs a form on which the TSP requests spousal information. Where a participant is seeking to reclaim an account that has been forfeited pursuant to 5 CFR 1650.16, spouse means the person to whom the participant was married on the withdrawal deadline. For purposes of 5 CFR 1651.5 and 5 CFR 1651.19, spouse means the person to whom the participant was married on the date of the participant’s death. A TSP participant is considered to be married even if the parties are separated, unless a court decree of divorce or annulment has been entered. The laws of the jurisdiction in which the marriage was initially established will be used to determine whether a TSP participant is married.
Tax-deferred balance means the sum of:
(1) All contributions and rollovers in a participant’s traditional balance that would otherwise be includible in gross income if paid directly to the participant and earnings on those amounts; and
(2) Earnings on any tax-exempt contributions in the traditional balance. The tax-deferred balance does not include tax-exempt contributions.
Tax-deferred contributions means employee contributions made to a participant’s traditional balance that would otherwise be includible in gross income if paid directly to the participant.
Tax-exempt balance means the sum of tax-exempt contributions within a participant’s traditional balance. It does not include earnings on such contributions. Only a traditional balance in a uniformed services participant account or a uniformed services beneficiary participant account may contain a tax-exempt balance.
Tax-exempt contributions means employee contributions made to the participant’s traditional balance from pay which is exempt from taxation by 26 U.S.C. 112. The Federal income tax exclusion at 26 U.S.C. 112 is applicable to compensation for active service during a month in which a uniformed service member serves in a combat zone. The term “tax-exempt contributions” does not include contributions made to the participant’s Roth balance from pay which is exempt from taxation by 26 U.S.C. 112.
Thrift Savings Fund or Fund means the Fund described in 5 U.S.C. 8437.
Thrift Savings Plan, TSP, or Plan means the Thrift Savings Plan established under subchapters III and VII of the Federal Employees’ Retirement System Act of 1986, 5 U.S.C. 8351 and 8401-8479.
ThriftLine means the automated voice response system by which TSP participants may, among other things, access their accounts by telephone. The ThriftLine can be reached at (877) 968-3778.
Traditional balance means the sum of:
(1) Tax-deferred contributions and associated earnings;
(2) Tax-deferred amounts rolled over into the TSP and associated earnings;
(3) Tax-exempt contributions and associated earnings;
(4) Agency matching contributions and associated earnings;
(5) Agency automatic (1%) contributions and associated earnings.
Traditional contributions means tax-deferred employee contributions and tax-exempt employee contributions made to the participant’s traditional balance.
Traditional IRA means an individual retirement account described in I.R.C. section 408(a) (26 U.S.C. 408(a)) and an individual retirement annuity described in I.R.C. section 408(b) (26 U.S.C. 408(b)) (other than an endowment contract).
TSP core fund means an investment fund established pursuant to 5 U.S.C. 8438(b)(1)(A)-(E) and (c)(2).
TSP record keeper means the entities the Board engages to perform record keeping and administration services for the Thrift Savings Plan.
TSP record keeper means the entities the Board engages to perform record keeping and administration services for the Thrift Savings Plan.
TSP website means the internet location(s) maintained by the TSP and/or its record keeper, which contain(s) information about the TSP and by which TSP participants may, among other things, access their accounts by computer.
Uniformed service member or uniformed services participant means a TSP participant who is a member of the uniformed services on active duty or a member of the Ready Reserve in any pay status.
Uniformed services means the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service Commissioned Corps, and the National Oceanic and Atmospheric Administration Commissioned Officer Corps.
Uniformed services account means a TSP account to which contributions have been made by or on behalf of a member of the uniformed services.
Uniformed services beneficiary participant account means a beneficiary participant account that is established with a death benefit payment from a TSP account to which contributions were made by or on behalf of a member of the uniformed services.
Vested account balance means that portion of an individual’s account which is not subject to forfeiture under 5 U.S.C. 8432(g).
Subpart B—Miscellaneous
§ 1690.11 Plan year.
The Thrift Savings Plan’s plan year is established on a calendar-year basis for all purposes, except where another applicable provision of law requires that a fiscal year or other basis be used. As used in this section, the term “calendar-year basis” means a twelve-month period beginning on January 1 and ending on December 31 of the same year.
§ 1690.12 Power of attorney.
(a) A participant or beneficiary can appoint an agent to conduct business with the TSP on his or her behalf by using a power of attorney (POA). The agent is called an attorney-in-fact. The TSP record keeper must approve a POA before the agent can conduct business with the TSP; however, the TSP record keeper will accept a document that was signed by the agent before the TSP record keeper approved the POA. The TSP record keeper will approve a POA if it meets the following conditions:
(1) The POA must give the agent either general or specific powers, as explained in paragraphs (b) and (c) of this section;
(2) The POA must be signed by the participant;
(3) The POA must provide the names and addresses of the participant and the agent;
(4) The POA must meet the state law requirements of the participant’s state of domicile as determined by the address on file with the TSP record keeper;
(5) The POA must be a complete document; and
(6) The POA must be submitted to the TSP record keeper for approval.
(b) A general POA gives an agent unlimited authority to conduct business with the TSP, including the authority to sign any TSP-related document. Additional information regarding general powers of attorney can be accessed at https://www.tsp.gov.
(c) A specific power of attorney gives an agent the authority to conduct specific TSP transactions. A specific POA must expressly describe the authority it grants. Additional information regarding specifical powers of attorney, as well as a sample form, can be accessed at https://www.tsp.gov.
§ 1690.13 Guardianship and conservatorship orders.
(a) A court order can authorize an agent to conduct business with the TSP on behalf of an incapacitated participant or beneficiary. The agent is called a guardian or conservator and the incapacitated person is called a ward. The TSP record keeper must approve a court order before an agent can conduct business with the TSP; however, the TSP record keeper will accept a document that was signed by the agent before the TSP record keeper approved the court order. The TSP record keeper will approve a court order appointing an agent if the following conditions are met:
(1) A court of competent jurisdiction (as defined at § 1690.1) must have issued the court order;
(2) The court order must give the agent either general or specific powers, as explained in paragraphs (b) and (c) of this section; and
(3) The agent must demonstrate that he or she meets any precondition specified in the court order, such as a bonding requirement.
(b) A general grant of authority gives a guardian or conservator unlimited authority to conduct business with the TSP, including the authority to sign any TSP-related document. By way of example, an order gives a general grant authority by appointing a “guardian of the ward’s estate,” by permitting a guardian to “conduct business transactions” for the ward, or by authorizing a guardian to care for the ward’s “personal property” or “Federal Government retirement benefits.”
(c) A specific grant of authority gives a guardian or conservator authority to conduct specific TSP transactions. Such an order must expressly describe the authority it grants. By way of example, an order may authorize an agent to “obtain information about the ward’s TSP account” or “borrow or withdraw funds from the ward’s TSP account.”
§ 1690.14 Checks made payable to the Thrift Savings Plan.
(a) Accord and satisfaction. The TSP does not agree to accept less than the total amount due by negotiating an instrument such as a check, share draft or money order with a restrictive legend on it (such as “payment in full” or “submitted in full satisfaction of claims”), or by negotiating an instrument that is conditionally tendered to the TSP with an offer of compromise.
(b) TSP payment address. The TSP record keeper has established an address for the receipt of specified TSP payments. The TSP record keeper will not answer correspondence mailed to that payment address.
§ 1690.15 Freezing an account—administrative holds.
(a) The TSP record keeper may freeze (e.g., place an administrative hold on) a participant’s account for any of the following reasons:
(1) Pursuant to a qualifying retirement benefits court order as set forth in part 1653 of this chapter;
(2) Pursuant to a request from the Department of Justice under the Mandatory Victims Restitution Act;
(3) Upon the death of a participant;
(4) Upon suspicion or knowledge of fraudulent account activity or identity theft;
(5) In response to litigation pertaining to an account;
(6) For operational reasons (e.g., to correct a processing error or to stop payment on a check when account funds are insufficient);
(7) Pursuant to a written request from a participant made in the manner prescribed by the TSP record keeper; and
(8) For any other reason necessary to ensure the integrity of TSP accounts or compliance with law.
(b) [Reserved]
PARTS 1691-1699 [RESERVED]
CHAPTER VIII—OFFICE OF SPECIAL COUNSEL
PART 1800—FILING OF COMPLAINTS AND ALLEGATIONS
§ 1800.1 Scope and purpose.
The purpose of this part is to implement the U.S. Office of Special Counsel’s (OSC) authorities at 5 U.S.C. 1212-1216 and should be read in concert with these statutory provisions. This part does not create new individual rights but instead is intended to inform individuals of filing options they may be entitled to under 5 U.S.C. 1212-1216, and 2302. Individuals are encouraged to go to OSC’s website at https://osc.gov for more information about the OSC complaint form that should be used when filing with OSC.
§ 1800.2 Filing complaints of prohibited personnel practices or other prohibited activities.
(a) Prohibited personnel practices. Pursuant to 5 U.S.C. 1214 and 1215, OSC has investigative and prosecutorial jurisdiction over allegations that one or more of the prohibited personnel practices enumerated at 5 U.S.C. 2302 were committed against current or former Federal employees or applicants for Federal employment, including:
(1) Discrimination, including discrimination based on marital status or political affiliation (see § 1810.1 of this chapter for information about OSC’s deferral policy for discrimination complaints);
(2) Soliciting or considering improper recommendations or statements about any individual requesting, or under consideration for, a personnel action;
(3) Coercing political activity, or engaging in retaliation for refusal to engage in political activity;
(4) Deceiving or obstructing any individual with respect to competition for employment;
(5) Influencing any individual to withdraw from competition to improve or injure the employment prospects of another individual;
(6) Granting an unauthorized preference or advantage to any individual to improve or injure the employment prospects of another individual;
(7) Nepotism involving a covered relative as defined at 5 U.S.C. 3110(a)(3);
(8) Retaliation for whistleblowing (whistleblowing is generally defined as the disclosure of information by an individual who reasonably believes that the information evidences a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety; or censorship related to scientific research or the integrity of the scientific process if the censorship will cause one of the aforementioned categories of wrongdoing);
(9) Retaliation for:
(i) Exercising certain grievance, complaint, or appeal rights;
(ii) Providing testimony or other assistance to any individual exercising such grievance, complaint, or appeal rights;
(iii) Cooperating with the Special Counsel, an Inspector General, or any other agency component responsible for internal investigation or review; or
(iv) Refusing to obey an order that would require the violation of law, rule, or regulation;
(10) Discrimination based on conduct that would not adversely affect job performance;
(11) Violating a veterans’ preference requirement;
(12) Taking or failing to take a personnel action in violation of any law, rule, or regulation implementing or directly concerning merit system principles at 5 U.S.C. 2301(b);
(13) Implementing or enforcing any nondisclosure policy, form, or agreement that fails to include the statement found at 5 U.S.C. 2302(b)(13) or fails to inform any individual that they retain their whistleblowing rights; and
(14) Accessing the medical record of any individual as part of, or otherwise in furtherance of, any other prohibited personnel practice.
(b) Other prohibited activities. Pursuant to 5 U.S.C. 1216, OSC also has investigative and prosecutorial jurisdiction over any allegation concerning the following:
(1) Prohibited political activity by Federal employees covered by the Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;
(2) Prohibited political activity by State and local officers and employees covered by the Hatch Act at title 5 of the U.S. Code, chapter 15;
(3) Arbitrary and capricious withholding of information that should be released pursuant to the Freedom of Information Act at 5 U.S.C. 552 (except for certain foreign and counterintelligence information);
(4) Activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decision-making;
(5) Involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action (unless OSC determines that the allegation may be resolved more appropriately under an administrative appeals procedure); and
(6) Pursuant to 38 U.S.C. 4324, violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. 4301, et seq.
(c) Procedures for filing complaints alleging prohibited personnel practices or other prohibited activities (other than the Hatch Act). (1) Anyone may file a complaint with OSC alleging one or more prohibited personnel practices, or other prohibited activities within OSC’s investigative jurisdiction. The OSC complaint form must be used to file all such complaints.
(2) OSC will not process a complaint filed in any format other than the completed OSC complaint form designated in paragraph (c)(1) of this section. OSC will, however, accept material supplementing the contents of Form 14, as long as the filer also submits a signed form. If a filer does not use this form to submit a complaint, OSC will provide the filer with information about the form and obtain a signature on the form. The OSC complaint form will be considered to be filed on the date on which OSC receives a completed form.
(3) The OSC complaint form requests that the filer provide basic information about the alleged prohibited personnel practices or other prohibited activities. A complaint may be amended to clarify or include additional allegations. A complaint is sufficient for investigation when OSC receives information identifying the parties, identifying any relevant personnel action(s), and describing generally the practices or activities at issue.
(4) The OSC complaint form is available:
(i) Online at: https://osc.gov (to print out and complete on paper, or to complete online);
(ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505; or
(iii) By calling OSC at: (800) 872-9855 (toll-free), or (202) 804-7000 (in the Washington, DC area).
(5) A complainant can file a completed OSC complaint form:
(i) Electronically at: https://osc.gov;
(ii) By email to: [email protected]; or
(iii) By mail to: U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(d) Alternate Dispute Resolution. For selected cases, OSC may offer Alternative Dispute Resolution (ADR) pursuant to the voluntary Alternative Dispute Resolution Act of 1998, 5 U.S.C. 571-573. OSC provides information about its ADR program and process on its website at https://osc.gov.
§ 1800.3 Filing disclosures of information evidencing wrongdoing.
(a) General. Pursuant to 5 U.S.C. 1213, OSC is authorized to provide an independent and secure channel for use by current or former Federal employees and applicants for Federal employment to disclose information that they reasonably believe evidences wrongdoing by a Federal agency. Within 45 days of receipt of the disclosure, OSC must determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety; or censorship related to scientific research or the integrity of the scientific process if the censorship will cause one of the aforementioned categories of wrongdoing. If it does, the law requires OSC to refer the information to the appropriate agency head for an investigation and a written report on the findings; and the agency head must submit the report to the Special Counsel. OSC may not disclose the identity of an individual who makes the disclosure unless the individual consents or the Special Counsel determines that the disclosure of the identity is necessary because of an imminent danger to public health or safety or imminent violation of any criminal law. The law does not authorize OSC to investigate any disclosure.
(1) Deferral policy for certain disclosures. When OSC determines that a disclosure is being or has been investigated by an Agency, OSC will usually defer to such investigation rather than make a substantial likelihood determination.
(2) [Reserved]
(b) Procedures for filing disclosures. Current or former Federal employees and applicants for Federal employment may file with OSC a disclosure of the type of information described in 5 U.S.C. 1213(a)(1). Such disclosures must be filed in writing.
(1) Filers are encouraged to use the OSC complaint form, which is available online, to file a disclosure of the type of information described in 5 U.S.C. 1213(a)(1). OSC’s complaint form provides more information about OSC jurisdiction and procedures for processing whistleblower disclosures. The OSC complaint form is available:
(i) Online at: https://osc.gov (may be completed online or printed out and completed on paper);
(ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505; or
(iii) By calling OSC at: (800) 572-2249 (toll-free), or (202) 804-7004 (in the Washington, DC area).
(2) Filers may use another written format to submit a disclosure to OSC, but the submission should include:
(i) The name, mailing address, and telephone number(s) of the individual(s) making the disclosure(s);
(ii) The department or agency, location, and organizational unit complained of; and
(iii) A statement as to whether the filer consents to disclosure of the filer’s identity by OSC to the agency involved, in connection with any OSC referral to that agency.
§ 1800.4 Filing complaints of Hatch Act violations and requesting advisory opinions.
(a) Procedures for filing complaints alleging Hatch Act violations.
(1) Complainants are encouraged to use the OSC complaint form (Form 14) to file Hatch Act complaints. The OSC complaint form is available:
(i) Online at: https://osc.gov (to print out and complete on paper, or to complete online); or
(ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(2) Complaints alleging a violation of the Hatch Act not submitted on Form 14 may also be submitted in any written form, and should include:
(i) The complainant’s name, mailing address, and telephone number (unless the matter is submitted anonymously);
(ii) The department or agency, location, and organizational unit complained of; and
(iii) A concise description of the actions complained about, names and positions of employees who took the actions, if known to the complainant, and dates of the actions, preferably in chronological order, together with any documentary evidence that the complainant can provide.
(3) Written Hatch Act complaints including the information in 1800.4(a)(2) above may be filed with OSC:
(i) By email to: [email protected]; or
(ii) By mail to: U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(b) Procedures for requesting Hatch Act advisory opinions. Pursuant to 5 U.S.C. 1212(f), OSC is authorized to issue advisory opinions only about political activity of Federal officers and employees, and political activity of certain State or local officers and employees. An individual can seek an advisory opinion from OSC:
(1) By email to: [email protected];
(2) By mail to: U.S. Office of Special Counsel, Hatch Act Unit, 1730 M Street NW, Suite 218, Washington, DC 20036-4505; or
(3) By phone at: (800) 854-2824 (toll-free), or (202) 804-7002 (in the Washington, DC area).
PART 1810—INVESTIGATIVE AUTHORITY OF THE SPECIAL COUNSEL
§ 1810.1 Investigative policy in certain discrimination and retaliation complaints.
OSC is authorized to investigate allegations of discrimination and retaliation prohibited by law, as defined in 5 U.S.C. 2302(b)(1) and (b)(9)(A)(ii). Because procedures for investigating discrimination and retaliation complaints have already been established in the agencies and the Equal Employment Opportunity Commission, OSC will usually avoid duplicating those procedures and will defer to those procedures rather than initiating an independent investigation.
§ 1810.2 Access to agency information in investigations.
(a) Pursuant to 5 U.S.C. 1212(b)(5), OSC is authorized to have timely access to all agency records, data, reports, audits, reviews, documents, papers, recommendations, information, or other material that relate to an OSC investigation, review, or inquiry.
(b) A claim of common law privilege, such as the attorney-client privilege, may not be used by any agency, or officer or employee of any agency, to withhold information from OSC. By providing such information to OSC, an agency will not be deemed to have waived the common law privilege against a non-Federal entity or against any individual in any other proceeding.
(c) In the event of contumacy or failure of an agency to comply with any request under this section, the Special Counsel shall submit a report to the committees of Congress with jurisdiction over OSC and the applicable agency.
§ 1810.3 Termination of certain OSC investigations.
(a) Pursuant to 5 U.S.C. 1214(a)(6), within 30 days of receiving a complaint alleging that a prohibited personnel practice occurred, OSC may terminate an investigation of the allegation without further inquiry if:
(1) The same allegation, based on the same set of facts and circumstances, had previously been:
(i) Made by the individual and investigated by OSC; or
(ii) Filed by the individual with the Merit Systems Protection Board;
(2) OSC does not have jurisdiction to investigate the allegation; or
(3) The individual knew or should have known of the alleged prohibited personnel practice more than 3 years before the allegation was received by OSC.
(b) Within 30 days of terminating an investigation described in paragraph (a), OSC shall notify the individual, in writing, of the basis for terminating the investigation.
§ 1810.4 Investigative policy regarding agency liaisons.
Agency liaisons facilitate their agency’s cooperation with OSC’s investigations by ensuring that agencies timely and accurately respond to OSC’s requests for information and witness testimony, as well as by assisting with the resolution of complaints. To maintain the integrity of OSC’s investigations and to avoid actual or perceived conflicts, agency liaisons should not have current or past involvement in the personnel actions at issue in the assigned case.
PART 1811—OUTSIDE INSPECTOR GENERAL
§ 1811.1 Requirement to contract with an outside inspector general.
The Special Counsel shall enter into at least one agreement with the Inspector General of an agency under which—
(1) the Inspector General shall—
(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and
(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and
(2) the Special Counsel—
(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and
(B) may reimburse the Inspector General for services provided under the agreement.
PART 1820—FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR TESTIMONY
§ 1820.1 General provisions.
This part contains rules and procedures followed by the U.S. Office of Special Counsel (OSC) in processing requests for records under the Freedom of Information Act (FOIA), codified at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA and the FOIA page of OSC’s website (https://osc.gov/FOIA), which set forth additional information about access to agency records and information routinely provided to the public as part of a regular OSC activity. For example, forms, press releases, records published on OSC’s website, or public lists maintained at OSC headquarter offices pursuant to 5 U.S.C. 1219, may be requested and provided to the public without following this part. This part also addresses responses to demands by a court or other authority to an OSC employee or former employee for production of official records or testimony in legal proceedings.
Subpart A—FOIA Regulations
§ 1820.2 Requirements for making FOIA requests.
(a) Submission of requests. (1) A request for OSC records under the FOIA must be made in writing. The request must be sent:
(i) By email to: [email protected] or other electronic means described on the FOIA page of OSC’s website (https://osc.gov/FOIA);
(ii) Electronically to: The National FOIA Portal for the entire federal government at www.foia.gov; or
(iii) By mail to: U.S. Office of Special Counsel, FOIA Officer, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(2) Both the request letter and envelope or email subject line should be clearly marked “FOIA Request.”
(3) A FOIA request will not be considered to have been received by OSC until it reaches the FOIA Officer.
(b) Description of records sought. Requests must state in the letter, email, or other prescribed electronic method the words “FOIA Request” or “FOIA/Privacy Request.” The request must also describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice (PPP), Hatch Act, USERRA, Hatch Act advisory opinion, or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter. OSC requires proof of identification from requestors seeking their own case files. OSC requires a signed release of information from requestors seeking another individual’s case file.
(c) Agreement to pay fees. By making a FOIA request the requestor agrees to pay all applicable fees chargeable under § 1820.7 unless the Special Counsel waives fees, the requestor is exempt, or the requestor otherwise qualifies for a waiver of fees.
§ 1820.3 Consultations and referrals.
When OSC receives a FOIA request for a record in its possession, it may determine that another Federal agency or entity is better able to decide whether the record is exempt from disclosure under the FOIA. If so, OSC will either respond to the request for the record after consulting with the other Federal agency or entity or refer the responsibility for responding to the request to the other Federal agency or entity deemed better able to determine whether to release it. OSC will ordinarily respond promptly to consultations and referrals from other Federal agencies or entities.
§ 1820.4 Timing of responses to requests.
(a) In general. OSC ordinarily will respond to FOIA requests in order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession on the date that it begins its search. OSC will inform the requestor if it uses any other date.
(b) Multitrack processing. (1) OSC may use two or more processing tracks to distinguish between simple and more complex requests based on the amount of work and/or time estimated to process the request.
(2) When using multitrack processing, OSC may provide requestors in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s).
(c) Expedited processing. (1) OSC will take requests and appeals out of order and provide expedited treatment whenever OSC has established to its satisfaction that:
(i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency exists to inform the public about an actual or alleged federal government activity and the requestor is primarily engaged in disseminating information; or
(iii) The requestor with a personal interest in a case for which they face an imminent filing deadline with the Merit Systems Protection Board or other administrative tribunal or court of law in an individual right of action, or in a USERRA case referred to OSC under title 38 of the U.S. Code. Expedited status granted under this provision will apply only to the following requested records: PPP case closure and notice of appeal rights letters sent to the complainant by OSC and the official complaint form submitted to OSC by a USERRA complainant or the original referred USERRA complaint if referred to OSC under title 38 of the U.S. Code.
(2) A request for expedited processing must be made in writing and sent to OSC’s FOIA Officer. The expedited request is deemed received when it reaches the FOIA Officer.
(3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that individual’s knowledge and belief, explaining in detail the basis for requesting expedited processing. OSC may waive a certification as a matter of administrative discretion.
(4) OSC shall decide whether to grant a request for expedited processing and notify the requestor of its decision within ten (10) calendar days of the FOIA Officer’s receipt of the request. If OSC grants the request for expedited processing, it will process the request as soon as practicable. If OSC denies the request for expedited processing, OSC shall rule expeditiously on any administrative appeal of that decision.
(d) Aggregated requests. OSC may aggregate multiple requests by the same requestor, or by a group of requestors acting in concert, if it reasonably believes that such requests actually constitute a single request that would otherwise create “unusual circumstances” as defined in § 1820.5, and that the requests involve clearly related matters.
§ 1820.5 Responses to requests.
(a) General. Ordinarily, OSC has twenty (20) business days from receipt to determine whether to grant or deny a FOIA request.
(1) In unusual circumstances, OSC may extend the twenty (20) business-day deadline by written notice to the requestor setting forth the unusual circumstances justifying the extension. OSC shall notify the requestor if OSC cannot process the request in 20 days and provide the requestor an opportunity to modify the request so that OSC can process the request within the 20-day time limit. OSC and the requestor can also negotiate an alternative time frame for processing the request or modified request. OSC’s FOIA Public Liaison is available to assist in the resolution of any disputes between the requestor and OSC. OSC must also advise the requestor of the requestor’s right to seek dispute resolution services from the National Archives and Records Administration’s (NARA) Office of Government Information Services (OGIS). OSC may consider a requestor’s refusal to reasonably modify the request or to negotiate an alternative time frame as a factor in determining whether unusual and/or exceptional circumstances exist.
(2) Unusual circumstances means—
(i) The need to search for and collect the requested records from OSC field offices, NARA storage facilities, or other locations away from OSC’s FOIA office;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or
(iii) The need for consultation and/or referral with another OSC unit where the information concerns two or more components of OSC or with a Federal entity that has an interest in the information requested.
(3) Exceptional circumstances means—
(i) OSC has a backlog of pending requests and is making reasonable progress in reducing the backlog; and
(ii) OSC estimates a search yield of more than 5000 pages.
(b) OSC will notify the requestor in writing of its determination to grant or deny in full or in part a FOIA request.
(c) Adverse determinations. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; that a requested record does not exist or cannot be located; that a record is not readily reproducible in the form or format sought by the requestor; that the request does not seek a record subject to the FOIA; a determination on any disputed fee matter; or a denial of a request for expedited treatment. A notification to a requestor of an adverse determination on a request shall include:
(1) A brief statement of the reason(s) for the denial of the request, including any FOIA exemption applied by OSC in denying the request; and
(2) A statement that the denial may be appealed under § 1820.6(a), with a description of the requirements of that subsection.
(d) Dispute resolution program. OSC shall inform FOIA requestors at all stages of the FOIA process of the availability of dispute resolution services provided by the FOIA Public Liaison or by NARA’s OGIS.
§ 1820.6 Appeals.
(a) Appeals of adverse determinations. A requestor may appeal an adverse determination to OSC’s Office of General Counsel. The appeal must be in writing, and must be submitted either:
(1) By email to: [email protected], or other electronic means as described on the FOIA page of OSC’s website (https://osc.gov/FOIA); or
(2) By mail to: U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(b) Submission and content. The Office of General Counsel must receive the appeal within ninety (90) calendar days of the date of the adverse determination letter. The appeal letter and envelope or email subject line should be clearly marked “FOIA Appeal.” The appeal must clearly identify the OSC determination (including the assigned FOIA request number, if known) being appealed. OSC will not ordinarily act on a FOIA appeal if the request becomes a matter of FOIA litigation.
(c) Responses to appeals. Ordinarily, OSC must issue a written appeal decision within twenty (20) business days from receipt of the appeal. A decision affirming a denial in whole or in part shall inform the requestor of the provisions for judicial review of that decision, and of the availability of dispute resolution services. If OSC’s appeal decision reverses or modifies its denial, OSC’s notice will state that OSC will reprocess the request in accordance with that appeal decision.
§ 1820.7 Fees.
(a) In general. OSC provides the first two hours of search time and the first 100 pages of duplication free of charge to all requestors. In exceptional circumstances, OSC may charge fees. At the discretion of the Special Counsel, OSC may exempt certain requestors from search and duplication fees, including PPP complainants and subjects; Hatch Act complainants and subjects; Hatch Act advisory opinion requestors; whistleblowers; and USERRA complainants. OSC charges commercial users for search, review, and duplication fees under the FOIA in accordance with paragraph (c) of this section, except where a waiver or reduction of fees is granted under paragraph (h) of this section. OSC charges duplication fees, but not search fees, to educational or non-commercial scientific institutions; and to representative of the news media or news media requestors. OSC charges both search fees and duplication fees to all other requestors. If an exempted requestor abuses its exempt fee status to file numerous, duplicative, and/or voluminous FOIA requests, OSC may suspend the requestor’s exempt status and charge search and duplication fees. OSC may require up-front payment of fees before sending copies of requested records to a requestor. Requestors must pay fees by submitting to OSC’s FOIA Officer a check or money order made payable to the Treasury of the United States. See generally Uniform Freedom of Information Act Fee Schedule and Guidelines (hereinafter OMB Fee Guidelines), 52 FR 10,012, 10,017-18 (Mar. 27, 1987).
(b) Definitions. For purposes of this section:
All other requestors means all requestors who do not fall into the categories of commercial use, educational institution, noncommercial scientific institution, and representatives of the news media.
Commercial use request means a request from or on behalf of an individual who seeks information for a use or purpose that furthers commercial, trade, or profit interests, which can include furthering those interests through litigation. If OSC determines that the requestor seeks to put the records to a commercial use, either because of the nature of the request or because OSC has reasonable cause to doubt a requestor’s stated use, OSC shall provide the requestor with a reasonable opportunity to clarify.
Direct costs mean those expenses that OSC incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating equipment. Direct costs do not include overhead expenses such as rent, heating, or lighting the record storage facility.
Duplication means the reasonable direct cost of making copies of documents.
Educational institution means any school that operates a program of scholarly research. See OMB Fee Guidelines, 52 FR at 10,019. To be in this category, a requestor must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
Non-commercial scientific institution means an entity that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry and are not for commercial use.
Representative of the news media or news media requestor means any individual 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. A non-exhaustive list of news media entities includes print newspapers, electronic outlets for print newspapers, broadcast and cable television networks and stations, broadcast and satellite radio networks and stations, internet-only outlets, and other alternative media as methods of news delivery evolve. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization, whether print or electronic. A requestor seeking to qualify as a news media requestor must not be seeking the requested records for a commercial use. The requestor’s news-dissemination function is not considered to be a commercial use.
Review means the process of examining a record located in response to a request in order to determine whether any portion of the record is exempt from release. Review includes redacting exempt material, and otherwise evaluating and preparing the records for release. Review includes time spent obtaining and considering any formal objection to release made by a business submitter under § 1820.8(f). Review does not include time spent resolving general legal or policy issues about the application of exemptions. OSC may charge for review costs in connection with commercial use requests even if a record ultimately is not released.
Search means the process of looking for and retrieving records or information responsive to a FOIA request, as well as page-by-page or line-by-line identification of responsive information within records.
(c) Fees. OSC charges the following fees for responding to FOIA requests:
(1) Search. (i) The first two hours of search are free. OSC may charge for time spent searching even if it fails to locate responsive records, or even if OSC determines that located records are exempt from release.
(ii) OSC charges $5.50 per quarter hour spent by clerical personnel in searching for and retrieving a requested record; $9.00 per quarter hour of search time spent by professional personnel; and $17.50 per quarter hour for search assistance from managerial personnel.
(iii) OSC charges the direct costs of conducting electronic searches, including the costs of operator or programmer staff time apportionable to the search.
(iv) OSC may charge additional costs in accordance with the applicable billing schedule established by NARA for requests requiring the retrieval of records from any Federal Records Center.
(2) Duplication. OSC charges all non-exempt requestors duplication fees after the first 100 pages. OSC’s duplication fee for a standard paper photocopy of a record will be 25 cents per page. For copies produced by computer, such as discs or printouts, OSC will charge the direct costs, including staff time, of producing the copy. For other forms of duplication, OSC will charge the direct costs of that duplication.
(3) Review. OSC charges review fees to commercial use requestors. OSC will not charge for review at the administrative appeal level.
(d) Notice of anticipated fees in excess of $25.00. OSC shall notify the requestor of the actual or estimated fees when OSC determines or estimates that fees charged under this section would exceed $25.00, unless the requestor has indicated a willingness to pay fees at that level or if OSC waived fees before undertaking the search. OSC will not conduct a search or process responsive records until OSC and the requestor reach an agreement on the fees. If a requestor wants to pay a lower amount than $25.00, the fee notice will offer the requestor an opportunity to work with OSC to reformulate or narrow the request to try to lower the anticipated fees.
(e) Charges for other services. OSC will notify requestors in advance if OSC intends to charge additional fees to provide special services, such as shipping records by other than ordinary mail.
(f) Aggregating separate requests. OSC may aggregate requests and charge appropriate fees where OSC reasonably believes that a requestor or a group of requestors seek to avoid fees by dividing a request into a series of requests. OSC may presume that multiple such requests made within a 30-day period were divided in order to avoid fees. OSC will aggregate requests separated by more than 30 days only where a reasonable basis exists for determining that aggregation is warranted under the circumstances involved.
(g) Advance payments. (1) For requests other than those described in paragraphs (g)(2) and (3) of this section, OSC will not require the requestor to make an advance payment before work is begun or continued on a request. Payment owed for work already completed (that is, pre-payment after processing a request but before copies are sent to the requestor) is not an advance payment.
(2) OSC may require advance payment up to the amount of the entire anticipated fee before beginning to process the request if OSC determines or estimates that a total fee to be charged under this section will exceed $250.00.
(3) OSC may require the requestor to make an advance payment in full of the anticipated fee where a requestor has previously failed to pay a properly charged FOIA fee within 30 business days of the date of billing.
(h) Requirements for waiver or reduction of fees. (1) OSC will furnish records responsive to a request without charge or at a charge reduced below that established under paragraph (c) of this section where OSC determines, based on all available information, that the requestor has demonstrated that:
(i) Release of the requested records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and
(ii) Release of the records is not primarily in the commercial interest of the requestor.
(2) To determine whether the first fee waiver requirement is met, OSC will consider the following factors:
(i) Whether the subject of the requested records concerns a direct and clear connection to “the operations or activities of the government,” not remote or attenuated.
(ii) Whether the release is “likely to contribute” to an understanding of government operations or activities. The requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The release of records already in the public domain is unlikely to contribute to such understanding.
(iii) Whether release of the requested records will contribute to “public understanding.” The release must contribute to the understanding of a reasonably broad audience of individuals interested in the subject. OSC shall consider a requestor’s expertise in the subject area and ability and intention to effectively convey information to the public. A representative of the news media presumptively satisfies this consideration.
(iv) Whether the release is likely to contribute “significantly” to public understanding of government operations or activities. The requestor must demonstrate that the release would significantly enhance the public’s understanding of the subject in question.
(3) To determine whether the second fee waiver requirement is met, OSC will consider the following factors:
(i) Whether the requestor has a commercial interest that would be furthered by the requested release. OSC shall consider any commercial interest of the requestor (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any individual on whose behalf the requestor may be acting, that would be furthered by the requested release. Requestors shall be given an opportunity to provide explanatory information about this consideration.
(ii) Whether any identified commercial interest in the disclosure, is equal to or less than that of any identified public interest. OSC ordinarily shall presume that a news media requestor has satisfied the public interest standard. Release to data brokers or others who primarily compile and market government information for direct economic return shall be presumed not to primarily serve the public interest.
(4) Where only a portion of the records to be released satisfies the requirements for a waiver of fees, a waiver shall be granted for that portion.
(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (h)(1), (2), and (3) of this section, insofar as they apply to each request. OSC fee reduction or waiver decisions may consider the cost-effectiveness of its allocation of administrative resources.
(i) No assessment of fees. OSC may not assess any search fees if it misses the statutory 20-business-day deadline to respond to the request, except under paragraphs (i)(1) and (2) of this section.
(1) If OSC determined that unusual circumstances apply and OSC provided a timely written notice to the requestor, OSC may extend the 20-day deadline by 10 business days. OSC may not assess any search fees, however, if it misses the extended deadline.
(2) OSC may charge search fees if the search yield would exceed 5,000 pages, and if OSC provides a timely written notice to the requestor.
(ii) [Reserved]
§ 1820.8 Business information.
(a) In general. Business information obtained by OSC from a submitter may be released only pursuant to this section.
(b) Definitions. For purposes of this section:
Business information means trade secrets and commercial or financial information obtained by OSC from a submitter that may be protected from release under FOIA Exemption 4. 5 U.S.C. 552(b)(4).
Submitter means any individual or entity from whom OSC obtains business information, directly or indirectly.
(c) Designation of business information. A submitter of business information must use good-faith efforts to designate, by appropriate markings, any portion of its submission that it considers to be protected from release under FOIA Exemption 4.
(d) Notice to submitters. OSC shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that appears to seek confidential business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to release of any specified portion of those records under paragraph (f) of this section. The notice shall either describe the confidential business information requested or include copies of the requested records or record portions containing the information.
(e) When notice is required. Notice shall be given to a submitter whenever:
(1) The submitter designated the records in good faith as considered protected from release under FOIA Exemption 4; or
(2) OSC has reason to believe that the records or portions of records may be protected from release under FOIA Exemption 4.
(f) Opportunity to object to release. OSC will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. The submitter must submit any objections to release in a detailed written statement. The statement must specify all grounds for withholding any portion of the records under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information contained in the record is privileged or confidential. Submitters who fail to respond timely to the notice are deemed to have consented to release of the records. Information provided by a submitter under this paragraph may itself be subject to release under FOIA.
(1) Notice of intent to release. OSC shall consider a submitter’s objections and specific grounds for non-release in deciding whether to release business information. If OSC decides to release business information over the objection of a submitter, OSC shall provide written notice including the reason(s) why OSC overruled the submitter’s objections; a description of the business information to be released; and a reasonable specified release date.
(2) [Reserved]
(g) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (e) of this section shall not apply if:
(1) OSC determines that the information should not be released;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Release of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, OSC shall, within a reasonable time prior to a specified release date, give the submitter written notice of any final decision to release the information.
(h) Notice of FOIA lawsuit. OSC shall promptly notify a submitter if a requestor files a lawsuit seeking to compel the release of the submitter’s business information.
(i) Corresponding notice to requestors. OSC shall notify requestor(s): that it provided submitters the opportunity to object to release under paragraph (d) of this section; if OSC subsequently releases the requested records under paragraph (g) of this section; and whenever a submitter files a lawsuit seeking to prevent OSC’s release of business information.
§ 1820.9 Other rights and services.
This subpart does not create a right or entitlement for any individual to any service or to the release of any record other than those available under FOIA.
Subpart B—Production of Records or Testimony
§ 1820.10 Scope and purpose.
(a) This part establishes policy, assigns responsibilities, and prescribes procedures with respect to the production of official information, records, or testimony by current and former OSC employees, contractors, advisors, and consultants in connection with federal or state litigation or administrative proceedings in which OSC is not a party.
(b) OSC intends this part to:
(1) Conserve OSC employee time for conducting official business;
(2) Minimize OSC employee involvement in issues unrelated to OSC’s mission;
(3) Maintain OSC employee impartiality in disputes between non-OSC litigants; and
(4) Protect OSC’s sensitive, confidential information and deliberative processes.
(c) OSC does not waive the sovereign immunity of the United States when allowing OSC employees to provide testimony or records under this part.
§ 1820.11 Applicability.
This part applies to demands and requests from non-OSC litigants for testimony from current and former OSC employees, contractors, advisors, and consultants relating to official OSC information and/or for production of official OSC records or information in legal proceedings in which OSC is not a party.
§ 1820.12 Definitions.
The following definitions apply to this part.
Demand means an order, subpoena, or other command of a court or other competent authority for OSC’s production or release of records or for an OSC employee’s appearance and testimony in a legal proceeding.
General Counsel means OSC’s General Counsel or an individual to whom the General Counsel has delegated authority under this part.
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.
OSC employee or employee means any current or former OSC employee or contractor, including but not limited to OSC: temporary employees, interns, volunteers, consultants, and/or other advisors.
Records or official records and information means all information in OSC’s custody and control, relating to information in OSC’s custody and control, or acquired by an OSC employee in the performance of official duties.
Request means any request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court or other competent authority.
Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, and interviews made by an individual in connection with a legal proceeding.
§ 1820.13 General prohibition.
No OSC employee may testify or produce official records or information in response to a demand or request without the General Counsel’s prior written approval.
§ 1820.14 Factors OSC will consider.
The General Counsel has discretion to 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, with the general proviso that OSC’s release of information is subject to the Privacy Act, 5 U.S.C. 552a, and applicable privileges including but not limited to the attorney work product and deliberative process privileges. See especially §§ 1830.1(e)(2)(ii) and 1830.10(a) below. The General Counsel may also consider 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; would assist or hinder OSC in performing its statutory duties; or would be in the best interest of OSC or the United States;
(c) The records or testimony can be obtained from other sources;
(d) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose;
(e) Release would violate a statute, Executive Order, or regulation; would reveal trade secrets, confidential, sensitive, or privileged information, or information that would otherwise be inappropriate for release; or would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests;
(f) Allowing such testimony or production of records would result in OSC appearing to favor one litigant over another;
(g) A substantial government interest is implicated;
(h) The demand or request is within the authority of the party making it; and/or
(i) The demand or request is sufficiently specific to be answered.
§ 1820.15 Service of requests or demands.
Requests or demands for official records or information or testimony under this subpart must be served by mail to the U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505; or by email to [email protected]. The subject line should read “Touhy Request.”
§ 1820.16 Requirements for litigants seeking documents or testimony.
A litigant must comply with the following requirements when submitting a request for testimony or official records and information under this part. A request should be submitted before a demand is issued.
(a) The request must be in writing (email suffices) and must be submitted to the General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal or administrative proceeding, docket number, and name and address of the court or other administrative or regulatory 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 or administrative proceeding, and a specific description of the substance of the testimony or records sought;
(4) A statement addressing the factors set out in § 1820.14;
(5) A statement indicating that the information sought is not available from another source;
(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 requestor and other parties will require of each OSC employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(c) OSC reserves the right to require additional information to complete the request where appropriate.
(d) The request should be submitted at least 14 days before the date that records or testimony is required.
(e) The General Counsel may deny a request for records or testimony based on a requestor’s failure to cooperate in good faith to enable the General Counsel to make an informed decision.
(f) The request should state that the requestor will provide a copy of the OSC employee’s testimony free of charge and that the requestor will permit OSC to have a representative present during the employee’s testimony.
§ 1820.17 Processing requests or demands.
(a) Absent exigent circumstances, OSC will issue a determination within 10 business days after the General Counsel received the request or demand.
(b) 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 OSC or the United States, or for other good cause.
(c) On request, OSC may certify that records are true copies in order to facilitate their use as evidence.
§ 1820.18 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on OSC employee testimony including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requestor 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.
(b) OSC may offer the employee’s written declaration in lieu of testimony.
(c) If authorized to testify under this part, employees may testify as to facts within their personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not:
(1) Reveal confidential or privileged information; or
(2) For a current OSC 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 OSC 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 OSC’s approval.
§ 1820.19 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on the release of official OSC 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.
(b) If the General Counsel so determines, original OSC 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 OSC records, nor may they be marked or altered.
§ 1820.20 Procedure in the event a decision is not made prior to the time a response is required.
If a requestor needs a response to a demand or request before the General Counsel makes a determination whether to grant the 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 at this time, and respectfully decline to comply with the demand or request, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
§ 1820.21 Fees.
(a) Witness fees. OSC may assess fees for attendance by a witness. Such fees will include fees, expenses, and allowances prescribed by the court’s rules. If no such fees are prescribed, witness fees will be determined based on 28 U.S.C. 1821, and upon the rule of the federal district closest to the location where the witness will appear. Such fees will include the costs of time spent by the witness to prepare for testimony, in travel, and for attendance in the legal proceeding, plus travel costs.
(b) Payment of fees. A requestor must pay witness fees for current OSC employees and any record certification fees by submitting to the General Counsel a check or money order for the appropriate amount made payable to the United States Department of Treasury.
§ 1820.22 Final determination.
The General Counsel will notify the requestor and, when appropriate, the court or other body of the final determination, the reasons for the response to the request or demand, and any conditions that the General Counsel may impose on the testimony of an OSC employee or the release of OSC records or information. The General Counsel has the sole discretion to make the final determination regarding requests to employees for testimony or production of official records and information in litigation in which OSC is not a party. The General Counsel’s decision exhausts administrative remedies for purposes of release of the information.
§ 1820.23 Penalties.
(a) An employee who releases official records or information or gives testimony relating to official information, except as expressly authorized by OSC, or as ordered by a court after OSC has had the opportunity to be heard, may face the penalties provided under applicable laws. Additionally, former OSC employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current OSC employee who testifies or produces official records and information in violation of this part may be subject to disciplinary action.
§ 1820.24 Conformity with other laws and regulations; other rights.
This regulation is not intended to conflict with 5 U.S.C. 2302(b)(13) or with any statutory or common law privilege against the release of protected information. This part does not create any right, entitlement, or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.
PART 1830—PRIVACY ACT REGULATIONS
§ 1830.1 Scope and purpose.
(a) This part contains rules and procedures followed by OSC in processing requests for records under the Privacy Act. Further information about access to OSC records generally is available on OSC’s website at https://osc.gov/Privacy.
(b) This part implements the Privacy Act of 1974, codified at 5 U.S.C. 552a, by establishing OSC policies and procedures for the release of records and maintenance of certain systems of records. See 5 U.S.C. 552a(f). This part also establishes policies and procedures for an individual to correct or amend their record if they believe it is not accurate, timely, complete, or relevant or necessary to accomplish an OSC function.
(c) OSC personnel protected by the Privacy Act include all staff, experts, contractors, consultants, volunteers, interns, and temporary employees.
(d) Other individuals engaging with OSC protected by the Privacy Act include, but are not limited to, PPP complainants, subjects of PPP complaints, Hatch Act complainants, subjects of Hatch Act complaints, Hatch Act advisory opinion requesters, whistleblowers filing disclosures under 5 U.S.C. 1213, and USERRA complainants, and the subjects of USERRA complaints.
(e) This part does not:
(1) Apply to OSC record systems that are not Privacy Act Record Systems.
(2) Make any records available to individuals other than:
(i) individuals who are the subjects of the records (“subject individuals”);
(ii) individuals who can prove they have the consent of the subject individual; or
(iii) individuals acting as legal representatives on behalf of such subject individuals.
(3) Make available information compiled by OSC in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such information, including to any subject individual or party to such litigation or proceeding, shall be governed by applicable constitutional principles, rules of discovery, privileges, and part 1820 of this chapter; or
(4) Apply to personnel records maintained by the Human Capital Office of OSC. Those records are subject to regulations of the Office of Personnel Management in 5 CFR parts 293, 294, and 297.
§ 1830.2 Definitions.
As used in this part:
Access means availability of a record to a subject individual.
Disclosure means the availability or release of a record.
Maintain means to maintain, collect, use, or disseminate when used in connection with the term “record;” and to have control over or responsibility for a system of records when used in connection with the term “system of records.”
Notification means communication to an individual whether or not they are a subject individual.
Record means any item, collection, or grouping of information about an individual that is maintained by OSC, including, but not limited to, the individual’s education, financial transactions, medical history, criminal, or employment history, that contains a name or an identifying number, symbol, or other identifying particular assigned to the individual. When used in this part, record means only a record that is in a system of records.
Release means making available all or part of the information or records contained in an OSC system of records.
Responsible OSC official means the officer listed in a notice of a system of records as the system manager or another individual listed in the notice of a system of records to whom requests may be made, or the designee of either such officer or individual.
Subject individual means that individual to whom a record pertains.
System of records means any group of records under the control of OSC from which a record is retrieved by personal identifier such as the name of the individual, number, symbol or other unique retriever assigned to the individual. Single records or groups of records which are not retrieved by a personal identifier are not part of a system of records. See 5 U.S.C. 552a(a)(5).
§ 1830.3 Requirements for making Privacy Act requests.
(a) Submission of requests. A request for OSC records under the Privacy Act must be made in writing. The request must be sent:
(1) By email to: [email protected]; or
(2) By mail to: U.S. Office of Special Counsel, Chief Privacy Officer, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) Both the request letter and envelope or email should clearly be marked “Privacy Act Request.” A Privacy Act request is deemed received by OSC when it reaches the Chief Privacy Officer.
(b) Description of records sought. Requestors must describe the records sought in enough detail for OSC to locate them with a reasonable amount of effort, including, where known, data such as the date, title or name, author, recipient, and subject matter of the requested record.
(c) Proof of identity. OSC requires proof of identity from requestors seeking their own files, preferably a government-issued document bearing the subject individual’s photograph. OSC requires a signed consent from the subject individual to release records to an individual’s representative.
(d) Freedom of Information Act processing. OSC also processes all Privacy Act requests for access to records under the Freedom of Information Act, 5 U.S.C. 552, by following the rules contained in part 1820 of this chapter.
§ 1830.4 Medical records.
When a request for access involves medical records that are not otherwise exempt from disclosure, OSC may advise the requesting individual that OSC will only provide the records to a licensed health care professional the individual designates in writing. Upon receipt of the designation, the licensed health care professional will be permitted to review the records or to receive copies by mail upon proper verification of identity.
§ 1830.5 Requirements for requesting amendment of records.
(a) Submission of requests. Individuals may request amendment of records pertaining to them that are subject to amendment under the Privacy Act and this part. The request must be sent:
(1) By email to: [email protected]; or
(2) By mail to: Chief Privacy Officer, U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) Both the request letter and envelope or email should be clearly marked “Privacy Act Amendment Request.” Whether sent by mail or email, a Privacy Act amendment request is considered received by OSC when it reaches the Chief Privacy Officer.
(b) Description of amendment sought. Requests for amendment should include the identification of the records together with a statement of the basis for the requested amendment and all available supporting documents and materials. The request needs to articulate whether information should be added, deleted, or substituted with another record and clearly articulate the reason for believing that the record should be corrected or amended.
(c) Proof of identity. Rules and procedures set forth in § 1830.3 apply to requests made under this section.
(d) Acknowledgement and response. Requests for amendment shall be acknowledged by OSC no later than ten (10) business days after receipt by the Chief Privacy Officer and a determination on the request shall be made promptly.
(e) What will not change. The Privacy Act amendment or correction process will not be used to alter, delete, or amend information which is part of a determination of fact or which is evidence received in the record of a claim in any form of an administrative appeal process. Disagreements with these determinations are to be resolved through the assigned OSC Program Office.
(f) Notice of error. If the record is wrong, OSC will correct it promptly. If wrong information was disclosed from the record, we will tell those of whom we are aware received that information that it was wrong and will give them the correct information. This will not be necessary if the change is not due to an error—e.g., a change of name or address.
(g) Record found to be correct. If the record is correct, OSC will inform the requestor in writing of the reason why we refuse to amend the record, the right to appeal the refusal, and the name and address of the official to whom the appeal should be sent.
(h) Record of another government agency. If you request OSC to correct or amend a record governed by the regulation of another government agency, we will forward your request to such government agency for processing and we will inform you in writing of the referral.
§ 1830.6 Appeals.
(a) Appeals of adverse determinations. A requestor may appeal a denial of a Privacy Act request for access to or amendment of records to OSC’s Office of General Counsel. The appeal must be in writing and be sent:
(1) By email to: [email protected]; or
(2) By mail to: U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) The appeal must be received by the Office of General Counsel within 45 calendar days of the date of the letter denying the request. Both the appeal letter and envelope or email should be clearly marked “Privacy Act Appeal.” An appeal is considered received by OSC when it reaches the Office of General Counsel. The appeal letter may include as much or as little related information as the requestor wishes, as long as it clearly identifies OSC’s determination (including the assigned request number, if known) being appealed. An appeal ordinarily will not be acted on if the request becomes a matter of litigation.
(b) Responses to appeals. OSC’s decision on an appeal will be made in writing. A final determination will be issued within 20 business days—unless OSC shows good cause to extend the 20-day period.
§ 1830.7 Exemptions.
OSC exempts investigatory material from records subject to Privacy Act record requests or requests to amend records. This exemption aims to prevent interference with OSC’s inquiries into matters under its jurisdiction, and to protect identities of confidential sources of information. OSC also reserves the right to assert exemptions for records received from another agency that could be properly claimed by that agency. OSC may exempt any information compiled in reasonable anticipation of a legal action or proceeding.
§ 1830.8 Fees.
Requests for records under this section shall be subject to the fees set forth in part 1820 of this chapter.
§ 1830.9 Accounting for releases.
OSC will maintain an accounting of all releases of a record for six (6) years or for the life of the record in accordance with the General Records Schedule, whichever is longer—except that, we will not make an accounting for releases:
(a) Of a subject individual’s records record made with the subject individual’s consent;
(b) To employees of OSC who have a need for the record to perform their duties; and
(c) Required under the Freedom of Information Act, 5 U.S.C. 552, and part 1820 of this chapter.
§ 1830.10 Conditions of release.
OSC shall not release any record that is contained in a system of records to any individual or to another agency, except as follows:
(a) Consent to release by the subject individual. Except as provided in paragraphs (b) and (c) of this section authorizing releases of records without consent, no release of a record will be made without the consent of the subject individual. The consent shall be in writing and signed by the subject individual. The consent shall specify the individual, agency, or other entity to whom the record may be released, which record may be released and, where applicable, during which time frame the record may be released. The subject individual’s identity and, where applicable, the identity of the individual to whom the record is to be released shall be verified as set forth in § 1830.3(c).
(b) Releases without the consent of the subject individual. The releases listed in this paragraph may be made without the consent of the subject individual, including:
(1) To employees and contractors of the Office of Special Counsel who have a need for the record to perform their duties.
(2) As required by the Freedom of Information Act, 5 U.S.C. 552, and part 1820 of this chapter.
(3) To the entities listed in in the Privacy Act at 5 U.S.C. 552a(b)(1) through (12).
PART 1840—SUBPOENAS
§ 1840.1 Service of subpoenas by mail.
In addition to all other methods of authorized service, an Office of Special Counsel subpoena may be served by mailing a copy to the person at his or her residence or place of business by certified or registered mail.
PART 1850—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF SPECIAL COUNSEL
§ 1850.101 Purpose.
The purpose of this part is to implement 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.
§ 1850.102 Application.
This part applies to all programs or activities conducted by OSC, except for programs or activities conducted outside the United States that do not involve individuals with disabilities in the United States.
§ 1850.103 Definitions.
Auxiliary aids means services or devices that enable individuals 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 OSC. For example, auxiliary aids useful for individuals with impaired vision include readers, Braille materials, audio recordings, and other similar services and devices. Auxiliary aids useful for individuals with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf individuals (TDDs), interpreters, notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the complainant’s name and address and describes OSC’s alleged discriminatory action in sufficient detail to inform OSC 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 the complainant’s behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
Days means calendar days, unless otherwise stated.
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.
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.
Individual with a disability means any individual 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:
Physical or mental impairment includes—
(1) 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
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(3) 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.
Major life activities include functions such as—
(1) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
(2) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system.
Qualified individual with a disability means—
(1) With respect to any OSC program or activity under which an individual 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 OSC’s program or activity without modifications in the program or activity that OSC 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 individuals with disabilities as that term is defined for purposes of employment in 29 CFR 1614.203, which is made applicable to this part by § 1850.130.
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.
Is regarded as having an impairment means—
(1) 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;
(2) 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
(3) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.
Section 504 means Section 504 of the Rehabilitation Act of 1973 (Pub. L. No. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. No. 93-516, 88 Stat. 1617); the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. No. 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.
§ § 1850.104-1850.109 [Reserved]
§ 1850.110 Notice.
OSC shall make available to all interested individuals information regarding the provisions of this part and its applicability to the programs or activities conducted by OSC as necessary to apprise such individuals of the protections assured them by Section 504 and this part.
§ § 1850.111-1850.119 [Reserved]
§ 1850.120 General prohibitions against discrimination against individuals with disabilities.
(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 OSC.
(b) OSC, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
(1) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;
(2) 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;
(3) 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;
(4) 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;
(5) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;
(6) 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.
(7) OSC may not exclude a qualified individual with a disability from participation in any of OSC’s programs or activities, even though permissibly separate or different programs or activities exist.
(c) OSC may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(1) Subject qualified individuals with disabilities to discrimination on the basis of disability; or
(2) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(d) OSC may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(1) Exclude individuals with disabilities from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by OSC, or;
(2) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(e) OSC, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(f) OSC 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 OSC 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 OSC are not, themselves, covered by this part.
(g) This part does not prohibit the exclusion of nondisabled individuals 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.
(h) OSC shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
§ § 1850.121-1850.129 [Reserved]
§ 1850.130 Employment of qualified individuals with disabilities.
OSC shall not subject any qualified individual with a disability, on the basis of such disability, to discrimination in employment under any program or activity OSC conducts. 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.
§ § 1850.131-1850.139 [Reserved]
§ 1850.140 Program accessibility: Discrimination against qualified individuals with disabilities prohibited.
Except as otherwise provided in § 1850.150, no qualified individual with disabilities shall, because OSC’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 OSC.
§ § 1850.141-1850.149 [Reserved]
§ 1850.150 Program accessibility: Existing facilities.
(a) General. OSC 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 OSC to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require OSC to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require OSC 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 OSC personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, OSC has the burden of proving that compliance with this paragraph (a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Special Counsel or the Special Counsel’s designee after considering all OSC 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, OSC 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. OSC 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. OSC is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. OSC, 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, OSC 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 paragraph (a) of this section in historic preservation programs, OSC 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 paragraphs (a)(2) or (3) of this section, 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 individuals to guide individuals with disabilities into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
§ 1850.151 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 OSC 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.
§ § 1850.152-1850.159 [Reserved]
§ 1850.160 Communications.
(a) OSC shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) OSC 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 OSC.
(i) In determining what type of auxiliary aid is necessary, OSC shall give primary consideration to the requests of the individual with a disability.
(ii) OSC need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where OSC communicates with parties by telephone, telecommunication devices for deaf individuals or equally effective telecommunication systems shall be used to communicate with individuals with impaired hearing.
(b) OSC shall ensure that interested individuals, including individuals with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) OSC shall provide signage at a primary entrance to each of its inaccessible facilities, if any, 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 OSC 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 OSC personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, OSC has the burden of proving that compliance with this section would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Special Counsel or the Special Counsel’s designee after considering all OSC 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, OSC 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.
§ § 1850.161-1850.169 [Reserved]
§ 1850.170 Compliance procedures.
(a) OSC 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) All complaints of discrimination on the basis of disability in programs and activities conducted by OSC shall be filed under the procedures described in this paragraph.
(1) Who may file. Any individual who believes that they have been subjected to discrimination prohibited by this part, or an authorized representative of such individual, may file a complaint. Any individual who believes that any specific class of individuals 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 an individual or member of a class of individuals claiming to be aggrieved may be made by any individual, agency, or organization.
(2) Where and when to file. Complaints shall be filed with the Director, Office of Equal Employment Opportunity (EEO Director), U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036 within 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 email is the date the email 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 agency 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.
(3) Acceptance of complaint. (i) OSC shall accept a complete complaint that is filed in accordance with paragraph (b) 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 OSC 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.
(iii) If the EEO Director receives a complaint that is not complete, the Director 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 the complainant’s receipt of the request for additional information, the EEO Director shall dismiss the complaint with prejudice and shall inform the complainant.
(4) Within 180 days of the receipt of a complete complaint, 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 Principal Deputy Special Counsel (PDSC), U.S. Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036 by the complainant within 35 days of the date the EEO Director issues the decision required by paragraph (b)(4) of this section. OSC may extend this time for good cause when a complainant shows that circumstances beyond the complainant’s 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 PDSC. 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 agency 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 complainant 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) The PDSC shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the PDSC needs additional information from the complainant, the PDSC shall have 60 days from the date the additional information is received to make a determination on the appeal.
(7) The time limits cited in paragraphs (b)(2) and (5) of this section may be extended for an individual case when the PDSC determines there is good cause, based on the particular circumstances of that case.
(8) OSC may delegate its authority for conducting complaint investigations to other Federal agencies or may contract with a nongovernmental investigator to perform the investigation, but the authority for making the final determination may not be delegated to another entity.
(c) OSC 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.
PARTS 1851-1899 [RESERVED]
CHAPTER IX—APPALACHIAN REGIONAL COMMISSION
PART 1900—EMPLOYEE RESPONSIBILITIES AND CONDUCT
§ 1900.100 Cross-references to employee ethical conduct standards and financial disclosure regulations.
Officers and employees of the Appalachian Regional Commission Federal Staff are subject to the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635 and the executive branch-wide financial disclosure regulations at 5 CFR part 2634.
PARTS 1901-1999 [RESERVED]
CHAPTER XI—ARMED FORCES RETIREMENT HOME
PART 2100—ARMED FORCES RETIREMENT HOME PRIVACY ACT PROCEDURES
§ 2100.1 Purpose.
Pursuant to the requirements of the Privacy Act of 1974, 5 U.S.C. 552a, as amended, the following rules of procedures are established with respect to access and amendment of records maintained on the individual subjects of these records by the Armed Forces Retirement Home, which includes the continuing care retirement communities of the U.S. Soldiers’ and Airmen’s Home and the U.S. Naval Home. These rules do not apply to civilian employees’ records maintained by the individual facilities which are covered by the Office of Personnel Management systems of records.
§ 2100.2 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a, as amended, shall have the same meaning herein.
(b) Agency, as used in this part, means the Armed Forces Retirement Home (AFRH).
(c) Facility or facilities refers to the continuing care retirement communities of the U.S. Soldiers’ and Airmen’s Home (USSAH) and the U.S. Naval Home (USNH), which are incorporated within the Armed Forces Retirement Home (AFRH).
(d) Access means providing a copy of a record to, or allowing review of the original record by, the individual or the individual’s authorized representative, legal guardian or conservator.
§ 2100.3 Procedure for requesting information.
Individuals shall submit written inquiries regarding all AFRH records to the appropriate facility at the following addresses: Associate Director, Resource Management, U.S. Soldiers’ and Airmen’s Home, 3700 N. Capitol Street, NW., Washington, DC 20317-0002; or, Administrative Services, U.S. Naval Home, 1800 Beach Drive, Gulfport, Mississippi 39507-1597. All personal (walk-in) requests will require some form of common identification.
§ 2100.4 Requirements for identification.
Only upon proper identification will any individual be granted access to records which pertain to him/her. Identification is required both for accurate record identification and to avoid disclosing records to unauthorized individuals. Individuals must provide their full name and as much information as possible in order that a proper search for records can be accomplished. Requests made by mail shall be signed by the individual requesting his/her records. Inclusion of a telephone number for the requester is recommended to expedite certain matters. Requesters applying in person must provide an identification with photograph, such as a driver’s license, military or annuitant identification card, or any official document as acceptable identification validation. Personal requests can only be accepted on regularly scheduled workdays (Monday through Friday, excluding Federal holidays) between the hours of 7:30 a.m. and 3:30 p.m.
§ 2100.5 Access by individuals.
(a) No individual will be allowed access to any information compiled or maintained in reasonable anticipation of civil actions or proceedings, or otherwise exempt under § 2100.12. Requests for pending investigations will be denied and the requester instructed to forward another request giving adequate time for the investigation to be completed. Requesters shall be provided the telephone number so they can call and check on the status in order to know when to resubmit the request.
(b) Any individual may authorize the facility to provide a copy of his/her records to a third party. This authorization must be in writing and shall be provided to the facility with the initial request.
(c) Access to records may be authorized to the legal guardian or conservator acting on behalf of an individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction.
(d) When an individual requesting access to his/her record 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.
(e) If medical records are requested and a USSAH or USNH practitioner believes that access to the records by the subject could harm that person’s mental or physical health, the requester will be asked to name a practitioner to receive the records. If this requirement poses a hardship on the individual, he/she will be offered the service of an USSAH or USNH practitioner other than the one who provided treatment. If the individual refuses to name a recipient, the record will not be released.
§ 2100.6 Schedule of fees.
(a) Individuals will not be charged for:
(1) The search and review of the record.
(2) Copies of the record produced as a necessary part of the process of making the record available for access; or,
(3) 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 official having operational control at the appropriate facility 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. With the exception of paragraphs (a) and (b) of this section, fees will be charged as indicated below:
(1) Records will be duplicated at a rate of $.10 per page for all copying of 5 pages or more. There is no charge for duplication of 4 or fewer pages.
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $30.00, 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 exceed $30.00, an advance deposit may be required. The notice or request for advance deposit shall extend an offer to the requester 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 requested copies, no subsequent request will be processed until the arrears have been paid in full.
(4) Remittances shall be in the form either of a personal check, bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the facility to which the request is being made, and mailed or delivered to the appropriate facility (see § 2100.3 of this part).
(5) A receipt for fees paid will be given upon request.
§ 2100.7 Request for correction or amendment.
(a) Requests to correct or amend a file shall be addressed to the system manager in which the file is located. The request must reasonably describe the record to be amended, the items to be changed as specifically as possible, the type of amendment (e.g., deletion, correction, amendment), and the reason for the amendment. The request should also include the reasons why the requester believes the record is not accurate, relevant, timely, or complete. The burden of proof will be upon the individual to furnish sufficient facts to persuade the change of the record of the inaccuracy, irrelevancy, timeliness, or incompleteness of the record. Normally all documents submitted, to include court orders, shall be certified. Amendments under this part are limited to correcting factual matters and not matters of official judgement or opinions.
(b) Requirements of identification as outlined in § 2100.4 apply to requests to correct or amend a file.
(c) Incomplete requests shall not be honored, but the requester shall be contacted for the additional information needed to process the request.
(d) The amendment process is not intended to permit the alteration of evidence presented in the course of judicial or quasi-judicial proceedings. Any amendments or changes to these records normally are made through the specific procedures established for the amendment of such records.
(e) When records sought to be amended are actually covered by another issuance, the administrative procedures under that issuance must be exhausted before using the procedures under the Privacy Act.
§ 2100.8 Review of request for amendment.
(a) A written acknowledgement of the receipt of a request for amendment of a record will be provided to the requester within 10 working days, unless final action regarding approval or denial will constitute acknowledgment.
(b) Where there is a determination to grant all or a portion of a request to amend a record, the record shall be promptly amended and the requesting individual notified. Individuals, agencies or components shown by disclosure accounting records to have received copies of the record, or to whom disclosure has been made, will be notified of the amendment by the system manager in which the file is located.
(c) Where there is a determination to deny all or a portion of a request to amend a record, a designated official will promptly advise the requesting individual of the specifics of the refusal and the reasons; and inform the individual that he/she may request a review of the denial(s).
§ 2100.9 Appeal of denial to grant access or to amend records.
(a) All appeals of denial to grant access or to amend records should be addressed to the appropriate facility at the following addresses: Associate Director, Resource Management, U.S. Soldiers’ and Airmen’s Home, 3700 N. Capitol Street, NW., Washington, DC 20317-0002; or, Administrative Services, U.S. Naval Home, 1800 Beach Drive, Gulfport, Mississippi 39507-1597. The appeal should be concise and should specify the reasons the requester believes that the initial action was not satisfactory. If an appeal is denied, the designated official will notify the requester of the reason for denial and of the right to judicial review pursuant to 5 U.S.C. 552a(g). If an initial denial of a request to amend records is upheld, the requestor will also be advised of his or her right to file a statement of dispute disagreeing with the denial and such statement will be provided to all future users of the file.
(b) If the designated official decides to amend the record, the requester and all previous recipients of the disputed information will be notified of the amendment. If the appeal is denied, the designated official will notify the requester of the reason of the denial, of the requester’s right to file a statement of dispute disagreeing with the denial, that such statement of dispute will be retained in the file, that the statement will be provided to all future users of the file, and that the requester may file suit in a Federal district court to contest the decision not to amend the record.
(c) The designated official will respond to all appeals within 30 working days or will notify the requester of an estimated date of completion if the 30 day limit cannot be met.
§ 2100.10 Conditions of disclosure and accounting of certain disclosures.
No record containing personally identifiable information within an AFRH system of records shall be disclosed by any means to any person or agency outside the AFRH, except by written request or prior written consent of the individual subject of the record, or as provided for in the Privacy Act of 1974, as amended, unless when such disclosure is:
(a) To those officers and employees of the agency which maintains the record and who have a need for the record in the performance of their duties;
(b) Required under 5 U.S.C. 552;
(c) For a routine use of the record compatible with the purpose for which it was collected;
(d) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to 13 U.S.C.;
(e) To a recipient who has provided the AFRH with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government or for evaluation by the Archivist of the United States, or his/her designee, to determine whether the record has such value;
(g) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality, has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
(h) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(i) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(j) To the Comptroller General, or any authorized representatives, in the course of the performance of the duties of the General Accounting Office;
(k) Pursuant to the order of a court of competent jurisdiction; or
(l) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).
§ 2100.11 Penalties.
(a) An individual may bring a civil action against the AFRH to correct or amend the record, or where there is a refusal to comply with an individual request or failure to maintain any record with accuracy, relevance, timeliness and completeness, so as to guarantee fairness, or failure to comply with any other provision of the Privacy Act. The court may order correction or amendment of records. The court may enjoin the AFRH from withholding the records and order the production of the record.
(b) Where it is determined that the action was willful or intentional with respect to 5 U.S.C. 552a(g)(1)(C) or (D), the United States may be liable for the actual damages sustained.
(c) Criminal penalties may be imposed against an officer or employee of the USSAH or USNH who discloses material, which he/she knows is prohibited from disclosure, or who willfully maintains a system of records without compliance with the notice requirements.
(d) Criminal penalties may be imposed against any person who knowingly and willfully requests or obtains any record concerning another individual from an agency under false pretenses.
(e) All of these offenses are misdemeanors with a fine not to exceed $5,000.
§ 2100.12 Accounting of disclosure.
(a) The AFRH or agency will maintain a record of disclosures in cases where records about the individual are disclosed from a system of records except—
(1) When the disclosure is made pursuant to the Freedom of Information Act, 5 U.S.C. 552, as amended; or
(2) When the disclosure is made to those officers and employees of the AFRH who have a need for the record in the performance of their duties.
(b) This accounting of the disclosures will be retained for a least 5 years or for the life of the record, whichever is longer, and will contain the following information:
(1) A brief description of the record disclosed;
(2) The date, nature, and purpose for the disclosure; and,
(3) The name and address of the person, agency, or other entity to whom the disclosure is made.
(c) Except for the accounting of disclosure made to agencies, individuals, or entities in law enforcement activities or disclosures made from the AFRH exempt systems of records, the accounting of disclosures will be made available to the data subject upon request in accordance with the access procedures of this part.
§ 2100.13 Specific exemptions.
Subsection (k) of 5 U.S.C. 552a authorizes the AFRH to adopt rules designating eligible system of records as exempt from certain requirements of 5 U.S.C. 552a. To be eligible for a specific exemption under the authority of 5 U.S.C. 552a(k), the pertinent records within a designated system must contain one or more of the following:
(a) Investigative records compiled for law enforcement purposes. If this information has been used to deny someone a right however, the AFRH must release it unless doing so would reveal the identify of a confidential source ((k)(2) exemption).
(b) Records used only for statistical, research, or other evaluation purposes, and which are not used to make decisions on the rights, benefits, or privileges of individuals, except as permitted by 13 U.S.C. 8 (Use of census data) ((k)(4) exemption).
(c) Data compiled to determine suitability, eligibility, or qualifications for Federal service, Federal contracts, or access to classified information. This information may be withheld only if disclosure would reveal the identity of a confidential source ((k)(5) exemption).
(d) Test or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process ((k)(6) exemption).
PARTS 2101-2199 [RESERVED]
CHAPTER XIV—FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
SUBCHAPTER A—TRANSITION RULES AND REGULATIONS [RESERVED]
SUBCHAPTER B—GENERAL PROVISIONS
PARTS 2400-2410 [RESERVED]
PART 2411—AVAILABILITY OF OFFICIAL INFORMATION
§ 2411.1 Purpose.
This part contains the rules that the Federal Labor Relations Authority (FLRA), including the three-Member Authority component (Authority), the General Counsel of the FLRA (General Counsel), the Federal Service Impasses Panel (Panel), and the Inspector General of the FLRA (IG), follow in processing requests for information under the Freedom of Information Act, as amended, 5 U.S.C. 552 (FOIA) These regulations should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. Requests by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Authority’s Privacy Act regulations, see 5 CFR part 2412, as well as under this subpart.
§ 2411.2 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 subject to the requirements of 5 U.S.C. 552 when maintained by the Authority, the General Counsel, the Panel, or the IG in any format, including an electronic format. All written requests for information from the public that are not processed under parts 2412 and 2417 of this chapter will be processed under this part. The Authority, the General Counsel, the Panel, and the IG may each continue, regardless of this part, to furnish the public with the information that 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 a record, or the subject’s representative, requests the record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the FLRA retrieves the record by the subject’s name or other personal identifier, the FLRA will handle the request under the procedures and subject to the fees set out in part 2412. When a third party requests access to those records, without the written consent of the subject of the record, the FLRA will process the request under this part.
(c) Nothing in 5 U.S.C. 552 or this part requires that the Authority, the General Counsel, the Panel, or the IG, as appropriate, create a new record in order to respond to a request for the records.
(a) Chief FOIA Officer. The Chairman of the FLRA designates the Chief FOIA Officer, who has agency-wide responsibility for the efficient and appropriate compliance with the FOIA. The Chief FOIA Officer monitors the implementation of the FOIA throughout the agency.
(b) Solicitor/IG. The Solicitor of the FLRA and the IG are delegated the exclusive authority to act upon all requests for information, documents, and records that are received from any person or organization under § 2411.5(a) and (b).
(c) FOIA Public Liaison(s). The Chief FOIA Officer shall designate the FOIA Public Liaison(s), who shall serve as the supervisory official(s) to whom a FOIA requester can raise concerns about the service that the FOIA requester has received following an initial response.
§ 2411.4 Information policy.
(a)(1) It is the policy of the Authority, the General Counsel, the Panel, and the IG to make available for public inspection in an electronic format:
(i) Final decisions and orders of the Authority and administrative rulings of the General Counsel; procedural determinations, final decisions and orders of the Panel; factfinding and arbitration reports; and reports and executive summaries of the IG;
(ii) Statements of policy and interpretations that have been adopted by the Authority, the General Counsel, the Panel, or the IG and that are not published in the
(iii) Administrative staff manuals and instructions to staff that affect a member of the public (except those establishing internal operating rules, guidelines, and procedures for the investigation, trial, and settlement of cases);
(iv) Copies of all records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) and that:
(A) Because of the nature of their subject matter, the Authority, the General Counsel, the Panel, or the IG determines have become, or are likely to become, the subject of subsequent requests for substantially the same records; or
(B) Have been requested three or more times; and
(v) A general index of the records referred to in paragraph (a)(i)-(iv) of this section.
(2) It is the policy of the Authority, the General Counsel, the Panel, and the IG to make promptly available for public inspection in an electronic format, upon request by any person, other records where the request reasonably describes such records and otherwise conforms to the procedures of this part.
(b)(1) Any person may examine and copy items in paragraphs (a)(1)(i) through (iv) of this section, at each regional office of the Authority and at the offices of the Authority, the General Counsel, the Panel, and the IG, respectively, in Washington, DC, under conditions prescribed by the Authority, the General Counsel, the Panel, and the IG, respectively, and at reasonable times during normal working hours, so long as it does not interfere with the efficient operations of the Authority, the General Counsel, the Panel, or the IG. To the extent required to prevent a clearly unwarranted invasion of personal privacy, identifying details may be deleted and, in each case, the justification for the deletion shall be fully explained in writing. On the released portion of the record, the amount of information deleted, and the exemption under which the deletion is made, shall be indicated unless an interest protected by the exemption would be harmed.
(2) All records covered by this section are available on the FLRA’s Web site (https://www.flra.gov/elibrary).
(c) The Authority, the General Counsel, the Panel, and the IG shall maintain and make available for public inspection in an electronic format the current indexes and supplements to the records that are required by 5 U.S.C. 552(a)(2) and, as appropriate, a record of the final votes of each Member of the Authority and of the Panel in every agency proceeding. Any person may examine and copy such document or record of the Authority, the General Counsel, the Panel, or the IG at the offices of either the Authority, the General Counsel, the Panel, or the IG, as appropriate, in Washington, DC, under conditions prescribed by the Authority, the General Counsel, the Panel, or the IG at reasonable times during normal working hours, so long as it does not interfere with the efficient operations of the Authority, the General Counsel, the Panel, or the IG.
(d) All agency records, except those exempt from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), will be made promptly available to any person submitting a written request in accordance with the procedures of this part.
(e)(1) The formal documents constituting the record in a case or proceeding are matters of official record and, until destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying at the appropriate regional office of the Authority, or the offices of the Authority, the General Counsel, the Panel, or the IG in Washington, DC, as appropriate, under conditions prescribed by the Authority, the General Counsel, the Panel, or the IG at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Authority, the General Counsel, the Panel, or the IG.
(2) The Authority, the General Counsel, the Panel, or the IG, as appropriate, shall certify copies of the formal documents upon request made a reasonable time in advance of need and payment of lawfully prescribed costs.
(f)(1) Copies of forms prescribed by the General Counsel for the filing of charges and petitions may be obtained without charge from any regional office of the Authority or on the Authority’s Web site at: https://www.flra.gov/resources-training/resources/forms-checklists.
(2) Copies of forms prescribed by the Panel for the filing of requests may be obtained without charge from the Panel’s offices in Washington, DC or on the Authority’s Web site at: https://www.flra.gov/resources-training/resources/forms-checklists.
(3) Copies of optional forms for filing exceptions or appeals with the Authority may be obtained without charge from the Office of Case Intake and Publication at the Authority’s offices in Washington, DC or on the Authority’s Web site at: https://www.flra.gov/resources-training/resources/forms-checklists.
§ 2411.5 Procedure for obtaining information.
(a) Any person who desires to inspect or copy any records, documents, or other information of the Authority, the General Counsel, the Panel, or the IG, covered by this part, other than those specified in § 2411.4(a)(1) and (c), shall submit an electronic written request via the FOIAXpress system or a written, facsimiled, or email request (see FOIAXpress, office and email addresses listed at https://www.flra.gov/foia_contact) as follows:
(1) If the request is for records, documents, or other information in the Authority, the Office of General Counsel, or the Panel, it should be made to the Office of the Solicitor, Washington, DC;
(2) If the request is for records, documents or other information in the offices of the IG in Washington, DC, it should be made to the IG, Washington, DC.
(b) Each request under this part should be clearly and prominently identified as a request for information under the FOIA and, if submitted by mail or otherwise submitted in an envelope or other cover, should be clearly identified as such on the envelope or other cover. A request shall be considered an agreement by the requester to pay all applicable fees charged under § 2411.13, up to $25.00, unless the requester seeks a waiver of fees. When making a request, the requester may specify a willingness to pay a greater or lesser amount. Fee charges will be assessed for the full allowable direct costs of document search, review, and duplication, as appropriate, in accordance with § 2411.13. If a request does not comply with the provisions of this paragraph, it shall not be deemed received by the Office of the Solicitor or the IG, as appropriate.
§ 2411.6 Identification of information requested.
(a) Reasonably describe and identify records. Each request under this part shall reasonably describe the records being sought in a way that the FLRA can identify and locate them. A request shall be legible and include all pertinent details that will help identify the records sought. Before submitting a request, a requester may contact the FLRA’s Chief FOIA Officer or FOIA Public Liaison to discuss the records that the individual seeks and to receive assistance in describing the records.
(b) Agency efforts to further identify records. If the description does not meet the requirements of paragraph (a) of this section, the officer processing the request shall so notify the person making the request and indicate the additional information needed. Every reasonable effort shall be made to assist in the identification and location of the records sought. A requester who is attempting to reformulate or modify his or her request may discuss the request with the FLRA’s Chief FOIA Officer or FOIA Public Liaison.
(c) Public logs. Upon receipt of a request for records, the Solicitor or the IG, as appropriate, shall enter it in a public log. The log shall state: The request number; the date received; the nature of the records requested; the action taken on the request; the agency’s response date; any exemptions that were applied (if applicable) and their descriptions; and whether any fees were charged for processing the request.
(d) Consultation, referral, and coordination. When reviewing records located in response to a request, the Solicitor or the IG, as appropriate, 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, the Solicitor or the IG will proceed in one of the following ways:
(1) Consultation. When records originated with the Authority, the General Counsel, the Panel, or the IG, but contain within them information of interest to another agency or other Federal Government component, the Solicitor or the IG, as appropriate, will typically consult with that other entity prior to making a release determination.
(2) Referral. (i) When the Solicitor or the IG believes that a different agency or component is best able to determine whether to disclose the record, the Solicitor or the IG will typically refer the responsibility for responding to the request regarding that record to that agency or component. Ordinarily, the agency or component that originated the record is presumed to be the best agency or component to make the disclosure determination. However, if the FLRA and the originating agency or component jointly agree that the FLRA is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever the Solicitor or the IG refers any part of the responsibility for responding to a request to another Federal agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national-security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Solicitor or the IG should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the Solicitor or the IG.
§ 2411.7 Format of disclosure.
(a) After a determination has been made to grant a request in whole or in part, the Solicitor or the IG, as appropriate, will notify the requester in writing. The notice will describe the manner in which the record will be disclosed and will inform the requester of the availability of the Authority’s FOIA Public Liaison to offer assistance. The Solicitor or the IG, as appropriate, will provide the record in the form or format requested if the record is readily reproducible in that form or format, provided the requester has agreed to pay and/or has paid any fees required by § 2411.13 of this part. The Solicitor or the IG, as appropriate, will determine on a case-by-case basis what constitutes a readily reproducible format. These offices will make a reasonable effort to maintain their records in commonly reproducible forms or formats.
(b) Alternatively, the Solicitor or the IG, as appropriate, may make a copy of the releasable portions of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection will not unreasonably disrupt the operations of the office.
§ 2411.8 Time limits for processing requests.
(a) The 20-day period (excepting Saturdays, Sundays, and federal public holidays), established in this section, shall commence on the date on which the request is first received by the Solicitor or the IG, but in any event not later than 10 days after the request is first received by the FLRA component responsible for receiving FOIA requests under part 2411. The 20-day period does not run when:
(1) the Solicitor or the IG makes one request to the requester for information and is awaiting such information that it has reasonably requested from the requester;
(2) it is necessary to clarify with the requester issues regarding fee assessment; or
(3) the Solicitor’s or the IG’s s receipt of the requested information or clarification triggers the commencement of the 20-day period.
(b) A request for records shall be logged by the Solicitor or the IG, as appropriate, pursuant to § 2411.6(c). All requesters must reasonably describe the records sought. An oral request for records shall not begin any time requirement. A written request for records sent to other than the appropriate officer will be forwarded to that officer by the receiving officer, but, in that event, the applicable time limit for response shall begin as set forth in paragraph (a) of this section.
(c) Except as provided in § 2411.11, the Solicitor or the IG, as appropriate, shall, within 20 working days following receipt of the request, as provided by paragraph (a) of this section, respond in writing to the requester, determining whether, or the extent to which, the request shall be complied with.
(1) If all of the records requested have been located, and a final determination has been made with respect to disclosure of all of the records requested, the response shall so state.
(2) If all of the records have not been located, or a final determination has not been made with respect to disclosure of all of the records requested, the response shall state the extent to which the records involved shall be disclosed pursuant to the rules established in this part.
(3) If the request is expected to involve allowed charges in excess of $250.00, the response shall specify or estimate the fee involved and shall require prepayment of any charges in accordance with the provisions of paragraph (g) of § 2411.13 before the request is processed further.
(4) Whenever possible, subject to the provisions of paragraph (g) of § 2411.13, the response relating to a request for records that involves a fee of less than $250.00 shall be accompanied by the requested records. Where this is not possible, the records shall be forwarded as soon as possible thereafter, consistent with other obligations of the Solicitor or the IG.
(5) Search fees shall not be assessed to requesters (or duplication fees in the case of an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media requester, as defined by § 2411.13(a)(8)) under this subparagraph if an agency component fails to comply with any of the deadlines in 5 U.S.C. 552(a)(4)(A), except as provided in the following paragraphs (c)(5)(i) through (iii) below:
(i) If the Solicitor or the IG has determined that unusual circumstances apply (as the term is defined in § 2411.11(b)) and the Solicitor or the IG provided a timely written notice to the requester in accordance with § 2411.11(a), a failure described in this paragraph (c)(5) is excused for an additional 10 days. If the Solicitor or the IG fails to comply with the extended time limit, the Solicitor or the IG may not assess any search fees (or, in the case of a requester described in § 2411.13(a)(8), duplication fees).
(ii) If the Solicitor or the IG determines that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Solicitor or the IG may charge search fees or, in the case of requesters defined in § 2411.13(6) through (8), may charge duplication fees, if the following steps are taken. The Solicitor or the IG must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and must have 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). If this exception is satisfied, the Solicitor or the IG may charge all applicable fees incurred in the processing of the request.
(iii) If a court has determined 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.
(d) If a request will take longer than 10 days to process:
(1) An individualized tracking number will be assigned to the request and provided to the requester; and
(2) Using the tracking number, the requester can find, by calling the Office of the Solicitor, emailing [email protected], or visiting FOIAXPress (see telephone numbers and addresses at https://www.flra.gov/foia_contact), status information about the request including:
(i) The date on which the agency originally received the request; and
(ii) An estimated date on which the agency will complete action on the request.
(e) If any request for records is denied in whole or in part, the response required by paragraph (c) of this section shall notify the requester of the denial. Such denial shall specify the reason therefore, set forth the name and title or position of the person responsible for the denial, and notify the person making the request of the right to appeal the denial under the provisions of § 2411.10. Such denial shall also notify the requester of the assistance available from the FLRA’s FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS).
§ 2411.9 Business information.
(a) In general. Business information obtained by the FLRA from a submitter will be disclosed under the FOIA only under this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information obtained by the FLRA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the FLRA obtains business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.
(c) Designation of business information. A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(d) Notice to submitters. The FLRA shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it.
(e) Where notice is required. Notice shall be given to a submitter wherever:
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) The FLRA has reason to believe that the information may be protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. The FLRA will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by the FLRA until after it has made its disclosure decision shall not be considered by the FLRA. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. The FLRA shall consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the FLRA decides to disclose business information over the objection of a submitter, the FLRA shall give the submitter written notice, which shall include:
(1) A statement of the reason(s) why each of the submitter’s disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section shall not apply if:
(1) The FLRA determines that the information should not be disclosed;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600, (52 FR 23781, 3 CFR, 1987 Comp. p. 235); or
(4) The designation made by the submitter under paragraph (c) of this section appears to be obviously frivolous—except that, in such a case, the FLRA shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the FLRA shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever the FLRA provides a submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, the FLRA shall also notify the requester(s). Whenever the FLRA notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, the FLRA shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the FLRA shall notify the requester(s).
§ 2411.10 Appeal from denial of request.
(a)(1) When a request for records is denied, in whole or in part, a requester may appeal the denial by submitting a written appeal by mail or online that is postmarked, or in the case of an electronic submission, transmitted, within 90 calendar days after the requester receives notification that the request has been denied or after the requester receives any records being made available, in the event of partial denial. The appeal should clearly identify the agency determination that is being appealed and the assigned request number.
(i) If the denial was made for records related to work performed by the Authority component of the FLRA, including the IG, the appeal shall be filed with the Chairman of the Authority or the Chairman’s designee in Washington, DC.
(ii) If the denial was made for records related to work performed by the Office of the General Counsel, the appeal shall be filed with the General Counsel or the General Counsel’s designee in Washington, DC.
(iii) If the denial was made for records related to work performed by the Panel, the appeal shall be filed with the Chairman of the Panel or the Chairman’s designee.
(2) The Chairman of the Authority, the General Counsel, or the Chairman of the Panel, or their designees, as appropriate, shall, within 20 working days (excepting Saturdays, Sundays, and federal public holidays) from the time of receipt of the appeal, except as provided in § 2411.11, make a determination on the appeal and respond in writing to the requester, determining whether, or the extent to which, the request shall be granted. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(i) If the determination is to grant the request and the request is expected to involve an assessed fee in excess of $250.00, the determination shall specify or estimate the fee involved, and it shall require prepayment of any charges due in accordance with the provisions of § 2411.13(a) before the records are made available.
(ii) Whenever possible, the determination relating to a request for records that involves a fee of less than $250.00 shall be accompanied by the requested records when there is no history of the requester having previously failed to pay fees in a timely manner. Where this is not possible, the records shall be forwarded as soon as possible thereafter, consistent with other obligations of the Solicitor or the IG.
(b) If, on appeal, the denial of the request for records is upheld in whole or in part by the Chairman of the Authority, the General Counsel, or the Chairman of the Panel, or their designees, as appropriate, the person making the request shall be notified of the reasons for the determination, the name and title or position of the person responsible for the denial, and the provisions for judicial review of that determination under 5 U.S.C. 552(a)(4). The determination will also inform the requester of the mediation services offered by the National Archives, Office of Government Information Services (OGIS) as a non-exclusive alternative to litigation. Mediation is a voluntary process. If the FLRA agrees to participate in the mediation services provided by the OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(c) Even though no appeal is filed from a denial in whole or in part of a request for records by the person making the request, the Chairman of the Authority, the General Counsel, or the Chairman of the Panel, or their designees, as appropriate, may, without regard to the time limit for filing of an appeal, sua sponte initiate consideration of a denial under this appeal procedure by written notification to the person making the request. In such event, the time limit for making the determination shall commence with the issuance of such notification.
(d) Before seeking judicial review of the FLRA’s denial of a request, a requester generally must first submit a timely administrative appeal.
§ 2411.11 Modification of time limits.
(a) In unusual circumstances, as specified in this section, the time limits prescribed with respect to initial determinations or determinations on appeal may be extended by written notice from the agency component handling the request (either initial or on appeal) to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. As appropriate, the notice shall provide the requester with an opportunity to limit the scope of the request so that it may be processed within the time limit or an opportunity to arrange with the processing agency component an alternative time frame for processing the request or a modified request. No such notice shall specify a date that would result in a total extension of more than 10 working days. To aid the requester, the FOIA Public Liaison shall assist in the resolution of any disputes between the requester and the processing agency component, and shall notify the requester of the requester’s right to seek dispute resolution services from the OGIS.
(b) As used in this section, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the processing agency component;
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(c) Expedited processing of a request for records, or an appeal of a denial of a request for expedited processing, shall be provided when the requester demonstrates a compelling need for the information and in other cases as determined by the officer processing the request. A requester seeking expedited processing can demonstrate a compelling need by submitting a statement certified by the requester to be true and correct to the best of such person’s knowledge and belief and that satisfies the statutory and regulatory definitions of compelling need. Requesters shall be notified within 10 calendar days after receipt of such a request whether expedited processing, or an appeal of a denial of a request for expedited processing, was granted. As used in this section, “compelling need” means:
(1) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
§ 2411.12 Effect of failure to meet time limits.
Failure by the Solicitor or the IG either to deny or grant any request under this part within the time limits prescribed by the FOIA, as amended and these regulations shall be deemed to be an exhaustion of the administrative remedies available to the person making this request.
§ 2411.13 Fees.
(a) Definitions. For the purpose of this section:
(1) The term direct costs means those expenditures that the Solicitor or the IG actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of the rate to cover benefits) and the cost of operating duplication machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(2) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents as well as all reasonable efforts to locate and retrieve information from records maintained in electronic form or format. Searches may be done manually or by computer using existing programming. The Solicitor or the IG shall ensure that searches are done in the most efficient and least expensive manner reasonably possible. For example, if duplicating an entire document would be quicker and less expensive, a line-by-line search should not be done.
(3) The term duplication refers to the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, audio-visual materials, or machine-readable documentation, among others.
(4) The term review refers to the process of examining documents located in response to a commercial-use request (see paragraph (a)(5) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(5) The term commercial-use request refers to 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 determining whether a requester properly belongs in this category, the Solicitor or the IG will look first to the use to which a requester will put the document requested. Where the Solicitor or the IG has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Solicitor or the IG may seek additional clarification before assigning the request to a specific category.
(6) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate 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 non-commercial scientific institution refers to an institution that is not operated on a commercial basis as that term is referenced in paragraph (a)(5) of this section, and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(8) 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. 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 broadcasting 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. These examples are not intended to be all-inclusive. Moreover, as methods of news delivery evolve, such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the FLRA may also consider the past publication record of the requester in making such a determination.
(b) Exceptions to fee charges. (1) With the exception of requesters seeking documents for a commercial use, the Solicitor or the IG will provide the first 100 pages of duplication and the first two hours of search time without charge. The word pages in this paragraph refers to paper copies of standard size, usually 8
(2) The Solicitor or the IG will not charge fees to any requester, including commercial-use requesters, if the cost of collecting the fee would be equal to or greater than the fee itself.
(3) As provided in § 2411.8(c)(5), the Solicitor or the IG will not charge search fees (or duplication fees if the requester is an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media, as described in this section), when the time limits are not met.
(4)(i) The Solicitor or the IG will provide documents without charge or at reduced charges if disclosure of the 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.
(ii) In determining whether disclosure is in the “public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government” under paragraph (b)(4)(i) of this section, the Solicitor or the IG, as appropriate, will consider the following factors:
(A) The subject of the request. The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated;
(B) The informative value of the information to be disclosed. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public’s understanding;
(C) The contribution to an understanding of the subject by the general public likely to result from disclosure. 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 and his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration; and
(D) The significance of the contribution to the public understanding. The public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. The Solicitor or the IG, as appropriate, shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(iii) In determining whether disclosure “is not primarily in the commercial interest of the requester” under paragraph (b)(4)(i) of this section, the Solicitor or the IG, as appropriate, will consider the following factors:
(A) The existence and magnitude of a commercial interest. The processing agency component will identify any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (a)(5) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration; and,
(B) The primary interest in disclosure. A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Solicitor or the IG, as appropriate, ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(iv) A request for a fee waiver based on the public interest under paragraph (b)(4)(i) of this section must address these factors as they apply to the request for records in order to be considered by the Solicitor or the IG.
(v) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Solicitor or the IG. 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 must pay any costs incurred up to the date on which the fee-waiver request was received.
(vi) When only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(c) Level of fees to be charged. The level of fees to be charged by the Solicitor or the IG, in accordance with the schedule set forth in paragraph (d) of this section, depends on the category of the requester. The fee levels to be charged are as follows:
(1) A request for documents appearing to be for commercial use will be charged to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought.
(2) A request for documents from an educational or non-commercial scientific institution will be charged for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters—whether faculty, staff, or students—must show that the request is being made in connection with their role at the institution, and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research.
(3) The Solicitor or the IG shall provide documents to requesters who are representatives of the news media for the cost of duplication alone, excluding charges for the first 100 pages.
(4) The Solicitor or the IG shall charge requesters who do not fit into any of the categories of this section fees that recover the full direct cost of searching for and duplicating records that are responsive to the request, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge. Requests from record subjects for records about themselves filed in Authority, Office of General Counsel, Panel, or IG systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permits fees only for duplication.
(d) The following fees shall be charged in accordance with paragraph (c) of this section:
(1) Manual searches for records. The salary rate (i.e., basic pay plus 16 percent) of the employee(s) making the search. Search time under this paragraph and paragraph (d)(2) of this section may be charged for even if the Solicitor or the IG fails to locate records or if records located are determined to be exempt from disclosure.
(2) Computer searches for records. The actual direct cost of providing the service, including the cost of operating computers and other electronic equipment, and the salary (i.e., basic pay plus 16 percent of that rate to cover benefits) of the employee conducting the search.
(3) Review of records. The salary rate (i.e., basic pay plus 16 percent of that rate to cover benefits) of the employee(s) conducting the review. This charge applies only to requesters who are seeking documents for commercial use, and only to the review necessary at the initial administrative level to determine the applicability of any relevant FOIA exemptions, and not at the administrative-appeal level of an exemption already applied.
(4) Duplication of records. Twenty-five cents per page for paper-copy duplication of documents, which the Solicitor or the IG has determined is the reasonable direct cost of making such copies, taking into account the average salary of the operator and the cost of the duplication machinery. For copies of records produced on tapes, disks, or other media, the Solicitor or the IG shall charge the actual cost of production, including operator time. When paper documents must be scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials, including operator time. For all other forms of duplication, the Solicitor or the IG will charge the direct costs, including operator time.
(5) Forwarding material to destination. Postage, insurance, and special fees will be charged on an actual-cost basis.
(e) Aggregating requests. When the Solicitor or the IG reasonably believes that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Solicitor or the IG will aggregate any such requests and charge accordingly.
(f) Charging interest. Interest at the rate prescribed in 31 U.S.C. 3717 may be charged to those requesters who fail to pay fees charged, beginning on the 31st day following the billing date. Receipt of a fee by the Solicitor or the IG, whether processed or not, will stay the accrual of interest.
(g) Advance payments. The Solicitor or the IG will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:
(1) The Solicitor or the IG estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. In those circumstances, the Solicitor or the IG will notify the requester of the likely cost and obtain satisfactory assurance of full payment, where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing), in which case the Solicitor or the IG requires the requester to pay the full amount owed plus any applicable interest, as provided in this section, or demonstrate that the requester has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester. When the Solicitor or the IG has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. When the Solicitor or the IG acts under paragraph (g)(1) or (2) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extension of these time limits) will begin only after the Solicitor or the IG has received fee payments described in this section. If the requester does not pay the advance payment within 30 calendar days after the date of the fee determination, the request will be closed.
(h) When a person other than a party to a proceeding before the FLRA makes a request for a copy of a transcript or recording of the proceeding, the Solicitor or the IG, as appropriate, will handle the request under this part.
(i) Payment of fees shall be made by check or money order payable to the U.S. Treasury.
(j) The fee schedule of this section does not apply to fees charged under any statute that specifically requires the Authority, the General Counsel, the Panel, the Solicitor or the IG to set and collect fees for particular types of records. In instances in which records responsive to a request are subject to a statutorily based fee-schedule program, the Solicitor or the IG will inform the requester of the contact information for that program.
§ 2411.14 Record retention and preservation.
The Solicitor and the IG shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until such time as disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration’s General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
§ 2411.15 Annual report.
Each year, on or around February 1, as requested by the Department of Justice’s Office of Information Policy, the Chief FOIA Officer of the FLRA shall submit a report of the activities of the Solicitor and the IG with regard to public information requests during the preceding fiscal year to the Attorney General of the United States and the Director of the OGIS. The report shall include those matters required by 5 U.S.C. 552(e), and it shall be made available electronically. The Chief FOIA Officer of the FLRA shall make each such report available for public inspection in an electronic format. In addition, the Chief FOIA Officer of the FLRA shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be available—
(a) Without charge, license, or registration requirement;
(b) In an aggregated, searchable format; and
(c) In a format that may be downloaded in bulk.
PART 2412—PRIVACY
§ 2412.1 Purpose and scope.
This part contains the regulations that the Federal Labor Relations Authority (FLRA), including the Authority component (Authority), the General Counsel of the FLRA (General Counsel), the Inspector General (IG), and the Federal Service Impasses Panel (Panel), follow under the Privacy Act of 1974, as amended, 5 U.S.C. 552a. These regulations should be read together with the Privacy Act, which provides additional information about records maintained on individuals. The regulations apply to all records maintained by the Authority, the General Counsel, the IG, and the Panel that are contained in a system of records, as defined at § 2412.2(d), and that are retrieved by an individual’s name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records. In addition, the regulations limit the access of other persons to those records. The Authority, the General Counsel, the IG, and the Panel also process all Privacy Act requests for access to records under the Freedom of Information Act, 5 U.S.C. 552, giving requesters the benefit of both statutes. These regulations do not relate to those personnel records of Federal Government employees, which are under the Office of Personnel Management’s (OPM) jurisdiction, to the extent such records are subject to OPM regulations.
§ 2412.2 Definitions.
For the purposes of this part—
Individual means a citizen of the United States or an alien lawfully admitted for permanent residence.
Maintain includes maintain, collect, use, or disseminate.
Record means any item, collection, or grouping of information about an individual that is maintained by the Authority, the General Counsel, the IG, or the Panel including, but not limited to, information regarding the individual’s education, financial transactions, medical history, and criminal or employment history, that contains the individual’s name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
Request for access to a record means a request made under the Privacy Act, 5 U.S.C. 552a(d)(1).
Request for amendment or correction of a record means a request made under the Privacy Act, 5 U.S.C. 552a(d)(2).
Request for an accounting means a request made under the Privacy Act, 5 U.S.C. 552a(c)(3).
Requester means an individual who makes an existence-of-records request, a request for access, a request for amendment or correction, or a request for an accounting under the Privacy Act.
Routine use means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.
System of records means a group of any records under the control of the Authority, the General Counsel, the IG, or the Panel from which information is retrieved by the name of the individual or by some identifying particular assigned to the individual.
§ 2412.3 Notice and publication.
The Authority, the General Counsel, the IG, and the Panel will publish in the
§ 2412.4 Existence-of-records requests.
(a) If you want to know whether a system of records maintained by the Authority, the General Counsel, the IG, or the Panel contains a record pertaining to you, you may submit a written existence-of-records request by mail to the FLRA’s Solicitor or IG, as appropriate, at the Authority’s offices in Washington, DC, or by email to [email protected].
(b) You should clearly and prominently identify your request as a Privacy Act request. If you submit the request by mail, it should bear the mark “Privacy Act Request” on the envelope or other cover, as well as your return address. If you submit the request by email, the subject line of the email should include the phrase “Privacy Act Request.” If you do not comply with the provisions of this paragraph, your request will not be deemed received until the time it is actually received by the FLRA’s Solicitor or IG.
(c) An existence-of-records request must include your name and address and must reasonably describe the system of records in question. Whenever possible, the request should also describe the time periods in which you believe the records were compiled and the name or identifying number of each system of records in which you believe the records are kept. The Authority, the General Counsel, the IG, and the Panel have published descriptions of the systems of records they maintain in the
(d) When you make an existence-of-records request regarding records about yourself, you must verify your identity. You must state your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted by you under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In order to help the identification and location of requested records, you may also, at your option, include your social security number.
(e) When making an existence-of-records request as the parent or guardian of a minor or as the guardian of someone determined by a court to be incompetent, you must establish:
(1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at your option, the social security number of the individual;
(2) Your own identity, following the requirements of paragraph (d) of this section;
(3) That you are the parent or guardian of that individual, which you may prove by providing a copy of the individual’s birth certificate showing your parentage or by providing a court order establishing your guardianship; and
(4) That you are acting on behalf of that individual in making the request.
(f) The Solicitor or IG, as appropriate, will advise you in writing within ten (10) working days from receipt of your request whether the system of records you identified contains a record pertaining to you or to the individual for whom you are a parent or guardian and, if so, the office in which that record is located. If the Solicitor or IG is prohibited from, or there is otherwise an exemption that prevents, disclosing whether a system of records contains a record pertaining to you or to the individual for whom you are a parent or guardian, you will be notified in writing of the reasons of that determination, and of your right to appeal that determination under the provisions § 2412.12.
§ 2412.5 Individual access requests.
(a) You may make a request for access to a record about yourself that is contained in a system of records maintained by the Authority, the General Counsel, the IG, or the Panel by submitting a written request reasonably identifying the records sought to be inspected or copied by mail to the FLRA’s Solicitor or the IG at the Authority’s offices in Washington, DC, or by email to [email protected]. You must describe the records that you want in enough detail to enable Authority, General Counsel, IG, or Panel personnel to locate the system of records containing them with a reasonable amount of effort. Whenever possible, your request should describe the time periods in which you believe the records were compiled and the name or identifying number of each system of records in which you believe the records are kept. The Authority, the General Counsel, the IG, and the Panel have published descriptions of the systems of records they maintain in the
(b) Your written request should be clearly and prominently identified as a Privacy Act request. If you submit the request by mail, it should bear the mark “Privacy Act Request” on the envelope or other cover, as well as your return address. If you submit the request by email, the subject line of the email should include the phrase “Privacy Act Request.” If your request does not comply with the provisions of this paragraph, it will not be deemed received until the time it is actually received by the FLRA’s Solicitor or IG.
(c) If you desire, you may be accompanied by another person during your review of the records. If you desire to be accompanied by another person during the inspection, you must notify the Solicitor or IG at least twenty-four hours in advance of the agreed-upon inspection date. Additionally, you must sign a statement and provide it to the representative of the Authority, the General Counsel, the IG, or the Panel, as appropriate, at the time of the inspection, authorizing that person to accompany you. The agency may require a written statement from you authorizing discussion of your record in the accompanying person’s presence.
(d) When you make a request for access to records about yourself, you must verify your identity. You must state your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted by you under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In order to help the identification and location of requested records, you may also, at your option, include your social security number.
(e) When making a request as the parent or guardian of a minor or as the guardian of someone determined by a court to be incompetent, for access to records about that individual, you must establish:
(1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at your option, the social security number of the individual;
(2) Your own identity, following the requirements of paragraph (d) of this section;
(3) That you are the parent or guardian of that individual, which you may prove by providing a copy of the individual’s birth certificate showing your parentage or by providing a court order establishing your guardianship; and
(4) That you are acting on behalf of that individual in making the request.
§ 2412.6 Records about other individuals, medical records, and limitations on disclosures.
(a) Requests for records about an individual made by person other than that individual shall also be directed to the FLRA’s Solicitor or IG, as appropriate, at the Authority’s offices in Washington, DC, or by email to [email protected]. You must describe the records that you want in enough detail to enable Authority, General Counsel, IG, or Panel personnel to locate the system of records containing them with a reasonable amount of effort. Whenever possible, your request should describe the time periods in which you believe the records were compiled and the name or identifying number of each system of records in which you believe the records are kept. The Authority, the General Counsel, the IG, and the Panel have published descriptions of the systems of records they maintain in the
(b) Such records shall only be made available to persons other than that individual in the following circumstances:
(1) To any person with the prior written consent of the individual about whom the records are maintained;
(2) To officers and employees of the Authority, the General Counsel, the IG, and the Panel who have a need for the records in the performance of their official duties;
(3) For a routine use compatible with the purpose for which it was collected, as defined in 5 U.S.C. 552a(a)(7) and as described under 5 U.S.C. 552a(e)(4)(D);
(4) To any person to whom disclosure is required by the Freedom of Information Act, as amended, 5 U.S.C. 552;
(5) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to title 13 of the United States Code;
(6) In a form not individually identifiable to a recipient who has provided the Solicitor or IG with advance adequate written assurance that the record will be used solely as a statistical research or reporting record;
(7) To the National Archives and Records Administration or other appropriate entity as a record which has sufficient historical or other value warranting its preservation, or for evaluation by the Archivist of the United States or the designee of such official to determine whether the record has such value;
(8) To another agency or to an instrumentality of any governmental jurisdiction within or under control of the United States for a civil or criminal law enforcement activity that is authorized by law if the head of the agency or instrumentality has made a written request for the record to the Solicitor or IG, in accordance with part 2417 of this chapter, specifying the particular portion desired and the law enforcement activity for which the record is sought;
(9) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, provided that notification of such a disclosure shall be immediately mailed to the last known address of the individual;
(10) To either House of Congress or to any committee thereof with appropriate jurisdiction;
(11) To the Comptroller General, or any of Comptroller General’s authorized representatives, in the performance of the official duties of the General Accountability Office;
(12) Pursuant to the order of a court of competent jurisdiction; or
(13) To a consumer reporting agency in accordance with 31 U.S.C. 3711(e).
(c) The request shall be in writing and should be clearly and prominently identified as a Privacy Act request and, if submitted by mail or otherwise submitted in an envelope or other cover, should bear the mark “Privacy Act Request” on the envelope or other cover. If a request does not comply with the provisions of this paragraph, it shall not be deemed received until the time it is actually received by the Solicitor or the IG.
(d) If medical records are requested for inspection which, in the opinion of the Solicitor or the IG, as appropriate, may be harmful to the requester if personally inspected by such person, such records will be furnished only to a licensed health care professional designated to receive such records by the requester. Prior to such disclosure, the requester must furnish a signed written authorization to make such disclosure and the licensed health care professional must furnish a written request for the licensed health care professional’s receipt of such records to the Solicitor or the IG, as appropriate.
(1) If such authorization is not executed within the presence of an Authority, General Counsel, or Panel representative, the authorization must be accompanied by a notarized statement verifying the identification of the requester.
(2) [Reserved]
§ 2412.7 Initial decision on access requests.
(a) Within ten (10) working days of the receipt of a request pursuant to § 2412.5, the FLRA’s Solicitor or IG will make an initial decision regarding whether the requested records exist and whether they will be made available to the requester. The Solicitor or IG will promptly communicate that initial decision to you in writing or other appropriate form.
(b) When the initial decision is to provide access to the requested records, the writing or other appropriate communication notifying you of the decision will:
(1) Briefly describe the records to be made available;
(2) State whether any records maintained about you in the system of records in question are not being made available;
(3) State whether any further verification of your identity is necessary; and
(4) Notify you of any fee charged under § 2412.13.
(5) The Solicitor or IG will promptly disclose the requested records to you upon payment of any applicable fee under § 2412.13.
(c) When the initial decision is not to provide access to requested records and accountings, the Solicitor or IG will, by writing or other appropriate communication, explain the reason for that decision. The Solicitor or IG will only refuse to provide you access when:
(1) Your verification of identity is inadequate under § 2412.5(d);
(2) No such records are maintained or an exemption applies;
(3) Your information is contained in, and inseparable from, another individual’s record;
(4) The requested records have been compiled in reasonable anticipation of civil or criminal action or other proceedings.
§ 2412.8 Accountings of disclosures and requests for accountings.
(a) The FLRA’s Solicitor or IG, as appropriate, will maintain a record (“accounting”) of every instance in which records about an individual are made available, pursuant to this part, to any person other than:
(1) Officers or employees of the Authority, the General Counsel, the IG, or the Panel in the performance of their duties; or
(2) Any person pursuant to the Freedom of Information Act, as amended, 5 U.S.C. 552.
(b) The accounting which shall be retained for at least five (5) years or the life of the record, whichever is longer, shall contain the following information:
(1) A brief description of records disclosed;
(2) The date, nature and, where known, the purpose of the disclosure; and
(3) The name and address of the person or agency to whom the disclosure is made.
(c) Except when accountings of disclosures are not required to be kept (as stated in paragraph (a) of this section) or are withheld accounting of disclosures that were made pursuant to 5 U.S.C. 552a(b)(7), you may make a request for an accounting of any disclosure that has been made by the Solicitor or IG, to another person, organization, or agency of any record about you. This accounting contains the date, nature, and purpose of each disclosure, as well as the name and address of the person, organization, or agency to which the disclosure was made. Your request for an accounting should identify each particular record in question and should be made by writing to the FLRA’s Solicitor or IG, as appropriate, following the procedures in § 2412.5.
(d) The FLRA’s Solicitor or IG, as appropriate, will respond to your request for access to an accounting following the procedures in § 2412.7. You may appeal the Solicitor or IG’s decision on your request under the procedures in § 2412.12.
§ 2412.9 Requests for amendment or correction of records.
(a) Unless the record is not subject to amendment or correction as stated in paragraph (b) of this section, you may make a request for amendment or correction of an Authority, General Counsel, IG, or Panel record about yourself or about an individual for whom you are a parent or guardian by submitting a written request to the FLRA’s Solicitor or IG, as appropriate, following the procedures in § 2412.5. Your request should identify each particular record in question, state the amendment or correction that you want, and state why you believe that the record is not accurate, relevant, timely, or complete. Please note that a requester bears the burden of proving by the preponderance of the evidence that information is not accurate, relevant, timely, or complete. You may submit any documentation that you think would be helpful. If you believe that the same record is in more than one system of records, your request should state that.
(b) The following records are not subject to amendment or correction:
(1) Transcripts of testimony given under oath or written statements made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings, which are the official record of those proceedings;
(3) Records in systems of records that have been exempted from amendment and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the
(4) Records compiled in reasonable anticipation of a civil action or proceeding.
§ 2412.10 Initial decision on amendment or correction.
(a) Within ten (10) working days after receiving your request for amendment or correction, the FLRA’s Solicitor or IG, as appropriate, will acknowledge receipt of the request and, under normal circumstances, the Solicitor or IG will notify you, by mail or other appropriate means, of the decision regarding the request not later than thirty (30) working days after receiving of the request.
(b) The notice of decision will include:
(1) A statement of whether the Solicitor or IG has granted or denied your request, in whole or in part;
(2) A quotation or description of any amendment or correction made to any records; and
(3) When a request is denied in whole or in part, an explanation of the reason for that denial and of your right to appeal the decision to the Chairman of the Authority, pursuant to § 2412.12.
§ 2412.11 Amendment or correction of previously disclosed records.
When a record is amended or corrected pursuant to § 2412.10, or a written statement of disagreement filed, pursuant to § 2412.12, the FLRA’s Solicitor or IG, as appropriate, will give notice of that correction, amendment, or written statement of disagreement to all persons to whom such records or copies have been disclosed, as recorded in the accounting kept pursuant to § 2412.8.
§ 2412.12 Agency review of refusal to inform, to provide access to, or to amend or correct records.
(a) If your request for information regarding whether a system of records contains information about you or an individual for whom you are a parent or guardian, or your request for access to, or amendment or correction of, records of the Authority, the General Counsel, the IG, or the Panel, or an accounting of disclosure from such records, has been denied in whole or in part by an initial decision, you may, within thirty (30) working days after your receipt of notice of the initial decision, appeal that decision by filing a written request by mail to the Chairman of the Authority at the Authority’s offices in Washington, DC, or by email to [email protected].
(b) The appeal must describe:
(1) The request you initially made for information regarding, access to, or the amendment or correction of, records;
(2) The initial decision of the FLRA’s Solicitor or IG on the request; and
(3) The reasons why that initial decision should be modified by the Chairman of the Authority.
(c) Not later than thirty (30) working days after receipt of a request for review (unless such period is extended by the Chairman of the Authority or the Chairman’s designee for good cause shown), the Chairman of the Authority or the Chairman’s designee will notify you of their decision on your request. If the Chairman of the Authority or the Chairman’s designee upholds the initial decision not to inform the individual of whether requested records exist, or not to provide access to requested records or accountings, or not to amend or correct the records as requested, then the Chairman of the Authority or the Chairman’s designee will notify you of your right:
(1) To judicial review of the Chairman of the Authority or the Chairman’s designee’s decision pursuant to 5 U.S.C. 552a(g)(1); and
(2) To file with the FLRA’s Solicitor or IG, as appropriate, a concise written statement of disagreement with the determination. That written statement of disagreement will be made a part of the record and will accompany that record in any use or disclosure of the record.
§ 2412.13 Fees.
(a) Your Privacy Act request for access to records will be considered an agreement to pay all applicable fees charged under paragraph (b) of this section, up to $25.00. When making a request, you may specify a willingness to pay a greater or lesser amount.
(b) There will be a charge of twenty-five cents per page for paper-copy duplication of records disclosed under this part. For copies of records produced on tapes, disks, or other media, the Solicitor or IG will charge the actual cost of production, including operator time.
(c) The FLRA’s Solicitor or IG may waive or reduce any charges under this section whenever it is in the public interest to do so.
§ 2412.14 Penalties.
Any person who knowingly and willfully requests or obtains any record concerning an individual from the Authority, the General Counsel, the IG, or the Panel under false pretenses will be subject to criminal prosecution under 5 U.S.C. 552a(i)(3), which provides that such person shall be guilty of a misdemeanor and fined not more than $5,000.
§ 2412.15 Exemptions.
(a) Files of FLRA’s Office of Inspector General (OIG) compiled for the purpose of a criminal investigation and for related purposes. Pursuant to 5 U.S.C. 552a(j)(2), the FLRA hereby exempts the system of records entitled “FLRA/OIG-1, Office of Inspector General Investigative Files,” insofar as it consists of information compiled for the purposes of a criminal investigation or for other purposes within the scope of 5 U.S.C. 552a(j)(2), from the application of 5 U.S.C. 552a, except for 5 U.S.C. 552a(b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), (11) and (i).
(b) OIG files compiled for other law enforcement purposes. Pursuant to 5 U.S.C. 552a(k)(2), the FLRA hereby exempts the system of records entitled “FLRA/OIG-1, Office of Inspector General Investigative Files,” insofar as it consists of information compiled for law enforcement purposes other than material within the scope of 5 U.S.C. 552a(j)(2), from the application of 5 U.S.C. 552a, (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).
PART 2413—OPEN MEETINGS
§ 2413.1 Purpose and scope.
This part contains the regulations of the Federal Labor Relations Authority implementing the Government in the Sunshine Act, 5 U.S.C. 552b.
§ 2413.2 Public observation of meetings.
Every portion of every meeting of the Authority shall be open to public observation, except as provided in § 2413.4, and Authority members shall not jointly conduct or dispose of agency business other than in accordance with the provisions of this part.
§ 2413.3 Definition of meeting.
For purposes of this part, meeting shall mean the deliberations of at least two (2) members of the Authority where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations to determine whether a meeting should be closed to public observation in accordance with the provisions of this part.
§ 2413.4 Closing of meetings; reasons therefor.
(a) Except where the Authority determines that the public interest requires otherwise, meetings, or portions thereof, shall not be open to public observation where the deliberations concern the issuance of a subpena, the Authority’s participation in a civil action or proceeding or an arbitration, or the initiation, conduct or disposition by the Authority of particular cases of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing, or any court proceedings collateral or ancillary thereto.
(b) Meetings, or portions thereof, may also be closed by the Authority, except where it determines that the public interest requires otherwise, when the deliberations concern matters or information falling within the reasons for closing meetings specified in 5 U.S.C. 552b(c)(1) (secret matters concerning national defense or foreign policy); (c)(2) (internal personnel rules and practices); (c)(3) (matters specifically exempted from disclosure by statute); (c)(4) (privileged or confidential trade secrets and commercial or financial information); (c)(5) (matters of alleged criminal conduct or formal censure); (c)(6) (personal information where disclosure would cause a clearly unwarranted invasion of personal privacy); (c)(7) (certain materials or information from investigatory files compiled for law enforcement purposes); or (c)(9)(B) (disclosure would significantly frustrate implementation of a proposed agency action).
§ 2413.5 Action necessary to close meeting; record of votes.
A meeting shall be closed to public observation under § 2413.4, only when a majority of the members of the Authority who will participate in the meeting vote to take such action.
(a) When the meeting deliberations concern matters specified in § 2413.4(a), the Authority members shall vote at the beginning of the meeting, or portion thereof, on whether to close such meeting, or portion thereof, to public observation and on whether the public interest requires that a meeting which may properly be closed should nevertheless be open to public observation. A record of such vote, reflecting the vote of each member of the Authority, shall be kept and made available to the public at the earliest practicable time.
(b) When the meeting deliberations concern matters specified in § 2413.4(b), the Authority shall vote on whether to close such meeting, or portion thereof, to public observation, and on whether there is a public interest which requires that a meeting which may properly be closed should nevertheless be open to public observation. The vote shall be taken at a time sufficient to permit inclusion of information concerning the open or closed status of the meeting in the public announcement thereof. A single vote may be taken with respect to a series of meetings at which the deliberations will concern the same particular matters where such subsequent meetings are scheduled to be held within thirty (30) days after the initial meeting. A record of such vote, reflecting the vote of each member of the Authority, shall be kept and made available for the public within one (1) day after the vote is taken.
(c) Whenever any person whose interests may be directly affected by deliberations during a meeting, or a portion thereof, requests that the Authority close that meeting, or portion thereof, to public observation for any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged criminal conduct or formal censure), (c)(6) (personal information where disclosure would cause a clearly unwarranted invasion of personal privacy), or (c)(7) (certain materials or information from investigatory files compiled for law enforcement purposes), the Authority members participating in the meeting, upon request of any one of its members, shall vote on whether to close such meeting, or a portion thereof, for that reason. A record of such vote, reflecting the vote of each member of the Authority participating in the meeting, shall be kept and made available to the public within one (1) day after the vote is taken.
(d) After public announcement of a meeting as provided in § 2413.6, a meeting, or portion thereof, announced as closed may be opened, or a meeting, or portion thereof, announced as open may be closed only if a majority of the members of the Authority who will participate in the meeting determine by a recorded vote that Authority business so requires and that an earlier announcement of the change was not possible. The change made and the vote of each member on the change shall be announced publicly at the earliest practicable time.
(e) Before a meeting may be closed pursuant to § 2413.4, the Solicitor of the Authority shall certify that in the Solicitor’s opinion the meeting may properly be closed to public observation. The certification shall set forth each applicable exemptive provision for such closing. Such certification shall be retained by the agency and made publicly available as soon as practicable.
§ 2413.6 Notice of meetings; public announcement and publication.
(a) A public announcement setting forth the time, place and subject matter of meetings, or portions thereof, closed to public observation pursuant to the provisions of § 2413.4(a), shall be made at the earliest practicable time.
(b) Except for meetings closed to public observation pursuant to the provisions of § 2413.4(a), the agency shall make public announcement of each meeting to be held at least seven (7) days before the scheduled date of the meeting. The announcement shall specify the time, place and subject matter of the meeting, whether it is to be open to public observation or closed, and the name, address, and phone number of an agency official designated to respond to requests for information about the meeting. The seven (7) day period for advance notice may be shortened only upon a determination by a majority of the members of the Authority who will participate in the meeting that agency business requires that such meeting be called at an earlier date, in which event the public announcements shall be made at the earliest practicable time. A record of the vote to schedule a meeting at an earlier date shall be kept and made available to the public.
(c) Within one (1) day after a vote to close a meeting, or any portion thereof, pursuant to the provisions § 2413.4(b), the agency shall make publicly available a full written explanation of its action closing the meeting, or portion thereof, together with a list of all persons expected to attend the meeting and their affiliation.
(d) If after public announcement required by paragraph (b) of this section has been made, the time and place of the meeting are changed, a public announcement shall be made at the earliest practicable time. The subject matter of the meeting may be changed after the public announcement only if a majority of the members of the Authority who will participate in the meeting determine that agency business so requires and that no earlier announcement of the change was possible. When such a change in subject matter is approved, a public announcement of the change shall be made at the earliest practicable time. A record of the vote to change the subject matter of the meeting shall be kept and made available to the public.
(e) All announcements or changes thereto issued pursuant to the provisions of paragraphs (b) and (d) of this section or pursuant to the provisions of § 2413.5(d) shall be submitted for publication in the
(f) Announcements of meetings made pursuant to the provisions of this section shall be made publicly available by the Executive Director.
§ 2413.7 Transcripts, recordings or minutes of closed meeting; public availability; retention.
(a) For every meeting, or portion thereof, closed under the provisions of § 2413.4, 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 agency. For each such meeting, or portion thereof, there shall also be maintained a complete transcript or electronic recording of the proceedings, except that for meetings closed pursuant to § 2413.4(a), the Authority may, in lieu of a transcript or electronic recording, maintain a set of minutes fully and accurately summarizing any action taken, the reasons therefor and views thereon, documents considered and the members’ vote on each rollcall vote.
(b) The agency shall make promptly available to the public copies of transcripts, recordings or minutes maintained as provided in accordance with paragraph (a) of this section, except to the extent the items therein contain information which the agency 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 in accordance with the schedule of fees set forth in § 2411.10 of this subchapter and the actual cost of transcription.
(c) The agency 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 agency proceeding with respect to which the meeting or portion was held whichever occurs later.
PART 2414—EX PARTE COMMUNICATIONS
§ 2414.1 Purpose and scope.
This part contains the regulations of the Federal Labor Relations Authority relating to ex parte communications.
(a) No interested person outside this agency shall, in any agency proceeding subject to 5 U.S.C. 557(a), make or knowingly cause to be made any prohibited ex parte communication to any Authority member, Administrative Law Judge, or other Authority employee who is or may reasonably be expected to be involved in the decisional process of the proceeding.
(b) No Authority member, Administrative Law Judge, or other Authority employee who is or may reasonably be expected to be involved in the decisional process of the proceeding relevant to the merits of the proceeding shall: (1) Request any prohibited ex parte communications; or (2) make or knowingly cause to be made any prohibited ex parte communications about the proceeding to any interested person outside this agency relevant to the merits of the proceeding.
§ 2414.3 Definitions.
When used in this part:
(a) The term person outside this agency, to whom the prohibitions apply, shall include any individual outside the Authority, labor organization, agency, or other entity, or an agent thereof, and the General Counsel or his representative when prosecuting an unfair labor practice proceeding before the Authority pursuant to 5 U.S.C. 7118.
(b) The term ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, subject however, to the provisions of §§ 2414.5 and 2414.6.
§ 2414.4 Duration of prohibition.
Unless otherwise provided by specific order of the Authority entered in the proceeding, the prohibition of § 2414.2 shall be applicable in any agency proceeding subject to 5 U.S.C. 557(a) beginning at the time of which the proceeding is noticed for hearing, unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of such person’s acquisition of such knowledge.
§ 2414.5 Communications prohibited.
Except as provided in § 2414.6, ex parte communications prohibited by § 2414.2 shall include:
(a) Such communications, when written, if copies thereof are not contemporaneously served by the communicator on all parties to the proceeding in accordance with the provisions of part 2429 of this chapter; and
(b) Such communications, when oral, unless advance notice thereof is given by the communicator to all parties in the proceeding and adequate opportunity afforded to them to be present.
§ 2414.6 Communications not prohibited.
Ex parte communications prohibited by § 2414.2 shall not include:
(a) Oral or written communications which relate solely to matters which the Hearing Officer, Regional Director, Administrative Law Judge, General Counsel or member of the Authority is authorized by law or Authority rules to entertain or dispose of on an ex parte basis;
(b) Oral or written requests for information solely with respect to the status of a proceeding;
(c) Oral or written communications which all the parties to the proceeding agree, or which the responsible official formally rules, may be made on an ex parte basis;
(d) Oral or written communications proposing settlement or an agreement for disposition of any or all issues in the proceeding;
(e) Oral or written communications which concern matters of general significance to the field of labor-management relations or administrative practice and which are not specifically related to any agency proceeding subject to 5 U.S.C. 557(a); or
(f) Oral or written communications from the General Counsel to the Authority when the General Counsel is acting on behalf of the Authority under 5 U.S.C. 7123(d).
§ 2414.7 Solicitation of prohibited communications.
No person shall knowingly and willfully solicit the making of an unauthorized ex parte communication by any other person.
§ 2414.8 Reporting of prohibited communications; penalties.
(a) Any Authority member, Administrative Law Judge, or other Authority employee who is or may reasonably be expected to be involved in the decisional process of the proceeding relevant to the merits of the proceeding to whom a prohibited oral ex parte communication is attempted to be made, shall refuse to listen to the communication, inform the communicator of this rule, and advise such person that if the person has anything to say it should be said in writing with copies to all parties. Any such Authority member, Administrative Law Judge, or other Authority employee who is or may reasonably be expected to be involved in the decisional process of the proceeding relevant to the merits of the proceeding who receives, or who makes or knowingly causes to be made, an unauthorized ex parte communication, shall place or cause to be placed on the public record of the proceeding: (1) The communication, if it was written; (2) a memorandum stating the substance of the communication, if it was oral; (3) all written responses to the prohibited communication; and (4) memoranda stating the substance of all oral responses to the prohibited communication. The Executive Director, if the proceeding is then pending before the Authority, the Administrative Law Judge, if the proceeding is then pending before any such judge, or the Regional Director, if the proceeding is then pending before a Hearing Officer or the Regional Director, shall serve copies of all such materials placed on the public record of the proceeding on all other parties to the proceeding and on the attorneys of record for the parties. Within ten (10) days after the mailing of such copies, any party may file with the Executive Director, Administrative Law Judge, or Regional Director serving the communication, as appropriate, and serve on all other parties, a statement setting forth facts or contentions to rebut those contained in the prohibited communication. All such responses shall be placed in the public record of the proceeding, and provision may be made for any further action, including reopening of the record, which may be required under the circumstances. No action taken pursuant to this provision shall constitute a waiver of the power of the Authority to impose an appropriate penalty under § 2414.9.
§ 2414.9 Penalties and enforcement.
(a) Where the nature and circumstances of a prohibited communication made by or caused to be made by a party to the proceeding are such that the interests of justice and statutory policy may require remedial action, the Authority, Administrative Law Judge, or Regional Director, as appropriate, may issue to the party making the communication a notice to show cause, returnable before the Authority, Administrative Law Judge, or Regional Director, within a stated period not less than seven (7) days from the date thereof, why the Authority, Administrative Law Judge, or Regional Director should not determine that the interests of justice and statutory policy require that the claim or interest in the proceeding of a party who knowingly makes a prohibited communication or knowingly causes a prohibited communication to be made, should be dismissed, denied, disregarded or otherwise adversely affected on account of such violation.
(b) Upon notice and hearing, the Authority may censure, suspend, or revoke the privilege of practice before the agency of any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication. However, before the Authority institutes formal proceedings under this subsection, it shall first advise the person or persons concerned in writing that it proposes to take such action and that they may show cause, within a period to be stated in such written advice, but not less than seven (7) days from the date thereof, why it should not take such action.
(c) The Authority may censure, or, to the extent permitted by law, suspend, dismiss, or institute proceedings for the dismissal of, any Authority agent who knowingly and willfully violates the prohibitions and requirements of this rule.
PART 2415—EMPLOYEE RESPONSIBILITIES AND CONDUCT
§ 2415.1 Employee responsibilities and conduct.
The Federal Labor Relations Authority, the General Counsel of the Federal Labor Relations Authority and the Federal Service Impasses Panel, respectively, hereby adopt the rules and regulations contained in parts 735, 2634, 2635, and 2637 of title 5 of the Code of Federal Regulations, prescribing standards of conduct and responsibilities, and governing statements reporting employment and financial interests for officers and employees, including special Government employees, for application, as appropriate, to the officers and employees, including special Government employees, of the Authority, the General Counsel and the Panel.
PART 2416—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL LABOR RELATIONS AUTHORITY
§ 2416.101 Purpose.
The purpose of this regulation 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.
§ 2416.102 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.
§ 2416.103 Definitions.
For purposes of this regulation, the term—
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
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 (TDD’s), interpreters, notetakers, written materials, and other similar services and devices.
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.
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.
Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.
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.
Individual with disabilities 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.
Qualified individual with disabilities means—
(1) With respect to preschool, elementary, or secondary education services provided by the agency, an individual with disabilities who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with disabilities 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;
(3) With respect to any other program or activity, an individual with disabilities who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4) Qualified disabled person as that term is defined for purposes of employment in 29 CFR 1615.103, which is made applicable to this regulation by § 2416.140.
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 regulation, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.
§§ 2416.104-2416.109 [Reserved]
§ 2416.110 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation 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 regulation.
§§ 2416.111-2416.129 [Reserved]
§ 2416.130 General prohibitions against discrimination.
(a) No qualified individual with disabilities shall, on the basis of 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 disabilities the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with disabilities 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 disabilities 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 disabilities the opportunity to participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with disabilities the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(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 regulation.
(c) The exclusion of individuals without a disability 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 regulation.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
§§ 2416.131-2416.139 [Reserved]
§ 2416.140 Employment.
No qualified individual with disabilities shall, on the basis of 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.
§§ 2416.141-2416.148 [Reserved]
§ 2416.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 2416.150, 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.
§ 2416.150 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 § 2416.150(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 § 2416.150(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 § 2416.150(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.
§ 2416.151 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.
§§ 2416.152-2416.159 [Reserved]
§ 2416.160 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 disabilities 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 disabilities.
(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 applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD’s) 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 § 2416.160 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.
§§ 2416.161-2416.169 [Reserved]
§ 2416.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of disability in programs and activities conducted by the agency.
(b) 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).
(c) The Director, Equal Employment Opportunity, shall be responsible for coordinating implementation of this section. Complaints may be sent to Director, Equal Employment Opportunity, Federal Labor Relations Authority, 1400 K Street, NW., Washington, DC 20424-0001.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(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 Government entity.
(f) 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 useable by individuals with disabilities.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 2416.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) 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.
§§ 2416.171-2416.999 [Reserved]
PART 2417—TESTIMONY BY EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A—General Provisions
§ 2417.101 Scope and purpose.
(a) These regulations establish policy, assign responsibilities and prescribe procedures with respect to:
(1) The production or disclosure of official information or records by employees, members, advisors, and consultants of the Federal Labor Relations Authority’s (FLRA’s) three-Member Authority component (the Authority), the Office of the General Counsel(the General Counsel), or the Federal Service Impasses Panel (the Panel); and
(2) The testimony of current and former employees, members, advisors, and consultants of the Authority, the General Counsel, or the Panel relating to official information, official duties, or official records, in connection with a legal proceeding on behalf of any party to a cause pending in civil federal or state litigation, including any proceeding before the FLRA or any other board, commission, or administrative agency of the United States.
(b) The FLRA intends these provisions to:
(1) Conserve employees’ time for conducting official business;
(2) Minimize employees’ involvement in issues unrelated to the FLRA’s mission;
(3) Maintain employees’ impartiality in disputes between private litigants; and
(4) Protect sensitive, confidential information and the integrity of the FLRA’s administrative and deliberative processes.
(c) In providing for these requirements, the FLRA does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the FLRA’s internal operations. 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.
§ 2417.102 Applicability.
This part applies to requests and demands to current and former employees, members, advisors, and consultants for factual or expert testimony relating to official information or official duties, or for production of official records or information, in civil legal proceedings. This part does not apply to:
(a) Requests for or demands upon an 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 Authority, the General Counsel, or the Panel;
(b) Requests for or demands upon a former employee to testify as to matters in which the former employee was not directly or materially involved while at the Authority, the General Counsel, or the Panel;
(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;
(d) Congressional requests and demands for testimony, records, or information; or
(e) Requests or demands for testimony, records, or information by any Federal, state, or local agency in furtherance of an ongoing investigation of possible violations of criminal law.
§ 2417.103 Definitions.
The following definitions apply to this part:
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 employee in a civil legal proceeding.
Employee means:
(1)(i) Any current or former employee or member of the Authority, the General Counsel, or the Panel;
(ii) Any other individual hired through contractual agreement by or on behalf of the Authority, the General Counsel, or the Panel, or who has performed or is performing services under such an agreement for the Authority, the General Counsel, or the Panel; and
(iii) Any individual who served or is serving in any consulting or advisory capacity to the Authority, the General Counsel, or the Panel, whether formal or informal.
(2) This definition does not include former FLRA employees 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 FLRA.
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 civil legal or administrative proceeding. Legal proceeding includes all phases of litigation.
Records or official records and information means all information in the custody and control of the Authority, the General Counsel, or the Panel, relating to information in the custody and control thereof, or acquired by an employee while in the performance of his or her official duties or because of his or her official status, while the individual was employed by or on behalf of the Authority, the General Counsel, or the Panel.
Request means any request, by whatever method, for the production of records and information or for testimony that has not been ordered by a court or other competent authority.
Requester means anyone who makes a request or demand under this part upon the FLRA.
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—Requests or Demands for Testimony and Production of Documents
§ 2417.201 General prohibition and designation of the appropriate decision-maker.
(a) General prohibition. No employee or former employee of the Authority, the General Counsel, or the Panel may produce official records and information or provide any testimony relating to official information in response to a request or demand without the prior, written approval of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate.
(b) Appropriate decision-maker. (1) The Chairman of the FLRA, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the FLRA’s Authority component, or the person who is the subject of the request or demand is subject to the supervision or control of the FLRA’s Authority component or was subject to such supervision or control when formerly employed at the FLRA.
(2) The General Counsel, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the General Counsel, or the person who is the subject of the request or demand is subject to the supervision or control of the General Counsel or was subject to such supervision or control when formerly employed at the FLRA.
(3) The Chairman of the Panel, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the Panel, or the person who is the subject of the request or demand is subject to the supervision or control of the Panel or was subject to such supervision or control when formerly employed at the FLRA.
§ 2417.202 Factors that the decision-maker will consider.
The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, 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 request or demand. Among the relevant factors that the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel 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 FLRA in performing its statutory duties;
(d) Allowing such testimony or production of records would be in the best interest of the FLRA;
(e) The records or testimony can be obtained from other sources;
(f) The request or demand is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the request or demand 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 that 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 FLRA appearing to favor one litigant over another;
(k) The request was served before the demand;
(l) A substantial Government interest is implicated;
(m) The request or demand is within the authority of the party making it;
(n) The request or demand is sufficiently specific to be answered; and
(o) Any other factor deemed relevant under the circumstances of the particular request or demand.
§ 2417.203 Filing requirements for litigants seeking documents or testimony.
A requester must comply with the following requirements when filing a request or demand for official records and information or testimony under part 2417. Requesters should file a request before a demand.
(a) The request or demand must be in writing and must be submitted to the FLRA’s Office of the Solicitor.
(b) The written request or demand 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 the burden on the FLRA 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 employee, such as a retained expert;
(6) If testimony is sought, 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 employee to prepare for testimony, to travel to the legal proceeding, and to attend the legal proceeding.
(c) The Office of the Solicitor reserves the right to require additional information to complete the request, where appropriate.
(d) Requesters should submit their request or demand at least 30 days before the date that records or testimony are required. Requests or demands submitted fewer than 30 days before records or testimony are required must be accompanied by a written explanation stating the reasons for the late request or demand and the reasons that would justify expedited processing.
(e) Failure to cooperate in good faith to enable the FLRA to make an informed decision may serve as the basis for a determination not to comply with the request or demand.
(f) The request or demand should state that the requester will provide a copy of the employee’s statement at the expense of the requester and that the requester will permit the FLRA to have a representative present during the employee’s testimony.
§ 2417.204 Where to submit a request or demand.
(a) Requests or demands for official records, information, or testimony under this part must be served on the Office of the Solicitor at the following address: Office of the Solicitor, Federal Labor Relations Authority, 1400 K Street NW, Suite 300, Washington, DC 20424-0001; telephone: (771) 444-5775; fax: (202) 343-1007; or email: [email protected]. The request or demand must be sent by mail, fax, or email and clearly marked “Part 2417 Request for Testimony or Official Records in Legal Proceedings.”
(b) A person requesting public FLRA information and non-public FLRA information under this part may submit a combined request for both to the Office of the Solicitor. If a requester decides to submit a combined request under this section, the FLRA will process the combined request under this part and not under part 2411 (the FLRA’s Freedom of Information Act regulations).
§ 2417.205 Consideration of requests or demands.
(a) After receiving service of a request or a demand for official records, information, or testimony, the appropriate decision-maker will review the request and, in accordance with the provisions of this part, 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 appropriate decision-maker will issue a determination within 30 days from the date that it receives the request.
(c) The appropriate decision-maker may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of the FLRA or the United States or for other good cause.
(d) The FLRA 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 Office of the Solicitor at least 30 days before the date that they will be needed.
§ 2417.206 Final determination.
The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, makes the final determination on demands or requests to employees thereof for production of official records and information or testimony in civil litigation under this part. All final determinations are within the sole discretion of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate. The appropriate decision-maker will notify the requester and, when appropriate, the court or other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that may be imposed on the release of records or information, or on the testimony of an employee. This final determination exhausts administrative remedies for discovery of the information.
§ 2417.207 Restrictions that apply to testimony.
(a) Conditions or restrictions may be imposed on the testimony of 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 requester may also be required to provide a copy of the transcript of testimony at the requester’s expense.
(b) The employee’s written declaration may be provided 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 Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, the employee shall not:
(1) Disclose confidential or privileged information; or
(2) For a current 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 FLRA 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 approval of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate.
§ 2417.208 Restrictions that apply to released records.
(a) The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate 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 Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate. In cases where protective orders or confidentiality agreements have already been executed, the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement.
(b) If the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate so determines, original 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 records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes.
§ 2417.209 Procedure when a decision is not made before the time that a response is required.
If a response to a demand or request is required before the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel can make the determination referred to in § 2417.206, the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, 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.
§ 2417.210 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 Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, 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. Touhy v. Ragen, 340 U.S. 462 (1951).
Subpart C—Schedule of Fees
§ 2417.301 Fees.
(a) Generally. The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs.
(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records; costs for employee time spent reviewing the request; and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. The FLRA will calculate and charge these fees, costs, and expenses as it charges like fees and costs arising from requests made pursuant to the Freedom of Information Act regulations in part 2411 of this chapter.
(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 court closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include costs for time spent by the witness to prepare for testimony, to travel to the legal proceeding, and to attend the legal proceeding.
(d) Payment of fees. A requester must pay witness fees for current employees and any record certification fees by submitting to the Office of the Solicitor 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 employees, the requester must pay applicable fees directly to the former employee in accordance with 28 U.S.C. 1821 or other applicable statutes.
(e) Waiver or reduction of fees. The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, 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. The FLRA will not assess fees if the total charge would be $10.00 or less.
Subpart D—Penalties
§ 2417.401 Penalties.
(a) An employee who discloses official records or information, or who gives testimony relating to official information, except as expressly authorized by the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, or as ordered by a Federal court after the FLRA has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current employee who testifies or produces official records and information in violation of this part may be subject to disciplinary action.
PART 2418—FLRA DEBT COLLECTION
Subpart A—General Provisions
§ 2418.1 What definitions apply to the regulations in this part?
As used in this part:
Administrative offset or offset means withholding funds payable by the United States (including funds payable by the United States on behalf of a State Government) to, or held by the United States for, a person to satisfy a debt owed by the person. The term “administrative offset” includes, but is not limited to, the offset of Federal salary, vendor, retirement, and Social-Security-benefit payments. The terms “centralized administrative offset” and “centralized offset” refer to the process by which the Treasury Department’s Financial Management Service offsets Federal payments through the Treasury Offset Program.
Administrative wage garnishment means the process by which a Federal agency orders a non-Federal employer to withhold amounts from a debtor’s wages to satisfy a debt, as authorized by 31 U.S.C. 3720D, 31 CFR 285.11, and this part.
Agency or federal agency means a department, agency, court, court administrative office, or instrumentality in the executive, judicial, or legislative branch of the Federal Government, including government corporations.
Chairman means the Chairman of the FLRA or his or her designee.
Creditor agency means any Federal agency that is owed a debt.
Debt means any amount of money, funds, or property that has been determined by an appropriate official of the Federal Government to be owed to the United States by a person. As used in this part, the term “debt” does not include, as described in 31 U.S.C. 3701(d), debts arising under: The Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.), except to the extent provided under sections 204(f) and 1631(b)(4) of such Act [42 U.S.C. 404(f) and 1383(b)(4)] and section 3716(c) [31 U.S.C. 3716(c)], or the tariff laws of the United States.
Debtor means a person who owes a debt to the United States.
Delinquent debt means a debt that has not been paid by the date specified in the agency’s initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement) unless other satisfactory payment arrangements have been made.
Delinquent FLRA debt means a delinquent debt owed to the FLRA.
Disposable pay has the same meaning as that term is defined in 5 CFR 550.1103.
Employee or Federal employee means a current employee of the FLRA or other Federal agency, including a current member of the Armed Forces, Reserve of the Armed Forces of the United States, or the National Guard.
Executive Director means the Executive Director of the FLRA or his or her designee.
FCCS means the Federal Claims Collection Standards, which were jointly published by the Departments of the Treasury and Justice and codified at 31 CFR parts 900 through 904.
Financial Management Service means the Financial Management Service, a bureau of the Treasury Department, which is responsible for the centralized collection of delinquent debts through the offset of Federal payments and other means.
FLRA means the Federal Labor Relations Authority and all of its components.
FLRA debt means a debt that a person owes the FLRA.
Payment agency or Federal payment agency means any Federal agency that transmits payment requests in the form of certified payment vouchers, or other similar forms, to a disbursing official for disbursement. The “payment agency” may be the agency that employs the debtor. In some cases, the FLRA may be both the creditor agency and the payment agency.
Person means an individual, corporation, partnership, association, organization, State or local government, or any other type of entity other than a Federal agency.
Salary offset means a type of administrative offset to collect, from the current pay account of a Federal employee, a debt that the employee owes.
Tax refund offset is defined in 31 CFR 285.2(a).
Treasury Department means the United States Department of the Treasury. Waiver means the cancellation, remission, forgiveness, or non-recovery of a debt allegedly owed by an employee to an agency as permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C. 716, 5 U.S.C. 8346(b), 42 U.S.C. 404(b), or any other law.
§ 2418.2 Why is the FLRA issuing these regulations, and what do they cover?
(a) Scope. This part provides procedures for the collection of FLRA debts. This part also provides procedures for collection of other debts owed to the United States when the FLRA receives, from another agency, a request for offset of an FLRA payment (for example, when an FLRA employee owes a debt to the United States Department of Education).
(b) Applicability. (1) This part applies to the FLRA when collecting an FLRA debt, to persons who owe FLRA debts, and to Federal agencies requesting offset of a payment issued by the FLRA as a payment agency (including salary payments to FLRA employees).
(2) This part does not apply to tax debts or to any debt for which there is an indication of fraud or misrepresentation, as described in 31 CFR 900.3 of the FCCS, unless the Department of Justice returns the debt to the FLRA for handling.
(3) Nothing in this part precludes collection or disposition of any debt under statutes and regulations other than those described in this part. See, for example, 5 U.S.C. 5705, Advancements and Deductions, which authorizes agencies to recover travel advances by offset of up to 100% of a Federal employee’s accrued pay. See, also, 5 U.S.C. 4108, governing the collection of training expenses. To the extent that the provisions of laws and other regulations differ from the provisions of this part, those provisions of law and other regulations—and not the provisions of this part—apply to the remission or mitigation of fines, penalties, and forfeitures, as well as debts arising under the tariff laws of the United States.
(c) Duplication not required. Nothing in this part requires the FLRA to duplicate notices or administrative proceedings required by contract, this part, or other laws or regulations.
(d) Use of multiple collection remedies allowed. The FLRA and other Federal agencies may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law. This part is intended to promote aggressive debt collection, using for each debt all available collection remedies. These remedies are not listed in any prescribed order, so that the FLRA may have flexibility in determining which remedies will be most efficient in collecting the particular debt.
§ 2418.3 Do these regulations adopt the Federal Claims Collection Standards (FCCS)?
This part adopts and incorporates all provisions of the FCCS. This part also supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for FLRA operations.
Subpart B—Procedures to Collect FLRA Debts
§ 2418.4 What notice will the FLRA send to a debtor when collecting an FLRA debt?
(a) Notice requirements. The FLRA shall aggressively collect FLRA debts. The FLRA shall promptly send at least one written notice to a debtor informing the debtor of the consequences of failing to pay or otherwise resolve an FLRA debt. The notice(s) shall be sent to the debtor at the most current address of the debtor in the FLRA’s records. Generally, before starting the collection actions described in §§ 2418.5 and 2418.9 through 2418.16, the FLRA will send no more than two written notices to the debtor. The purpose of the notice(s) is to explain why the debt is owed, the amount of the debt, how a debtor may pay the debt or make alternative payment arrangements, how a debtor may review documents related to the debt, how a debtor may dispute the debt, the collection remedies available to the FLRA if the debtor refuses to pay the debt, and other consequences to the debtor if the debt is not paid. Except as otherwise provided in paragraph (b) of this section, the written notice(s) shall explain to the debtor:
(1) The nature and amount of the debt, and the facts giving rise to the debt;
(2) How interest, penalties, and administrative costs are added to the debt, the date by which payment should be made to avoid such charges, and that such assessments must be made unless excused in accordance with 31 CFR 901.9 (see § 2418.5);
(3) The date by which payment should be made to avoid the enforced collection actions described in paragraph (a)(6) of this section;
(4) The FLRA’s willingness to discuss alternative payment arrangements and how the debtor may enter into a written agreement to repay the debt under terms acceptable to the FLRA (see § 2418.6);
(5) The name, address, and telephone number of a contact person or office within the FLRA;
(6) The FLRA’s intention to enforce collection if the debtor fails to pay or otherwise resolve the debt, by taking one or more of the following actions:
(i) Offset. Offset the debtor’s Federal payments, including income-tax refunds, salary, certain benefit payments (such as Social Security), retirement, vendor, travel reimbursements and advances, and other Federal payments (see §§ 2418.10 through 2418.12);
(ii) Private collection agency. Refer the debt to a private collection agency (see § 2418.15);
(iii) Credit-bureau reporting. Report the debt to a credit bureau (see § 2418.14);
(iv) Administrative wage garnishment. Garnish the debtor’s wages through administrative wage garnishment (see § 2418.13);
(v) Litigation. Refer the debt to the Department of Justice to initiate litigation to collect the debt (see § 2418.16);
(vi) Treasury Department’s Financial Management Service. Refer the debt to the Financial Management Service for collection (see § 2418.9);
(7) That Treasury debts over 180 days delinquent must be referred to the Financial Management Service for the collection actions described in paragraph (a)(6) of this section (see § 2418.9);
(8) How the debtor may inspect and copy records related to the debt;
(9) How the debtor may request a review of the FLRA’s determination that the debtor owes a debt and present evidence that the debt is not delinquent or legally enforceable (see §§ 2418.10(c) and 2418.11(c));
(10) How a debtor may request a hearing if the FLRA intends to garnish the debtor’s private-sector (i.e., non-Federal) wages (see § 2418.13(a)), including:
(i) The method and time period for requesting a hearing;
(ii) That the timely filing of a request for a hearing on or before the 15th business day following the date of the notice will stay the commencement of administrative wage garnishment, but not necessarily other collection procedures; and
(iii) The name and address of the office to which the request for a hearing should be sent.
(11) How a debtor who is a Federal employee subject to Federal salary offset may request a hearing (see § 2418.12(e)), including:
(i) The method and time period for requesting a hearing;
(ii) That the timely filing of a request for a hearing on or before the 15th calendar day following receipt of the notice will stay the commencement of salary offset, but not necessarily other collection procedures;
(iii) The name and address of the office to which the request for a hearing should be sent;
(iv) That the FLRA will refer the debt to the debtor’s employing agency or to the Financial Management Service to implement salary offset, unless the employee files a timely request for a hearing;
(v) That a final decision on the hearing, if requested, will be issued at the earliest practical date, but not later than 60 days after the filing of the request for a hearing, unless the employee requests and the hearing official grants a delay in the proceedings;
(vi) That any knowingly false or frivolous statements, representations, or evidence may subject the Federal employee to penalties under the False Claims Act (31 U.S.C. 3729-3731) or other applicable statutory authority, and criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or other applicable statutory authority;
(vii) That, unless prohibited by contract or statute, amounts paid on or deducted for the debt that are later waived or found not owed to the United States will be promptly refunded to the employee; and
(viii) That 5 U.S.C. 5514 and 31 U.S.C. 3716 govern proceedings with respect to such debt.
(12) How the debtor may request a waiver of the debt, if applicable (see Appendix A of this part);
(13) How the debtor’s spouse may claim his or her share of a joint-income-tax refund by filing Form 8379 with the Internal Revenue Service (see http://www.irs.gov);
(14) How the debtor may exercise other statutory or regulatory rights and remedies available to the debtor;
(15) That an employee’s involuntary payment of all or any portion of a debt being collected will not be construed as a waiver of any rights that the employee may have under any provision of contract or law, unless there are statutory, regulatory, or contractual provisions to the contrary; and
(16) That the debtor should advise the FLRA of a bankruptcy proceeding of the debtor or another person liable for the debt being collected.
(b) Exceptions to notice requirements. The FLRA may omit from a notice to a debtor one or more of the provisions contained in paragraphs (a)(6) through (16) of this section if the FLRA, in consultation with its legal counsel, determines that any provision is not legally required given the collection remedies to be applied to a particular debt.
(c) Respond to debtors; comply with FCCS. The FLRA will respond promptly to communications from debtors and comply with other FCCS provisions applicable to the administrative collection of debts. See 31 CFR part 901.
§ 2418.5 How will the FLRA add interest, penalty charges, and administrative costs to an FLRA debt?
(a) Assessment and notice. The FLRA shall assess interest, penalties, and administrative costs on FLRA debts in accordance with the provisions of 31 U.S.C. 3717 and 31 CFR 901.9. Interest shall be charged in accordance with the requirements of 31 U.S.C. 3717(a). Penalties shall accrue at the rate of 6% per year, or such other higher rate as authorized by law. The FLRA shall determine administrative costs, that is, the costs of processing and handling a delinquent debt. In the notice to the debtor described in § 2418.4, the FLRA must explain how interest, penalties, costs, and other charges are assessed, unless the requirements are included in a contract or repayment agreement.
(b) Waiver of interest, penalties, and administrative costs. Unless otherwise required by law, the FLRA may not charge interest if the amount due on the debt is paid within 30 days after the date from which the interest accrues. See 31 U.S.C. 3717(d). The FLRA may waive interest, penalties, and administrative costs, or any portion thereof, when it would be against equity and good conscience or not in the FLRA’s best interest to collect such charges, in accordance with FLRA guidelines for waiving claims against FLRA employees for erroneous overpayments. See appendix A of this part.
(c) Accrual during suspension of debt collection. In most cases, interest, penalties, and administrative costs will begin and continue to accrue 30 days after notice is given to the employee and during any period when collection has been suspended for any reason (for example, when the debtor has requested a hearing). The FLRA may suspend accrual of any or all of these charges when accrual would be against equity and good conscience or not in the FLRA’s best interest, in accordance with FLRA guidelines for waiving claims against FLRA employees for erroneous overpayments. See appendix A of this part.
§ 2418.6 When will the FLRA allow a debtor to pay an FLRA debt in installments instead of one lump sum?
If a debtor is financially unable to pay the debt in one lump sum, then the FLRA may accept payment of an FLRA debt in regular installments, in accordance with 31 CFR 901.8.
§ 2418.7 When will the FLRA compromise an FLRA debt?
If the FLRA cannot collect the full amount of an FLRA debt, then the FLRA may compromise the debt in accordance with 31 CFR part 902.
§ 2418.8 When will the FLRA suspend or terminate debt collection on an FLRA debt?
If, after pursuing all appropriate means of collection, the FLRA determines that an FLRA debt is uncollectible, then the FLRA may suspend or terminate debt-collection activity in accordance with the provisions of 31 CFR part 903 and the FLRA’s policies and procedures.
§ 2418.9 When will the FLRA transfer an FLRA debt to the Treasury Department’s Financial Management Service for collection?
(a) The FLRA will transfer any eligible debt that is more than 180 days delinquent to the Financial Management Service for debt-collection services, a process known as “cross-servicing.” See 31 U.S.C. 3711(g) and 31 CFR 285.12. The FLRA may transfer debts delinquent 180 days or less to the Financial Management Service in accordance with the procedures described in 31 CFR 285.12. The Financial Management Service takes appropriate action to collect or compromise the transferred debt, or to suspend or terminate collection action thereon, in accordance with the statutory and regulatory requirements and authorities applicable to the debt and the collection action to be taken. See 31 CFR 285.12(c)(2). Appropriate action includes, but is not limited to: Contact with the debtor; referral of the debt to the Treasury Offset Program, private collection agencies, or the Department of Justice; reporting of the debt to credit bureaus; and administrative wage garnishment.
(b) At least sixty (60) days before transferring an FLRA debt to the Financial Management Service, the FLRA will send notice to the debtor as required by § 2418.4. The FLRA will certify to the Financial Management Service, in writing, that the debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection. In addition, the FLRA will certify its compliance with all applicable due-process and other requirements as described in this part and other Federal laws. See 31 CFR 285.12(i) regarding the certification requirement.
(c) As part of its debt-collection process, the Financial Management Service uses the Treasury Offset Program to collect Treasury debts by administrative and tax-refund offset. See 31 CFR 285.12(g). The Treasury Offset Program is a centralized offset program administered by the Financial Management Service to collect delinquent debts owed to Federal agencies and states (including past-due child support). Under the Treasury Offset Program, before a Federal payment is disbursed, the Financial Management Service compares the name and taxpayer identification number (TIN) of the payee with the names and TINs of debtors that have been submitted by Federal agencies and states to the Treasury Offset Program database. If there is a match, the Financial Management Service (or, in some cases, another Federal disbursing agency) offsets all or a portion of the Federal payment, disburses any remaining payment to the payee, and pays the offset amount to the creditor agency. Federal payments eligible for offset include, but are not limited to, income-tax refunds, salary, travel advances and reimbursements, retirement and vendor payments, and Social Security and other benefit payments.
§ 2418.10 How will the FLRA use administrative offset (offset of non-tax Federal payments) to collect an FLRA debt?
(a) Centralized administrative offset through the Treasury Offset Program. (1) In most cases, the Financial Management Service uses the Treasury Offset Program to collect Treasury debts by the offset of Federal payments. See § 2418.9(c). If not already transferred to the Financial Management Service under § 2418.9, the FLRA will refer any eligible debt over 180 days delinquent to the Treasury Offset Program for collection by centralized administrative offset. See 31 U.S.C. 3716(c)(6); 31 CFR part 285, subpart A; and 31 CFR 901.3(b). The FLRA may refer any eligible debt less than 180 days delinquent to the Treasury Offset Program for offset.
(2) At least sixty (60) days prior to referring a debt to the Treasury Offset Program, in accordance with paragraph (a)(1) of this section, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4. The FLRA will certify to the Financial Management Service, in writing, that the debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection by offset. In addition, the FLRA will certify its compliance with the requirements described in this part.
(b) Non-centralized administrative offset for FLRA debts. (1) When centralized administrative offset through the Treasury Offset Program is not available or appropriate, the FLRA may collect past-due, legally enforceable FLRA debts through non-centralized administrative offset. See 31 CFR 901.3(c). In these cases, the FLRA may offset a payment internally or make an offset request directly to a Federal payment agency.
(2) At least thirty (30) days prior to offsetting a payment internally or requesting a Federal payment agency to offset a payment, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4. (For debts outstanding more than ten (10) years on or before June 11, 2009, the FLRA will comply with the additional notification requirements of 31 CFR 285.7(d).) When referring a debt for offset under this paragraph (b), the FLRA will certify, in writing, that the debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection by offset. In addition, the FLRA will certify its compliance with these regulations concerning administrative offset. See 31 CFR 901.3(c)(2)(ii).
(c) Administrative review. The notice described in § 2418.4 shall explain to the debtor how to request an administrative review of the FLRA’s determination that the debtor owes an FLRA debt and how to present evidence that the debt is not delinquent or legally enforceable. In addition to challenging the existence and amount of the debt, the debtor may seek a review of the terms of repayment. In most cases, the FLRA will provide the debtor with a “paper hearing” based upon a review of the written record, including documentation provided by the debtor. The FLRA shall provide the debtor with a reasonable opportunity for an oral hearing when the debtor requests reconsideration of the debt and the FLRA determines that the question of the indebtedness cannot be resolved by review of the documentary evidence, for example, when the validity of the debt turns on an issue of credibility or veracity. Unless otherwise required by law, an oral hearing under this section is not required to be a formal evidentiary hearing, although the FLRA will carefully document all significant matters discussed at the hearing. The FLRA may suspend collection through administrative offset and/or other collection actions pending the resolution of a debtor’s dispute.
(d) Procedures for expedited offset. Under the circumstances described in 31 CFR 901.3(b)(4)(iii), the FLRA may effect an offset against a payment to be made to the debtor prior to sending a notice to the debtor, as described in § 2418.4, or completing the procedures described in paragraph (b)(2) and (c) of this section. The FLRA shall give the debtor notice and an opportunity for review as soon as practicable and promptly refund any money ultimately found not to have been owed to the Government.
§ 2418.11 How will the FLRA use tax-refund offset to collect an FLRA debt?
(a) Tax-refund offset. In most cases, the Financial Management Service uses the Treasury Offset Program to collect FLRA debts by the offset of tax refunds and other Federal payments. See § 2418.9(c). If not already transferred to the Financial Management Service under § 2418.9, the FLRA will refer to the Treasury Offset Program any past-due, legally enforceable debt for collection by tax-refund offset. See 26 U.S.C. 6402(d), 31 U.S.C. 3720A and 31 CFR 285.2.
(b) Notice. At least sixty (60) days before referring a debt to the Treasury Offset Program, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4. The FLRA will certify to the Financial Management Service’s Treasury Offset Program, in writing, that the debt is past due and legally enforceable in the amount submitted and that the FLRA has made reasonable efforts to obtain payment of the debt as described in 31 CFR 285.2(d). In addition, the FLRA will certify its compliance with all applicable due-process and other requirements described in this part and other Federal laws. See 31 U.S.C. 3720A(b) and 31 CFR 285.2.
(c) Administrative review. The notice described in § 2418.4 shall provide the debtor with at least 60 days prior to the initiation of tax-refund offset to request an administrative review as described in § 2418.10(c). The FLRA may suspend collection through tax-refund offset and/or other collection actions pending the resolution of the debtor’s dispute.
§ 2418.12 How will the FLRA offset a Federal employee’s salary to collect an FLRA debt?
(a) Federal salary offset. (1) Salary offset is used to collect debts that FLRA employees and other Federal employees owe to the United States. If a Federal employee owes an FLRA debt, then the FLRA may offset the employee’s Federal salary to collect the debt in the manner described in this section. For information on how a Federal agency other than the FLRA may collect debt from the salary of an FLRA employee, see §§ 2418.19 and 2418.20.
(2) Nothing in this part requires the FLRA to collect an FLRA debt in accordance with this section if Federal law allows otherwise. See, for example, 5 U.S.C. 5705 (travel advances not used for allowable travel expenses are recoverable from the employee or his estate by setoff against accrued pay and other means) and 5 U.S.C. 4108 (recovery of training expenses).
(3) The FLRA may use the administrative-wage-garnishment procedure described in § 2418.13 to collect a debt from an individual’s non-Federal wages.
(b) Centralized salary offset through the Treasury Offset Program. As described in § 2418.9(a), the FLRA will refer FLRA debts to the Financial Management Service for collection by administrative offset, including salary offset, through the Treasury Offset Program. When possible, the FLRA will attempt salary offset through the Treasury Offset Program before applying the procedures in paragraph (c) of this section. See 5 CFR 550.1109.
(c) Non-centralized salary offset for FLRA debts. When centralized salary offset through the Treasury Offset Program is not available or appropriate, the FLRA may collect delinquent FLRA debts through non-centralized salary offset. See 5 CFR 550.1109. In these cases, the FLRA may offset a payment internally or make a request directly to a Federal payment agency to offset a salary payment to collect a delinquent debt that a Federal employee owes. At least thirty (30) days prior to offsetting internally or requesting a Federal agency to offset a salary payment, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4. (For debts outstanding more than ten (10) years on or before June 11, 2009, the FLRA will comply with the additional notification requirements of 31 CFR 285.7(d).) When referring a debt for offset, the FLRA will certify to the payment agency, in writing, that the debt is valid, delinquent, and legally enforceable in the amount stated, and that there are no legal bars to collection by salary offset. In addition, the FLRA will certify that all due-process and other prerequisites to salary offset have been met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and this section for a description of the due-process and other prerequisites for salary offset.
(d) When prior notice not required. The FLRA is not required to provide prior notice to an employee when the FLRA makes the following adjustments to an FLRA employee’s pay:
(1) Any adjustment to pay arising out of any employee’s election 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;
(2) A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment, and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and the point of contact for contesting such adjustment; or
(3) Any adjustment to collect a debt amounting to $ 50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(e) Hearing procedures—(1) Request for a hearing. A Federal employee who has received a notice that his or her FLRA debt will be collected by means of salary offset may request a hearing concerning the existence or amount of the debt. The Federal employee also may request a hearing concerning the amount proposed to be deducted from the employee’s pay each pay period. The employee must send any request for hearing, in writing, to the office designated in the notice described in § 2418.4. See § 2418.4(a)(11). The request must be received by the designated office on or before the 15th calendar day following the employee’s receipt of the notice. The employee must sign the request and specify whether an oral or paper hearing is requested. If an oral hearing is requested, then the employee must explain why the matter cannot be resolved by review of the documentary evidence alone. An oral hearing may, at the debtor’s option, be conducted either in-person or by telephone conference. All travel expenses incurred by the Federal employee in connection with an in-person hearing will be borne by the employee. All telephonic charges incurred during the hearing will be the responsibility of the agency.
(2) Failure to submit timely request for hearing. If the employee fails to submit a request for hearing within the time period described in paragraph (e)(1) of this section, then the employee will have waived the right to a hearing, and salary offset may be initiated. However, the FLRA will accept a late request for hearing if the employee can show that the late request was the result of circumstances beyond the employee’s control or because of a failure to receive actual notice of the filing deadline.
(3) Hearing official. The FLRA must obtain the services of a hearing official who is not under the supervision or control of the Chairman. The FLRA may contact an agent of any agency designated in appendix A to 5 CFR part 581 (List of Agents Designated to Accept Legal Process) to request a hearing official.
(4) Notice of hearing. After the employee requests a hearing, the designated hearing official shall inform the employee of the form of the hearing to be provided. For oral hearings, the notice shall set forth the date, time, and location of the hearing. For paper hearings, the notice shall notify the employee of the date by which he or she should submit written arguments to the designated hearing official. The hearing official shall give the employee reasonable time to submit documentation in support of the employee’s position. The hearing official shall schedule a new hearing date if requested by both parties. The hearing official shall give both parties reasonable notice of the time and place of a rescheduled hearing.
(5) Oral hearing. The hearing official will conduct an oral hearing if he or she determines that the matter cannot be resolved by review of documentary evidence alone (for example, when an issue of credibility or veracity is involved). The hearing need not take the form of an evidentiary hearing, but may be conducted in a manner determined by the hearing official, including but not limited to:
(i) Informal conferences with the hearing official, in which the employee and agency representative will be given full opportunity to present evidence, witnesses, and argument;
(ii) Informal meetings with an interview of the employee by the hearing official; or
(iii) Formal written submissions, with an opportunity for oral presentation.
(6) Paper hearing. If the hearing official determines that an oral hearing is not necessary, then he or she will make the determination based upon a review of the available written record, including any documentation submitted by the employee in support of his or her position.
(7) Failure to appear or submit documentary evidence. In the absence of good cause shown (for example, excused illness), if the employee fails to appear at an oral hearing or fails to submit documentary evidence as required for a paper hearing, then the employee will have waived the right to a hearing, and salary offset shall be initiated. If the FLRA representative fails to appear at an oral hearing, then the hearing official shall proceed with the hearing as scheduled, and make his or her determination based upon the oral testimony presented and the documentary evidence submitted by both parties.
(8) Burden of proof. The FLRA will have the initial burden to prove the existence and amount of the debt. Thereafter, if the employee disputes the existence or amount of the debt, then the employee must prove by a preponderance of the evidence that no debt exists or that the amount of the debt is incorrect. In addition, the employee may present evidence that the proposed terms of the repayment schedule are unlawful, would cause a financial hardship to the employee, or that collection of the debt may not be pursued due to operation of law.
(9) Record. The hearing official shall maintain a summary record of any hearing provided by this part. Witnesses will testify under oath or affirmation in oral hearings.
(10) Date of decision. The hearing official shall issue a written opinion stating his or her decision, based upon documentary evidence and information developed at the hearing, as soon as practicable after the hearing, but not later than 60 days after the date on which the FLRA received the request for hearing. If the employee requests a delay in the proceedings, then the deadline for the decision may be postponed by the number of days by which the hearing was postponed. When a decision is not timely rendered, the FLRA shall waive penalties applied to the debt for the period beginning with the date the decision is due and ending on the date the decision is issued.
(11) Content of decision. The written decision shall include:
(i) A statement of the facts presented to support the origin, nature, and amount of the debt;
(ii) The hearing official’s findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, if applicable.
(12) Final agency action. The hearing official’s decision shall be final.
(f) Waiver not precluded. Nothing in this part precludes an employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority.
(g) Salary-offset process—(1) Determination of disposable pay. The FLRA’s Office of the Executive Director will determine the amount of an FLRA employee’s disposable pay (as defined in § 2418.1) and will implement salary offset when requested to do so by the FLRA, as described in paragraph (c) of this section, or another agency, as described in § 2418.19. If the debtor is not employed by the FLRA, then the agency employing the debtor will determine the amount of the employee’s disposable pay and will implement salary offset upon request.
(2) When salary offset begins. Deductions shall normally begin within three official pay periods following receipt of the creditor agency’s request for offset.
(3) Amount of salary offset. The amount to be offset from each salary payment will be up to 15 percent of a debtor’s disposable pay, as follows:
(i) If the amount of the debt is equal to or less than 15 percent of the disposable pay, then such debt generally will be collected in one lump-sum payment;
(ii) Installment deductions will be made over a period of no greater than the anticipated period of employment. An installment deduction will not exceed 15 percent of the disposable pay from which the deduction is made unless the employee has agreed in writing to the deduction of a greater amount, or a higher deduction has been ordered by a court under section 124 of Public Law 97-276 (96 Stat. 1195), or the creditor agency has determined that smaller deductions are appropriate based on the employee’s ability to pay.
(4) Final salary payment. After the employee has separated either voluntarily or involuntarily from the payment agency, the payment agency may make a lump-sum deduction exceeding 15 percent of disposable pay from any final salary or other payments pursuant to 31 U.S.C. 3716 in order to satisfy a debt.
(h) Payment agency’s responsibilities. (1) As required by 5 CFR 550.1109, if the employee separates from the payment agency from which the FLRA has requested salary offset, then the payment agency must certify the total amount of its collection and notify the FLRA and the employee of the amounts collected. If the payment agency is aware that the employee is entitled to payments from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar payments, then it must provide written notification to the payment agency responsible for making such payments that the debtor owes a debt, the amount of the debt, and that the FLRA has complied with the provisions of this section. The FLRA must submit a properly certified claim to the new payment agency before the collection can be made.
(2) If the employee is already separated from employment and all payments due from his or her former payment agency have been made, then the FLRA may request that money due and payable to the employee from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar funds, be administratively offset to collect the debt. Generally, the FLRA will collect such monies through the Treasury Offset Program as described in § 2418.9(c).
(3) When an employee transfers to another agency, the FLRA should resume collection with the employee’s new payment agency in order to continue salary offset.
§ 2418.13 How will the FLRA use administrative wage garnishment to collect an FLRA debt from a debtor’s wages?
(a) The FLRA is authorized to collect debts from a debtor’s wages by means of administrative wage garnishment in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. This part adopts and incorporates all of the provisions of 31 CFR 285.11 concerning administrative wage garnishment, including the hearing procedures described in 31 CFR 285.11(f). The FLRA may use administrative wage garnishment to collect a delinquent FLRA debt unless the debtor is making timely payments under an agreement to pay the debt in installments (see § 2418.6). At least thirty (30) days before initiating an administrative wage garnishment, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4 of this part, including the requirements of § 2418.4(a)(10). (For debts outstanding more than ten (10) years on or before June 11, 2009, the FLRA will comply with the additional notification requirements of 31 CFR 285.7(d).) For FLRA debts referred to the Financial Management Service under § 2418.9, the FLRA may authorize the Financial Management Service to send a notice informing the debtor that administrative wage garnishment will be initiated and how the debtor may request a hearing as described in § 2418.4(a)(10). If a debtor makes a timely request for a hearing, administrative wage garnishment will not begin until a hearing is held and a decision is sent to the debtor. See 31 CFR 285.11(f)(4). If a debtor’s hearing request is not timely, then the FLRA may suspend collection by administrative wage garnishment in accordance with the provisions of 31 CFR 285.11(f)(5). All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. If a hearing is conducted telephonically, all telephonic charges incurred during the hearing will be the responsibility of the agency.
(b) This section does not apply to Federal salary offset, the process by which the FLRA collects debts from the salaries of Federal employees (see § 2418.12).
§ 2418.14 How will the FLRA report FLRA debts to credit bureaus?
The FLRA shall report delinquent FLRA debts to credit bureaus in accordance with 31 U.S.C. 3711(e), 31 CFR 901.4, and the Office of Management and Budget Circular A-129, “Policies for Federal Credit Programs and Nontax Receivables.” For additional information, see Financial Management Service’s “Guide to the Federal Credit Bureau Program,” which may be found at http://www.fms.treas.gov/debt. At least sixty (60) days prior to reporting a delinquent debt to a consumer-reporting agency, the FLRA will send notice to the debtor in accordance with the requirements of § 2418.4. Before disclosing information to a consumer-reporting agency, the FLRA shall provide, on request of a person alleged to be responsible for the delinquent debt, for a review of the obligation of the debtor, including an opportunity for reconsideration of the initial decision on the debt. The FLRA may authorize the Financial Management Service to report to credit bureaus those delinquent FLRA debts that have been transferred to the Financial Management Service under § 2418.9.
§ 2418.15 How will the FLRA refer FLRA debts to private collection agencies?
The FLRA will transfer delinquent FLRA debts to the Financial Management Service to obtain debt-collection services provided by private collection agencies. See § 2418.9.
§ 2418.16 When will the FLRA refer FLRA debts to the Department of Justice?
(a) Compromise or suspension or termination of collection activity. The FLRA shall refer FLRA debts having a principal balance over $ 100,000, or such higher amount as authorized by the Attorney General, to the Department of Justice for approval of any compromise of a debt or suspension or termination of collection activity. See §§ 2418.7 and 2418.8; 31 CFR 902.1; 31 CFR 903.1.
(b) Litigation. The FLRA shall promptly refer to the Department of Justice for litigation delinquent FLRA debts on which aggressive collection activity has been taken in accordance with this part and that should not be compromised, and on which collection activity should not be suspended or terminated. See 31 CFR part 904. The FLRA may authorize the Financial Management Service to refer to the Department of Justice for litigation those delinquent FLRA debts that have been transferred to the Financial Management Service under § 2418.9.
§ 2418.17 How does a debtor request a special review based on a change in circumstances such as catastrophic illness, divorce, death, or disability?
(a) Material change in circumstances. A debtor who owes an FLRA debt may, at any time, request a special review by the FLRA of the amount of any offset, administrative wage garnishment, or voluntary payment, based on materially changed circumstances beyond the control of the debtor such as, but not limited to, catastrophic illness, divorce, death, or disability.
(b) Inability to pay. For purposes of this section, in determining whether an involuntary or voluntary payment would prevent the debtor from meeting essential subsistence expenses (costs incurred for food, housing, clothing, transportation, and medical care), the debtor shall submit a detailed statement and supporting documents for the debtor, his or her spouse, and dependents, indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing, and transportation;
(6) Child-care or elder-care expenses;
(7) Medical expenses; and
(8) Exceptional expenses, if any.
(c) Alternative payment arrangement. If the debtor requests a special review under this section, the debtor shall submit an alternative proposed payment schedule and a statement to the FLRA, with supporting documents, showing why the current offset, garnishment, or repayment schedule imposes an extreme financial hardship on the debtor. The FLRA will evaluate the statement and documentation and determine whether the current offset, garnishment, or repayment schedule imposes extreme financial hardship on the debtor. The FLRA shall notify the debtor in writing of such determination, including, if appropriate, a revised offset, garnishment, or payment schedule. If the special review results in a revised offset, garnishment, or repayment schedule, then the FLRA will notify the appropriate agency or other persons about the new terms.
§ 2418.18 Will the FLRA issue a refund if money is erroneously collected on a debt?
The FLRA shall promptly refund to a debtor any amount collected on an FLRA debt when the debt is waived or otherwise found not to be owed to the United States, or as otherwise required by law. Refunds under this part shall not bear interest unless required by law.
Subpart C—Procedures for Offset of FLRA Payments to Collect Debts Owed to Other Federal Agencies
§ 2418.19 How do other Federal agencies use the offset process to collect debts from payments issued by the FLRA?
(a) Offset of FLRA payments to collect debts owed to other Federal agencies. (1) In most cases, Federal agencies submit eligible debts to the Treasury Offset Program to collect delinquent debts from payments issued by the FLRA and other Federal agencies, a process known as “centralized offset.” When centralized offset is not available or appropriate, any Federal agency may ask the FLRA (when acting as a “payment agency”) to collect a debt owed to such agency by offsetting funds payable to a debtor by the FLRA, including salary payments issued to FLRA employees. This section and § 2418.20 apply when a Federal agency asks the FLRA to offset a payment issued by the FLRA to a person who owes a debt to the United States.
(2) This subpart does not apply to FLRA debts. See §§ 2418.10 through 2418.12 for offset procedures applicable to FLRA debts.
(3) This subpart does not apply to the collection of non-FLRA debts through tax refund offset. See 31 CFR 285.2 for tax-refund-offset procedures.
(b) Administrative offset (including salary offset); certification. The FLRA will initiate a requested offset only upon receipt of written certification from the creditor agency that the debtor owes the past-due, legally enforceable debt in the amount stated, and that the creditor agency has fully complied with all applicable due-process and other requirements contained in 31 U.S.C. 3716, 5 U.S.C. 5514, and the creditor agency’s regulations, as applicable. Offsets will continue until the debt is paid in full or otherwise resolved to the satisfaction of the creditor agency.
(c) Where a creditor agency makes requests for offset. Requests for offset under this section shall be sent to the Federal Labor Relations Authority, ATTN: Office of the Executive Director, 1400 K Street NW., Washington, DC 20424.
(d) Incomplete certification. The FLRA will return an incomplete debt certification to the creditor agency with notice that the creditor agency must comply with paragraph (b) of this section before action will be taken to collect a debt from a payment issued by the FLRA.
(e) Review. The FLRA is not authorized to review the merits of the creditor agency’s determination with respect to the amount or validity of the debt certified by the creditor agency.
(f) When the FLRA will not comply with offset request. The FLRA will comply with the offset request of another agency unless the FLRA determines that the offset would not be in the best interests of the United States, or would otherwise be contrary to law.
(g) Multiple debts. When two or more creditor agencies are seeking offsets from payments made to the same person, or when two or more debts are owed to a single creditor agency, the FLRA may determine the order in which the debts will be collected or whether one or more debts should be collected by offset simultaneously.
(h) Priority of debts owed to FLRA. For purposes of this section, debts owed to the FLRA generally take precedence over debts owed to other agencies. The FLRA may determine whether to pay debts owed to other agencies before paying a debt owed to the FLRA. The FLRA will determine the order in which the debts will be collected based on the best interests of the United States.
§ 2418.20 What does the FLRA do upon receipt of a request to offset the salary of an FLRA employee to collect a debt owed by the employee to another Federal agency?
(a) Notice to the FLRA employee. When the FLRA receives proper certification of a debt owed by one of its employees, the FLRA will begin deductions from the employee’s pay at the next officially established pay period. The FLRA will send a written notice to the employee indicating that a certified debt claim has been received from the creditor agency, the amount of the debt that the creditor agency claims is owed, the date deductions from salary will begin, and the amount of such deductions.
(b) Amount of deductions from FLRA employee’s salary. The amount deducted under § 2418.19(b) will be the lesser of the amount of the debt certified by the creditor agency or an amount up to 15% of the debtor’s disposable pay. Deductions shall continue until the FLRA knows that the debt is paid in full or until otherwise instructed by the creditor agency. Alternatively, the amount offset may be an amount that the debtor and the creditor agency agree upon in writing. See § 2418.12(g) (salary-offset process).
(c) When the debtor is no longer employed by the FLRA—(1) Offset of final and subsequent payments. If an FLRA employee retires or resigns or if his or her employment otherwise ends before collection of the debt is complete, then the FLRA will continue to offset, under 31 U.S.C. 3716, up to 100% of an employee’s subsequent payments until the debt is paid or otherwise resolved. Such payments include a debtor’s final salary payment, lump-sum leave payment, and other payments payable to the debtor by the FLRA. See 31 U.S.C. 3716 and 5 CFR 550.1104(l) and 550.1104(m).
(2) Notice to the creditor agency. If the employee is separated from the FLRA before the debt is paid in full, then the FLRA will certify to the creditor agency the total amount of its collection. If the FLRA is aware that the employee is entitled to payments from the Civil Service Retirement and Disability Fund, Federal Employee Retirement System, or other similar payments, then the FLRA will provide written notice to the agency making such payments that the debtor owes a debt (including the amount) and that the provisions of 5 CFR 550.1109 have been fully complied with. The creditor agency is responsible for submitting a certified claim to the agency responsible for making such payments before collection may begin. Generally, creditor agencies will collect such monies through the Treasury Offset Program as described in § 2418.9(c).
(3) Notice to the debtor. The FLRA will provide to the debtor a copy of any notices sent to the creditor agency under paragraph (c)(2) of this section.
(d) When the debtor transfers to another Federal agency—(1) Notice to the creditor agency. If the debtor transfers to another Federal agency before the debt is paid in full, then the FLRA will notify the creditor agency and will certify the total amount of its collection on the debt. The FLRA will provide a copy of the certification to the creditor agency. The creditor agency is responsible for submitting a certified claim to the debtor’s new employing agency before collection may begin.
(2) Notice to the debtor. The FLRA will provide to the debtor a copy of any notices and certifications sent to the creditor agency under paragraph (d)(1) of this section.
(e) Request for hearing official. The FLRA will provide a hearing official upon the creditor agency’s request with respect to an FLRA employee. See 5 CFR 550.1107(a).
Appendix A to Part 2418—Waiving Claims Against FLRA Employees for Erroneous Payments
This appendix establishes the FLRA’s policies and procedures for waiving claims by the Government against an employee for erroneous payments of: (1) Pay and allowances (e.g., health and life insurance) and (2) travel, transportation, and relocation expenses and allowances.
a. 5 U.S.C. 5584 authorizes the waiver of claims by the United States in whole or in part against an employee arising out of erroneous payments of pay and allowances, travel, transportation, and relocation expenses and allowances. A waiver may be considered when collection of the claim would be against equity and good conscience and not in the best interest of the United States, provided that there does not exist, in connection with the claim, an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim.
b. The General Accounting Office Act of 1996 (Pub. L. 104-316), Title I, section 103(d), enacted October 19, 1996, amended 5 U.S.C. 5584 by transferring the authority to waive claims for erroneous payments exceeding $1,500 from the Comptroller General of the United States to the Office of Management and Budget (OMB). OMB subsequently redelegated this waiver authority to the executive agency that made the erroneous payment. The authority to waive claims not exceeding $1,500, which was vested in the head of each agency prior to the enactment of Public Law 104-316, was unaffected by the Act.
c. 5 U.S.C. 5514 authorizes the head of each agency, upon a determination that an employee is indebted to the United States for debts to which the United States is entitled to be repaid at the time of the determination, to deduct up to 15%, or a greater amount if agreed to by the employee or a higher deduction has been ordered by a court under section 124 of Public Law 97-276 (96 Stat. 1195), from the employee’s pay at officially established pay intervals in order to repay the debt.
The Executive Director is delegated the authority to waive, in whole or in part, a claim of the United States against an employee for an erroneous payment of pay and allowances, travel, transportation, and relocation expenses and allowances, in accordance with the limitations and standards in 5 U.S.C. 5584.
The Office of the Executive Director shall:
(1) Promptly notify an employee upon discovery of an erroneous payment to that employee;
(2) Promptly act to collect the erroneous overpayment, following established debt-collection policies and procedures;
(3) Establish time frames for employees to request a waiver in writing and for the Executive Director to review the waiver request. These time frames must take into consideration the responsibilities of the United States to take prompt action to pursue enforced collection on overdue debts, which may arise from erroneous payments.
(4) Notify employees whose requests for waiver of claims are denied in whole or in part of the basis for the denial.
(5) Pay a refund when appropriate if a waiver is granted;
(6) Fulfill all labor-relations responsibilities when implementing the provisions of this appendix; and
(7) Fulfill any other responsibility of the agency imposed by 5 U.S.C. 5584 or other applicable laws and regulations.
Additionally, the Office of the Executive Director may initiate a waiver application during the processing of a claim under 5 CFR part 2418.
a. The FLRA shall maintain a register of waiver actions. The register shall cover each fiscal year and be prepared by December 31 of each year for the preceding fiscal year. The register shall contain the following information:
(1) The total amount waived by the FLRA;
(2) The number and dollar amount of waiver applications granted in full;
(3) The number and dollar amount of waiver applications granted in part and denied in part, and the dollar amount of each;
(4) The number and dollar amount of waiver applications denied in their entirety; and
(5) The number of waiver applications referred to the Executive Director for initial action.
b. The FLRA shall retain a written record of each waiver action for 6 years and 3 months. At a minimum, the written record shall contain:
(1) The FLRA’s summary of the events surrounding the erroneous payment;
(2) Any written comments submitted by the employee from whom collection is sought;
(3) An account of the waiver action taken and the reasons for such action; and
(4) Other pertinent information such as any action taken to refund amounts repaid.
A request for a waiver of a claim shall not affect an employee’s opportunity under 5 U.S.C. 5514(a)(2)(D) for a hearing on the determination of the agency concerning the existence or the amount of the debt, or the terms of the repayment schedule. A request by an employee for a hearing under 5 U.S.C. 5514(a)(2)(D) shall not affect an employee’s right to request a waiver of the claim. The determination whether to waive a claim may be made at the discretion of the deciding official either before or after a final decision is rendered pursuant to 5 U.S.C. 5514(a)(2)(D) concerning the existence or the amount of the debt, or the terms of the repayment schedule.
a. A request for a waiver shall not be granted if the deciding official determines there exists, in connection with the claim, an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim. There are no exceptions to this rule for financial hardship or otherwise.
(1) “Fault” exists if, in light of all the circumstances, it is determined that the employee knew or should have known that an error existed, but failed to take action to have it corrected. Fault can derive from an act or a failure to act. Unlike fraud, fault does not require a deliberate intent to deceive. Whether an employee should have known about an error in pay is determined from the perspective of a reasonable person. Pertinent considerations in finding fault include whether:
(a) The payment resulted from the employee’s incorrect, but not fraudulent, statement that the employee should have known was incorrect;
(b) The payment resulted from the employee’s failure to disclose material facts that were in the employee’s possession and that the employee should have known to be material; or
(c) The employee accepted a payment, that the employee knew or should have known to be erroneous.
(2) Every case must be examined in light of its particular facts. For example, where an employee is promoted to a higher grade but the step level for the employee’s new grade is miscalculated, it may be appropriate to conclude that there is no fault on the employee’s part because employees are not typically expected to be aware of and understand the rules regarding determination of step level upon promotion. On the other hand, a different conclusion as to fault potentially may be reached if the employee in question is a personnel specialist or an attorney who concentrates on personnel law.
b. If the deciding official finds an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim, then the request for a waiver must be denied.
c. If the deciding official finds no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim, then the employee is not automatically entitled to a waiver. Before a waiver can be granted, the deciding official must also determine that collection of the claim against an employee would be against equity and good conscience and not in the best interests of the United States. Factors to consider when determining whether collection of a claim against an employee would be against equity and good conscience and not in the best interests of the United States include, but are not limited to:
(1) Whether collection of the claim would cause serious financial hardship to the employee from whom collection is sought.
(2) Whether, because of the erroneous payment, the employee either has relinquished a valuable right or changed positions for the worse, regardless of the employee’s financial circumstances.
(a) To establish that a valuable right has been relinquished, it must be shown that the right was, in fact, valuable; that it cannot be regained; and that the action was based chiefly or solely on reliance on the overpayment.
(b) To establish that the employee’s position has changed for the worse, it must be shown that the decision would not have been made but for the overpayment, and that the decision resulted in a loss.
(c) An example of a “detrimental reliance” would be a decision to sign a lease for a more expensive apartment based chiefly or solely upon reliance on an erroneous calculation of salary, and the funds spent for rent cannot be recovered.
(3) The cost of collecting the claim equals or exceeds the amount of the claim;
(4) The time elapsed between the erroneous payment and discovery of the error and notification of the employee;
(5) Whether failure to make restitution would result in unfair gain to the employee;
(6) Whether recovery of the claim would be unconscionable under the circumstances.
d. The burden is on the employee to demonstrate that collection of the claim would be against equity and good conscience and not in the best interest of the United States.
a. 5 U.S.C. 5584, “Claims for Overpayment of Pay and Allowances, and of Travel, Transportation and Relocation Expenses and Allowances.”
b. 31 U.S.C. 3711, “Collection and Compromise.”
c. 31 U.S.C. 3716, “Administrative Offset.”
d. 31 U.S.C. 3717, “Interest and Penalty on Claims.”
e. 5 CFR part 550, subpart K, “Collection by Offset from Indebted Government Employees.”
f. 31 CFR part 5, subpart B, “Salary Offset.”
g. Determination with Respect to Transfer of Functions Pursuant to Public Law 104-316, OMB, December 17, 1996.
FLRA Internal Regulation 2790, dated December 29, 1986, is superseded.
SUBCHAPTER C—FEDERAL LABOR RELATIONS AUTHORITY AND GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
PART 2420—PURPOSE AND SCOPE
§ 2420.1 Purpose and scope.
The regulations contained in this subchapter are designed to implement the provisions of chapter 71 of title 5 and, where applicable, section 431 of title 3 of the United States Code. They prescribe the procedures, basic principles or criteria under which the Federal Labor Relations Authority or the General Counsel of the Federal Labor Relations Authority, as applicable, will:
(a) Determine the appropriateness of units for labor organization representation under 5 U.S.C. 7112;
(b) Supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit and otherwise administer the provisions of 5 U.S.C. 7111 relating to the according of exclusive recognition to labor organizations;
(c) Resolve issues relating to the granting of national consultation rights under 5 U.S.C. 7113;
(d) Resolve issues relating to determining compelling need for agency rules and regulations under 5 U.S.C. 7117(b);
(e) Resolve issues relating to the duty to bargain in good faith under 5 U.S.C. 7117(c);
(f) Resolve issues relating to the granting of consultation rights with respect to conditions of employment under 5 U.S.C. 7117(d);
(g) Conduct hearings and resolve complaints of unfair labor practices under 5 U.S.C. 7118;
(h) Resolve exceptions to arbitrators’ awards under 5 U.S.C. 7122; and
(i) Take such other actions as are necessary and appropriate effectively to administer the provisions of chapter 71 of title 5 of the United States Code.
PART 2421—MEANING OF TERMS AS USED IN THIS SUBCHAPTER
§ 2421.1 Federal Service Labor-Management Relations Statute.
The term Federal Service Labor-Management Relations Statute means chapter 71 of title 5 of the United States Code.
§ 2421.2 Terms defined in 5 U.S.C. 7103(a); General Counsel; Assistant Secretary.
(a) The terms person, employee, agency, labor organization, dues, Authority, Panel, collective bargaining agreement, grievance, supervisor, management official, collective bargaining, confidential employee, conditions of employment, professional employee, exclusive representative, firefighter, and United States, as used in this subchapter shall have the meanings set forth in 5 U.S.C. 7103(a). The terms covered employee, employee, employing office, and agency, when used in connection with the Presidential and Executive Office Accountability Act, 3 U.S.C. 401 et seq., shall have the meaning set out in 3 U.S.C. 401(b), and 431(b) and (d)(2). Employees who are employed in the eight offices listed in 3 U.S.C. 431(d)(2) shall be excluded from coverage if the Authority determines that such exclusion is required because of a conflict of interest, an appearance of a conflict of interest, or the President’s or Vice President’s constitutional responsibilities, in addition to the exemptions currently set forth in 5 U.S.C. 7103(a).
(b) The term General Counsel means the General Counsel of the Authority.
(c) The term Assistant Secretary means the Assistant Secretary of Labor for Labor-Management Relations.
§ 2421.3 National consultation rights; consultation rights on Government-wide rules or regulations; exclusive recognition; unfair labor practices.
(a) National consultation rights has the meaning as set forth in 5 U.S.C. 7113;
(b) Consultation rights on Government-wide rules or regulations has the meaning as set forth in 5 U.S.C. 7117(d);
(c) Exclusive recognition has the meaning as set forth in 5 U.S.C. 7111; and
(d) Unfair labor practices has the meaning as set forth in 5 U.S.C. 7116.
§ 2421.4 Activity.
Activity means any facility, organizational entity, or geographical subdivision or combination thereof, of any agency.
§ 2421.5 Primary national subdivision.
Primary national subdivision of an agency means a first-level organizational segment which has functions national in scope that are implemented in field activities.
§ 2421.6 Regional Director.
Regional Director means the Director of a region of the Authority with geographical boundaries as fixed by the Authority.
§ 2421.7 Executive Director.
Executive Director means the Executive Director of the Authority.
§ 2421.8 Hearing Officer.
Hearing Officer means the individual designated to conduct a hearing involving a question concerning the appropriateness of a unit or such other matters as may be assigned.
§ 2421.9 Administrative Law Judge.
Administrative Law Judge means the Chief Administrative Law Judge or any Administrative Law Judge designated by the Chief Administrative Law Judge to conduct a hearing in cases under 5 U.S.C. 7116, and such other matters as may be assigned.
§ 2421.10 Chief Administrative Law Judge.
Chief Administrative Law Judge means the Chief Administrative Law Judge of the Authority.
§ 2421.11 Party.
Party means:
(a) Any labor organization, employing agency or activity or individual filing a charge, petition, or request;
(b) Any labor organization or agency or activity
(1) Named as
(i) A charged party in a charge,
(ii) A respondent in a complaint, or
(iii) An employing agency or activity or an incumbent labor organization in a petition;
(2) Whose intervention in a proceeding has been permitted or directed by the Authority; or
(3) Who participated as a party
(i) In a matter that was decided by an agency head under 5 U.S.C. 7117, or
(ii) In a matter where the award of an arbitrator was issued; and
(c) The General Counsel, or the General Counsel’s designated representative, in appropriate proceedings.
§ 2421.12 Intervenor.
Intervenor means a party in a proceeding whose intervention has been permitted or directed by the Authority, its agents or representatives.
§ 2421.13 Certification.
Certification means the determination by the Authority, its agents or representatives, of the results of an election, or the results of a petition to consolidate existing exclusively recognized units.
§ 2421.14 Appropriate unit.
Appropriate unit means that grouping of employees found to be appropriate for purposes of exclusive recognition under 5 U.S.C. 7111, and for purposes of allotments to representatives under 5 U.S.C. 7115(c), and consistent with the provisions of 5 U.S.C. 7112. In determining an appropriate unit in a proceeding under part 2422 of this Chapter, for the eight offices listed in 3 U.S.C. 431(d)(2), employees shall be excluded from the unit if it is determined that such exclusion is required because of a conflict of interest or appearance of a conflict of interest or because of the President’s or Vice President’s constitutional responsibilities, in addition to the standards set out in 5 U.S.C. 7112.
§ 2421.15 Secret ballot.
Secret ballot means the expression by ballot, voting machine or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed, except in that instance in which any determinative challenged ballot is opened.
§ 2421.16 Showing of interest.
Showing of interest means evidence of membership in a labor organization; employees’ signed and dated authorization cards or petitions authorizing a labor organization to represent them for purposes of exclusive recognition; allotment of dues forms executed by an employee and the labor organization’s authorized official; current dues records; an existing or recently expired agreement; current exclusive recognition or certification; employees’ signed and dated petitions or cards indicating that they no longer desire to be represented for the purposes of exclusive recognition by the currently recognized or certified labor organization; employees’ signed and dated petitions or cards indicating a desire that an election be held on a proposed consolidation of units; or other evidence approved by the Authority.
§ 2421.17 Regular and substantially equivalent employment.
Regular and substantially equivalent employment means employment that entails substantially the same amount of work, rate of pay, hours, working conditions, location of work, kind of work, and seniority rights, if any, of an employee prior to the cessation of employment in an agency because of any unfair labor practice under 5 U.S.C. 7116.
§ 2421.18 Petitioner.
Petitioner means the party filing a petition under part 2422 of this subchapter.
§ 2421.19 Eligibility period.
Eligibility period means the payroll period during which an employee must be in an employment status with an agency or activity in order to be eligible to vote in a representation election under part 2422 of this subchapter.
§ 2421.20 Election agreement.
Election agreement means an agreement under part 2422 of this subchapter signed by all the parties, and approved by the Regional Director, concerning the details and procedures of a representation election in an appropriate unit.
§ 2421.21 Affected by issues raised.
The phrase affected by issues raised, as used in part 2422, should be construed broadly to include parties and other labor organizations, or agencies or activities that have a connection to employees affected by, or questions presented in, a proceeding.
§ 2421.22 Determinative challenged ballots.
Determinative challenged ballots are challenges that are unresolved prior to the tally and sufficient in number after the tally to affect the results of the election.
PART 2422—REPRESENTATION PROCEEDINGS
§ 2422.1 What is your purpose for filing a petition?
You, the petitioner, may file a petition for the following purposes:
(a) Elections or eligibility for dues allotment. To request:
(1)(i) An election to determine whether employees in an appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, and/or
(ii) A determination of eligibility for dues allotment in an appropriate unit without an exclusive representative; or
(2) An election to determine whether employees in a unit no longer wish to be represented for the purpose of collective bargaining by an exclusive representative.
(3) Petitions under this subsection must be accompanied by an appropriate showing of interest.
(b) Clarification or amendment. To clarify, and/or amend:
(1) A recognition or certification then in effect; and/or
(2) Any other matter relating to representation.
(c) Consolidation. To consolidate two or more units, with or without an election, in an agency where a labor organization is the exclusive representative.
§ 2422.2 Who may file a petition?
An individual; a labor organization; two or more labor organizations acting as a joint-petitioner; an individual acting on behalf of any employee(s); an agency or activity; or a combination of the above may file a representation petition. But,
(a) Only a labor organization may file a petition under § 2422.1(a)(1);
(b) Only an individual may file a petition under § 2422.1(a)(2); and
(c) Only an agency or a labor organization may file a petition under § 2422.1(b) or (c).
§ 2422.3 What information should you include in your petition?
(a) You must file a petition either in writing with your signature or electronically using the eFiling system on the FLRA’s Web site at www.flra.gov. Your petition must provide the following information on a form designated by the Authority, or on a substantially similar form, or electronically using the eFiling system on the FLRA’s Web site at www.flra.gov:
(1) The name and mailing address for each agency or activity affected by issues raised in the petition, including street number, city, state and zip code.
(2) The name, mailing address and work telephone number, fax number and email address (if known) of the contact person for each agency or activity affected by issues raised in the petition.
(3) The name and mailing address for each labor organization affected by issues raised in the petition, including street number, city, state and zip code. If a labor organization is affiliated with a national organization, the local designation and the national affiliation should both be included. If a labor organization is an exclusive representative of any of the employees affected by issues raised in the petition, the date of the recognition or certification and the date any collective bargaining agreement covering the unit will expire or when the most recent agreement did expire should be included, if known.
(4) The name, mailing address and work telephone number, fax number and email address (if known) of the contact person for each labor organization affected by issues raised in the petition.
(5) Your name and mailing address, including street number, city, state and zip code, and fax number and email address. If you are a labor organization affiliated with a national organization, the local designation and the national affiliation should both be included.
(6) A description of the unit(s) affected by issues raised in the petition. The description should generally indicate the geographic locations and the classifications of the employees included (or sought to be included) in, and excluded (or sought to be excluded) from, the unit.
(7) The approximate number of employees in the unit(s) affected by issues raised in the petition.
(8) A clear and concise statement of the issues raised by the petition and the results the petitioner seeks.
(9) A declaration by the person signing the petition, under the penalties of the Criminal Code (18 U.S.C. 1001), that the contents of the petition are true and correct to the best of the person’s knowledge and belief.
(10) The title, mailing address and telephone number of the person filing the petition.
(b) Certification of compliance with 5 U.S.C. 7111(e). A labor organization/petitioner complies with 5 U.S.C. 7111(e) by submitting to the agency or activity and to the Department of Labor a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives. By signing the petition form, the labor organization/petitioner certifies that it has submitted these documents to the activity or agency and to the Department of Labor.
(c) Showing of interest supporting a representation petition (defined at 5 U.S.C. 2421.16). When filing a petition requiring a showing of interest, you must:
(1) So indicate on the petition form;
(2) Submit with the petition a showing of interest of not less than thirty percent (30%) of the employees in the unit involved in the petition; and
(3) Include an alphabetical list of the names constituting the showing of interest.
(d) Petition seeking dues allotment. When there is no exclusive representative, a petition seeking certification for dues allotment must be accompanied by a showing of membership in the petitioner of not less than ten percent (10%) of the employees in the unit claimed to be appropriate. An alphabetical list of names constituting the showing of membership must be submitted.
§ 2422.4 What service requirements must you meet when filing a petition?
You must serve every petition, motion, brief, request, challenge, written objection, or application for review on all parties affected by issues raised in the filing. The service must include all supporting documentation, with the exceptions of a showing of interest, evidence supporting challenges to the validity of a showing of interest, and evidence supporting objections to an election. You must submit a statement of service to the Regional Director.
§ 2422.5 Where do you file petitions?
(a) Where to file. You must file a petition with the Regional Director for the region in which the unit or employee(s) affected by issues raised in the petition are located. If the unit(s) or employees are located in two or more regions of the Authority, you must file the petitions with the Regional Director for the region where the headquarters of the agency or activity is located.
(b) Method of filing. You may file a petition with the Regional Director in person or by commercial delivery, first class mail, facsimile, certified mail, or electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov. If you file electronically or by facsimile transmission you are not required to file an original copy of the petition with the Region. You assume responsibility for the Regional Director’s receipt of a petition.
(c) Date of filing. When a Regional Director receives a petition, it is deemed filed. A petition filed during business hours by facsimile or electronic means is deemed received on the business day on which it is received (either by the Regional Office fax machine or by the eFiling system), until midnight local time in the Region where it is filed. But when a Region receives a petition by any other method after the close of business day, it will be deemed received and docketed on the next business day. The business hours for each of the Regional Offices are set forth at http://www.flra.gov.
§ 2422.6 How are parties notified of the filing of a petition?
(a) Notification to parties. After you file a petition the Regional Director will notify any labor organization, agency, or activity identified as being affected by issues raised by the petition, that a petition has been filed. The Regional Director will also make reasonable efforts to identify and notify any other party affected by the issues raised by the petition.
(b) Contents of the notification. The notification will inform the labor organization, agency, or activity of:
(1) Your name (the petitioner);
(2) The description of the unit(s) or employees affected by issues raised in the petition; and,
(3) A statement that all affected parties should advise the Regional Director in writing of their interest in the issues raised in the petition.
§ 2422.7 Will an activity or agency post a notice of filing of a petition?
(a) Posting notice of petition. After you file a petition, when appropriate, the Regional Director will direct the agency or activity to post copies of a notice to all employees in places where notices are normally posted for the employees affected by issues raised in the petition and/or distribute copies of a notice in a manner by which notices are normally distributed.
(b) Contents of notice. The notice must advise affected employees about the petition.
(c) Duration of notice. The notice must be conspicuously posted for a period of ten (10) days and must not be altered, defaced, or covered by other material.
§ 2422.8 What is required to file an intervention or cross-petition?
(a) Cross-petitions. A cross-petition is a petition that involves any employees in a unit covered by a pending representation petition. If you file a cross-petition, it must be filed under the requirements of this subpart.
(b) Intervention requests and cross-petitions. (1) You may file a request to intervene, along with any necessary showing of interest, with either the Regional Director or the Hearing Officer. This must be filed either in person, or by commercial delivery, first-class mail, certified mail or facsimile. You must file a request to intervene before the hearing opens, unless you show good cause for granting an extension. If no hearing is held, you must file a request to intervene before action is taken under § 2422.30.
(2) You may file a cross-petition, along with any necessary showing of interest, with either the Regional Director or the Hearing Officer. This must be filed electronically through the use of the eFiling system on the FLRA’s Web site at www.flra.gov or, in person, by commercial delivery, first-class mail, certified mail or facsimile. Any cross-petition must be filed before the hearing opens, unless you show good cause for granting an extension. If no hearing is held, you must file a cross-petition before action is taken under § 2422.30.
(c) Labor organization intervention requests. Except for incumbent intervenors, a labor organization seeking to intervene must submit a statement that it has complied with 5 U.S.C. 7111(e) and one of the following:
(1) A showing of interest of ten percent (10%) or more of the employees in the unit covered by a petition seeking an election, with an alphabetical list of the names of the employees establishing the showing of interest; or
(2) A current or recently expired collective bargaining agreement covering any of the employees in the unit affected by issues raised in the petition; or
(3) Evidence that it is or was, before a reorganization, the recognized or certified exclusive representative of any of the employees affected by issues raised in the petition.
(d) Incumbent. An incumbent exclusive representative, without regard to the requirements of paragraph (c) of this section, will be considered a party in any representation proceeding raising issues that affect employees the incumbent represents, unless it serves the Regional Director with a written disclaimer of any representation interest in the claimed unit.
(e) Employing agency. An agency or activity will be considered a party if any of its employees are affected by issues raised in the petition.
(f) Agency or activity intervention. An agency or activity seeking to intervene in any representation proceeding must submit evidence that one or more employees of the agency or activity may be affected by issues raised in the petition.
§ 2422.9 How is the adequacy of a showing of interest determined?
(a) Adequacy. Adequacy of a showing of interest refers to the percentage of employees in the unit involved as required by §§ 2422.3(c) and (d) and 2422.8(c)(1).
(b) Regional Director investigation of showing of interest and Decision and Order. The Regional Director will conduct an investigation if deemed appropriate. A Regional Director’s determination that the showing of interest is adequate is final and binding and not subject to collateral attack at a representation hearing or on appeal to the Authority. If the Regional Director determines that a showing of interest is inadequate, the Regional Director will issue a Decision and Order dismissing the petition, or denying a request for intervention.
§ 2422.10 How do you challenge the validity of a showing of interest?
(a) Validity. Validity questions are raised by challenges to a showing of interest on grounds other than adequacy.
(b) Validity challenge. The Regional Director or any party may challenge the validity of a showing of interest.
(c) When and where validity challenges may be filed. Your challenges to the validity of a showing of interest must be in writing and filed with the Regional Director or the Hearing Officer before the hearing opens, unless you show good cause for granting an extension. If no hearing is held, you must file challenges to the validity of a showing of interest before action is taken under § 2422.30.
(d) Contents of validity challenges. Your challenges to the validity of a showing of interest must be supported with evidence.
(e) Regional Director investigation and Decision and Order. The Regional Director will conduct an investigation if deemed appropriate. The Regional Director’s determination that a showing of interest is valid is final and binding and is not subject to collateral attack or appeal to the Authority. If the Regional Director finds that the showing of interest is not valid, the Regional Director will issue a Decision and Order dismissing the petition or denying the request to intervene.
§ 2422.11 How do you challenge the status of a labor organization?
(a) Basis of challenge to labor organization status. Non-compliance with 5 U.S.C. 7103(a)(4) is the only basis on which you may challenge the status of a labor organization.
(b) Format and time for filing a challenge. If you file a challenge to the status of a labor organization involved in the processing of a petition you must do so in writing to the Regional Director or the Hearing Officer before the hearing opens, unless you show good cause for granting an extension. If no hearing is held, you must file challenges before action is taken under § 2422.30.
§ 2422.12 What circumstances does the Region consider to determine whether your petition is timely filed?
(a) Election bar. Where there is no certified exclusive representative, a petition seeking an election will not be considered timely if filed within twelve (12) months of a valid election involving the same unit or a subdivision of the same unit.
(b) Certification bar. Where there is a certified exclusive representative of employees, a petition seeking an election will not be considered timely if filed within twelve (12) months after the certification of the exclusive representative of the employees in an appropriate unit. If a collective bargaining agreement covering the claimed unit is pending agency head review under 5 U.S.C. 7114(c) or is in effect, paragraphs (c), (d), or (e) of this section apply.
(c) Bar during 5 U.S.C. 7114(c) agency head review. A petition seeking an election will not be considered timely if filed during the period of agency head review under 5 U.S.C. 7114(c). This bar expires upon either the passage of thirty (30) days absent agency head action, or upon the date of any timely agency head action.
(d) Contract bar where the contract is for three (3) years or less. Where a collective bargaining agreement is in effect covering the claimed unit and has a term of three (3) years or less from the date it became effective, a petition seeking an election will be considered timely if filed not more than one hundred and five (105) and not less than sixty (60) days before the expiration of the agreement.
(e) Contract bar where the contract is for more than three (3) years. Where a collective bargaining agreement is in effect covering the claimed unit and has a term of more than three (3) years from the date on which it became effective, a petition seeking an election will be considered timely if filed not more than one hundred and five (105) and not less than sixty (60) days before the expiration of the initial three (3) year period, and any time after the expiration of the initial three (3) year period.
(f) Unusual circumstances. A petition seeking an election or a determination relating to representation matters may be filed at any time when unusual circumstances exist that substantially affect the unit or majority representation.
(g) Premature extension. Where a collective bargaining agreement with a term of three (3) years or less has been extended before sixty (60) days before its expiration date, the extension will not serve as a basis for dismissal of a petition seeking an election filed in accordance with this section.
(h) Contract requirements. Collective bargaining agreements, including agreements that go into effect under 5 U.S.C. 7114(c) and those that automatically renew without further action by the parties, are not a bar to a petition seeking an election under this section unless a clear effective date, renewal date where applicable, duration, and termination date are ascertainable from the agreement and relevant accompanying documentation.
§ 2422.13 How are issues raised by your petition resolved?
(a) Meetings before filing a representation petition. All parties affected by the representation issues that may be raised in a petition are encouraged to meet before the filing of the petition to discuss their interests and narrow and resolve the issues. If requested by all parties, a representative of the appropriate Regional Office will participate in these meetings.
(b) Meetings to narrow and resolve the issues after the petition is filed. The Regional Director may require all affected parties to meet to narrow and resolve the issues raised in the petition.
§ 2422.14 What is the effect of your withdrawal or the Regional Director’s dismissal of a petition?
(a) Withdrawal/dismissal less than sixty (60) days before contract expiration. (1) If you withdraw a timely filed petition seeking an election, or the Regional Director dismisses the petition less than sixty (60) days before the existing agreement between the incumbent exclusive representative and the agency or activity expires, or any time after the agreement expires, another petition that seeks an election will not be considered timely if filed within a ninety (90) day period beginning with either:
(i) The date on which the Regional Director approves the withdrawal; or
(ii) The date on which the Regional Director dismisses the petition when the Authority does not receive an application for review; or
(iii) The date on which the Authority rules on an application for review.
(2) Other pending petitions that have been timely filed under this part will continue to be processed.
(b) Withdrawal by petitioner. If you submit a withdrawal request for a petition seeking an election that the Regional Director receives after the notice of hearing issues or after approval of an election agreement, whichever occurs first, you will be barred from filing another petition seeking an election for the same unit or any subdivision of the unit for six (6) months from the date on which the Regional Director approves the withdrawal.
(c) Withdrawal by incumbent. When an election is not held because the incumbent disclaims any representation interest in a unit, an incumbent’s petition seeking an election involving the same unit or a subdivision of the same unit will be considered untimely if filed within six (6) months of cancellation of the election.
§ 2422.15 Do parties have a duty to provide information and cooperate after a petition is filed?
(a) Relevant information. After you file a petition, all parties must, upon request of the Regional Director, provide the Regional Director and serve all parties affected by issues raised in the petition with information concerning parties, issues, and agreements raised in or affected by the petition.
(b) Inclusions and exclusions. After you file a petition seeking an election, the Regional Director may direct the agency or activity to provide the Regional Director and all parties affected by issues raised in the petition with a current alphabetized list of employees and job classifications included in and/or excluded from the existing or claimed unit affected by issues raised in the petition.
(c) Cooperation. All parties are required to cooperate in every aspect of the representation process. This obligation includes cooperating fully with the Regional Director, submitting all required and requested information, and participating in prehearing conferences and hearings. The Regional Director may take appropriate action, including dismissal of the petition or denial of intervention, if parties fail to cooperate in the representation process.
§ 2422.16 May parties enter into election agreements, and if they do not will the Regional Director direct an election?
(a) Election agreements. Parties are encouraged to enter into election agreements.
(b) Regional Director directed election. If the parties are unable to agree on procedural matters, specifically, the eligibility period, method of election, dates, hours, or locations of the election, the Regional Director will decide election procedures and issue a Direction of Election, without prejudice to the rights of a party to file objections to the procedural conduct of the election.
(c) Opportunity for a hearing. Before directing an election, the Regional Director must provide affected parties an opportunity for a hearing on non-procedural matters, and then may:
(1) Issue a Decision and Order; or
(2) If there are no questions regarding unit appropriateness, issue a Direction of Election without a Decision and Order.
(d) Challenges or objections to a directed election. A Direction of Election issued under this section will be issued without prejudice to the right of a party to file a challenge to the eligibility of any person participating in the election and/or objections to the election.
§ 2422.17 What are a notice of hearing and prehearing conference?
(a) Purpose of notice of a hearing. The Regional Director may issue a notice of hearing involving any issues raised in the petition.
(b) Contents. The notice of hearing will advise affected parties about the hearing. The Regional Director will also notify affected parties of the issues raised in the petition and establish a date for the prehearing conference.
(c) Prehearing conference. A prehearing conference will be conducted by the Hearing Officer, either by meeting or teleconference. All parties must participate in a prehearing conference and be prepared to fully discuss, narrow, and resolve the issues set forth in the notification of the prehearing conference.
(d) No interlocutory appeal of hearing determination. A party may not appeal to the Authority a Regional Director’s determination of whether to issue a notice of hearing.
§ 2422.18 What is the purpose of a representation hearing and what procedures are followed?
(a) Purpose of a hearing. Representation hearings are considered investigatory and not adversarial. The purpose of the hearing is to develop a full and complete record of relevant and material facts.
(b) Conduct of hearing. Hearings will be open to the public unless otherwise ordered by the Hearing Officer. There is no burden of proof, with the exception of proceedings on objections to elections under § 2422.27(b). Formal rules of evidence do not apply.
(c) Hearing officer. The Regional Director appoints a hearing officer to conduct a hearing. Another hearing officer may be substituted for the presiding Hearing Officer at any time.
(d) Transcript. An official reporter will make the official transcript of the hearing. Copies of the official transcript may be examined in the appropriate Regional Office during normal working hours. Parties should contact the official hearing reporter to purchase copies of the official transcript.
§ 2422.19 When is it appropriate for a party to file a motion at a representation hearing?
(a) Purpose of a motion. After the Regional Director issues a Notice of Hearing in a representation proceeding, a party who seeks a ruling, an order, or relief must do so by filing or raising a motion stating the order or relief sought and the grounds in support. The Regional Director or Hearing Officer may treat challenges and other filings referenced in other sections of this subpart as a motion.
(b) Prehearing motions. Parties must file prehearing motions in writing with the Regional Director. Any response must be filed with the Regional Director within five (5) days after service of the motion. The Regional Director may rule on the motion or refer the motion to the Hearing Officer.
(c) Motions made at the hearing. During the hearing, parties may make oral motions on the record to the Hearing Officer unless required to be in writing. Responses may be oral on the record or in writing, but must be provided before the hearing closes, absent permission of the Hearing Officer. When appropriate, the Hearing Officer will rule on motions made at the hearing or referred to the Hearing Officer by the Regional Director.
(d) Posthearing motions. Parties must file motions made after the hearing closes in writing with the Regional Director. Any response to a posthearing motion must be filed with the Regional Director within five (5) days after service of the motion.
§ 2422.20 What rights do parties have at a hearing?
(a) Rights. A party at a hearing will have the right:
(1) To appear in person or by a representative;
(2) To examine and cross-examine witnesses; and
(3) To introduce into the record relevant evidence.
(b) Documentary evidence and stipulations. Parties must submit two (2) copies of documentary evidence to the Hearing Officer and copies to all other parties. Stipulations of fact between the parties may be introduced into evidence.
(c) Oral argument. Parties will have a reasonable period before the close of the hearing for oral argument. Presentation of a closing oral argument does not preclude a party from filing a brief under paragraph (d) of this section.
(d) Briefs. A party will be given an opportunity to file a brief with the Regional Director.
(1) A party must file an original and two (2) copies of a brief with the Regional Director within thirty (30) days from the close of the hearing.
(2) No later than five (5) days before the date the brief is due a party must file and the Regional Director must receive a written request for an extension of time to file a brief.
(3) Absent the Regional Director’s permission, parties may not file a reply brief.
§ 2422.21 What are the duties and powers of the Hearing Officer?
(a) Duties of the Hearing Officer. The Hearing Officer receives evidence and inquires fully into the relevant and material facts concerning the matters that are the subject of the hearing. The Hearing Officer may make recommendations on the record to the Regional Director.
(b) Powers of the Hearing Officer. After the Regional Director assigns a case to a Hearing Officer and before the close of the hearing, the Hearing Officer may take any action necessary to schedule, conduct, continue, control, and regulate the hearing, including ruling on motions when appropriate.
§ 2422.22 What are objections and exceptions concerning the conduct of the hearing?
(a) Objections. Objections are oral or written complaints concerning the conduct of a hearing.
(b) Exceptions to rulings. There are automatic exceptions to all adverse rulings.
§ 2422.23 What election procedures are followed?
(a) Regional Director conducts or supervises election. The Regional Director will decide to either conduct or supervise the election. In supervised elections, agencies will perform all acts as specified in the Election Agreement or Direction of Election.
(b) Notice of election. Before the election the activity posts a notice of election, prepared by the Regional Director. The notice is posted in places where notices to employees are customarily posted and/or distributed in a manner by which notices are normally distributed. The notice of election contains the details and procedures of the election, including the appropriate unit, the eligibility period, the date(s), hour(s) and location(s) of the election, a sample ballot, and the effect of the vote.
(c) Sample ballot. The reproduction of any document that claims to be a copy of the official ballot and that suggests either directly or indirectly to employees that the Authority endorses a particular choice in the election may constitute grounds for setting aside an election if objections are filed under § 2422.26.
(d) Secret ballot. All elections are by secret ballot.
(e) Intervenor withdraws from ballot. When two or more labor organizations are included as choices in an election, an intervening labor organization may, before the approval of an election agreement or before the direction of an election, file a written request with the Regional Director to remove its name from the ballot. If the Regional Director does not receive the request before the approval of an election agreement or before the direction of an election, the intervening labor organization will remain on the ballot, unless the parties and the Regional Director agree otherwise. The Regional Director’s decision on the request is final, and no party may file an application for review with the Authority.
(f) Incumbent withdrawal from ballot in an election to decertify an incumbent representative. When there is no intervening labor organization, an election to decertify an incumbent exclusive representative is not held if the incumbent provides the Regional Director with a written disclaimer of any representation interest in the unit. When there is an intervenor, an election is held if the intervening labor organization proffers a thirty percent (30%) showing of interest within the time period established by the Regional Director.
(g) Petitioner withdraws from ballot in an election. When there is no intervening labor organization, an election is not held if the petitioner provides the Regional Director with a written request to withdraw the petition. When there is an intervenor, an election is held if the intervening labor organization presents a thirty percent (30%) showing of interest within the time period established by the Regional Director.
(h) Observers. Subject to the Regional Director’s approval, all parties may select representatives to observe at the polling location(s).
(1) A party who wants to name observers must file a written request with specific names with the Regional Director. This must be filed at least fifteen (15) days before an election. The Regional Director may grant an extension of time to file a request for named observers for good cause where a party requests an extension or on the Regional Director’s own motion. The request must name and identify the observers requested.
(2) An agency or activity may use as its observers any employees who are not eligible to vote in the election, except:
(i) Supervisors or management officials;
(ii) Employees who have any official connection with any of the labor organizations involved; or
(iii) Non-employees of the Federal government.
(3) A labor organization may use as its observers any employees eligible to vote in the election, except:
(i) Employees on leave without pay status who are working for the labor organization involved; or
(ii) Employees who hold an elected office in the union.
(4) Within five (5) days after service of the request for observers, any party that objects must file an objection with the Regional Director that states the reasons.
(5) The Regional Director’s ruling on requests for and objections to observers is final and binding, and parties may not file an application for review with the Authority.
§ 2422.24 What are challenged ballots?
(a) Filing challenges. A party or the Regional Director may, for good cause, challenge the eligibility of any person to participate in the election.
(b) Challenged ballot procedure. An individual whose eligibility to vote is in dispute will be given the opportunity to vote a challenged ballot. If the parties and the Region are unable to resolve the challenged ballot(s) before the tally of ballots, the Region will impound and preserve the unresolved challenged ballot(s) until the Regional Director makes a determination, if necessary.
§ 2422.25 When does the Region tally the ballots?
(a) Tallying the ballots. When the election is concluded, the Regional Director will tally the ballots.
(b) Service of the tally. When the tally is completed, the Regional Director will serve the tally of ballots on the parties in accordance with the election agreement or direction of election.
(c) Valid ballots cast. Representation will be determined by the majority of the valid ballots cast.
§ 2422.26 How are objections to the election processed?
(a) Filing objections to the election. Any party may file objections to the procedural conduct of the election or to conduct that may have improperly affected the results of the election. A party must file an objection and the Regional Director must receive it within five (5) days after the tally of ballots has been served. Any objections must be timely regardless of whether the challenged ballots are sufficient in number to affect the results of the election. The objections must be supported by clear and concise reasons. A party must file an original and two (2) copies of the objections.
(b) Supporting evidence. The objecting party must file evidence, including signed statements, documents, and other materials supporting the objections, with the Regional Director within ten (10) days after the party files the objections.
§ 2422.27 How does the Region address determinative challenged ballots and objections?
(a) Investigation. The Regional Director investigates objections and/or determinative challenged ballots that are sufficient in number to affect the results of the election.
(b) Burden of proof. An objecting party bears the burden of proof on objections by a preponderance of the evidence. However, no party bears the burden of proof on challenged ballots.
(c) Regional Director action. After investigation, the Regional Director takes appropriate action consistent with § 2422.30.
(d) Consolidated hearing on objections and/or determinative challenged ballots and an unfair labor practice hearing. When appropriate, and under § 2422.33, a Regional Director may consolidate objections and/or determinative challenged ballots with an unfair labor practice hearing. An Administrative Law Judge conducts these consolidated hearings, except the following provisions do not apply:
(1) Sections 2423.18 and 2423.19(j) of this subchapter concerning the burden of proof and settlement conferences are not applicable;
(2) The Administrative Law Judge may not recommend remedial action to be taken or notices to be posted as provided by § 2423.26(a) of this subchapter.
(e) Party exceptions filed with the Authority. A party may file exceptions and related submissions with the Authority, and the Authority then issues a decision under part 2423 of this chapter.
§ 2422.28 When is a runoff election required?
(a) When a runoff may be held. A runoff election is required in an election involving at least three (3) choices, one of which is “no union” or “neither,” when no choice receives a majority of the valid ballots cast. However, a runoff may not be held until the Regional Director has ruled on objections to the election and determinative challenged ballots.
(b) Eligibility. Employees who were eligible to vote in the original election and who are also eligible on the date of the runoff election may vote in the runoff election.
(c) Ballot. The ballot in the runoff election will provide for a selection between the two choices receiving the highest and second highest number of votes in the election.
§ 2422.29 How does the Region address an inconclusive election?
(a) Inconclusive elections. An inconclusive election is one where challenged ballots are not sufficient to affect the outcome of the election and one of the following occurs:
(1) The ballot provides for at least three (3) choices, one of which is “no union” or “neither,” and the votes are equally divided; or
(2) The ballot provides for at least three (3) choices, the choice receiving the highest number of votes does not receive a majority, and at least two other choices receive the next highest and same number of votes; or
(3) When a runoff ballot provides for a choice between two labor organizations and results in the votes being equally divided; or
(4) When the Regional Director determines that there have been significant procedural irregularities.
(b) Eligibility to vote in a rerun election. The Region uses the latest payroll period to determine eligibility to vote in a rerun election.
(c) Ballot. If the Regional Director determines that the election is inconclusive, the election will be rerun with all the choices that appeared on the original ballot.
(d) Number of reruns. There will be only one rerun of an inconclusive election. If the rerun results in another inconclusive election, the tally of ballots will show a majority of valid ballots has not been cast for any choice, and the Regional Director will issue a certification of results. If necessary, a runoff may be held when an original election is rerun.
§ 2422.30 When does a Regional Director investigate a petition, issue notices of hearings, take actions, and issue Decisions and Orders?
(a) Regional Director investigation. The Regional Director will investigate the petition and any other matter as the Regional Director deems necessary.
(b) Regional Director notice of hearing. The Regional Director will issue a notice of hearing to inquire into any matter about which a material issue of fact exists, and any time there is reasonable cause to believe a question exists regarding unit appropriateness.
(c) Regional Director action. After investigation or hearing, the Regional Director can direct an election, or approve an election agreement, or issue a Decision and Order.
(d) Appeal of Regional Director Decision and Order. A party may file with the Authority an application for review of a Regional Director Decision and Order.
(e) Contents of the Record. When there has not been a hearing all material submitted to and considered by the Regional Director during the investigation becomes a part of the record. When a hearing has been held, the transcript and all material entered into evidence, including any posthearing briefs, become a part of the record.
§ 2422.31 When do you file an application for review of a Regional Director Decision and Order?
(a) Filing an application for review. A party must file an application for review with the Authority within sixty (60) days of the Regional Director’s Decision and Order. The sixty (60) day time limit under 5 U.S.C. 7105(f) may not be extended or waived. The filing party must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.
(b) Contents. An application for review must be sufficient for the Authority to rule on the application without looking at the record. However, the Authority may, in its discretion, examine the record in evaluating the application. An application must specify the matters and rulings to which exception(s) is taken, include a summary of evidence relating to any issue raised in the application, and make specific references to page citations in the transcript if a hearing was held. An application may not raise any issue or rely on any facts not timely presented to the Hearing Officer or Regional Director.
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error; or
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
(d) Opposition. A party may file with the Authority an opposition to an application for review within ten (10) days after the party is served with the application. The opposing party must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.
(e) Regional Director Decision and Order becomes the Authority’s action. A Decision and Order of a Regional Director becomes the action of the Authority when:
(1) No party files an application for review with the Authority within sixty (60) days after the date of the Regional Director’s Decision and Order; or
(2) A party files a timely application for review with the Authority and the Authority does not undertake to grant review of the Regional Director’s Decision and Order within sixty (60) days of the filing of the application; or
(3) The Authority denies an application for review of the Regional Director’s Decision and Order.
(f) Authority grant of review and stay. The Authority may rule on the issue(s) in an application for review in its order granting the application for review. Neither filing nor granting an application for review will stay any action ordered by the Regional Director unless specifically ordered by the Authority.
(g) Briefs if review is granted. If the Authority does not rule on the issue(s) in the application for review in its order granting review, the Authority may, in its discretion, give the parties an opportunity to file briefs. The briefs will be limited to the issue(s) referenced in the Authority’s order granting review.
§ 2422.32 When does a Regional Director issue a certification or a revocation of certification?
(a) Certifications. The Regional Director issues an appropriate certification when:
(1) After an election, runoff, or rerun,
(i) No party files an objection or challenged ballots are not determinative, or
(ii) The Region decides and resolves objections and determinative challenged ballots; or
(2) The Regional Director issues a Decision and Order requiring a certification and the Decision and Order becomes the action of the Authority under § 2422.31(e) or the Authority directs the issuance of a certification.
(b) Revocations. Without prejudice to any rights and obligations that may exist under the Statute, the Regional Director revokes a recognition or certification, as appropriate, and provides a written statement of reasons when:
(1) An incumbent exclusive representative files, during a representation proceeding, a disclaimer of any representational interest in the unit; or
(2) Due to a substantial change in the character and scope of the unit, the unit is no longer appropriate and an election is not warranted.
§ 2422.33 Relief under part 2423 of this chapter.
Remedial relief that was or could have been obtained as a result of a motion, objection, or challenge filed or raised under this subpart, may not be the basis for similar relief under part 2423 of this chapter: But related matters may be consolidated for hearing as noted in § 2422.27(d) of this subpart.
§ 2422.34 What are the parties’ rights and obligations when a representation proceeding is pending?
(a) Existing recognitions, agreements, and obligations under the Statute. When a representation proceeding is pending, parties must maintain existing recognitions, follow the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.
(b) Unit status of individual employees. A party may take action based on its position regarding the bargaining unit status of individual employees, under 3 U.S.C. 431(d)(2), 5 U.S.C. 7103(a)(2), and 7112(b) and (c). But its actions may be challenged, reviewed, and remedied where appropriate.
PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS
§ 2423.0 Applicability of this part.
This part applies to any unfair labor practice cases that are pending or filed with the FLRA on or after July 25, 2012.
Subpart A—Filing, Investigating, Resolving, and Acting on Charges
§ 2423.1 Can a Regional Office help the parties resolve unfair labor practice disputes before a Regional Director decides whether to issue a complaint?
(a) Resolving unfair labor practice disputes before filing a charge. The purposes and policies of the Federal Service Labor-Management Relations Statute (Statute) can best be achieved by the collaborative efforts of all persons covered by that law. The General Counsel encourages all persons to meet and, in good faith, attempt to resolve unfair labor practice disputes before filing unfair labor practice charges. If requested, and the parties agree, a representative of the Regional Office, in appropriate circumstances, may participate in these meetings to assist the parties to identify the issues and their interests and to resolve the dispute. Parties’ attempts to resolve unfair labor practice disputes before filing an unfair labor practice charge do not toll the time limitations for filing a charge set forth at 5 U.S.C. 7118(a)(4).
(b) Resolving unfair labor practice disputes after filing a charge. The General Counsel encourages the informal resolution of unfair labor practice allegations after a charge is filed and before the Regional Director makes a merit determination. A representative of the appropriate Regional Office, as part of the investigation, may assist the parties in informally resolving their dispute.
§ 2423.2 What Alternative Dispute Resolution (ADR) services does the OGC provide?
(a) Purpose of ADR services. The Office of the General Counsel furthers its mission and implements the agency-wide Federal Labor Relations Authority Collaboration and Alternative Dispute Resolution Program by promoting stable and productive labor-management relationships governed by the Statute and by providing services that assist labor organizations and agencies, on a voluntary basis, to:
(1) Develop collaborative labor-management relationships;
(2) Avoid unfair labor practice disputes; and
(3) Informally resolve unfair labor practice disputes.
(b) Types of ADR Services. Agencies and labor organizations may jointly request, or agree to, the provision of the following services by the Office of the General Counsel:
(1) Facilitation. Assisting the parties in improving their labor-management relationship as governed by the Statute;
(2) Intervention. Intervening when parties are experiencing or expect significant unfair labor practice disputes;
(3) Training. Training labor organization officials and agency representatives on their rights and responsibilities under the Statute and how to avoid litigation over those rights and responsibilities, and on using problem-solving and ADR skills, techniques, and strategies to resolve informally unfair labor practice disputes; and
(4) Education. Working with the parties to recognize the benefits of, and establish processes for, avoiding unfair labor practice disputes, and resolving any unfair labor practice disputes that arise by consensual, rather than adversarial, methods.
(c) ADR services after initiation of an investigation. As part of processing an unfair labor practice charge, the Office of the General Counsel may suggest to the parties, as appropriate, that they may benefit from these ADR services.
§ 2423.3 Who may file charges?
(a) Filing charges. Any person may charge an activity, agency, or labor organization with having engaged in, or engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116.
(b) Charging Party. Charging Party means the individual, labor organization, activity, or agency filing an unfair labor practice charge with a Regional Director.
(c) Charged Party. Charged Party means the activity, agency, or labor organization charged with allegedly having engaged in, or engaging in, an unfair labor practice.
§ 2423.4 What must you state in the charge and what supporting evidence and documents should you submit?
(a) What to file. You, the Charging Party, may file a charge alleging a violation of 5 U.S.C. 7116 by providing the following information on a form designated by the General Counsel, or on a substantially similar form, or electronically through the use of the eFiling system on the FLRA’s Web site at www.flra.gov, or by facsimile transmission:
(1) The Charging Party’s name and mailing address, including street number, city, state, and zip code;
(2) The Charged Party’s name and mailing address, including street number, city, state, and zip code;
(3) The Charging Party’s point of contact’s name, address, telephone number, facsimile number, if known, and email address, if known;
(4) The Charged Party’s point of contact’s name, address, telephone number, facsimile number, if known, and email address, if known;
(5) A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of how those facts allegedly violate specific section(s) and paragraph(s) of the Statute, and the date and place of occurrence of the particular acts; and
(6) A statement whether the subject matter raised in the charge:
(i) Has been raised previously in a grievance procedure;
(ii) Has been referred to the Federal Service Impasses Panel, the Federal Mediation and Conciliation Service, the Equal Employment Opportunity Commission, the Merit Systems Protection Board, or the Office of Special Counsel for consideration or action;
(iii) Involves a negotiability issue that you raised in a petition pending before the Authority under part 2424 of this subchapter; or
(iv) Has been the subject of any other administrative or judicial proceeding.
(7) A statement describing the result or status of any proceeding identified in paragraph (a)(6) of this section.
(b) When and how to file. Under 5 U.S.C. 7118(a)(4), a charge alleging an unfair labor practice must be in writing and signed or filed electronically using the eFiling system on the FLRA’s Web site at www.flra.gov. It is normally filed within six (6) months of its occurrence unless one of the two (2) circumstances described under paragraph (B) of 5 U.S.C. 7118(a)(4) applies.
(c) Declarations of truth and statement of service. A charge must also contain a declaration by the individual signing the charge, under the penalties of the Criminal Code (18 U.S.C. 1001), that its contents are true and correct to the best of that individual’s knowledge and belief.
(d) Statement of service. You must also state that you served the charge on the Charged Party, and you must list the name, title and location of the individual served, and the method of service.
(e) Self-contained document. A charge must be a self-contained document describing the alleged unfair labor practice without a need to refer to supporting evidence and documents submitted under paragraph (f) of this section.
(f) Submitting supporting evidence and documents and identifying potential witnesses. When filing a charge, you must submit to the Regional Director any supporting evidence and documents, including, but not limited to, correspondence and memoranda, records, reports, applicable collective bargaining agreement clauses, memoranda of understanding, minutes of meetings, applicable regulations, statements of position, and other documentary evidence. You also must identify potential witnesses with contact information (telephone number, email address, and facsimile number) and provide a brief synopsis of their expected testimony.
§ 2423.5 [Reserved]
§ 2423.6 What is the process for filing and serving copies of charges?
(a) Where to file. You must file the charge with the Regional Director for the region in which the alleged unfair labor practice has occurred or is occurring. A charge alleging that an unfair labor practice has occurred or is occurring in two or more regions may be filed with the Regional Director in any of those regions.
(b) Date of filing. When a Regional Director receives a charge, it is deemed filed. A charge filed during business hours by facsimile or electronic means is deemed received on the business day on which it is received (either by the Regional Office fax machine or by the eFiling system), until midnight local time in the Region where it is filed. But when a Region receives a charge after the close of the business day by any other method, it will be deemed received and docketed on the next business day. The business hours for each of the Regional Offices are set forth at http://www.FLRA.gov.
(c) Method of filing. You may file a charge with the Regional Director in person or by commercial delivery, first class mail, certified mail, facsimile, or electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov. If filing by facsimile transmission or by electronic means, you are not required to file an original copy of the charge with the Region. You assume responsibility for the Regional Director’s receipt of a charge. Supporting evidence and documents must be submitted to the Regional Director in person, by commercial delivery, first class mail, certified mail, facsimile transmission, or through the FLRA’s eFiling system.
(d) Service of the charge. You must serve a copy of the charge (without supporting evidence and documents) on the Charged Party. Where facsimile equipment is available, you may serve the charge by facsimile transmission, as paragraph (c) of this section discusses. Alternatively, you may serve the charge by electronic mail (“email”), but only if the Charged Party has agreed to be served by email. The Region routinely serves a copy of the charge on the Charged Party, but you remain responsible for serving the charge, consistent with the requirements in this paragraph.
§ 2423.7 [Reserved]
§ 2423.8 How are charges investigated?
(a) Investigation. The Regional Director, on behalf of the General Counsel, conducts an investigation of the charge as deemed necessary. During the course of the investigation, all parties involved are given an opportunity to present their evidence and views to the Regional Director.
(b) Cooperation. The purposes and policies of the Statute can best be achieved by the parties’ full cooperation and their timely submission of all relevant information from all potential sources during the investigation. All persons must cooperate fully with the Regional Director in the investigation of charges. A failure to cooperate during the investigation of a charge may provide grounds to dismiss a charge for failure to produce evidence supporting the charge. Cooperation includes any of the following actions, when deemed appropriate by the Regional Director:
(1) Making union officials, employees, and agency supervisors and managers available to give sworn/affirmed testimony regarding matters under investigation;
(2) Producing documentary evidence pertinent to the matters under investigation;
(3) Providing statements of position on the matters under investigation; and
(4) Responding to an agent’s communications during an investigation in a timely manner.
(c) Investigatory subpoenas. If a person fails to cooperate with the Regional Director in the investigation of a charge, the General Counsel, upon recommendation of a Regional Director, may decide in appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for the attendance and testimony of witnesses and the production of documentary or other evidence. However, no subpoena, which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management, will issue under this section.
(1) A subpoena can only be served by any individual who is at least 18 years old and who is not a party to the proceeding. The individual who served the subpoena must certify that he or she did so:
(i) By delivering it to the witness in person;
(ii) By registered or certified mail; or
(iii) By delivering the subpoena to a responsible individual (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. The subpoena must show on its face the name and address of the Regional Director and the General Counsel.
(2) Any person served with a subpoena who does not intend to comply must, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke must be served on the General Counsel.
(3) The General Counsel must revoke the subpoena if the witness or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The General Counsel must state the procedural or other grounds for the ruling on the petition to revoke. The petition to revoke becomes part of the official record if there is a hearing under subpart C of this part.
(4) Upon the failure of any person to comply with a subpoena issued by the General Counsel, the General Counsel must determine whether to institute proceedings in the appropriate district court for the enforcement of the subpoena. Enforcement must not be sought if to do so would be inconsistent with law, including the Statute.
(d) Confidentiality. It is the General Counsel’s policy to protect the identity of individuals who submit statements and information during the investigation, and to protect against the disclosure of documents obtained during the investigation, to ensure the General Counsel’s ability to obtain all relevant information. However, after a Regional Director issues a complaint and when necessary to prepare for a hearing, the Region may disclose the identification of witnesses, a synopsis of their expected testimony, and documents proposed to be offered into evidence at the hearing, as required by the prehearing disclosure requirements in § 2423.23.
§ 2423.9 How are charges amended?
Before the issuance of a complaint, the Charging Party may amend the charge under the requirements set forth in § 2423.6.
§ 2423.10 What actions may the Regional Director take with regard to your charge?
(a) Regional Director action. The Regional Director, on behalf of the General Counsel, may take any of the following actions, as appropriate:
(1) Approve a request to withdraw a charge;
(2) Dismiss a charge;
(3) Approve a written settlement agreement under § 2423.12;
(4) Issue a complaint; or
(5) Withdraw a complaint.
(b) Request for appropriate temporary relief. Parties may request the General Counsel to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d). The General Counsel may initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority. A determination by the General Counsel not to seek approval of the Authority to seek temporary relief is final and cannot be appealed to the Authority.
(c) General Counsel requests to the Authority. When a complaint issues and the Authority approves the General Counsel’s request to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d), the General Counsel may make application for appropriate temporary relief (including a restraining order) in the district court of the United States within which the unfair labor practice is alleged to have occurred or in which the party sought to be enjoined resides or transacts business. The General Counsel may seek temporary relief if it is just and proper and the record establishes probable cause that an unfair labor practice is being committed. Temporary relief will not be sought if it would interfere with the ability of the agency to carry out its essential functions.
(d) Actions subsequent to obtaining appropriate temporary relief. The General Counsel must inform the district court that granted temporary relief under 5 U.S.C. 7123(d) whenever an Administrative Law Judge recommends dismissal of the complaint, in whole or in part.
§ 2423.11 What happens if a Regional Director decides not to issue a complaint?
(a) Opportunity to withdraw a charge. If the Regional Director determines that the charge has not been timely filed, that the charge fails to state an unfair labor practice, or for other appropriate reasons, the Regional Director may request the Charging Party to withdraw the charge.
(b) Dismissal letter. If the Charging Party does not withdraw the charge within a reasonable period of time, the Regional Director will dismiss the charge and provide the parties with a written statement of the reasons for not issuing a complaint.
(c) Appeal of a dismissal letter. The Charging Party may obtain review of the Regional Director’s decision to dismiss a charge by filing an appeal with the General Counsel, either in writing or by email to [email protected], within 25 days after the Regional Director served the decision. A Charging Party must serve a copy of the appeal on the Regional Director. The General Counsel must serve notice on the Charged Party that the Charging Party has filed an appeal.
(d) Extension of time. The Charging Party may file a request, either in writing or by email to [email protected], for an extension of time to file an appeal, which must be received by the General Counsel not later than five (5) days before the date the appeal is due. A Charging Party must serve a copy of the request for an extension of time on the Regional Director.
(e) Grounds for granting an appeal. The General Counsel may grant an appeal when the appeal establishes at least one of the following grounds:
(1) The Regional Director’s decision did not consider material facts that would have resulted in issuance of a complaint;
(2) The Regional Director’s decision is based on a finding of a material fact that is clearly erroneous;
(3) The Regional Director’s decision is based on an incorrect statement or application of the applicable rule of law;
(4) There is no Authority precedent on the legal issue in the case; or
(5) The manner in which the Region conducted the investigation has resulted in prejudicial error.
(f) General Counsel action. The General Counsel may deny the appeal of the Regional Director’s dismissal of the charge, or may grant the appeal and remand the case to the Regional Director to take further action. The General Counsel’s decision on the appeal states the grounds listed in paragraph (e) of this section for denying or granting the appeal, and is served on all the parties. Absent a timely motion for reconsideration, the General Counsel’s decision is final.
(g) Reconsideration. After the General Counsel issues a final decision, the Charging Party may move for reconsideration of the final decision if it can establish extraordinary circumstances in its moving papers. The motion must be filed within 10 days after the date on which the General Counsel’s final decision is postmarked. A motion for reconsideration must state with particularity the extraordinary circumstances claimed and must be supported by appropriate citations. The decision of the General Counsel on a motion for reconsideration is final.
§ 2423.12 What types of settlements of unfair labor practice charges are possible after a Regional Director decides to issue a complaint but before issuance of a complaint?
(a) Bilateral informal settlement agreement. Before issuing a complaint, the Regional Director may give the Charging Party and the Charged Party a reasonable period of time to enter into an informal settlement agreement to be approved by the Regional Director. When a Charged Party complies with the terms of an informal settlement agreement approved by the Regional Director, no further action is taken in the case. If the Charged Party fails to perform its obligations under the approved informal settlement agreement, the Regional Director may institute further proceedings.
(b) Unilateral informal settlement agreement. If the Charging Party elects not to become a party to a bilateral settlement agreement, which the Regional Director concludes fulfills the policies of the Statute, the Regional Director may choose to approve a unilateral settlement between the Regional Director and the Charged Party. The Regional Director, on behalf of the General Counsel, must issue a letter stating the grounds for approving the settlement agreement and declining to issue a complaint. The Charging Party may obtain review of the Regional Director’s action by filing an appeal with the General Counsel under § 2423.11(c) and (d). The General Counsel may grant an appeal when the Charging Party has shown that the Regional Director’s approval of a unilateral settlement agreement does not fulfill the purposes and policies of the Statute. The General Counsel must take action on the appeal as set forth in § 2423.11(b) through (g).
§§ 2423.13-2423.19 [Reserved]
Subpart B—Post Complaint, Prehearing Procedures
§ 2423.20 Issuance and contents of the complaint; answer to the complaint; amendments; role of Office of Administrative Law Judges.
(a) Complaint. Whenever formal proceedings are deemed necessary, the Regional Director shall file and serve, in accordance with § 2429.12 of this subchapter, a complaint with the Office of Administrative Law Judges. The decision to issue a complaint shall not be subject to review. Any complaint may be withdrawn by the Regional Director prior to the hearing. The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and the rules and regulations involved;
(5) Notice of the date, time, and place that a hearing will take place before an Administrative Law Judge; and
(6) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the complaint, but in any event, prior to the beginning of the hearing, the Respondent shall file and serve, in accordance with part 2429 of this subchapter, an answer with the Office of Administrative Law Judges. The answer shall admit, deny, or explain each allegation of the complaint. If the Respondent has no knowledge of an allegation or insufficient information as to its truthfulness, the answer shall so state. Absent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission. Motions to extend the filing deadline shall be filed in accordance with § 2423.21.
(c) Amendments. The Regional Director may amend the complaint at any time before the answer is filed. The Respondent then has 20 days from the date of service of the amended complaint to file an answer with the Office of Administrative Law Judges. Prior to the beginning of the hearing, the answer may be amended by the Respondent within 20 days after the answer is filed. Thereafter, any requests to amend the complaint or answer must be made by motion to the Office of Administrative Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions, conferences, hearings, and other matters throughout as specified in subparts B, C, and D of this part shall be administered by the Office of Administrative Law Judges, as appropriate. The Chief Administrative Law Judge, or any Administrative Law Judge designated by the Chief Administrative Law Judge, shall administer any matters properly submitted to the Office of Administrative Law Judges. Throughout subparts B, C, and D of this part, “Administrative Law Judge” or “Judge” refers to the Chief Administrative Law Judge or his or her designee.
§ 2423.21 Motions procedure.
(a) General requirements. All motions, except those made during a prehearing conference or hearing, shall be in writing. Motions for an extension of time, postponement of a hearing, or any other procedural ruling shall include a statement of the position of the other parties on the motion. All written motions and responses in subparts B, C, or D of this part shall satisfy the filing and service requirements of part 2429 of this subchapter.
(b) Motions made to the Administrative Law Judge. Prehearing motions and motions made at the hearing shall be filed with the Administrative Law Judge. Unless otherwise specified in subparts B or C of this part, or otherwise directed or approved by the Administrative Law Judge:
(1) Prehearing motions shall be filed at least 10 days prior to the hearing, and responses shall be filed within 5 days after the date of service of the motion;
(2) Responses to motions made during the hearing shall be filed prior to the close of hearing;
(3) Posthearing motions shall be filed within 10 days after the date the hearing closes, and responses shall be filed within 5 days after the date of service of the motion; and
(4) Motions to correct the transcript shall be filed with the Administrative Law Judge within 10 days after receipt of the transcript, and responses shall be filed within 5 days after the date of service of the motion.
(c) Post-transmission motions. After the case has been transmitted to the Authority, motions shall be filed with the Authority. Responses shall be filed within 5 days after the date of service of the motion.
(d) Interlocutory appeals. Motions for an interlocutory appeal of any ruling and responses shall be filed in accordance with this section and § 2423.31(c).
§ 2423.22 Intervenors.
Motions for permission to intervene and responses shall be filed in accordance with § 2423.21. Such motions shall be granted upon a showing that the outcome of the proceeding is likely to directly affect the movant’s rights or duties. Intervenors may participate only: on the issues determined by the Administrative Law Judge to affect them; and to the extent permitted by the Judge. Denial of such motions may be appealed pursuant to § 2423.21(d).
§ 2423.23 Prehearing disclosure.
Unless otherwise directed or approved by the Judge, the parties shall exchange, in accordance with the service requirements of § 2429.27(b) of this subchapter, the following items at least 14 days prior to the hearing:
(a) Witnesses. Proposed witness lists, including a brief synopsis of the expected testimony of each witness;
(b) Documents. Copies of documents, with an index, proposed to be offered into evidence; and
(c) Theories. A brief statement of the theory of the case, including relief sought, and any and all defenses to the allegations in the complaint.
§ 2423.24 Powers and duties of the Administrative Law Judge during prehearing proceedings.
(a) Prehearing procedures. The Administrative Law Judge shall regulate the course and scheduling of prehearing matters, including prehearing orders, conferences, disclosure, motions, and subpoena requests.
(b) Changing date, time, or place of hearing. After issuance of the complaint or any prehearing order, the Administrative Law Judge may, in the Judge’s discretion or upon motion by any party through the motions procedure in § 2423.21, change the date, time, or place of the hearing.
(c) Prehearing order. (1) The Administrative Law Judge may, in the Judge’s discretion or upon motion by any party through the motions procedure in § 2423.21, issue a prehearing order confirming or changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for prehearing disclosure of witness lists and documents intended to be offered into evidence at the hearing;
(iii) The date for submission of procedural and substantive motions;
(iv) The date, time, and place of the prehearing conference; and
(v) Any other matter pertaining to prehearing or hearing procedures.
(2) The prehearing order shall be served in accordance with § 2429.12 of this subchapter.
(d) Prehearing conferences. The Administrative Law Judge shall conduct one or more prehearing conferences, either by telephone or in person, at least 7 days prior to the hearing date, unless the Administrative Law Judge determines that a prehearing conference would serve no purpose and no party has moved for a prehearing conference in accordance with § 2423.21. If a prehearing conference is held, all parties must participate in the prehearing conference and be prepared to discuss, narrow, and resolve the issues set forth in the complaint and answer, as well as any prehearing disclosure matters or disputes. When necessary, the Administrative Law Judge shall prepare and file for the record a written summary of actions taken at the conference. Summaries of the conference shall be served on all parties in accordance with § 2429.12 of this subchapter. The following may also be considered at the prehearing conference:
(1) Settlement of the case, either by the Judge conducting the prehearing conference or pursuant to § 2423.25;
(2) Admissions of fact, disclosure of contents and authenticity of documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the hearing, including oral or written testimony, documents, papers, exhibits, or other submissions proposed by a party;
(4) Subpoena requests or petitions to revoke subpoenas;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid in the disposition of the case.
(e) Sanctions. The Administrative Law Judge may, in the Judge’s discretion or upon motion by any party through the motions procedure in § 2423.21, impose sanctions upon the parties as necessary and appropriate to ensure that a party’s failure to fully comply with subpart B or C of this part is not condoned. Such authority includes, but is not limited to, the power to:
(1) Prohibit a party who fails to comply with any requirement of subpart B or C of this part from, as appropriate, introducing evidence, calling witnesses, raising objections to the introduction of evidence or testimony of witnesses at the hearing, presenting a specific theory of violation, seeking certain relief, or relying upon a particular defense.
(2) Refuse to consider any submission that is not filed in compliance with subparts B or C of this part.
§ 2423.25 Post complaint, prehearing settlements.
(a) Informal and formal settlements. Post complaint settlements may be either informal or formal.
(1) Informal settlement agreements provide for withdrawal of the complaint by the Regional Director and are not subject to approval by or an order of the Authority. If the Respondent fails to perform its obligations under the informal settlement agreement, the Regional Director may reinstitute formal proceedings consistent with this subpart.
(2) Formal settlement agreements are subject to approval by the Authority, and include the parties’ agreement to waive their right to a hearing and acknowledgment that the Authority may issue an order requiring the Respondent to take action appropriate to the terms of the settlement. The formal settlement agreement shall also contain the Respondent’s consent to the Authority’s application for the entry of a decree by an appropriate federal court enforcing the Authority’s order.
(b) Informal settlement procedure. If the Charging Party and the Respondent enter into an informal settlement agreement that is accepted by the Regional Director, the Regional Director shall withdraw the complaint and approve the informal settlement agreement. If the Charging Party fails or refuses to become a party to an informal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the Regional Director shall enter into the agreement with the Respondent and shall withdraw the complaint. The Charging Party then may obtain a review of the Regional Director’s action by filing an appeal with the General Counsel as provided in subpart A of this part.
(c) Formal settlement procedure. If the Charging Party and the Respondent enter into a formal settlement agreement that is accepted by the Regional Director, the Regional Director shall withdraw the complaint upon approval of the formal settlement agreement by the Authority. If the Charging Party fails or refuses to become a party to a formal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the agreement shall be between the Respondent and the Regional Director. The formal settlement agreement together with the Charging Party’s objections, if any, shall be submitted to the Authority for approval. The Authority may approve a formal settlement agreement upon a sufficient showing that it will effectuate the policies of the Federal Service Labor-Management Relations Statute.
(d) Settlement judge program. The Administrative Law Judge, in the Judge’s discretion or upon the request of any party, may assign a judge or other appropriate official, who shall be other than the hearing judge unless otherwise mutually agreed to by the parties, to conduct negotiations for settlement.
(1) The settlement official shall convene and preside over settlement conferences by telephone or in person.
(2) The settlement official may require that the representative for each party be present at settlement conferences and that the parties or agents with full settlement authority be present or available by telephone.
(3) The settlement official shall not discuss any aspect of the case with the hearing judge.
(4) No evidence regarding statements, conduct, offers of settlement, and concessions of the parties made in proceedings before the settlement official shall be admissible in any proceeding before the Administrative Law Judge or Authority, except by stipulation of the parties.
§ 2423.26 Stipulations of fact submissions.
(a) General. When all parties agree that no material issue of fact exists, the parties may jointly submit a motion to the Administrative Law Judge or Authority requesting consideration of the matter based upon stipulations of fact. Briefs of the parties are required and must be submitted within 30 days of the joint motion. Upon receipt of the briefs, such motions shall be ruled upon expeditiously.
(b) Stipulations to the Administrative Law Judge. Where the stipulation adequately addresses the appropriate material facts, the Administrative Law Judge may grant the motion and decide the case through stipulation.
(c) Stipulations to the Authority. Where the stipulation provides an adequate basis for application of established precedent and a decision by the Administrative Law Judge would not assist in the resolution of the case, or in unusual circumstances, the Authority may grant the motion and decide the case through stipulation.
(d) Decision based on stipulation. Where the motion is granted, the Authority will adjudicate the case and determine whether the parties have met their respective burdens based on the stipulation and the briefs.
§ 2423.27 Summary judgment motions.
(a) Motions. Any party may move for a summary judgment in its favor on any of the issues pleaded. Unless otherwise approved by the Administrative Law Judge, such motion shall be made no later than 10 days prior to the hearing. The motion shall demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Such motions shall be supported by documents, affidavits, applicable precedent, or other appropriate materials.
(b) Responses. Responses must be filed within 5 days after the date of service of the motion. Responses may not rest upon mere allegations or denials but must show, by documents, affidavits, applicable precedent, or other appropriate materials, that there is a genuine issue to be determined at the hearing.
(c) Decision. If all issues are decided by summary judgment, no hearing will be held and the Administrative Law Judge shall prepare a decision in accordance with § 2423.34. If summary judgment is denied, or if partial summary judgment is granted, the Administrative Law Judge shall issue an opinion and order, subject to interlocutory appeal as provided in § 2423.31(c) of this subchapter, and the hearing shall proceed as necessary.
§ 2423.28 Subpoenas.
(a) When necessary. Where the parties are in agreement that the appearance of witnesses or the production of documents is necessary, and such witnesses agree to appear, no subpoena need be sought.
(b) Requests for subpoenas. A request for a subpoena by any person, as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with the Office of Administrative Law Judges not less than 10 days prior to the hearing, or with the Administrative Law Judge during the hearing. Requests for subpoenas made less than 10 days prior to the hearing shall be granted on sufficient explanation of why the request was not timely filed.
(c) Subpoena procedures. The Office of Administrative Law Judges, or any other employee of the Authority designated by the Authority, as appropriate, shall furnish the requester the subpoenas sought, provided the request is timely made. Requests for subpoenas may be made ex parte. Completion of the specific information in the subpoena and the service of the subpoena are the responsibility of the party on whose behalf the subpoena was issued.
(d) Service of subpoena. A subpoena may be served by any person who is at least 18 years old and who is not a party to the proceeding. The person who served the subpoena must certify that he or she did so:
(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) 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. The subpoena shall show on its face the name and address of the party on whose behalf the subpoena was issued.
(e)(1) Petition to revoke subpoena. Any person served with a subpoena who does not intend to comply shall, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke a subpoena shall be served on the party on whose behalf the subpoena was issued. Such petition to revoke, if made prior to the hearing, and a written statement of service, shall be filed with the Office of Administrative Law Judges for ruling. A petition to revoke a subpoena filed during the hearing, and a written statement of service, shall be filed with the Administrative Law Judge.
(2) The Administrative Law Judge, or any other employee of the Authority designated by the Authority, as appropriate, shall revoke the subpoena if the person or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The Administrative Law Judge, or any other employee of the Authority designated by the Authority, as appropriate, shall state the procedural or other ground for the ruling on the petition to revoke. The petition to revoke, any answer thereto, and any ruling thereon shall not become part of the official record except upon the request of the party aggrieved by the ruling.
(f) Failure to comply. Upon the failure of any person to comply with a subpoena issued and upon the request of the party on whose behalf the subpoena was issued, the Solicitor of the Authority shall institute proceedings on behalf of such party in the appropriate district court for the enforcement thereof, unless to do so would be inconsistent with law and the Federal Service Labor-Management Relations Statute.
§ 2423.29 [Reserved]
Subpart C—Hearing Procedures
§ 2423.30 General rules.
(a) Open hearing. The hearing shall be open to the public unless otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the extent practicable, be conducted in accordance with 5 U.S.C. 554-557, and other applicable provisions of the Administrative Procedure Act.
(c) Rights of parties. A party shall have the right to appear at any hearing in person, by counsel, or by other representative; to examine and cross-examine witnesses; to introduce into the record documentary or other relevant evidence; and to submit rebuttal evidence, except that the participation of any party shall be limited to the extent prescribed by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints concerning the conduct of a hearing. Any objection not raised to the Administrative Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon request, to a reasonable period prior to the close of the hearing for oral argument, which shall be included in the official transcript of the hearing.
(f) Official transcript. An official reporter shall make the only official transcript of such proceedings. Copies of the transcript may be examined in the appropriate Regional Office during normal working hours. Parties desiring a copy of the transcript shall make arrangements for a copy with the official hearing reporter.
§ 2423.31 Powers and duties of the Administrative Law Judge at the hearing.
(a) Conduct of hearing. The Administrative Law Judge shall conduct the hearing in a fair, impartial, and judicial manner, taking action as needed to avoid unnecessary delay and maintain order during the proceedings. The Administrative Law Judge may take any action necessary to schedule, conduct, continue, control, and regulate the hearing, including ruling on motions and taking official notice of material facts when appropriate. No provision of these regulations shall be construed to limit the powers of the Administrative Law Judge provided by 5 U.S.C. 556, 557, and other applicable provisions of the Administrative Procedure Act.
(b) Evidence. The Administrative Law Judge shall receive evidence and inquire fully into the relevant and material facts concerning the matters that are the subject of the hearing. The Administrative Law Judge may exclude any evidence that is immaterial, irrelevant, unduly repetitious, or customarily privileged. Rules of evidence shall not be strictly followed.
(c) Interlocutory appeals. Motions for an interlocutory appeal shall be filed in writing with the Administrative Law Judge within 5 days after the date of the contested ruling. The motion shall state why interlocutory review is appropriate, and why the Authority should modify or reverse the contested ruling.
(1) The Judge shall grant the motion and certify the contested ruling to the Authority if:
(i) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and
(ii) Immediate review will materially advance completion of the proceeding, or the denial of immediate review will cause undue harm to a party or the public.
(2) If the motion is granted, the Judge or Authority may stay the hearing during the pendency of the appeal. If the motion is denied, exceptions to the contested ruling may be filed in accordance with § 2423.40 of this subchapter after the Judge issues a decision and recommended order in the case.
(d) Bench decisions. Upon joint motion of the parties, the Administrative Law Judge may issue an oral decision at the close of the hearing when, in the Judge’s discretion, the nature of the case so warrants. By so moving, the parties waive their right to file posthearing briefs with the Administrative Law Judge, pursuant to § 2423.33. If the decision is announced orally, it shall satisfy the requirements of § 2423.34(a)(1)-(5) and a copy thereof, excerpted from the transcript, together with any supplementary matter the judge may deem necessary to complete the decision, shall be transmitted to the Authority, in accordance with § 2423.34(b), and furnished to the parties in accordance with § 2429.12 of this subchapter.
(e) Settlements after the opening of the hearing. As set forth in § 2423.25(a), settlements may be either informal or formal.
(1) Informal settlement procedure: Judge’s approval of withdrawal. If the Charging Party and the Respondent enter into an informal settlement agreement that is accepted by the Regional Director, the Regional Director may request the Administrative Law Judge for permission to withdraw the complaint and, having been granted such permission, shall withdraw the complaint and approve the informal settlement between the Charging Party and Respondent. If the Charging Party fails or refuses to become a party to an informal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the Regional Director shall enter into the agreement with the Respondent and shall, if granted permission by the Administrative Law Judge, withdraw the complaint. The Charging Party then may obtain a review of the Regional Director’s decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge’s approval of settlement. If the Charging Party and the Respondent enter into a formal settlement agreement that is accepted by the Regional Director, the Regional Director may request the Administrative Law Judge to approve such formal settlement agreement, and upon such approval, to transmit the agreement to the Authority for approval. If the Charging Party fails or refuses to become a party to a formal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the agreement shall be between the Respondent and the Regional Director. After the Charging Party is given an opportunity to state on the record or in writing the reasons for opposing the formal settlement, the Regional Director may request the Administrative Law Judge to approve such formal settlement agreement, and upon such approval, to transmit the agreement to the Authority for approval.
§ 2423.32 Burden of proof before the Administrative Law Judge.
The General Counsel shall present the evidence in support of the complaint and have the burden of proving the allegations of the complaint by a preponderance of the evidence. The Respondent shall have the burden of proving any affirmative defenses that it raises to the allegations in the complaint.
§ 2423.33 Posthearing briefs.
Except when bench decisions are issued pursuant to § 2423.31(d), posthearing briefs may be filed with the Administrative Law Judge within a time period set by the Judge, not to exceed 30 days from the close of the hearing, unless otherwise directed by the judge, and shall satisfy the filing and service requirements of part 2429 of this subchapter. Reply briefs shall not be filed absent permission of the Judge. Motions to extend the filing deadline or for permission to file a reply brief shall be filed in accordance with § 2423.21.
§ 2423.34 Decision and record.
(a) Recommended decision. Except when bench decisions are issued pursuant to § 2423.31(d), the Administrative Law Judge shall prepare a written decision expeditiously in every case. All written decisions shall be served in accordance with § 2429.12 of this subchapter. The decision shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) Transmittal to Authority. The Judge shall transmit the decision and record to the Authority. The record shall include the charge, complaint, service sheet, answer, motions, rulings, orders, prehearing conference summaries, stipulations, objections, depositions, interrogatories, exhibits, documentary evidence, basis for any sanctions ruling, official transcript of the hearing, briefs, and any other filings or submissions made by the parties.
§§ 2423.35-2423.39 [Reserved]
Subpart D—Post-Transmission and Exceptions to Authority Procedures
§ 2423.40 Exceptions; oppositions and cross-exceptions; oppositions to cross-exceptions; waiver.
(a) Exceptions. Any exceptions to the Administrative Law Judge’s decision must be filed with the Authority within 25 days after the date of service of the Judge’s decision. Exceptions shall satisfy the filing and service requirements of part 2429 of this subchapter. Exceptions shall consist of the following:
(1) The specific findings, conclusions, determinations, rulings, or recommendations being challenged; the grounds relied upon; and the relief sought.
(2) Supporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law. Attachments to briefs shall be separately paginated and indexed as necessary.
(3) Exceptions containing 25 or more pages shall include a table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise directed or approved by the Authority, oppositions to exceptions, cross-exceptions, and oppositions to cross-exceptions may be filed with the Authority within 20 days after the date of service of the exceptions or cross-exceptions, respectively. Oppositions shall state the specific exceptions being opposed. Oppositions and cross-exceptions shall be subject to the same requirements as exceptions set out in paragraph (a) of this section.
(c) Reply briefs. Reply briefs shall not be filed absent prior permission of the Authority.
(d) Waiver. Any exception not specifically argued shall be deemed to have been waived.
§ 2423.41 Action by the Authority; compliance with Authority decisions and orders.
(a) Authority decision; no exceptions filed. In the absence of the filing of exceptions within the time limits established in § 2423.40, the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority, and all objections and exceptions to the rulings and decision of the Administrative Law Judge shall be deemed waived for all purposes. Failure to comply with any filing requirement established in § 2423.40 may result in the information furnished being disregarded.
(b) Authority decision; exceptions filed. Whenever exceptions are filed in accordance with § 2423.40, the Authority shall issue a decision affirming or reversing, in whole or in part, the decision of the Administrative Law Judge or disposing of the matter as is otherwise deemed appropriate.
(c) Authority’s order. Upon finding a violation, the Authority shall, in accordance with 5 U.S.C. 7118(a)(7), issue an order directing the violator, as appropriate, to cease and desist from any unfair labor practice, or to take any other action to effectuate the purposes of the Federal Service Labor-Management Relations Statute. With regard to employees covered by 3 U.S.C. 431, upon finding a violation, the Authority’s order may not include an order of reinstatement, in accordance with 3 U.S.C. 431(a).
(d) Dismissal. Upon finding no violation, the Authority shall dismiss the complaint.
(e) Report of compliance. After the Authority issues an order, the Respondent shall, within the time specified in the order, provide to the appropriate Regional Director a report regarding what compliance actions have been taken. Upon determining that the Respondent has not complied with the Authority’s order, the Regional Director shall refer the case to the Authority for enforcement or take other appropriate action.
§ 2423.42 Backpay proceedings.
After the entry of an Authority order directing payment of backpay, or the entry of a court decree enforcing such order, if it appears to the Regional Director that a controversy exists between the Authority and a Respondent regarding backpay that cannot be resolved without a formal proceeding, the Regional Director may issue and serve on all parties a notice of hearing before an Administrative Law Judge to determine the backpay amount. The notice of hearing shall set forth the specific backpay issues to be resolved. The Respondent shall, within 20 days after the service of a notice of hearing, file an answer in accordance with § 2423.20. After the issuance of a notice of hearing, the procedures provided in subparts B, C, and D of this part shall be followed as applicable.
§§ 2423.43-2423.49 [Reserved]
PART 2424—NEGOTIABILITY PROCEEDINGS
Subpart A—Applicability of This Part and Definitions
§ 2424.1 Applicability of this part.
This part applies to all petitions for review filed on or after October 12, 2023.
§ 2424.2 Definitions.
In this part, the following definitions apply:
(a) Bargaining obligation dispute means a disagreement between an exclusive representative and an agency concerning whether, in the specific circumstances involved in a particular case, the parties are obligated by law to bargain over a proposal that otherwise may be negotiable. Examples of bargaining obligation disputes include disagreements between an exclusive representative and an agency concerning agency claims that:
(1) A proposal concerns a matter that is covered by a collective bargaining agreement;
(2) Bargaining is not required because there has not been a change in bargaining-unit employees’ conditions of employment or because the effect of the change is de minimis; and
(3) The exclusive representative is attempting to bargain at the wrong level of the agency.
(b) Collaboration and Alternative Dispute Resolution Program refers to the Federal Labor Relations Authority’s program that assists parties in reaching agreements to resolve disputes.
(c) Negotiability dispute means a disagreement between an exclusive representative and an agency concerning the legality of a proposal or provision. A negotiability dispute exists when an exclusive representative disagrees with an agency contention that (without regard to any bargaining obligation dispute) a proposal is outside the duty to bargain, including disagreement with an agency contention that a proposal is bargainable only at its election. A negotiability dispute also exists when an exclusive representative disagrees with an agency head’s disapproval of a provision as contrary to law. A negotiability dispute may exist where there is no bargaining obligation dispute. Examples of negotiability disputes include disagreements between an exclusive representative and an agency concerning whether a proposal or provision:
(1) Affects a management right under 5 U.S.C. 7106(a);
(2) Affects bargaining-unit employees’ conditions of employment;
(3) Enforces an “applicable law,” within the meaning of 5 U.S.C. 7106(a)(2);
(4) Concerns a matter negotiable at the election of the agency under 5 U.S.C. 7106(b)(1);
(5) Constitutes a “procedure” or “appropriate arrangement,” within the meaning of 5 U.S.C. 7106(b)(2) and (3), respectively;
(6) Is consistent with a Government-wide rule or regulation; and
(7) Is negotiable notwithstanding agency rules or regulations because:
(i) The proposal or provision is consistent with agency rules or regulations for which a compelling need exists under 5 U.S.C. 7117(a)(2);
(ii) The agency rules or regulations violate applicable law, rule, regulation, or appropriate authority outside the agency;
(iii) The agency rules or regulations were not issued by the agency or by any primary national subdivision of the agency;
(iv) The exclusive representative represents an appropriate unit including not less than a majority of the employees in the rule- or regulation-issuing agency or primary national subdivision; or
(v) No compelling need exists for the rules or regulations to bar negotiations.
(d) Petition for review means an appeal filed with the Authority by an exclusive representative requesting resolution of a negotiability dispute. An appeal that concerns only a bargaining obligation dispute may not be resolved under this part.
(e) Proposal means any matter offered for bargaining that has not been agreed to by the parties. If a petition for review concerns more than one proposal, then the term “proposal” includes each proposal concerned.
(f) Provision means any matter that has been disapproved by the agency head on review pursuant to 5 U.S.C. 7114(c). If a petition for review concerns more than one provision, then the term “provision” includes each provision concerned.
(g) Service means the delivery of copies of documents filed with the Authority to the other party’s principal bargaining representative and, in the case of an exclusive representative, also to the head of the agency. Compliance with part 2429 of this subchapter is required.
(h) Severance means the division of a proposal or provision into separate parts having independent meaning, for the purpose of determining whether any of the separate parts is within the duty to bargain or is contrary to law. In effect, severance results in the creation of separate proposals or provisions. Severance applies when some parts of the proposal or provision are determined to be outside the duty to bargain or contrary to law.
(i) Written allegation concerning the duty to bargain means an agency allegation that the duty to bargain in good faith does not extend to a proposal.
§§ 2424.3-2424.9 [Reserved]
Subpart B—Alternative Dispute Resolution; Requesting and Providing Allegations Concerning the Duty To Bargain
§ 2424.10 Collaboration and Alternative Dispute Resolution Program.
Where an exclusive representative and an agency are unable to resolve disputes that arise under this part, they may request assistance from the Collaboration and Alternative Dispute Resolution (CADR) Program or the Office of Case Intake and Publication (CIP), which will refer requests to the CADR Program. Upon request, as resources permit, and as agreed upon by the parties, CADR representatives will attempt to assist the parties to resolve these disputes. Parties seeking information or assistance under this part may call the CADR Office at (771) 444-5802 or the Office of CIP at (771) 444-5805, or write those offices at 1400 K Street NW, Washington, DC 20424-0001. A brief summary of CADR activities is available on the internet at www.flra.gov.
§ 2424.11 Requesting and providing written allegations concerning the duty to bargain.
(a) General. An exclusive representative may file a petition for review after receiving a written allegation concerning the duty to bargain from the agency. An exclusive representative also may file a petition for review if it requests in writing that the agency provide it with a written allegation concerning the duty to bargain and the agency does not respond to the request within ten (10) days.
(b) Agency allegation in response to request. The agency has an obligation to respond within ten (10) days to a written request by the exclusive representative for a written allegation concerning the duty to bargain. The agency’s allegation in response to the exclusive representative’s request must be in writing and must be served in accord with § 2424.2(g).
(c) Unrequested agency allegation. If an agency provides an exclusive representative with an unrequested written allegation concerning the duty to bargain, then the exclusive representative may either file a petition for review under this part, or continue to bargain and subsequently request in writing a written allegation concerning the duty to bargain, if necessary. If the exclusive representative chooses to file a petition for review based on an unrequested written allegation concerning the duty to bargain, then the time limit in § 2424.21(a)(1) applies.
§§ 2424.12-2424.19 [Reserved]
Subpart C—Filing and Responding to a Petition for Review; Conferences
§ 2424.20 Who may file a petition for review.
A petition for review may be filed by an exclusive representative that is a party to the negotiations.
§ 2424.21 Time limits for filing a petition for review.
(a) A petition for review must be filed within fifteen (15) days after the date of service of either:
(1) An agency’s written allegation that the exclusive representative’s proposal is not within the duty to bargain, or
(2) An agency head’s disapproval of a provision.
(b) If the agency has not served a written allegation on the exclusive representative within ten (10) days after the agency’s principal bargaining representative has received a written request for such allegation, as provided in § 2424.11(a), then the petition may be filed at any time, subject to the following:
(1) If the agency serves a written allegation on the exclusive representative more than ten (10) days after receiving a written request for such allegation, then the petition must be filed within fifteen (15) days after the date of service of that allegation on the exclusive representative.
(2) [Reserved]
§ 2424.22 Exclusive representative’s petition for review; purpose; divisions; content; service.
(a) Purpose. The purpose of a petition for review is to initiate a negotiability proceeding and provide the agency with notice that the exclusive representative requests a decision from the Authority that a proposal or provision is within the duty to bargain or not contrary to law, respectively.
(b) Divisions. The petition will be resolved according to how the exclusive representative divides matters into proposals or provisions. If the exclusive representative seeks a negotiability determination on particular matters standing alone, then the exclusive representative must submit those matters as distinct proposals or provisions. However, the exclusive representative will have an opportunity to divide proposals or provisions into separate parts when the exclusive representative files a response under § 2424.25.
(c) Content. You must file a petition for review on a form that the Authority has provided for that purpose, or in a substantially similar format. You meet this requirement if you file your petition electronically through use of the eFiling system on the FLRA’s website at www.flra.gov. That website also provides copies of petition forms. You must date the petition, unless you file it electronically through use of the FLRA’s eFiling system. And, regardless of how you file the petition, you must ensure that it includes the following:
(1) The exact wording and explanation of the meaning of the proposal or provision, including an explanation of special terms or phrases, technical language, or other words that are not in common usage, as well as how the proposal or provision is intended to work;
(2) Specific citation to any law, rule, regulation, section of a collective bargaining agreement, or other authority that you rely on in your argument or that you reference in the proposal or provision, and a copy of any such material that the Authority cannot easily access (which you may upload as attachments if you file the petition electronically through use of the FLRA’s eFiling system);
(i) An explanation of how the cited law, rule, regulation, section of a collective bargaining agreement, or other authority relates to your argument, proposal, or provision;
(ii) [Reserved]
(3) A statement as to whether the proposal or provision is also involved in an unfair labor practice charge under part 2423 of this subchapter, a grievance pursuant to the parties’ negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter, and whether any other petition for review has been filed concerning a proposal or provision arising from the same bargaining or the same agency head review;
(i) Documents relevant to the statement, including a copy of any related unfair labor practice charge, grievance, request for impasse assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons supporting such request, with the understanding that the Authority rarely grants such requests.
(d) Service. The petition for review, including all attachments, must be served in accord with § 2424.2(g).
§ 2424.23 Post-petition conferences; conduct and record.
(a) Scheduling a post-petition conference. The FLRA will, in its discretion, schedule a post-petition conference to be conducted by an FLRA representative by telephone, in person, or through other means. Unless the Authority or an FLRA representative directs otherwise, parties must observe all time limits in this part, regardless of whether a post-petition conference is conducted or may be conducted.
(b) Conduct of conference. The post-petition conference will be conducted with representatives of the exclusive representative and the agency, who must be prepared and authorized to discuss, clarify, and resolve matters including the following:
(1) The meaning of the proposal or provision in dispute;
(2) Any disputed factual issue(s);
(3) Negotiability dispute objections and bargaining obligation claims regarding the proposal or provision; and
(4) Status of any proceedings—including an unfair labor practice charge under part 2423 of this subchapter, a grievance under the parties’ negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter—that are directly related to the negotiability petition.
(c) Discretionary extension of time limits. The FLRA representative may, on determining that it will effectuate the purposes of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., and this part, extend the time limits for filing the agency’s statement of position and any subsequent filings.
(d) Record of the conference. After the post-petition conference has been completed, the FLRA representative will prepare, and the FLRA will serve on the parties, a written record that includes whether the parties agree on the meaning of the disputed proposal or provision, the resolution of any disputed factual issues, and any other appropriate matter.
(e) Hearings. Instead of, or in addition to, conducting a post-petition conference, the Authority may exercise its discretion under § 2424.31 to hold a hearing or take other appropriate action to aid in decision making.
§ 2424.24 Agency’s statement of position; purpose; time limits; content; service.
(a) Purpose. The purpose of the agency’s statement of position is to inform the Authority and the exclusive representative why a proposal or provision is outside the duty to bargain or contrary to law, respectively, and whether the agency disagrees with any facts or arguments made by the exclusive representative in the petition.
(b) Time limit for filing. Unless the time limit for filing has been extended pursuant to § 2424.23 or part 2429 of this subchapter, the agency must file its statement of position within thirty (30) days after the date the head of the agency receives a copy of the petition for review.
(c) Content. You must file your statement of position on a form that the Authority has provided for that purpose, or in a substantially similar format. You meet this requirement if you file your statement electronically through use of the eFiling system on the FLRA’s website at www.flra.gov. That website also provides copies of statement forms. You must date your statement, unless you file it electronically through use of the eFiling system. And, regardless of how you file your statement, your statement must:
(1) Withdraw either:
(i) The allegation that the duty to bargain in good faith does not extend to the exclusive representative’s proposal, or
(ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
(2) Set forth in full your position on any matters relevant to the petition that you want the Authority to consider in reaching its decision, including: A statement of the arguments and authorities supporting any bargaining obligation or negotiability claims; any disagreement with claims that the exclusive representative made in the petition for review; specific citation to, and explanation of the relevance of, any law, rule, regulation, section of a collective bargaining agreement, or other authority on which you rely; and a copy of any such material that the Authority may not easily access (which you may upload as attachments if you file your statement of position electronically through use of the FLRA’s eFiling system). Your statement of position must also include the following:
(i) If different from the exclusive representative’s position, an explanation of the meaning the agency attributes to the proposal or provision and the reasons for disagreeing with the exclusive representative’s explanation of meaning;
(ii) If different from the exclusive representative’s position, an explanation of how the proposal or provision would work, and the reasons for disagreeing with the exclusive representative’s explanation;
(3) Status of any proceedings—including an unfair labor practice charge under part 2423 of this subchapter, a grievance under the parties’ negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter—that are directly related to the negotiability petition, and whether any other petition for review has been filed concerning a proposal or provision arising from the same bargaining or the same agency head review;
(i) If they have not already been provided with the petition, documents relevant to the status updates, including a copy of any related unfair labor practice charge, grievance, request for impasse assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons supporting such request, with the understanding that the Authority rarely grants such requests.
(d) Service. A copy of the agency’s statement of position, including all attachments, must be served in accord with § 2424.2(g).
§ 2424.25 Response of the exclusive representative; purpose; time limits; content; severance; service.
(a) Purpose. The purpose of the exclusive representative’s response is to inform the Authority and the agency why, despite the agency’s arguments in its statement of position, the proposal or provision is within the duty to bargain or not contrary to law, respectively, and whether the exclusive representative disagrees with any facts or arguments in the agency’s statement of position.
(b) Time limit for filing. Unless the time limit for filing has been extended pursuant to § 2424.23 or part 2429 of this subchapter, within fifteen (15) days after the date the exclusive representative receives a copy of an agency’s statement of position, the exclusive representative must file a response.
(c) Content. You must file your response on a form that the Authority has provided for that purpose, or in a substantially similar format. You meet this requirement if you file your response electronically through use of the eFiling system on the FLRA’s website at www.flra.gov. That website also provides copies of response forms. With the exception of severance under paragraph (d) of this section, you must limit your response to the matters that the agency raised in its statement of position. You must date your response, unless you file it electronically through use of the FLRA’s eFiling system. And, regardless of how you file your response, you must ensure that it identifies any disagreement with the agency’s bargaining obligation or negotiability claims. You must: State the arguments and authorities supporting your opposition to any agency argument; include specific citation to, and explanation of the relevance of, any law, rule, regulation, section of a collective bargaining agreement, or other authority on which you rely; and provide a copy of any such material that the Authority may not easily access (which you may upload as attachments if you file your response electronically through use of the FLRA’s eFiling system). You are not required to repeat arguments that you made in your petition for review. If not included in the petition for review, then you must state the arguments and authorities supporting your position on all of the relevant bargaining obligation and negotiability matters identified in § 2424.2(a) and (c), respectively.
(d) Severance. The exclusive representative may, of its own accord, accomplish the severance of a previously submitted proposal or provision. To accomplish severance, the exclusive representative must identify the proposal or provision that the exclusive representative is severing and set forth the exact wording of the newly severed portion(s). Further, as part of the exclusive representative’s explanation and argument about why the newly severed portion(s) are within the duty to bargain or not contrary to law, the exclusive representative must explain how the severed portion(s) stand alone with independent meaning, and how the severed portion(s) would operate. The explanation and argument in support of the severed portion(s) must meet the same requirements for specific information set forth in paragraph (c) of this section, and must satisfy the exclusive representative’s burdens under § 2424.32.
(e) Service. A copy of the response of the exclusive representative, including all attachments, must be served in accord with § 2424.2(g).
§ 2424.26 Agency’s reply; purpose; time limits; content; service.
(a) Purpose. The purpose of the agency’s reply is to inform the Authority and the exclusive representative whether and why it disagrees with any facts or arguments made for the first time in the exclusive representative’s response.
(b) Time limit for filing. Unless the time limit for filing has been extended pursuant to § 2424.23 or part 2429 of this subchapter, within fifteen (15) days after the date the agency receives a copy of the exclusive representative’s response to the agency’s statement of position, the agency may file a reply.
(c) Content. You must file your reply on a form that the Authority has provided for that purpose, or in a substantially similar format. You meet this requirement if you file your reply electronically through use of the eFiling system on the FLRA’s website at www.flra.gov. That website also provides copies of reply forms. You must limit your reply to matters that the exclusive representative raised for the first time in its response. You must date your reply, unless you file it electronically through use of the FLRA’s eFiling system. And, regardless of how you file your reply, you must ensure that it identifies any disagreement with the exclusive representative’s assertions in its response, including your disagreements with assertions about the bargaining obligation and negotiability matters identified in § 2424.2(a) and (c), respectively. You must: State the arguments and authorities supporting your position; include specific citation to, and explanation of the relevance of, any law, rule, regulation, section of a collective bargaining agreement, or other authority on which you rely; and provide a copy of any such material that the Authority may not easily access (which you may upload as attachments if you file your reply electronically through use of the FLRA’s eFiling system). You are not required to repeat arguments that you made in your statement of position.
(d) Service. A copy of the agency’s reply, including all attachments, must be served in accord with § 2424.2(g).
§ 2424.27 Additional submissions to the Authority.
The Authority will not consider any submission filed by any party other than those authorized under this part, provided however that the Authority may, in its discretion, grant permission to file an additional submission based on a written request showing extraordinary circumstances by any party. The additional submission must be filed with the written request. All documents filed under this section must be served in accord with § 2424.2(g).
§§ 2424.28-2424.29 [Reserved]
Subpart D—Processing a Petition for Review
§ 2424.30 Procedure through which the petition for review will be resolved.
(a) Exclusive representative has filed related unfair labor practice charge or grievance alleging an unfair labor practice. Except for proposals or provisions that are the subject of an agency’s compelling need claim under 5 U.S.C. 7117(a)(2), the Authority will dismiss a petition for review when an exclusive representative files an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance alleging an unfair labor practice under the parties’ negotiated grievance procedure, and the charge or grievance concerns issues directly related to the petition for review filed pursuant to this part. The dismissal will be without prejudice to the right of the exclusive representative to refile the petition for review after the unfair labor practice charge or grievance has been resolved administratively, including resolution pursuant to an arbitration award that has become final and binding. No later than thirty (30) days after the date on which the unfair labor practice charge or grievance is resolved administratively, the exclusive representative may refile the petition for review, and the Authority will determine whether resolution of the petition is still required. For purposes of this subsection, a grievance is resolved administratively when:
(1) The exclusive representative withdraws the grievance;
(2) The parties mutually resolve the grievance;
(3) An arbitrator has issued an award resolving the grievance, and the 30-day period under 5 U.S.C. 7122(b) has passed without an exception being filed; or
(4) An arbitrator has issued an award resolving the grievance, a party has filed an exception to that award, and the Authority has issued a decision resolving that exception.
(b) Exclusive representative has not filed related unfair labor practice charge or grievance alleging an unfair labor practice. The petition will be processed as follows:
(1) No bargaining obligation dispute exists. The Authority will resolve the petition for review under the procedures of this part.
(2) A bargaining obligation dispute exists. The exclusive representative may have an opportunity to file an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance under the parties’ negotiated grievance procedure concerning the bargaining obligation dispute, and, where the exclusive representative pursues either of these courses, the Authority will proceed in accord with paragraph (a) of this section. If the exclusive representative does not file an unfair labor practice charge or grievance concerning the bargaining obligation dispute, then the Authority will proceed to resolve all disputes necessary for disposition of the petition unless, in its discretion, the Authority determines that resolving all disputes is not appropriate because, for example, resolution of the bargaining obligation dispute under this part would unduly delay resolution of the negotiability dispute, or the procedures in another, available administrative forum are better suited to resolve the bargaining obligation dispute.
§ 2424.31 Hearings and other appropriate action.
When necessary to resolve disputed issues of material fact in a negotiability or bargaining obligation dispute, or when it would otherwise aid in decision making, the Authority, or its designated representative, may, in its discretion:
(a) Direct the parties to provide specific documentary evidence;
(b) Direct the parties to provide answers to specific factual questions;
(c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3) or (c)(5); or
(d) Take any other appropriate action.
§ 2424.32 Parties’ responsibilities; failure to raise, support, or respond to arguments; failure to participate in conferences or respond to Authority orders.
(a) Responsibilities of the exclusive representative. The exclusive representative has the burden of explaining the meaning, operation, and effects of the proposal or provision; and raising and supporting arguments that the proposal or provision is within the duty to bargain, within the duty to bargain at the agency’s election, or not contrary to law, respectively.
(b) Responsibilities of the agency. The agency has the burden of explaining the agency’s understanding of the meaning, operation, and effects of the proposal or provision, if the agency disagrees with the exclusive representative’s explanations; and raising and supporting arguments that the proposal or provision is outside the duty to bargain or contrary to law, respectively.
(c) Responsibilities to sufficiently explain. Each party has the burden to give sufficiently detailed explanations to enable the Authority to understand the party’s position regarding the meaning, operation, and effects of a proposal or provision. A party’s failure to provide such explanations may affect the Authority’s decision in a manner that is adverse to the party.
(d) Failure to raise, support, or respond to arguments.
(1) Failure to raise and support an argument may, in the Authority’s discretion, be deemed a waiver of such argument. Absent good cause:
(i) Arguments that could have been but were not raised by an exclusive representative in the petition for review, or made in its response to the agency’s statement of position, may not be made in this or any other proceeding; and
(ii) Arguments that could have been but were not raised by an agency in the statement of position, or made in its reply to the exclusive representative’s response, may not be raised in this or any other proceeding.
(2) Failure to respond to an argument or assertion raised by the other party may, in the Authority’s discretion, be treated as conceding such argument or assertion.
(e) Failure to participate in conferences; failure to respond to Authority orders. Where a party fails to participate in a post-petition conference pursuant to § 2424.23, a direction or proceeding under § 2424.31, or otherwise fails to provide timely or responsive information pursuant to an Authority order, including an Authority procedural order directing the correction of technical deficiencies in filing, the Authority may, in addition to those actions set forth in paragraph (d) of this section, take any other action that, in the Authority’s discretion, it deems appropriate, including dismissal of the petition for review (with or without prejudice to the exclusive representative’s refiling of the petition for review), and granting the petition for review and directing bargaining or rescission of an agency head disapproval under 5 U.S.C. 7114(c) (with or without conditions).
§§ 2424.33-2424.39 [Reserved]
Subpart E—Decision and Order
§ 2424.40 Authority decision and order.
(a) Issuance. Subject to the requirements of this part, the Authority will expedite proceedings under this part to the extent practicable and will issue to the exclusive representative and to the agency a written decision, explaining the specific reasons for the decision, at the earliest practicable date. The decision will include an order, as provided in paragraphs (b) and (c) of this section, but, with the exception of an order to bargain, such order will not include remedies that could be obtained in an unfair labor practice proceeding under 5 U.S.C. 7118(a)(7).
(b) Cases involving proposals. If the Authority finds that the duty to bargain extends to the proposal, then the Authority will order the agency to bargain concerning the proposal. If the Authority finds that the duty to bargain does not extend to the proposal, then the Authority will dismiss the petition for review as to that proposal. If the Authority finds that the proposal is bargainable only at the election of the agency, then the Authority will so state. If the Authority resolves a negotiability dispute by finding that a proposal is within the duty to bargain, but there are unresolved bargaining obligation dispute claims, then the Authority will order the agency to bargain in the event its bargaining obligation claims are resolved in a manner that requires bargaining.
(c) Cases involving provisions. If the Authority finds that a provision is not contrary to law, rule, or regulation, or is bargainable at the election of the agency, then the Authority will direct the agency to rescind its disapproval of such provision in whole or in part as appropriate. If the Authority finds that a provision is contrary to law, rule, or regulation, then the Authority will dismiss the petition for review as to that provision.
§ 2424.41 Compliance.
The exclusive representative may report to the appropriate Regional Director an agency’s failure to comply with an order issued in accordance with § 2424.40. The exclusive representative must report such failure within a reasonable period of time following expiration of the 60-day period under 5 U.S.C. 7123(a), which begins on the date of issuance of the Authority order. If, on referral from the Regional Director, the Authority finds such a failure to comply with its order, the Authority will take whatever action it deems necessary to secure compliance with its order, including enforcement under 5 U.S.C. 7123(b).
§§ 2424.42-2424.49 [Reserved]
Subpart F—Criteria for Determining Compelling Need for Agency Rules and Regulations
§ 2424.50 Illustrative criteria.
A compelling need exists for an agency rule or regulation concerning any condition of employment when the rule or regulation was issued by the agency or any primary national subdivision of the agency, and the agency demonstrates that the rule or regulation satisfies one of the following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner that is consistent with the requirements of an effective and efficient government.
(b) The rule or regulation is necessary to ensure the maintenance of basic merit principles.
(c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.
§§ 2424.51-2424.59 [Reserved]
PART 2425—REVIEW OF ARBITRATION AWARDS
§ 2425.1 Applicability of this part.
This part applies to all arbitration cases in which exceptions are filed with the Authority, pursuant to 5 U.S.C. 7122, on or after June 4, 2012.
§ 2425.2 Exceptions—who may file; time limits for filing, including determining date of service of arbitration award for the purpose of calculating time limits; procedural and other requirements for filing.
(a) Who may file. Either party to arbitration under the provisions of chapter 71 of title 5 of the United States Code may file an exception to an arbitrator’s award rendered pursuant to the arbitration.
(b) Timeliness requirements—general. The time limit for filing an exception to an arbitration award is thirty (30) days after the date of service of the award. This thirty (30)-day time limit may not be extended or waived. In computing the thirty (30)-day period, the first day counted is the day after, not the day of, service of the arbitration award. Example: If an award is served on May 1, then May 2 is counted as day 1, and May 31 is day 30; an exception filed on May 31 would be timely, and an exception filed on June 1 would be untimely. In order to determine the date of service of the award, see the rules set forth in subsection (c) of this section, and for additional rules regarding computing the filing date, see 5 CFR 2429.21 and 2429.22.
(c) Methods of service of arbitration award; determining date of service of arbitration award for purposes of calculating time limits for exceptions. If the parties have reached an agreement as to what is an appropriate method(s) of service of the arbitration award, then that agreement—whether expressed in a collective bargaining agreement or otherwise—is controlling for purposes of calculating the time limit for filing exceptions. If the parties have not reached such an agreement, then the arbitrator may use any commonly used method—including, but not limited to, electronic mail (hereinafter “e-mail”), facsimile transmission (hereinafter “fax”), regular mail, commercial delivery, or personal delivery—and the arbitrator’s selected method is controlling for purposes of calculating the time limit for filing exceptions. The following rules apply to determine the date of service for purposes of calculating the time limits for filing exceptions, and assume that the method(s) of service discussed are either consistent with the parties’ agreement or chosen by the arbitrator absent such an agreement:
(1) If the award is served by regular mail, then the date of service is the postmark date or, if there is no legible postmark, then the date of the award; for awards served by regular mail, the excepting party will receive an additional five days for filing the exceptions under 5 CFR 2429.22.
(2) If the award is served by commercial delivery, then the date of service is the date on which the award was deposited with the commercial delivery service or, if that date is not indicated, then the date of the award; for awards served by commercial delivery, the excepting party will receive an additional five days for filing the exceptions under 5 CFR 2429.22.
(3) If the award is served by e-mail or fax, then the date of service is the date of transmission, and the excepting party will not receive an additional five days for filing the exceptions.
(4) If the award is served by personal delivery, then the date of personal delivery is the date of service, and the excepting party will not receive an additional five days for filing the exceptions.
(5) If the award is served by more than one method, then the first method of service is controlling when determining the date of service for purposes of calculating the time limits for filing exceptions. However, if the award is served by e-mail, fax, or personal delivery on one day, and by mail or commercial delivery on the same day, the excepting party will not receive an additional five days for filing the exceptions, even if the award was postmarked or deposited with the commercial delivery service before the e-mail or fax was transmitted.
(d) Procedural and other requirements for filing. Exceptions must comply with the requirements set forth in 5 CFR 2429.24 (Place and method of filing; acknowledgment), 2429.25 (Number of copies and paper size), 2429.27 (Service; statement of service), and 2429.29 (Content of filings).
§ 2425.3 Oppositions—who may file; time limits for filing; procedural and other requirements for filing.
(a) Who may file. A party to arbitration under the provisions of chapter 71 of title 5 of the United States Code may file an opposition to an exception that has been filed under § 2425.2 of this part.
(b) Timeliness requirements. Any opposition must be filed within thirty (30) days after the date the exception is served on the opposing party. For additional rules regarding computing the filing date, see 5 CFR 2425.8, 2429.21 and 2429.22.
(c) Procedural requirements. Oppositions must comply with the requirements set forth in 5 CFR 2429.24 (Place and method of filing; acknowledgment), 2429.25 (Number of copies and paper size), 2429.27 (Service; statement of service), and 2429.29 (Content of filings).
§ 2425.4 Content and format of exceptions.
(a) What is required. You must date your exception, unless you file it electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov. Regardless of how you file your exception, you must ensure that it is self-contained and that it sets forth, in full, the following:
(1) A statement of the grounds on which review is requested, as discussed in § 2425.6 of this part;
(2) Arguments in support of the stated grounds, including specific references to the record, citations of authorities, and any other relevant documentation;
(3) Legible copies of any documents (which you may upload as attachments if you file electronically through use of the FLRA’s eFiling system) that you reference in the arguments discussed in paragraph (a)(2) of this section, and that the Authority cannot easily access (such as internal agency regulations or provisions of collective bargaining agreements);
(4) Arguments in support of any request for an expedited, abbreviated decision within the meaning of § 2425.7 of this part;
(5) A legible copy of the award of the arbitrator; and
(6) The arbitrator’s name, mailing address, and, if available and authorized for use by the arbitrator, the arbitrator’s e-mail address or facsimile number.
(b) What is not required. Exceptions are not required to include copies of documents that are readily accessible to the Authority, such as Authority decisions, decisions of Federal courts, current provisions of the United States Code, and current provisions of the Code of Federal Regulations.
(c) What is prohibited. Consistent with 5 CFR 2429.5, an exception may not rely on any evidence, factual assertions, arguments (including affirmative defenses), requested remedies, or challenges to an awarded remedy that could have been, but were not, presented to the arbitrator.
(d) Format. You may file your exception on an optional form that is available on the FLRA’s Web site at www.flra.gov, or in any other format that is consistent with paragraphs (a) and (c) of this section. You meet this requirement if you file your exception electronically through use of the FLRA’s eFiling system on that Web site. Your failure to use, or properly fill out, an Authority-provided form will not, by itself, provide a basis for dismissing your exception.
§ 2425.5 Content and format of opposition.
If you choose to file an opposition, then you may file your opposition on an optional form that is available on the FLRA’s Web site at www.flra.gov, or in any other format that is consistent with this section. You meet this requirement if you file your opposition electronically through use of the FLRA’s eFiling system on that Web site. Your failure to use, or properly fill out, an Authority-provided form will not, by itself, provide a basis for dismissing your opposition. If you choose to file an opposition, and you dispute any assertions that have been made in the exceptions, then you should address those assertions—including any assertions that any evidence, factual assertions, arguments (including affirmative defenses), requested remedies, or challenges to an awarded remedy were raised before the arbitrator. If the excepting party has requested an expedited, abbreviated decision under § 2425.7 of this part, then you should state whether you support or oppose such a decision and provide supporting arguments. You must provide copies of any documents upon which you rely (which you may upload as attachments if you file your opposition electronically through use of the FLRA’s eFiling system), unless the Authority can easily access those documents (as discussed in § 2425.4(b) of this part) or the excepting party provided them with its exceptions.
§ 2425.6 Grounds for review; potential dismissal or denial for failure to raise or support grounds.
(a) The Authority will review an arbitrator’s award to which an exception has been filed to determine whether the award is deficient—
(1) Because it is contrary to any law, rule or regulation; or
(2) On other grounds similar to those applied by Federal courts in private sector labor-management relations.
(b) If a party argues that an award is deficient on private-sector grounds under paragraph (a)(2) of this section, then the excepting party must explain how, under standards set forth in the decisional law of the Authority or Federal courts:
(1) The arbitrator:
(i) Exceeded his or her authority; or
(ii) Was biased; or
(iii) Denied the excepting party a fair hearing; or
(2) The award:
(i) Fails to draw its essence from the parties’ collective bargaining agreement; or
(ii) Is based on a nonfact; or
(iii) Is incomplete, ambiguous, or contradictory as to make implementation of the award impossible; or
(iv) Is contrary to public policy; or
(v) Is deficient on the basis of a private-sector ground not listed in paragraphs (b)(1)(i) through (b)(2)(iv) of this section.
(c) If a party argues that the award is deficient on a private-sector ground raised under paragraph (b)(2)(v) of this section, the party must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions.
(d) The Authority does not have jurisdiction over an award relating to:
(1) An action based on unacceptable performance covered under 5 U.S.C. 4303;
(2) A removal, suspension for more than fourteen (14) days, reduction in grade, reduction in pay, or furlough of thirty (30) days or less covered under 5 U.S.C. 7512; or
(3) Matters similar to those covered under 5 U.S.C. 4303 and 5 U.S.C. 7512 which arise under other personnel systems.
(e) An exception may be subject to dismissal or denial if:
(1) The excepting party fails to raise and support a ground as required in paragraphs (a) through (c) of this section, or otherwise fails to demonstrate a legally recognized basis for setting aside the award; or
(2) The exception concerns an award described in paragraph (d) of this section.
§ 2425.7 Requests for expedited, abbreviated decisions in certain arbitration matters that do not involve unfair labor practices.
Where an arbitration matter before the Authority does not involve allegations of unfair labor practices under 5 U.S.C. 7116, and the excepting party wishes to receive an expedited Authority decision, the excepting party may request that the Authority issue a decision that resolves the parties’ arguments without a full explanation of the background, arbitration award, parties’ arguments, and analysis of those arguments. In determining whether such an abbreviated decision is appropriate, the Authority will consider all of the circumstances of the case, including, but not limited to: whether any opposition filed under § 2425.3 of this part objects to issuance of such a decision and, if so, the reasons for such an objection; and the case’s complexity, potential for precedential value, and similarity to other, fully detailed decisions involving the same or similar issues. Even absent a request, the Authority may issue expedited, abbreviated decisions in appropriate cases.
§ 2425.8 Collaboration and Alternative Dispute Resolution Program.
The parties may request assistance from the Collaboration and Alternative Dispute Resolution Program (CADR) to attempt to resolve the dispute before or after an opposition is filed. Upon request, and as agreed to by the parties, CADR representatives will attempt to assist the parties to resolve these disputes. If the parties have agreed to CADR assistance, and the time for filing an opposition has not expired, then the Authority will toll the time limit for filing an opposition until the CADR process is completed. Parties seeking information or assistance under this part may call or write the CADR Office at 1400 K Street, NW., Washington, DC 20424. A brief summary of CADR activities is available on the Internet at http://www.flra.gov.
§ 2425.9 Means of clarifying records or disputes.
When required to clarify a record or when it would otherwise aid in disposition of the matter, the Authority, or its designated representative, may, as appropriate:
(a) Direct the parties to provide specific documentary evidence, including the arbitration record as discussed in 5 CFR 2429.3;
(b) Direct the parties to respond to requests for further information;
(c) Meet with parties, either in person or via telephone or other electronic communications systems, to attempt to clarify the dispute or matters in the record;
(d) Direct the parties to provide oral argument; or
(e) Take any other appropriate action.
§ 2425.10 Authority decision.
The Authority shall issue its decision and order taking such action and making such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations.
PART 2426—NATIONAL CONSULTATION RIGHTS AND CONSULTATION RIGHTS ON GOVERNMENT-WIDE RULES OR REGULATIONS
Subpart A—National Consultation Rights
§ 2426.1 Requesting; granting; criteria.
(a) An agency shall accord national consultation rights to a labor organization that:
(1) Requests national consultation rights at the agency level; and
(2) Holds exclusive recognition for either:
(i) Ten percent (10%) or more of the total number of civilian personnel employed by the agency and the non-appropriated fund Federal instrumentalities under its jurisdiction, excluding foreign nationals; or
(ii) 3,500 or more employees of the agency.
(b) An agency’s primary national subdivision which has authority to formulate conditions of employment shall accord national consultation rights to a labor organization that:
(1) Requests national consultation rights at the primary national subdivision level; and
(2) Holds exclusive recognition for either:
(i) Ten percent (10%) or more of the total number of civilian personnel employed by the primary national subdivision and the non-appropriated fund Federal instrumentalities under its jurisdiction, excluding foreign nationals; or
(ii) 3,500 or more employees of the primary national subdivision.
(c) In determining whether a labor organization meets the requirements as prescribed in paragraphs (a)(2) and (b)(2) of this section, the following will not be counted:
(1) At the agency level, employees represented by the labor organization under national exclusive recognition granted at the agency level.
(2) At the primary national subdivision level, employees represented by the labor organization under national exclusive recognition granted at the agency level or at that primary national subdivision level.
(d) An agency or a primary national subdivision of an agency shall not grant national consultation rights to any labor organization that does not meet the criteria prescribed in paragraphs (a), (b) and (c) of this section.
§ 2426.2 Requests; petition and procedures for determination of eligibility for national consultation rights.
(a) Requests by labor organizations for national consultation rights shall be submitted in writing to the headquarters of the agency or the agency’s primary national subdivision, as appropriate, which headquarters shall have fifteen (15) days from the date of service of such request to respond thereto in writing.
(b) Issues relating to a labor organization’s eligibility for, or continuation of, national consultation rights shall be referred to the Authority for determination as follows:
(1) A petition for determination of the eligibility of a labor organization for national consultation rights under criteria set forth in § 2426.1 may be filed by a labor organization.
(2) A petition for determination of eligibility for national consultation rights shall be submitted on a form prescribed by the Authority and shall set forth the following information:
(i) Name and affiliation, if any, of the petitioner and its address and telephone number;
(ii) A statement that the petitioner has submitted to the agency or the primary national subdivision and to the Assistant Secretary a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives;
(iii) A declaration by the person signing the petition, under the penalties of the Criminal Code (18 U.S.C. 1001), that its contents are true and correct to the best of such person’s knowledge and belief;
(iv) The signature of the petitioner’s representative, including such person’s title and telephone number;
(v) The name, address, and telephone number of the agency or primary national subdivision in which the petitioner seeks to obtain or retain national consultation rights, and the persons to contact and their titles, if known;
(vi) A showing that petitioner holds adequate exclusive recognition as required by § 2426.1; and
(vii) A statement as appropriate: (A) That such showing has been made to and rejected by the agency or primary national subdivision, together with a statement of the reasons for rejection, if any, offered by that agency or primary national subdivision;
(B) That the agency or primary national subdivision has served notice of its intent to terminate existing national consultation rights, together with a statement of the reasons for termination; or
(C) That the agency or primary national subdivision has failed to respond in writing to a request for national consultation rights made under § 2426.2(a) within fifteen (15) days after the date the request is served on the agency or primary national subdivision.
(3) The following regulations govern petitions filed under this section:
(i) A petition for determination of eligibility for national consultation rights shall be filed with the Regional Director for the region wherein the headquarters of the agency or the agency’s primary national subdivision is located.
(ii) An original and four (4) copies of a petition shall be filed, together with a statement of any other relevant facts and of all correspondence.
(iii) Copies of the petition together with the attachments referred to in paragraph (b)(3)(ii) of this section shall be served by the petitioner on all known interested parties, and a written statement of such service shall be filed with the Regional Director.
(iv) A petition shall be filed within thirty (30) days after the service of written notice by the agency or primary national subdivision of its refusal to accord national consultation rights pursuant to a request under § 2426.2(a) or its intention to terminate existing national consultation rights. If an agency or a primary national subdivision fails to respond in writing to a request for national consultation rights made under § 2426.2(a) within fifteen (15) days after the date the request is served on the agency or primary national subdivision, a petition shall be filed within thirty (30) days after the expiration of such fifteen (15) day period.
(v) If an agency or primary national subdivision wishes to terminate national consultation rights, notice of its intention to do so shall include a statement of its reasons and shall be served not less than thirty (30) days prior to the intended termination date. A labor organization, after receiving such notice, may file a petition within the time period prescribed herein, and thereby cause to be stayed further action by the agency or primary national subdivision pending disposition of the petition. If no petition has been filed within the provided time period, an agency or primary national subdivision may terminate national consultation rights.
(vi) Within fifteen (15) days after the receipt of a copy of the petition, the agency or primary national subdivision shall file a response thereto with the Regional Director raising any matter which is relevant to the petition.
(vii) The Regional Director shall make such investigations as the Regional Director deems necessary and thereafter shall issue and serve on the parties a Decision and Order with respect to the eligibility for national consultation rights which shall be final: Provided, however, That an application for review of the Regional Director’s Decision and Order may be filed with the Authority in accordance with the procedure set forth in § 2422.17 of this subchapter. A determination by the Regional Director to issue a notice of hearing shall not be subject to the filing of an application for review. The Regional Director, if appropriate, may cause a notice of hearing to be issued to all interested parties where substantial factual issues exist warranting a hearing. Hearings shall be conducted by a Hearing Officer in accordance with §§ 2422.9 through 2422.15 of this subchapter and after the close of the hearing a Decision and Order shall be issued by the Regional Director in accordnce with § 2422.16 of this subchapter.
§ 2426.3 Obligation to consult.
(a) When a labor organization has been accorded national consultation rights, the agency or the primary national subdivision which has granted those rights shall, through appropriate officials, furnish designated representatives of the labor organization:
(1) Reasonable notice of any proposed substantive change in conditions of employment; and
(2) Reasonable time to present its views and recommendations regarding the change.
(b) If a labor organization presents any views or recommendations regarding any proposed substantive change in conditions of employment to an agency or a primary national subdivision, that agency or primary national subdivision shall:
(1) Consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and
(2) Provide the labor organization a written statement of the reasons for taking the final action.
(c) Nothing in this subpart shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining.
Subpart B—Consultation Rights on Government-wide Rules or Regulations
§ 2426.11 Requesting; granting; criteria.
(a) An agency shall accord consultation rights on Government-wide rules or regulations to a labor organization that:
(1) Requests consultation rights on Government-wide rules or regulations from an agency; and
(2) Holds exclusive recognition for 3,500 or more employees.
(b) An agency shall not grant consultation rights on Government-wide rules or regulations to any labor organization that does not meet the criteria prescribed in paragraph (a) of this section.
§ 2426.12 Requests; petition and procedures for determination of eligibility for consultation rights on Government-wide rules or regulations.
(a) Requests by labor organizations for consultation rights on Government-wide rules or regulations shall be submitted in writing to the headquarters of the agency, which headquarters shall have fifteen (15) days from the date of service of such request to respond thereto in writing.
(b) Issues relating to a labor organization’s eligibility for, or continuation of, consultation rights on Government-wide rules or regulations shall be referred to the Authority for determination as follows:
(1) A petition for determination of the eligibility of a labor organization for consultation rights under criteria set forth in § 2426.11 may be filed by a labor organization.
(2) A petition for determination of eligibility for consultation rights shall be submitted on a form prescribed by the Authority and shall set forth the following information:
(i) Name and affiliation, if any, of the petitioner and its address and telephone number;
(ii) A statement that the petitioner has submitted to the agency and to the Assistant Secretary a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives;
(iii) A declaration by the person signing the petition, under the penalties of the Criminal Code (18 U.S.C. 1001), that its contents are true and correct to the best of such person’s knowledge and belief;
(iv) The signature of the petitioner’s representative, including such person’s title and telephone number;
(v) The name, address, and telephone number of the agency in which the petitioner seeks to obtain or retain consultation rights on Government-wide rules or regulations, and the persons to contact and their titles, if known;
(vi) A showing that petitioner meets the criteria as required by § 2426.11; and
(vii) A statement, as appropriate:
(A) That such showing has been made to and rejected by the agency, together with a statement of the reasons for rejection, if any, offered by that agency;
(B) That the agency has served notice of its intent to terminate existing consultation rights on Government-wide rules or regulations, together with a statement of the reasons for termination; or
(C) That the agency has failed to respond in writing to a request for consultation rights on Government-wide rules or regulations made under § 2426.12(a) within fifteen (15) days after the date the request is served on the agency.
(3) The following regulations govern petitions filed under this section:
(i) A petition for determination of eligibility for consultation rights on Government-wide rules or regulations shall be filed with the Regional Director for the region wherein the headquarters of the agency is located.
(ii) An original and four (4) copies of a petition shall be filed, together with a statement of any other relevant facts and of all correspondence.
(iii) Copies of the petition together with the attachments referred to in paragraph (b)(3)(ii) of this section shall be served by the petitioner on the agency, and a written statement of such service shall be filed with the Regional Director.
(iv) A petition shall be filed within thirty (30) days after the service of written notice by the agency of its refusal to accord consultation rights on Government-wide rules or regulations pursuant to a request under § 2426.12(a) or its intention to terminate such existing consultation rights. If an agency fails to respond in writing to a request for consultation rights on Government-wide rules or regulations made under § 2426.12(a) within fifteen (15) days after the date the request is served on the agency, a petition shall be filed within thirty (30) days after the expiration of such fifteen (15) day period.
(v) If an agency wishes to terminate consultation rights on Government-wide rules or regulations, notice of its intention to do so shall be served not less than thirty (30) days prior to the intended termination date. A labor organization, after receiving such notice, may file a petition within the time period prescribed herein, and thereby cause to be stayed further action by the agency pending disposition of the petition. If no petition has been filed within the provided time period, an agency may terminate such consultation rights.
(vi) Within fifteen (15) days after the receipt of a copy of the petition, the agency shall file a response thereto with the Regional Director raising any matter which is relevant to the petition.
(vii) The Regional Director shall make such investigation as the Regional Director deems necessary and thereafter shall issue and serve on the parties a Decision and Order with respect to the eligibility for consultation rights which shall be final: Provided, however, That an application for review of the Regional Director’s Decision and Order may be filed with the Authority in accordance with the procedure set forth in § 2422.17 of this subchapter. A determination by the Regional Director to issue a notice of hearing shall not be subject to the filing of an application for review. The Regional Director, if appropriate, may cause a notice of hearing to be issued where substantial factual issues exist warranting a hearing. Hearings shall be conducted by a Hearing Officer in accordance with §§ 2422.9 through 2422.15 of this chapter and after the close of the hearing a Decision and Order shall be issued by the Regional Director in accordance with § 2422.16 of this subchapter.
§ 2426.13 Obligation to consult.
(a) When a labor organization has been accorded consultation rights on Government-wide rules or regulations, the agency which has granted those rights shall, through appropriate officials, furnish designated representatives of the labor organization:
(1) Reasonable notice of any proposed Government-wide rule or regulation issued by the agency affecting any substantive change in any condition of employment; and
(2) Reasonable time to present its views and recommendations regarding the change.
(b) If a labor organization presents any views or recommendations regarding any proposed substantive change in any condition of employment to an agency, that agency shall:
(1) Consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and
(2) Provide the labor organization a written statement of the reasons for taking the final action.
PART 2427—GENERAL STATEMENTS OF POLICY OR GUIDANCE
§ 2427.1 Scope.
This part sets forth procedures under which requests may be submitted to the Authority seeking the issuance of general statements of policy or guidance under 5 U.S.C. 7105(a)(1).
§ 2427.2 Requests for general statements of policy or guidance.
(a) The head of an agency (or designee), the national president of a labor organization (or designee), or the president of a labor organization not affiliated with a national organization (or designee) may separately or jointly ask the Authority for a general statement of policy or guidance. The head of any lawful association not qualified as a labor organization may also ask the Authority for such a statement provided the request is not in conflict with the provisions of chapter 71 of title 5 of the United States Code or other law.
(b) The Authority ordinarily will not consider a request related to any matter pending before the Authority, General Counsel, Panel or Assistant Secretary.
§ 2427.3 Content of request.
(a) A request for a general statement of policy or guidance shall be in writing and must contain:
(1) A concise statement of the question with respect to which a general statement of policy or guidance is requested together with background information necessary to an understanding of the question;
(2) A statement of the standards under § 2427.5 upon which the request is based;
(3) A full and detailed statement of the position or positions of the requesting party or parties;
(4) Identification of any cases or other proceedings known to bear on the question which are pending under chapter 71 of title 5 of the United States Code; and
(5) Identification of other known interested parties.
(b) A copy of each document also shall be served on all known interested parties, including the General Counsel, the Panel, the Federal Mediation and Conciliation Service, and the Assistant Secretary, where appropriate.
§ 2427.4 Submissions from interested parties.
Prior to issuance of a general statement of policy or guidance the Authority, as it deems appropriate, will afford an opportunity to interested parties to express their views orally or in writing.
§ 2427.5 Standards governing issuance of general statements of policy or guidance.
In deciding whether to issue a general statement of policy or guidance, the Authority shall consider:
(a) Whether the question presented can more appropriately be resolved by other means;
(b) Where other means are available, whether an Authority statement would prevent the proliferation of cases involving the same or similar question;
(c) Whether the resolution of the question presented would have general applicability under the Federal Service Labor-Management Relations Statute;
(d) Whether the question currently confronts parties in the context of a labor-management relationship;
(e) Whether the question is presented jointly by the parties involved; and
(f) Whether the issuance by the Authority of a general statement of policy or guidance on the question would promote constructive and cooperative labor-management relationships in the Federal service and would otherwise promote the purposes of the Federal Service Labor-Management Relations Statute.
PART 2428—ENFORCEMENT OF ASSISTANT SECRETARY STANDARDS OF CONDUCT DECISIONS AND ORDERS
§ 2428.1 Scope.
This part sets forth procedures under which the Authority, pursuant to 5 U.S.C. 7105(a)(2)(I), will enforce decisions and orders of the Assistant Secretary in standards of conduct matters arising under 5 U.S.C. 7120.
§ 2428.2 Petitions for enforcement.
(a) The Assistant Secretary may petition the Authority to enforce any Assistant Secretary decision and order in a standards of conduct case arising under 5 U.S.C. 7120. The Assistant Secretary shall transfer to the Authority the record in the case, including a copy of the transcript if any, exhibits, briefs, and other documents filed with the Assistant Secretary. A copy of the petition for enforcement shall be served on the labor organization against which such order applies.
(b) An opposition to Authority enforcement of any such Assistant Secretary decision and order may be filed by the labor organization against which such order applies twenty (20) days from the date of service of the petition, unless the Authority, upon good cause shown by the Assistant Secretary, sets a shorter time for filing such opposition. A copy of the opposition to enforcement shall be served on the Assistant Secretary.
§ 2428.3 Authority decision.
(a) A decision and order of the Assistant Secretary shall be enforced unless it is arbitrary and capricious or based upon manifest disregard of the law.
(b) The Authority shall issue its decision on the case enforcing, enforcing as modified, refusing to enforce, or remanding the decision and order of the Assistant Secretary.
PART 2429—MISCELLANEOUS AND GENERAL REQUIREMENTS
Subpart A—Miscellaneous
§ 2429.1 [Reserved]
§ 2429.2 Transfer and consolidation of cases.
In any matter arising pursuant to parts 2422 and 2423 of this subchapter, whenever it appears necessary in order to effectuate the purposes of the Federal Service Labor-Management Relations Statute or to avoid unnecessary costs or delay, Regional Directors may consolidate cases within their own region or may transfer such cases to any other region, for the purpose of investigation or consolidation with any proceedings which may have been instituted in, or transferred to, such region.
§ 2429.3 Transfer of record.
In any case under part 2425 of this subchapter, upon request by the Authority, the parties jointly shall transfer the record in the case, including a copy of the transcript, if any, exhibits, briefs and other documents filed with the arbitrator, to the Authority.
§ 2429.4 Referral of policy questions to the Authority.
Notwithstanding the procedures set forth in this subchapter, the General Counsel, the Assistant Secretary, or the Panel may refer for review and decision or general ruling by the Authority any case involving a major policy issue that arises in a proceeding before any of them. Any such referral shall be in writing and a copy of such referral shall be served on all parties to the proceeding. Before decision or general ruling, the Authority shall obtain the views of the parties and other interested persons, orally or in writing, as it deems necessary and appropriate.
§ 2429.5 Matters not previously presented; official notice.
The Authority will not consider any evidence, factual assertions, arguments (including affirmative defenses), requested remedies, or challenges to an awarded remedy that could have been, but were not, presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.
§ 2429.6 Oral argument.
The Authority or the General Counsel, in their discretion, may request or permit oral argument in any matter arising under this subchapter under such circumstances and conditions as they deem appropriate.
§ 2429.7 Subpoenas.
(a) Any member of the Authority, the General Counsel, any Administrative Law Judge appointed by the Authority under 5 U.S.C. 3105, and any Regional Director, Hearing Officer, or other employee of the Authority designated by the Authority may issue subpoenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence. However, no subpoena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management.
(b) Where the parties are in agreement that the appearance of witnesses or the production of documents is necessary, and such witnesses agree to appear, no such subpoena need be sought.
(c) A request for a subpoena by any person, as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with the Regional Director, in proceedings arising under part 2422 of this subchapter, or with the Authority, in proceedings arising under parts 2424 and 2425 of this subchapter, not less than 10 days prior to the hearing, or with the appropriate presiding official(s) during the hearing. Requests for subpoenas made less than 10 days prior to the opening of the hearing shall be granted on sufficient explanation of why the request was not timely filed.
(d) The Authority, General Counsel, Regional Director, Hearing Officer, or any other employee of the Authority designated by the Authority, as appropriate, shall furnish the requester the subpoenas sought, provided the request is timely made. Requests for subpoenas may be made ex parte. Completion of the specific information in the subpoena and the service of the subpoena are the responsibility of the party on whose behalf the subpoena was issued. A subpoena may be served by any person who is at least 18 years old and who is not a party to the proceeding. The person who served the subpoena must certify that he or she did so:
(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) 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. The subpoena shall show on its face the name and address of the party on whose behalf the subpoena was issued.
(e)(1) Any person served with a subpoena who does not intend to comply, shall, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke a subpoena shall be served on the party on whose behalf the subpoena was issued. Such petition to revoke, if made prior to the hearing, and a written statement of service, shall be filed with the Regional Director in proceedings arising under part 2422 of this subchapter, and with the Authority, in proceedings arising under parts 2424 and 2425 of this subchapter for ruling. A petition to revoke a subpoena filed during the hearing, and a written statement of service, shall be filed with the appropriate presiding official(s).
(2) The Authority, General Counsel, Regional Director, Hearing Officer, or any other employee of the Authority designated by the Authority, as appropriate, shall revoke the subpoena if the person or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The Authority, General Counsel, Regional Director, Hearing Officer, or any other employee of the Authority designated by the Authority, as appropriate, shall state the procedural or other ground for the ruling on the petition to revoke. The petition to revoke, any answer thereto, and any ruling thereon shall not become part of the official record except upon the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpoena issued and upon the request of the party on whose behalf the subpoena was issued, the Solicitor of the Authority shall institute proceedings on behalf of such party in the appropriate district court for the enforcement thereof, unless to do so would be inconsistent with law and the Federal Service Labor-Management Relations Statute.
§ 2429.8 [Reserved]
§ 2429.9 Amicus curiae.
Upon petition of an interested person, a copy of which petition shall be served on the parties, and as the Authority deems appropriate, the Authority may grant permission for the presentation of written and/or oral argument at any stage of the proceedings by an amicus curiae and the parties shall be notified of such action by the Authority.
§ 2429.10 Advisory opinions.
The Authority and the General Counsel will not issue advisory opinions.
§ 2429.11 Interlocutory appeals.
Except as set forth in part 2423, the Authority and the General Counsel ordinarily will not consider interlocutory appeals.
§ 2429.12 Service of process and papers by the Authority.
(a) Methods of service. Notices of hearings, decisions and orders of Regional Directors, decisions and recommended orders of Administrative Law Judges, decisions of the Authority, complaints, amended complaints, withdrawals of complaints, written rulings on motions, and all other papers required by this subchapter to be issued by the Authority, the General Counsel, Regional Directors, Hearing Officers, Administrative Law Judges, and Regional Directors when not acting as a party under part 2423 of this subchapter, shall be served personally, by first-class mail, by facsimile transmission, by certified mail, or, as described below with respect to documents issued by the Authority, by electronic mail (hereinafter, “email”). Where facsimile equipment is available, rulings on motions; information pertaining to prehearing disclosure, conferences, orders, or hearing dates, and locations; information pertaining to subpoenas; and other similar or time sensitive matters may be served by facsimile transmission. Where a party using the FLRA’s eFiling system has consented to electronic service of documents issued by the Authority in a particular case, the Authority shall serve documents on that party exclusively by email to the email address provided by the party.
(b) Upon whom served. All papers required to be served under paragraph (a) of this section shall be served upon all counsel of record or other designated representative(s) of parties, and upon parties not so represented. Service upon such counsel or representative shall constitute service upon the party, but a copy also shall be transmitted to the party.
(c) Proof of service. Proof of service shall be verified by certificate of the individual serving the papers describing the manner of such service. When service is by mail, the date of service shall be the day when the matter served is deposited in the United States mail. When service is by facsimile, the date of service shall be the date the facsimile transmission is transmitted and, when necessary, verified by a dated facsimile record of transmission. When parties are served documents by the Authority by email, the date of service shall be the date the email is sent.
§ 2429.13 Official time for witnesses.
If the participation of any employee in any phase of any proceeding before the Authority, including the investigation of unfair labor practice charges and representation petitions and the participation in hearings and representation elections, is deemed necessary by the Authority, the General Counsel, any Administrative Law Judge, Regional Director, Hearing Officer, or other agent of the Authority designated by the Authority, the employee shall be granted official time for such participation, including necessary travel time, as occurs during the employee’s regular work hours and when the employee would otherwise be in a work or paid leave status.
§ 2429.14 Witness fees.
(a) Witnesses, whether appearing voluntarily or pursuant to a subpoena, shall be paid the fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States. However, any witness who is employed by the Federal Government shall not be entitled to receive witness fees.
(b) Witness fees, as appropriate, as well as transportation and per diem expenses for a witness shall be paid by the party that calls the witness to testify.
§ 2429.15 Authority requests for advisory opinions.
(a) Whenever the Authority, pursuant to 5 U.S.C. 7105(i) requests an advisory opinion from the Director of the Office of Personnel Management concerning the proper interpretation of rules, regulations, or policy directives issued by that Office in connection with any matter before the Authority, a copy of such request, and any response thereto, shall be served upon the parties in the matter.
(b) The parties shall have fifteen (15) days from the date of service of a copy of the response of the Office of Personnel Management to file with the Authority comments on that response which the parties wish the Authority to consider before reaching a decision in the matter. Such comments shall be in writing and copies shall be served upon the other parties in the matter and upon the Office of Personnel Management.
The Authority shall take any actions which are necessary and appropriate to administer effectively the provisions of chapter 71 of title 5 of the United States Code.
§ 2429.17 Reconsideration.
After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within ten (10) days after service of the Authority’s decision or order. A motion for reconsideration shall state with particularity the extraordinary circumstances claimed and shall be supported by appropriate citations. The filing and pendency of a motion under this provision shall not operate to stay the effectiveness of the action of the Authority, unless so ordered by the Authority. A motion for reconsideration need not be filed in order to exhaust administrative remedies.
Any aggrieved person filing pursuant to 5 U.S.C. 7123(a) a petition for review of a final Authority order in an appropriate Federal circuit court of appeals within 10 days of issuance of the Authority’s final order must ensure that a court-stamped copy of the petition for review is received by the Solicitor of the Authority within that 10-day period in order to qualify for participation in the random selection process established in Public Law No. 100-236 for determining the appropriate court of appeals to review an agency final order when petitions for review of that order are filed in more than one court of appeals.
§ 2429.19 Revocation of assignments.
Consistent with the exceptions in 5 U.S.C. 7115(b), after the expiration of the one-year period during which an assignment may not be revoked under 5 U.S.C. 7115(a), an employee may initiate the revocation of a previously authorized assignment at any time that the employee chooses. After the expiration of the one-year period of irrevocability under 5 U.S.C. 7115(a), upon receiving an employee’s request to revoke a previously authorized dues assignment, an agency must process the revocation request as soon as administratively feasible.
Subpart B—General Requirements
§ 2429.21 How to compute the due date for filing documents with the FLRA; how the FLRA determines the date on which documents have been filed.
(a) How to compute the due date for filing documents with the FLRA. In computing the due date for filing any document with the FLRA under this subchapter, follow these rules:
(1) General rules. Except in the situations discussed in paragraphs (a)(2) and (3) of this section, follow these steps in order to determine the date on which you must file any document with the FLRA.
(i) Step 1: Determine the act, event, or default (“the triggering event”) that you are filing in response to. The act, event, or default constitutes the triggering event even if it falls on a Saturday, Sunday, or federal legal holiday.
(ii) Step 2: Determine the number of days that you have to file (“the filing period”).
(iii) Step 3: Determine the first day of the filing period. This is the day after, not the day of, the triggering event, and constitutes the first day of the filing period even if it is a Saturday, Sunday, or federal legal holiday.
(iv) Step 4: Starting with the first day of the filing period, count calendar days—including Saturdays, Sundays, and federal legal holidays—until you reach the last day of the filing period (“the last day”).
(v) Step 5: Ask: Does the last day fall on a Saturday, Sunday, or federal legal holiday? If no, then your filing is due on that day (unless you are entitled to an additional 5 days under § 2429.22). If yes, then find the next day on the calendar that is not a Saturday, Sunday, or federal legal holiday. Your filing is due on that day (unless you are entitled to an additional 5 days under § 2429.22), even if you are filing electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov (although, as discussed in paragraph (b)(1)(v) of this section, you are permitted to file electronically on Saturdays, Sundays, or federal legal holidays). See § 2429.22 for rules regarding how to calculate your due date if you are entitled to an additional 5 days.
(2) Agreement-bar exception. If you are filing a petition in an agreement-bar situation under 5 CFR 2422.12(c), (d), (e), and (f), then, as discussed further in those regulations, you must file a petition no later than 60 days before the expiration date of the existing collective-bargaining agreement (“the 60-day date”). The first day (“day one”) of the period is the day before, not the day on which, the collective-bargaining agreement expires. Start with day one, and count back on the calendar from that day, including Saturdays, Sundays, and federal legal holidays. If the 60th day falls on a Saturday, Sunday, or federal legal holiday, then you must file your petition by the close of business on the last official workday that comes before, not after, that Saturday, Sunday, or federal legal holiday.
(3) Exception for filing periods that are 7 days or less. If your filing period is 7 days or less, then determine the act, event, or default that you are filing in response to (“the triggering event”). Find the first day after the triggering event that is not a Saturday, Sunday, or federal legal holiday. Start counting the 7-day period on (and including) that day, but exclude any Saturdays, Sundays, or federal legal holidays. The 7th day is the due date for filing.
(b) How the FLRA determines the date on which documents have been filed. The FLRA applies the following rules in determining the date on which a party has filed documents.
(1) General rules. Except in the situations discussed in paragraph (b)(2) of this section, the FLRA looks to the method by which documents have been filed in order to determine the date on which those documents have been filed. Specifically:
(i) Documents filed with the FLRA by first-class mail. If the mailing contains a legible postmark date, then that date is the date of filing. If the mailing does not contain a legible postmark date, then the FLRA presumes that it was filed 5 days prior to the date on which the appropriate FLRA component, officer, or agent receives it.
(ii) Documents filed with the FLRA by facsimile (“fax”). If the date of transmission on a fax is clear, then that date is the filing date. If the date of transmission on a fax is not clear, then the date of filing is the date on which the appropriate FLRA component, officer, or agent receives the fax.
(iii) Documents filed with the FLRA by personal delivery. The date of filing is the date on which the appropriate FLRA component, officer, or agent receives the filing.
(iv) Documents filed with the FLRA by deposit with a commercial-delivery service that provides a record showing the date of deposit. The date of filing is the date of deposit with the commercial-delivery service.
(v) Documents filed electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov. The date of filing is the calendar day (including Saturdays, Sundays, and federal legal holidays) on which the document is transmitted in the eFiling system. Although documents that are filed electronically may be filed on Saturdays, Sundays, and federal legal holidays, they are not required to be filed on such days, as discussed in paragraph (a)(1)(v) of this section.
(2) Exceptions. The rules in paragraph (b)(1) of this section do not apply to filing an unfair labor practice charge under 5 CFR part 2423, a representation petition under 5 CFR part 2422, and a request for an extension of time under § 2429.23(a). See those provisions for more information.
(c) Compliance with § 2429.24. All documents filed or required to be filed with the Authority must be filed in accordance with the rules set out in § 2429.24.
§ 2429.22 Additional time for filing with the FLRA if you are filing in response to a document that has been served on you by first-class mail or commercial delivery.
(a) General rules. Except as discussed in paragraphs (b), (c), (d), and (e) of this section, apply the following rules if and only if you are filing a document with the FLRA in response to a document that has been served on you by first-class mail or commercial delivery. First, look to § 2429.21(a)(1) and apply steps 1 through 5 of that section in order to determine what normally would be your due date. Second, starting with the next calendar day, which will be day one, count forward on the calendar, including Saturdays, Sundays, and federal legal holidays, until you reach day five. If day five is not a Saturday, Sunday, or federal legal holiday, then your filing is due with the FLRA on that day. If day five is a Saturday, Sunday, or federal legal holiday, then find the next calendar day that is not a Saturday, Sunday, or federal legal holiday; your filing is due with the FLRA on that day.
(b) Rules that apply when you have been served by more than one method. If someone has served you with a document using more than one method of service, then, as a general rule, the first method of service is controlling for purposes of determining your due date for filing with the FLRA. For example, if someone serves you with a document by first-class mail or commercial delivery on one day, and then serves you by some other method (such as electronic mail) the next day, then you may add 5 days to your due date, as described in paragraph (a) of this section. But if someone serves you with a document one day by any method other than first-class mail or commercial delivery, and later serves you with the document by first-class mail or commercial delivery, then you may not add 5 days to your due date; rather, you must look to § 2429.21(a)(1) and apply steps 1 through 5 of that section in order to determine your due date. Also, if someone serves you by first-class mail or commercial delivery on one day, and by any other method on the same day, then you may not add 5 days—even if the first-class mail was postmarked or the time of deposit with the commercial-delivery service was earlier in the day than the time at which the other method of service was effected.
(c) Exception for applications for review filed under 5 CFR 2422.31. You do not get an additional 5 days to file an application for review of a Regional Director’s Decision and Order under 5 CFR 2422.31, regardless of the method of service of that Decision and Order.
(d) Exception where extension of time has been granted. You do not get an additional 5 days in any instance where an extension of time already has been granted.
(e) Rules that apply to exceptions to arbitration awards. For specific rules that apply to filing exceptions to arbitration awards, see 5 CFR 2425.2(c).
§ 2429.23 Extension; waiver.
(a) Except as provided in paragraph (d) of this section, and notwithstanding § 2429.21(b) of this subchapter, the Authority or General Counsel, or their designated representatives, as appropriate, may extend any time limit provided in this subchapter for good cause shown, and shall notify the parties of any such extension. Requests for extensions of time shall be in writing and received by the appropriate official not later than five (5) days before the established time limit for filing, shall state the position of the other parties on the request for extension, and shall be served on the other parties.
(b) Except as provided in paragraph (d) of this section, the Authority or General Counsel, or their designated representatives, as appropriate, may waive any expired time limit in this subchapter in extraordinary circumstances. Request for a waiver of time limits shall state the position of the other parties and shall be served on the other parties.
(c) The time limits established in this subchapter may not be extended or waived in any manner other than that described in this subchapter.
(d) Time limits established in 5 U.S.C. 7105(f), 7117(c)(2) and 7122(b) may not be extended or waived under this section.
§ 2429.24 Place and method of filing; acknowledgement.
(a) Except for documents that are filed electronically through use of the eFiling system on the FLRA’s website at www.flra.gov, anyone who files a document with the Authority (as distinguished from the General Counsel, a Regional Director, or an Administrative Law Judge) must file that document with the Chief, Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 300, 1400 K Street NW, Washington, DC 20424-0001 (telephone: (771) 444-5805). To file documents by personal delivery, you must schedule an appointment at least one business day in advance by calling the telephone number in the previous sentence. Personal delivery is accepted by appointment Monday through Friday (except federal holidays). If you file documents electronically through use of the FLRA’s eFiling system, then you may file those documents on any calendar day—including Saturdays, Sundays, and federal legal holidays—and the Authority will consider those documents filed on a particular day if you file them no later than 11:59 p.m. Eastern Time on that day. Note, however, that although you may eFile documents on Saturdays, Sundays, and federal legal holidays, you are not required to do so. Also note that you may not file documents with the Authority by electronic mail (“email”).
(b) A document submitted to the General Counsel pursuant to this subchapter shall be filed with the General Counsel at the address set forth in the appendix.
(c) A document submitted to a Regional Director pursuant to this subchapter shall be filed with the appropriate regional office, as set forth in the appendix.
(d) Unless electronically filed pursuant to paragraph (f)(15) of this section, a document filed with the Office of Administrative Law Judges pursuant to this subchapter shall be submitted to the address for the Chief Administrative Law Judge, as set forth in the appendix.
(e) Except as discussed in paragraphs (f) and (g) of this section, if you are filing documents with the FLRA, then you must file them in person, by commercial delivery, by first-class mail, or by certified mail.
(f) As an alternative to the filing methods discussed in paragraph (e) of this section, you may file the following documents, and only the following documents, electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov:
(1) Applications for review under 5 CFR 2422.31(a) through (c);
(2) Oppositions to applications for review under 5 CFR 2422.31(d);
(3) Exceptions to Administrative Law Judges’ decisions under 5 CFR 2423.40(a);
(4) Oppositions to exceptions to Administrative Law Judges’ decisions under 5 CFR 2423.40(b);
(5) Cross-exceptions under 5 CFR 2423.40(b);
(6) Exclusive representatives’ petitions for review under 5 CFR 2424.22;
(7) Agency statements of position under 5 CFR 2424.24;
(8) Exclusive representatives’ responses under 5 CFR 2424.25;
(9) Agency replies under 5 CFR 2424.26;
(10) Exceptions to arbitration awards under 5 CFR part 2425; and
(11) Oppositions to exceptions to arbitration awards under 5 CFR part 2425.
(12) Petitions under 5 CFR part 2422.
(13) Cross-petitions under 5 CFR part 2422.
(14) Charges under 5 CFR part 2423.
(15) Documents submitted to the Office of Administrative Law Judges under 5 CFR part 2423, including answers to complaints, motions, briefs, pre-hearing disclosures, stipulations, and any other documents as permitted by the eFiling system for the Office of Administrative Law Judges.
(g) As another alternative to the methods of filing described in paragraph (e) of this section, you may file the following documents by facsimile (“fax”), so long as fax equipment is available and your entire, individual filing does not exceed 10 pages in total length, with normal margins and font sizes. You may file only the following documents by fax under this paragraph (g):
(1) Motions;
(2) Information pertaining to prehearing disclosure, conferences, orders, or hearing dates, times, and locations;
(3) Information pertaining to subpoenas;
(4) Appeals of a dismissal of an unfair labor practice charge; and
(5) Other matters that are similar to those in paragraphs (g)(1) through (3) of this section.
(h) You must legibly print, type, or otherwise duplicate any documents that you file under this section. For purposes of documents that are filed electronically through use of the FLRA’s eFiling system under paragraph (f) of this section, “legibly * * * duplicated” means that documents that you upload as attachments into the eFiling system must be legible.
(i) Documents, including correspondence, in any proceedings under this subchapter must show the title of the proceeding and the case number, if any.
(j) Except for documents that are filed electronically through use of the FLRA’s eFiling system, the original of each document required to be filed under this subchapter must be signed by either the filing party or that party’s attorney, other representative of record, or officer, and also must contain the address and telephone number of the person who signs the document. Documents that are filed electronically using the FLRA’s eFiling system must contain the mailing address, email address, and telephone number of the individual who files the document, but not that individual’s signature.
(k) A return postal receipt may serve as acknowledgement that the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer has received a filed document. Otherwise, the FLRA will acknowledge receipt of filed documents only if the filing party:
(1) Asks the receiving FLRA officer to do so;
(2) Includes an extra copy of the document or the letter to which the document is attached, which the receiving FLRA office will date-stamp and return to the filing party; and
(3) For returns that are to be sent by mail, includes a self-addressed, stamped envelope.
§ 2429.25 Number of copies and paper size.
(a) General rule. Except as discussed in paragraph (b) of this section, and unless you use an FLRA-prescribed form, any document that you file with the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer, including any attachments, must be on 8
(b) Exceptions. You are not required to comply with paragraph (a) of this section if and only if:
(1) You file documents electronically through use of the FLRA’s eFiling system;
(2) The Authority or the General Counsel, or their designated representatives, allow you not to comply; or
(3) Another provision of this subchapter allows you not to comply.
§ 2429.26 Other documents.
(a) The Authority or the General Counsel, or their designated representatives, as appropriate, may in their discretion grant leave to file other documents as they deem appropriate.
(b) A copy of such other documents shall be served on the other parties.
§ 2429.27 Service; statement of service.
(a) Except as provided in § 2423.10(c) and (d), any party filing a document as provided in this subchapter is responsible for serving a copy upon all counsel of record or other designated representative(s) of parties, upon parties not so represented, and upon any interested person who has been granted permission by the Authority pursuant to § 2429.9 to present written and/or oral argument as amicus curiae. Service upon such counsel or representative shall constitute service upon the party, but a copy also shall be transmitted to the party.
(b) If you are serving a document under paragraph (a) of this section, then you must use one of the following methods of service:
(1) Certified mail;
(2) First-class mail;
(3) Commercial delivery;
(4) In-person delivery;
(5) Facsimile (“fax”) service, but only for the types of documents listed in § 2429.24(g) and only where fax equipment is available; or
(6) Electronic mail (“email”), but only when the receiving party has agreed to be served by email.
(c) If you serve a document under this section, then you must file, with the appropriate FLRA office, a statement indicating that the party has served that document (a “statement of service”). If you are filing documents electronically using the FLRA’s eFiling system, then you must certify, in the FLRA’s eFiling system and at the time of filing, that you have served copies of the filing and any supporting documents on the appropriate individual(s) specified in paragraph (a) of this section. Regardless of how you file a statement of service with the FLRA, you must ensure that your statement of service includes the names of the parties and persons that you served, their addresses, the date on which you served them, the nature of the document(s) that you served, and the manner in which you served the parties or persons that you served. You must also sign and date the statement of service, unless you are using the FLRA’s eFiling system.
(d) Date of service. For any documents that you serve under this section, the date of service depends on the manner in which you serve the documents. Specifically, the date of service shall be the date on which you have: deposited the served documents in the U.S. mail; delivered them in person; deposited them with a commercial-delivery service that will provide a record showing the date on which the document was tendered to the delivery service; transmitted them by fax (where allowed under paragraph (b)(5) of this section); or transmitted them by email (where allowed under paragraph (b)(6) of this section).
§ 2429.28 Petitions for amendment of regulations.
Any interested person may petition the Authority or General Counsel in writing for amendments to any portion of these regulations. Such petition shall identify the portion of the regulations involved and provide the specific language of the proposed amendment together with a statement of grounds in support of such petition.
§ 2429.29 Content of filings.
With one exception, if you file any document with the Authority or the Office of Administrative Law Judges in a proceeding covered by this subchapter—including any briefs that you upload into the FLRA’s eFiling system as attachments—and that document exceeds 10 double-spaced pages in length, then you must ensure that the document includes a table of contents. The one exception is that, if you use the fillable forms in the FLRA’s eFiling system, then you are not required to submit a table of contents to accompany the fillable forms.
PART 2430—AWARDS OF ATTORNEY FEES AND OTHER EXPENSES
§ 2430.1 Purpose.
The Equal Assess to Justice Act, 5 U.S.C. 504, provides for the award of attorney, agent, or witness fees and other expenses to eligible individuals and entities who are parties to Authority adversary adjudications. An eligible party may receive an award when it prevails over the General Counsel, unless the General Counsel’s position in the proceeding was substantially justified, or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards, and the Authority proceeding that is covered. They also set forth the procedures for applying for such awards, and the procedures by which the Authority will rule on such applications.
§ 2430.2 Proceedings affected; eligibility for award.
(a) The provisions of this part apply to unfair labor practice proceedings pending on complaint against a labor organization at any time since October 1, 1981.
(b) A respondent in an unfair labor proceeding which has prevailed in the proceeding, or in a significant and discrete portion of the proceeding, and who otherwise meets the eligibility requirements of this section, is eligible to apply for an award of attorneys fees and other expenses allowable under the provisions of § 2430.4 of these rules.
(1) Applicants eligible to receive an award in proceedings conducted by the Authority are any partnership, corporation, association, or public or private organization with a net worth of not more than $5 million ($7 million in cases involving adversary adjudications pending on or commenced on or after August 5, 1985) and not more than 500 employees.
(2) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the complaint was issued.
(3) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant’s direction and control. Part-time employees shall be included on a proportional basis.
(4) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
§ 2430.3 Standards for awards.
(a) An eligible applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete portion of the proceeding, unless the position of the General Counsel over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible applicant is on the General Counsel, who may avoid an award by showing that its position in initiating the proceeding was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
§ 2430.4 Allowable fees and expenses.
(a)(1)(i) No award for the fee of an attorney or agent under this part may exceed $125.00 per hour, or for adversary adjudications commenced prior to March 29, 1996, $75.00 per hour, indexed to reflect cost of living increases as follows:
(ii) The cost of living index to be used is the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items (CPI-U). If legal services are provided during more than one year, each year shall be calculated separately. If an annual average CPI-U for a particular year is not yet available, the prior year’s annual average CPI-U shall be used.
(2) No award to compensate an expert witness may exceed the highest rate that the Authority pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses.
(b) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the following matters may be considered:
(1) If the attorney, agent or witness is in practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(c) The reasonable cost of any study, analysis, engineering report, test, project or similar matters prepared on behalf of an applicant may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant’s case.
§ 2430.5 Rulemaking on maximum rates for attorney fees.
If warranted by special factors, attorney fees may be awarded at a rate higher than that established in § 2430.4. Any such increase in the rate for attorney fees shall be made only upon a petition submitted by the applicant, pursuant to § 2430.6. Determinations regarding fee adjustments are subject to Authority review as specified in § 2430.13.
§ 2430.6 Contents of application; net worth exhibit; documentation of fees and expenses.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall state the particulars in which the applicant has prevailed and identify the positions of the General Counsel in the proceeding that the applicant alleges were not substantially justified. The application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
(b) The application shall include a statement that the applicant’s net worth does not exceed $5 million.
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes the Authority to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true.
(f) Each applicant must provide with its application a detailed exhibit showing the net worth of the applicant when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant’s assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The Administrative Law Judge may require an applicant to file additional information to determine its eligibility for an award.
(g) The application shall be accompanied by full documentation of the fees and expenses for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The Administrative Law Judge may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
§ 2430.7 When an application may be filed; referral to Administrative Law Judge; stay of proceeding.
(a) An application may be filed after entry of the final order establishing that the applicant has prevailed in the proceeding, or in a significant and discrete substantive portion of the proceeding, but in no case later than thirty (30) days after the entry of the Authority’s final order in the proceeding. The application for an award shall be filed with the Authority in Washington, DC, in an original and four copies, and served on all parties to the unfair labor practice proceeding. Service of the application shall be in the same manner as prescribed in §§ 2429.22 and 2429.27. Upon filing, the application shall be referred by the Authority to the Administrative Law Judge who heard the proceeding upon which the application is based, or, in the event the proceeding had not previously been heard by an Administrative Law Judge, it shall be referred to the Chief Administrative Law Judge for designation of an Administrative Law Judge, to consider the application. When the Administrative Law Judge to whom the application has been referred is or becomes unavailable, the provisions of § 2423.20 shall be applicable.
(b) Proceedings for the award of fees and other expenses, but not the time limit of this section for filing an application for an award, shall be stayed pending final disposition of the case, in the event any persons seeks Authority reconsideration or court review of the Authority decision that forms the basis for the application for fees and expenses.
§ 2430.8 Filing and service of documents.
All pleadings or documents after the time the case is referred by the Authority to an Administative Law Judge, until the issuance of the Judge’s decision, shall be filed in an original and four copies with the Administrative Law Judge and served on all parties to the proceeding. Service of such documents shall be in the same manner as prescribed in §§ 2429.22 and 2429.27.
§ 2430.9 Answer to application; reply to answer; comments by other parties; extensions of time to file documents.
(a) Within 30 days after service of an application, the General Counsel may file an answer to the application. The filing of a motion to dismiss the application shall stay the time for filing an answer to a date thirty (30) days after issuance of any order denying the motion.
(b) If the General Counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate toward a settlement. The filing of such a statement shall extend the time for filing an answer for an additional 30 days.
(c) The answer shall explain in detail any objections to the award requested, and identify the facts relied on in support of the General Counsel’s position. If the answer is based on alleged facts not already in the record of the proceeding, supporting affidavits shall be provided or a request made for further proceedings under § 2430.11.
(d) Within fifteen (15) days after service of an answer, the applicant may file a reply. If the reply is based on alleged facts not already in the record of the proceeding, supporting affidavits shall be provided or a request made for further proceedings under § 2430.11.
(e) Any party to a proceeding other than the applicant and the General Counsel may file comments on an application within 30 days after it is served, or on an answer within 15 days after it is served. A commenting party may not participate further in the proceeding on the application unless the Administrative Law Judge determines that such participation is required in order to permit full exploration of matters raised in the comments.
(f) Motions for extensions of time to file documents permitted by this section or § 2430.11 shall be filed with the Administrative Law Judge not less than five (5) days before the due date of the document.
§ 2430.10 Settlement.
The applicant and the General Counsel may agree on a proposed settlement of the award before final action on the application. If an applicant and the General Counsel agree on a proposed settlement of an award before an application has been filed, the proposed settlement shall be filed with the application. All such settlements shall be subject to approval by the Authority.
§ 2430.11 Further proceedings.
(a) The determination of an award may be made on the basis of the documents in the record, or the Administrative Law Judge, upon request of either the applicant or the General Counsel, or on his or her own initiative, may order further proceedings. Such further proceedings may include, but shall not be limited to, an informal conference, oral argument, additional written submissions, or an evidentiary hearing.
(b) A request that the Administrative Law Judge order further proceedings under this section shall specifically identify the disputed issues and the evidence sought to be adduced, and shall explain why the additional proceedings are necessary to resolve the issues.
(c) An order of the Administrative Law Judge scheduling oral argument, additional written submissions, or an evidentiary hearing, shall specify the issues to be considered in such argument, submission, or hearing.
(d) Any evidentiary hearing held pursuant to this section shall be conducted not earlier than forty-five (45) days after the date on which the application is served. In all other respects, such hearing shall be conducted in accordance with §§ 2423.14, 2423.16, 2423.17, 2423.19 through 2423.21, 2423.23, and 2423.24, insofar as these sections are consistent with the provisions of this part.
§ 2430.12 Administrative Law Judge’s decision; contents; service; transfer of case to the Authority; contents of record in case.
(a) Upon conclusion of proceedings under §§ 2430.6 to 2430.11, the Administrative Law Judge shall prepare a decision. The decision shall include written findings and conclusions on the applicant’s status as a prevailing party and eligibility, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the agency’s position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. The Administrative Law Judge shall cause the decision to be served promptly on all parties to the proceeding. Thereafter, the Administrative Law Judge shall transmit the case to the Authority, including the judge’s decision and the record. Service of the Administrative Law Judge’s decision and of the order transferring the case to the Board shall be complete upon mailing.
(b) The record in a proceeding on an application for an award of fees and expenses shall consist of the application for an award of fees and expenses and any amendments or attachments thereto, the net worth exhibit, the answer and any amendments or attachments thereto, any reply to the answer, any comments by other parties, motions, rulings, orders, stipulations, written submissions, the stenographic transcript of oral argument, the stenographic transcript of the hearing, exhibits and depositions, together with the Administrative Law Judge’s decision, and the exceptions and briefs as provided in § 2430.13, and the record of the unfair labor practice proceeding upon which the application is based.
§ 2430.13 Exceptions to Administrative Law Judge’s decision; briefs; action of Authority.
Procedures before the Authority, including the filing of exceptions to the administrative law judge’s decision rendered pursuant to § 2430.12, and action by the Authority, shall be in accordance with §§ 2423.26(c), 2423.27, and 2423.28 of these rules. The Authority’s review of the matter shall be in accordance with § 2423.29(a).
§ 2430.14 Payment of award.
To obtain payment of an award made by the Authority the applicant shall submit to the Executive Director of the Authority a copy of the Authority’s final decision granting the award, accompanied by a statement that the applicant will not seek court review of the decision. The amount awarded will then be paid unless judicial review of the award, or of the underlying decision, has been sought by the applicant or any other party to the proceeding.
SUBCHAPTER D—FEDERAL SERVICE IMPASSES PANEL
PART 2470—GENERAL
Subpart A—Purpose
§ 2470.1 Purpose.
The regulations contained in this subchapter are intended to implement the provisions of section 7119 of title 5 and, where applicable, section 431 of title 3 of the United States Code. They prescribe procedures and methods which the Federal Service Impasses Panel may utilize in the resolution of negotiation impasses when voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party meditation, fail to resolve the disputes. It is the policy of the Panel to encourage labor and management to resolve disputes on terms that are mutually agreeable at any stage of the Panel’s procedures.
Subpart B—Definitions
§ 2470.2 Definitions.
(a) The terms agency, labor organization, and conditions of employment as used in this subchapter shall have the meaning set forth in 5 U.S.C. 7103(a). When used in connection with 3 U.S.C. 431, the term agency as used in the Panel’s regulations in this subchapter means an employing office as defined in 3 U.S.C. 401(a)(4).
(b) The term Executive Director means the Executive Director of the Panel.
(c) The terms designated representative or designee of the Panel means a Panel member, a staff member, or other individual designated by the Panel to act on its behalf.
(d) The term hearing means a factfinding hearing, arbitration hearing, or any other hearing procedure deemed necessary to accomplish the purposes of 5 U.S.C. 7119.
(e) The term impasse means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.
(f) The term Panel means the Federal Service Impasses Panel described in 5 U.S.C. 7119(c) or a quorum thereof.
(g) The term party means the agency or the labor organization participating in the negotiation of conditions of employment.
(h) The term quorum means a majority of the members of the Panel.
(i) The term voluntary arrangements means any method adopted by the parties for the purpose of assisting them in their resolution of a negotiation dispute which is not inconsistent with the provisions of 5 U.S.C. 7119.
PART 2471—PROCEDURES OF THE PANEL
§ 2471.1 Request for Panel consideration; request for Panel approval of binding arbitration.
If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse:
(a) Either party, or the parties jointly, may request the Panel to consider the matter by filing a request as hereinafter provided; or the Panel may, pursuant to 5 U.S.C. 7119(c)(1), undertake consideration of the matter upon request of (i) the Federal Mediation and Conciliation Service, or (ii) the Executive Director; or
(b) The parties may jointly request the Panel to approve any procedure, which they have agreed to adopt, for binding arbitration of the negotiation impasse by filing a request as hereinafter provided.
§ 2471.2 Request form.
A form is available for parties to use in filing either a request for consideration of an impasse or an approval of a binding arbitration procedure. Copies are available on the FLRA’s website at www.flra.gov, or from the Office of the Executive Director, Federal Service Impasses Panel, Suite 300, 1400 K Street NW, Washington, DC 20424-0001. Telephone (771) 444-5762. Use of the form is not required, provided that the request includes all of the information set forth in § 2471.3.
§ 2471.3 Content of request.
(a) A request from a party or parties to the Panel for consideration of an impasse must be in writing and include the following information:
(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;
(2) Statement of issues at impasse and the summary positions of the initiating party or parties with respect to those issues; and
(3) Number, length, and dates of negotiation and mediation sessions held, including the nature and extent of all other voluntary arrangements utilized.
(b) A request for approval of a binding arbitration procedure must be in writing, jointly filed by the parties, and include the following information about the pending impasse:
(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;
(2) Brief description of the impasse including the issues to be submitted to the arbitrator;
(3) Number, length, and dates of negotiation and mediation sessions held, including the nature and extent of all other voluntary arrangements utilized;
(4) Statement as to whether any of the proposals to be submitted to the arbitrator contain questions concerning the duty to bargain and a statement of each party’s position concerning such questions; and
(5) Statement of the arbitration procedures to be used, including the type of arbitration, the method of selecting the arbitrator, and the arrangement for paying for the proceedings or, in the alternative, those provisions of the parties’ labor agreement which contain this information.
§ 2471.4 Where to file.
Requests to the Panel provided for in this part must either be filed electronically through use of the eFiling system on the FLRA’s website at www.flra.gov, or be addressed to the Executive Director, Federal Service Impasses Panel, Suite 300, 1400 K Street NW, Washington, DC 20424-0001. All inquiries or correspondence on the status of impasses or other related matters must be submitted by regular mail to the street address above, by using the telephone number (771) 444-5762, or by using the facsimile number (202) 482-6674.
§ 2471.5 Filing and service.
(a) Filing and service of request. (1) Any party submitting a request for Panel consideration of an impasse or a request for approval of a binding arbitration procedure shall file an original and one copy with the Panel, unless the request is filed electronically as discussed below. A clean copy may be submitted for the original. Requests may be submitted in person, electronically through use of the eFiling system on the FLRA’s Web site at www.flra.gov, or by registered mail, certified mail, regular mail, or commercial delivery. Requests also may be accepted by the Panel if transmitted to the facsimile machine of its office. A party submitting a request by facsimile shall also file an original for the Panel’s records, but failure to do so shall not affect the validity of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such request upon all counsel of record or other designated representative(s) of parties, upon parties not so represented, and upon any mediation service which may have been utilized. Service upon such counsel or representative shall constitute service upon the party, but a copy also shall be transmitted to the party. Service of a request may be made in person or by registered mail, certified mail, regular mail, or commercial delivery. With the permission of the person receiving the request, service may be made by electronic or facsimile transmission, or by any other agreed-upon method. When the Panel acts on a request from the Federal Mediation and Conciliation Service or acts on a request from the Executive Director under § 2471.1(a), it will notify the parties to the dispute, their counsel of record, if any, and any mediation service which may have been utilized.
(b) Filing and service of other documents. (1) Any party submitting a response to, or other document in connection with, a request for Panel consideration of an impasse or a request for approval of a binding arbitration procedure shall file an original and one copy with the Panel, with the exception of documents filed simultaneously with the electronic filing of a request through use of the FLRA’s eFiling system. Documents may be submitted to the Panel in person or by registered mail, certified mail, regular mail, commercial delivery, or, in the case of documents submitted simultaneously with the electronic filing of a request for Panel assistance, may be uploaded electronically through use of the FLRA’s eFiling system at www.flra.gov. Documents may also be accepted by the Panel if transmitted electronically or to the facsimile machine of the Panel’s office, but only with advance permission, which may be obtained by telephone. A party submitting a document by facsimile shall also file an original for the Panel’s records, but failure to do so shall not affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such request upon all counsel of record or other designated representative(s) of parties, or upon parties not so represented. Service upon such counsel or representative shall constitute service upon the party, but a copy also shall be transmitted to the party. Service of a document may be made in person or by registered mail, certified mail, regular mail, or commercial delivery. With the permission of the person receiving the document, service may be made by electronic or facsimile transmission, or by any other agreed-upon method.
(c) A signed and dated statement of service shall accompany each document submitted to the Panel, unless the document is a request under § 2471.5(a) that is filed electronically through use of the FLRA’s eFiling system. For requests under § 2471.5(a) that are filed electronically through use of the FLRA’s eFiling system, the filing party shall certify, in the FLRA’s eFiling system and at the time of filing, that copies of the request and any supporting documents have been served as required. The statement of service, however filed, shall include the names of the parties and persons served, their addresses, the date of service, the nature of the document served, and the manner in which service was made.
(d) The date of service or date served shall be the day when the matter served, if properly addressed, is deposited in the U.S. mail or is delivered in person or is deposited with a commercial-delivery service that will provide a record showing the date the document was tendered to the delivery service. Where service is made by electronic or facsimile transmission, the date of service shall be the date of transmission.
(e) Unless otherwise provided by the Panel or its designated representatives, any document or paper filed with the Panel under this section, together with any enclosure filed therewith, shall be typewritten on 8
§ 2471.6 Investigation of request; Panel procedures; approval of binding arbitration.
(a) Upon receipt of a request for consideration of an impasse, the Panel or its designee will promptly conduct an investigation, consulting when necessary with the parties and with any mediation service utilized. After due consideration, the Panel shall either:
(1) Decline to assert jurisdiction in the event that it finds that no impasse exists or that there is other good cause for not asserting jurisdiction, in whole or in part, and so advise the parties in writing, stating its reasons; or
(2) Assert jurisdiction and
(i) Recommend to the parties procedures for the resolution of the impasse; and/or
(ii) Assist the parties in resolving the impasse through whatever methods and procedures the Panel considers appropriate. The procedures utilized by the Panel may include, but are not limited to: informal conferences with a Panel designee; factfinding (by a Panel designee or a private factfinder); written submissions; show cause orders; oral presentations to the Panel; and arbitration or mediation-arbitration (by a Panel designee or a private arbitrator). Following procedures used by the Panel, it may issue a report to the parties containing recommendations for settlement prior to taking final action to resolve the impasse.
(b) Upon receipt of a request for approval of a binding arbitration procedure, the Panel or its designee will promptly conduct an investigation, consulting when necessary with the parties and with any mediation service utilized. After due consideration, the Panel shall promptly approve or disapprove the request, normally within five (5) workdays.
§ 2471.7 Preliminary factfinding procedures.
When the Panel determines that a factfinding hearing is necessary under § 2471.6, and it appoints one or more of its designees to conduct such hearing, it will issue and serve upon each of the parties a notice of hearing and a notice of prehearing conference, if any. The notice will state:
(a) The names of the parties to the dispute;
(b) The date, time, place, type, and purpose of the hearing;
(c) The date, time, place, and purpose of the prehearing conference, if any;
(d) The name of the designated representatives appointed by the Panel;
(e) The issues to be resolved; and
(f) The method, if any, by which the hearing shall be recorded.
§ 2471.8 Conduct of factfinding and other hearings; prehearing conferences.
(a) A designated representative of the Panel, when so appointed to conduct a hearing, shall have the authority on behalf of the Panel to:
(1) Administer oaths, take the testimony or deposition of any person under oath, receive other evidence, and issue subpenas;
(2) Conduct the hearing in open, or in closed session at the discretion of the designated representative for good cause shown;
(3) Rule on motions and requests for appearance of witnesses and the production of records;
(4) Designate the date on which posthearing briefs, if any, shall be submitted.
(5) Determine all procedural matters concerning the hearing, including the length of sessions, conduct of persons in attendance, recesses, continuances, and adjournments; and take any other appropriate procedural action which, in the judgment of the designated representative, will promote the purpose and objectives of the hearing.
(b) A prehearing conference may be conducted by the designated representative of the Panel in order to:
(1) Inform the parties of the purpose of the hearing and the procedures under which it will take place;
(2) Explore the possibilities of obtaining stipulations of fact;
(3) Clarify the positions of the parties with respect to the issues to be heard; and
(4) Discuss any other relevant matters which will assist the parties in the resolution of the dispute.
§ 2471.9 Report and recommendations.
(a) When a report is issued after a factfinding hearing is conducted pursuant to § 2471.7 and 2471.8, it normally shall be in writing and, when authorized by the Panel, shall contain recommendations.
(b) A report of the designated representative containing recommendations shall be submitted to the parties, with two (2) copies to the Executive Director, within a period normally not to exceed thirty (30) calendar days after receipt of the transcript or briefs, if any.
(c) A report of the designated representative not containing recommendations shall be submitted to the Panel with a copy to each party within a period normally not to exceed thirty (30) calendar days after receipt of the transcript or briefs, if any. The Panel shall then take whatever action it may consider appropriate or necessary to resolve the impasse.
§ 2471.10 Duties of each party following receipt of recommendations.
(a) Within thirty (30) calendar days after receipt of a report containing recommendations of the Panel or its designated representative, each party shall, after conferring with the other, either:
(1) Accept the recommendations and so notify the Executive Director; or
(2) Reach a settlement of all unresolved issues and submit a written settlement statement to the Executive Director; or
(3) Submit a written statement to the Executive Director setting forth the reasons for not accepting the recommendations and for not reaching a settlement of all unresolved issues.
(b) A reasonable extension of time may be authorized by the Executive Director for good cause shown when requested in writing by either party prior to the expiration of the time limits.
§ 2471.11 Final action by the Panel.
(a) If the parties do not arrive at a settlement as a result of or during actions taken under §§ 2471.6(a)(2), 2471.7, 2471.8, 2471.9, and 2471.10, the Panel may take whatever action is necessary and not inconsistent with 5 U.S.C. chapter 71 to resolve the impasse, including but not limited to, methods and procedures which the Panel considers appropriate, such as directing the parties to accept a factfinder’s recommendations, ordering binding arbitration conducted according to whatever procedure the Panel deems suitable, and rendering a binding decision.
(b) In preparation for taking such final action, the Panel may hold hearings, administer oaths, take the testimony or deposition of any person under oath, and issue subpenas as provided in 5 U.S.C. 7132, or it may appoint or designate one or more individuals pursuant to 5 U.S.C. 7119(c)(4) to exercise such authority on its behalf.
(c) When the exercise of authority under this section requires the holding of a hearing, the procedure contained in § 2471.8 shall apply.
(d) Notice of any final action of the Panel shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless they agree otherwise.
§ 2471.12 Inconsistent labor agreement provisions.
Any provisions of the parties’ labor agreements relating to impasse resolution which are inconsistent with the provisions of either 5 U.S.C. 7119 or the procedures of the Panel shall be deemed to be superseded, unless such provisions are permitted under 5 U.S.C. 7135.
PART 2472—IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES
Subpart A—Purpose and Definitions
§ 2472.1 Purpose.
The regulations contained in this Part are intended to implement the provisions of section 6131 of title 5 of the United States Code. They prescribe procedures and methods which the Federal Service Impasses Panel may utilize in the resolution of negotiations impasses arising from agency determinations not to establish or to terminate flexible and compressed work schedules.
§ 2472.2 Definitions.
(a) The term the Act means the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. 97-221, 5 U.S.C. 6120 et seq.
(b) The term adverse agency impact shall have the meaning set forth in 5 U.S.C. 6131(b).
(c) The term agency shall have the meaning set forth in 5 U.S.C. 6121(1).
(d) The term duly authorized delegatee means an official who has been delegated the authority to act for the head of the agency in the matter concerned.
(e) The term agency determination means a determination: (1) Not to establish a flexible or compressed work schedule under 5 U.S.C. 6131(c)(2); or (2) to terminate such a schedule under 5 U.S.C. 6131(c)(3).
(f) The terms collective bargaining agreement and exclusive representative shall have the meanings set forth in 5 U.S.C. 6121(8).
(g) The term Executive Director means the Executive Director of the Panel.
(h) The terms designated representative or designee of the Panel means a Panel member, staff member, or other individual designated by the Panel to act on its behalf.
(i) The term flexible and compressed work schedules shall have the meaning set forth in 5 U.S.C. 6121 et seq.
(j) The term hearing means a factfinding hearing or any other hearing procedures deemed necessary to accomplish the purpose of 5 U.S.C. 6131.
(k) The term impasse means that point in the negotiation of flexible and compressed work schedules at which the parties are unable to reach agreement on whether a schedule has had or would have an adverse agency impact.
(l) The term Panel means the Federal Service Impasses Panel described in 5 U.S.C. 7119(c) or a quorum thereof.
(m) The term party means the agency or the exclusive representative participating in negotiations concerning flexible and compressed work schedules.
(n) The term quorum means a majority of the members of the Panel.
(o) The term schedule(s) means flexible and compressed work schedules.
Subpart B—Procedures of the Panel
§ 2472.3 Request for Panel consideration.
Either party, or the parties jointly, may request the Panel to resolve an impasse resulting from an agency determination not to establish or to terminate a flexible or compressed work schedule by filing a request as hereinafter provided. A form is available for use by the parties in filing a request with the Panel. Copies are available on the FLRA’s Web site at www.flra.gov, or from the Office of the Executive Director, Federal Service Impasses Panel, Suite 200, 1400 K Street NW., Washington, DC 20424-0001. Telephone (202) 218-7790. Fax (202) 482-6674. Use of the form is not required provided that the request includes all of the information set forth in § 2472.4.
§ 2472.4 Content of request.
(a) A request from a party or parties to the Panel for consideration of an impasse arising from an agency determination not to establish or to terminate a flexible or compressed work schedule under section 6131 (c)(2) or (c)(3) of the Act must be in writing and shall include the following information:
(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;
(2) Description of the bargaining unit involved in the dispute and the date recognition was accorded to the exclusive representative;
(3) Number, length, and dates of negotiation sessions held;
(4) A copy of any collective bargaining agreement between the parties and any other agreements concerning flexible and compressed work schedules;
(5) A copy of the schedule or proposed schedule, if any, which is the subject of the agency’s determination;
(6) A copy of the agency’s written determination and the finding on which the determination is based, including, in a case where the finding is made by a duly authorized delegatee, evidence of a specific delegation of authority to make such a finding; and
(7) A summary of the position of the initiating party or parties with respect to the agency’s determination.
§ 2472.5 Where to file.
Requests to the Panel provided for in this part must either be filed electronically through use of the FLRA’s eFiling system on the FLRA’s Web site at www.flra.gov, or be addressed to the Executive Director, Federal Service Impasses Panel, Suite 200, 1400 K Street NW., Washington, DC 20424-0001. All inquiries or correspondence on the status of impasses or other related matters must be submitted by regular mail to the street address above, by using the telephone number (202) 218-7790, or by using the facsimile number (202) 482-6674.
§ 2472.6 Filing and service.
(a) Filing and service of request. (1) Any party submitting a request for Panel consideration of an impasse filed pursuant to § 2472.3 of these rules shall file an original and one copy with the Panel unless the request is filed electronically through use of the FLRA’s eFiling system. A clean copy may be submitted for the original. Requests may be submitted in person, electronically, or by registered mail, certified mail, regular mail, or commercial delivery. Requests will also be accepted by the Panel if transmitted to the facsimile machine of its office. A party submitting a request by facsimile shall also file an original for the Panel’s records, but failure to do so shall not affect the validity of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such request upon all counsel of record or other designated representative(s) of parties, and upon parties not so represented. Service upon such counsel or representative shall constitute service upon the party, but a copy also shall be transmitted to the party. Service of a request may be made in person or by registered mail, certified mail, regular mail, or commercial delivery. With the permission of the person receiving the request, service may be made by facsimile or electronic transmission, or by any other agreed-upon method.
(b) Filing and service of other documents. (1) Any party submitting a response to, or other document in connection with, a request for Panel consideration of an impasse filed pursuant to § 2472.3 shall file an original and one copy with the Panel, with the exception of documents that are filed simultaneously with the electronic filing of a request for Panel consideration. A clean copy may be submitted for the original. Documents may be submitted to the Panel in person or by registered mail, certified mail, regular mail, commercial delivery, or, in the case of documents submitted simultaneously with the electronic filing of a request for Panel consideration, may be uploaded electronically through use of the FLRA’s eFiling system at www.flra.gov. Documents may also be accepted by the Panel if transmitted electronically or to the facsimile machine of its office, but only with advance permission, which may be obtained by telephone. A party submitting a document by facsimile shall also file an original for the Panel’s records, but failure to do so shall not affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such request upon all counsel of record or other designated representative(s) of parties, or upon parties not so represented. Service of a document may be made in person or by registered mail, certified mail, regular mail, or commercial delivery. With the permission of the person receiving the document, service may be made by electronic or facsimile transmission, or by any other agreed-upon method.
(c) A signed and dated statement of service shall accompany each document submitted to the Panel, unless the document is a request under § 2472.3 that is filed electronically. For requests under § 2472.3 that are filed electronically, the filing party shall certify, in the FLRA’s eFiling system and at the time of filing, that copies of the request and any supporting documents have been served as required. The statement of service, however filed, shall include the names of the parties and persons served, their addresses, the date of service, the nature of the document served, and the manner in which service was made.
(d) The date of service or date served shall be the day when the matter served, if properly addressed, is deposited in the U.S. mail, is delivered in person, or is deposited with a commercial-delivery service that will provide a record showing the date the document was tendered to the delivery service. Where service is made by electronic or facsimile transmission, the date of service shall be the date of transmission.
(e) Unless otherwise provided by the Panel or its designated representatives, any document or paper filed with the Panel under this part, together with any enclosure filed therewith, shall be typewritten on 8
(f) An impasse arising pursuant to section 6131(c) (2) or (3) of the Act will not be considered to be filed, and no Panel action will be taken, until the party initiating the request has complied with § 2472.4, 2472.5, and 2472.6 of these regulations.
§ 2472.7 Investigation of request; Panel assistance.
(a) Upon receipt of a request for consideration of an impasse filed in accordance with these rules, the Panel or its designee shall promptly conduct an investigation, consulting when necessary with the parties. After due consideration, the Panel shall determine the procedures by which the impasse shall be resolved and shall notify the parties of its determination.
(b) The procedures utilized by the Panel shall afford the parties an opportunity to present their positions, including supporting evidence and arguments orally and/or in writing. They include, but are not limited to: informal conferences with a Panel designee; factfinding (by a Panel designee or a private factfinder); written submissions; show cause orders; and oral presentations to the Panel.
§ 2472.8 Preliminary hearing procedures.
When the Panel determines that a hearing shall be held, and it appoints one or more of its designees to conduct such a hearing, it will issue and serve upon each of the parties a notice of hearing and a notice of prehearing conference, if any. The notice will state:
(a) The names of the parties to the dispute;
(b) The date, time, place, type, and purpose of the hearing;
(c) The date, time, place, and purpose of the prehearing conference, if any;
(d) The name of the designated representative(s) appointed by the Panel;
(e) The issue(s) to be resolved; and
(f) The method, if any, by which the hearing shall be transcribed.
§ 2472.9 Conduct of hearing and prehearing conference.
(a) A designated representative of the Panel, when so appointed to conduct a hearing, shall have the authority on behalf of the Panel to:
(1) Administer oaths, take the testimony or deposition of any person under oath, receive other evidence, and issue subpoenas;
(2) Conduct the hearing in open or in closed session at the discretion of the designated representative for good cause shown;
(3) Rule on motions and requests for appearance of witnesses and the production of records;
(4) Designate the date on which posthearing briefs, if any, shall be submitted; and
(5) Determine all procedural matters concerning the hearing, including the length of sessions, conduct of persons in attendance, recesses, continuances, and adjournments; and take any other action which, in the judgment of the designated representative, will promote the purpose and objectives of the hearing.
(b) A prehearing conference may be conducted by the designated representative of the Panel to:
(1) Inform the parties of the purpose of the hearing and the procedures under which it will take place;
(2) Explore the possibilities of obtaining stipulations of fact;
(3) Clarify the positions of the parties with respect to the issues to be heard; and
(4) Discuss any other relevant matters which will assist the parties in the resolution of the dispute.
§ 2472.10 Reports.
When a report is issued after a hearing conducted pursuant to § 2472.8 and 2472.9, it normally shall be in writing and shall be submitted to the Panel, with a copy to each party, within a period normally not to exceed 30 calendar days after the close of the hearing and receipt of briefs, if any.
§ 2472.11 Final action by the Panel.
(a) After due consideration of the parties’ positions, evidence, and arguments, including any report submitted in accordance with § 2472.10, the Panel shall take final action in favor of the agency’s determination if:
(1) The finding on which a determination under 5 U.S.C. 6131(c)(2) not to establish a flexible or compressed work schedule is based is supported by evidence that the schedule is likely to cause an adverse agency impact; or
(2) The finding on which a determination under 5 U.S.C. 6131(c)(3) to terminate a flexible or compressed work schedule is based is supported by evidence that the schedule has caused an adverse agency impact.
(b) If the finding on which an agency determination under 5 U.S.C. 6131(c)(2) or (c)(3) is based is not supported by evidence that the schedule is likely to cause or has caused an adverse agency impact, the Panel shall take whatever final action is appropriate.
(c) In preparation for taking such final action, the Panel may hold hearings, administer oaths, take the testimony or deposition of any person under oath, and issue subpoenas, or it may appoint one or more individuals to exercise such authority on its behalf. Such action may be taken without regard to procedures previously authorized by the Panel.
(d) Notice of any final action of the Panel shall be promptly served upon the parties.
PART 2473—SUBPOENAS
§ 2473.1 Subpenas.
(a) Any member of the Panel, the Executive Director, or other person designated by the Panel, may issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence. However, no subpena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management.
(b) Where the parties are in agreement that the appearance of witnesses or the production of documents is necessary, and such witnesses agree to appear, no such subpena need be sought.
(c) A request for a subpena by any person, as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with the Executive Director, not less than fifteen (15) days prior to the opening of a hearing, or with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents sought, and state the reasons therefor. The Panel, Executive Director, or any other person designated by the Panel, as appropriate, shall grant the request upon the determination that the testimony or documents appear to be necessary to the matters under consideration and the request describes with sufficient particularity the documents sought. Service of an approved subpena is the responsibility of the party on whose behalf the subpena was issued. The subpena shall show on its face the name and address of the party on whose behalf the subpena was issued.
(e) Any person served with a subpena who does not intend to comply shall within five (5) days after the date of service of the subpena upon such person, petition in writing to revoke the subpena. A copy of any petition to revoke a subpena shall be served on the party on whose behalf the subpena was issued. Such petition to revoke, if made prior to the hearing, and a written statement of service, shall be filed with the Executive Director. A petition to revoke a subpena filed during the hearing, and a written statement of service shall be filed with the appropriate presiding official(s). The Executive Director, or the appropriate presiding official(s) will, as a matter of course, cause a copy of the petition to revoke to be served on the party on whose behalf the subpena was issued, but shall not be deemed to assume responsibility for such service. The Panel, Executive Director, or any other person designated by the Panel, as appropriate, shall revoke the subpena if the evidence the production of which is required does not relate to any matter under consideration in the proceedings, or the subpena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpena is invalid. The Panel, Executive Director, or any other person designated by the Panel, as appropriate, shall make a simple statement of procedural or other ground for the ruling on the petition to revoke. The petition to revoke, any answer thereto, and any ruling thereon shall not become part of the official record except upon the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpena issued, and upon the request of the party on whose behalf the subpena was issued, the Solicitor of the FLRA shall, on behalf of such party, institute proceedings in the appropriate district court for the enforcement thereof, unless to do so would be inconsistent with law and the policies of the Federal Service Labor-Management Relations Statute. The Solicitor of the FLRA shall not be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court thereafter.
(g) All papers submitted to the Executive Director under this section shall be filed in duplicate, along with a statement of service showing that a copy has been served on the other party to the dispute.
(h)(1) Witnesses (whether appearing voluntarily or under a subpena) shall be paid the fee and mileage allowances which are paid subpenaed witnesses in the courts of the United States: Provided, that any witness who is employed by the Federal Government shall not be entitled to receive witness fees in addition to compensation received in conjunction with official time granted for such participation, including necessary travel time, as occurs during the employee’s regular work hours and when the employee would otherwise be in a work or paid leave status.
(2) Witness fees and mileage allowances shall be paid by the party at whose instance the witnesses appear except when the witness receives compensation in conjunction with official time as described in paragraph (h)(1) of this section.
Appendix A to 5 CFR Chapter XIV—Current Addresses and Geographic Jurisdictions
(a) The Office address, telephone number, and fax number of the Authority are: Suite 300, 1400 K Street NW, Washington, DC 20424-0001; telephone: (771) 444-5801; fax: (202) 482-6657.
(b) The Office address, telephone number, and fax number of the General Counsel are: 1400 K Street NW, 3rd Floor, Washington, DC 20424; telephone: (771) 444-5790; fax: (202) 482-6608.
(c) The Office address, telephone number, and fax number of the Chief Administrative Law Judge are: Suite 300, 1400 K Street NW, Washington, DC 20424; telephone: (771) 444-5715; fax: (202) 482-6629.
(d) The Office addresses, telephone and fax numbers of the Regional Offices of the Authority are as follows:
(1) Washington, DC Regional Office—1400 K Street NW, 3rd Floor, Washington, DC 20424-0001; telephone: (771) 444-5780; fax: (202) 482-6724.
(2) Atlanta Regional Office—229 Peachtree Street NE, Suite 900, Atlanta, Georgia 30303; telephone: (470) 681-7630; fax: (678) 498-2697.
(3) Chicago Regional Office—224 S Michigan Avenue, Suite 445, Chicago, Illinois 60604-2505; telephone: (872) 627-0020; fax: (312) 281-6500.
(4) Denver Regional Office—1244 Speer Boulevard, Suite 446, Denver, Colorado 80204-3581; telephone: (303) 225-0340; fax: (303) 844-2774.
(5) San Francisco Regional Office—1301 Clay Street, Suite 1180N, Oakland, California 94612-5242; telephone: (510) 982-5440; fax: (415) 872-1445.
(e) The Office address, telephone number, and fax number of the Federal Service Impasses Panel are: Suite 300, 1400 K Street NW, Washington, DC 20424; telephone: (771) 444-5762; fax: (202) 482-6674.
(f) The geographic jurisdictions of the Regional Directors of the Federal Labor Relations Authority are as follows:
| State or other locality | Regional office |
|---|---|
| Alabama | Atlanta. |
| Alaska | San Francisco. |
| Arizona | Denver. |
| Arkansas | Atlanta. |
| California | San Francisco. |
| Colorado | Denver. |
| Connecticut | Washington, DC. |
| Delaware | Washington, DC. |
| District of Columbia | Washington, DC. |
| Florida | Atlanta. |
| Georgia | Atlanta. |
| Hawaii and all land and water areas west of the continents of North and South America (except coastal islands) to long. 90 degrees East | San Francisco. |
| Idaho | San Francisco. |
| Illinois | Chicago. |
| Indiana | Chicago. |
| Iowa | Chicago. |
| Kansas | Denver. |
| Kentucky | Chicago. |
| Louisiana | Atlanta. |
| Maine | Washington, DC. |
| Maryland | Washington, DC. |
| Massachusetts | Washington, DC. |
| Michigan | Chicago. |
| Minnesota | Chicago. |
| Mississippi | Atlanta. |
| Missouri | Chicago. |
| Montana | Denver. |
| Nebraska | Denver. |
| Nevada | San Francisco. |
| New Hampshire | Washington, DC. |
| New Jersey | Washington, DC. |
| New Mexico | Denver. |
| New York | Washington, DC. |
| North Carolina | Atlanta. |
| North Dakota | Chicago. |
| Ohio | Chicago. |
| Oklahoma | Denver. |
| Oregon | San Francisco. |
| Pennsylvania | Washington, DC. |
| Puerto Rico and coastal islands | Chicago. |
| Rhode Island | Washington, DC. |
| South Carolina | Atlanta. |
| South Dakota | Chicago. |
| Tennessee | Chicago. |
| Texas | Denver. |
| Utah | Denver. |
| Vermont | Washington, DC. |
| Virginia | Washington, DC. |
| Washington | San Francisco. |
| West Virginia | Washington, DC. |
| Wisconsin | Chicago. |
| Wyoming | Denver. |
| Virgin Islands | Atlanta. |
| Panama/limited FLRA jurisdiction | Atlanta. |
| All land and water areas east of the continents of North and South America to long. 90 degrees East, except the Virgin Islands, Panama, Puerto Rico and coastal islands | Washington, DC. |
Appendix B to 5 CFR Chapter XIV—Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority
The statutory authority and responsibility of the General Counsel of the Federal Labor Relations Authority are stated in section 7104(f), subsections (1), (2) and (3), of the Federal Service Labor-Management Relations Statute as follows:
(1) The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by law.
(2) The General Counsel may—
(A) investigate alleged unfair labor practices under this chapter,
(B) file and prosecute complaints under this chapter, and
(C) exercise such other powers of the Authority as the Authority may prescribe.
(3) The General Counsel shall have direct authority over, and responsibility for, all employees in the office of the General Counsel, including employees of the General Counsel in the regional offices of the Authority.
I. Case handling—A. Unfair labor practice cases. The General Counsel has full and final authority and responsibility, on behalf of the Authority, to accept and investigate charges filed, to enter into and approve the informal settlement of charges, to approve withdrawal requests, to dismiss charges, to determine matters concerning the consolidation and severance of cases before the complaint issues, to issue complaints and notices of hearing, to appear before Administrative Law Judges in hearings on complaints and prosecute as provided in the Authority’s and the General Counsel’s rules and regulations, and to initiate and prosecute injunction proceedings as provided for in section 7123(d) of the Statute. After issuance of the Administrative Law Judge’s decision, the General Counsel may file exceptions and briefs and appear before the Authority in oral argument, subject to the Authority’s and the General Counsel’s rules and regulations.
B. Compliance actions (injunction proceedings). The General Counsel is authorized and responsible, on behalf of the Authority, to seek and effect compliance with the Authority’s orders and make such compliance reports to the Authority as it may from time to time require.
C. Representation cases. The statutory authority of the Federal Labor Relations Authority to delegate to Regional Directors its authority to process and determine representation matters is set forth in section 7105 (e)(1) and (f) of the Statute as follows:
(e)(1) The Authority may delegate to any regional director its authority under this chapter—
(A) to determine whether a group of employees is an appropriate unit;
(B) to conduct investigations and to provide for hearings;
(C) to determine whether a question of representation exists and to direct an election; and
(D) to supervise or conduct secret ballot elections and certify the results thereof.
(f) If the Authority delegates any authority to any regional director . . . to take any action pursuant to subsection (e) of this section, the Authority may, upon application by any interested person filed within 60 days after the date of the action, review such action, but the review shall not, unless specifically ordered by the Authority, operate as a stay of action. The Authority may affirm, modify, or reverse any action reviewed under this subsection. If the Authority does not undertake to grant review of the action under this subsection within 60 days after the later of—
(1) the date of the action, or
(2) the date of the filing of any application under this subsection for review of the action;
In accordance with section 7105 (e)(1) and (f) of the Statute, Regional Directors, who are directed and supervised by the General Counsel as provided by section III of this memorandum, are hereby delegated the authority to determine whether a group of employees is an appropriate unit, to conduct investigations and to provide for hearings, to determine whether a question of representation exists and to direct an election, and to supervise or conduct secret ballot elections and certify the results thereof.
Regional Directors are authorized and have responsibility to receive and process, in accordance with decisions of the Authority and the rules and regulations of the Authority and the General Counsel, all petitions filed pursuant to sections 7111, 7112(d), 7113, 7115 and 7117(d) of the Statute.
The authority and responsibility of Regional Directors in cases filed involving such petitions shall extend to all phases of the investigation of such petitions through the conclusion of the hearing to be conducted by a Regional Office employee (if a hearing should be necessary to resolve disputed issues), including decisional action by the Regional Director after such investigation or hearing.
Regional Directors also are authorized and have responsibility to direct an election after a hearing pursuant to sections 7111 and 7112(d) of the Statute and to approve consent election agreements in accordance with section 7111(g) of the Statute.
In the event a Regional Director directs an election or approves a consent election agreement, the Regional Director is authorized to supervise or conduct the election pursuant to section 7111 and 7112(d) of the Statute. In such instances, Regional Directors are authorized and have responsibility to determine the validity of determinative challenges and objections to the conduct of the election and other similar matters. This authority and responsibility extends to all phases of the investigation such determinative challenges and objections through the conclusion of a hearing to be conducted by a Regional Office employee (if a hearing should be necessary to resolve disputed issues), including decisional action by the Regional Director after such investigation or hearing.
Decisions and Orders of Regional Directors made pursuant to this delegation of authority become the action of the Authority:
(1) If no interested person files an application for review of the Regional Director’s Decision and Order with the Authority within sixty (60) days after the Regional Director’s Decision and Order; or
(2) If the Authority does not undertake to grant review of the Regional Director’s Decision and Order within sixty (60) days after the filing of a timely application for review;
If no interested person files an application for review of the Regional Director’s Decision and Order with the Authority within (60) days after the Regional Director’s Decision and Order, or if the Authority does not undertake to grant review of the action of the regional Director’s Decision and Order within sixty (60) days after the filing of a timely application for review, the Regional Director’s Decision and Order will become final and binding, and the Regional Director will certify to the parties the results of any election held or issue any clarification of unit, amendment of recognition or certification, determination of eligibility for dues allotment, or certification on consolidation of units as required.
The Authority will undertake to grant review of a Decision and Order of a Regional Director upon the timely filing of an application for review only where compelling reasons exist therefor as set forth in the rules and regulations.
The Authority’s granting of review upon the timely filing of an application for review of a Regional Director’s Decision and Order will not operate as a stay of such action ordered by the Regional Director, unless specifically ordered by the Authority. If the Authority grants review, the Authority may affirm, modify or reverse action reviewed.
II. Liaison with other governmental agencies. The General Counsel is authorized and has responsibility, on behalf of the Authority, to maintain appropriate and adequate liaison and arrangements with the Office of the Assistant Secretary of Labor for Labor-Management Relations with reference to the financial and other reports required to be filed with the Assistant Secretary pursuant to section 7120(c) of the Statute and the availability to the Authority and the General Counsel of the contents thereof. The General Counsel is authorized and has responsibility, on behalf of the Authority, to maintain appropriate and adequate liaison with the Federal Mediation and Conciliation Service with respect to functions which may be performed by the Federal Mediation and Conciliation Service.
III. Personnel. Under 5 U.S.C. 7105(d), the Authority is authorized to appoint Regional Directors. In order better to ensure the effective exercise of the duties and responsibilities of the General Counsel described above, the General Counsel is delegated authority to recommend the appointment, transfer, demotion or discharge of any Regional Director. However, such actions may be taken only with the approval of the Authority. In the event of a vacant Regional Director position, the General Counsel may, without the approval of the Authority, detail personnel as acting Regional Director for a total period of up to 120 days commencing on the day the position becomes vacant. If the position remains vacant for more than 120 days, a detail must be approved by the Authority. Other details of personnel to act as Regional Director during periods when there is an incumbent in the position shall be accomplished by the General Counsel without the approval of the Authority. The General Counsel shall have authority to direct and supervise the Regional Directors. Under 5 U.S.C. 7104(f)(3), the General Counsel shall have direct authority over, and responsibility for all employees in the Office of the General Counsel and all personnel of the General Counsel in the field offices of the Authority. This includes full and final authority subject to applicable laws and rules, regulations and procedures of the Office of Personnel Management and the Authority over the selection, retention, transfer, promotion, demotion, discipline, discharge and in all other respects of such personnel except the detail in the event of a vacancy for a period in excess of 120 days, appointment, transfer, demotion or discharge of any Regional Director. Further, the establishment, transfer, or elimination of any Regional Office or non-Regional Office duty location may be accomplished only with the approval of the Authority. The Authority will provide such administrative support functions, including personnel management, financial management and procurement functions, through the Office of Administration of the Authority as are required by the General Counsel to carry out the General Counsel’s statutory and prescribed functions.
IV. To the extent that the above-described duties, powers and authority rest by statute with the Authority, the foregoing statement constitutes a prescription and assignment of such duties, powers and authority, whether or not so specified.
PARTS 2474-2499 [RESERVED]
CHAPTER XVI—OFFICE OF GOVERNMENT ETHICS
SUBCHAPTER A—ORGANIZATION AND PROCEDURES
PART 2600—ORGANIZATION AND FUNCTIONS OF THE OFFICE OF GOVERNMENT ETHICS
§ 2600.101 Mission and history.
(a) The U.S. Office of Government Ethics (OGE) was established by the Ethics in Government Act of 1978, Public Law 95-521, 92 Stat. 1824 (1978). OGE exercises leadership in the executive branch of the Federal Government to prevent conflicts of interest on the part of executive branch employees and resolve those conflicts of interest that do occur. In partnership with executive branch departments and agencies, OGE fosters high ethical standards for executive branch employees which, in turn, strengthens the public’s confidence that the Government’s business is conducted with impartiality and integrity.
(b) Originally an entity within the Office of Personnel Management, OGE became a separate executive branch agency on October 1, 1989, pursuant to section 3 of the Office of Government Ethics Reauthorization Act of 1988, Public Law 100-598, 102 Stat. 3031 (1988). OGE is the supervising ethics office for all executive branch officers and employees pursuant to the Ethics Reform Act of 1989, Public Law 101-194, 103 Stat. 1716 (1989), as amended by Public Law 101-280, 104 Stat. 149 (1990). Additionally, OGE has various responsibilities under Executive Order 12674 of April 12, 1989, “Principles of Ethical Conduct for Government Officers and Employees” (3 CFR, 1989 Comp., pp. 215-218), as modified by Executive Order 12731 of October 17, 1990 (3 CFR, 1990 Comp., pp. 306-311).
§ 2600.102 Contact information.
(a) Address. OGE is located at 1201 New York Avenue NW., Suite 500, Washington, DC 20005-3917. OGE does not have any regional offices. OGE’s general email address is [email protected].
(b) Web site. Information about OGE and its role in the executive branch ethics program as well as copies of publications that have been developed for training, educational and reference purposes are available electronically on OGE’s Web site (www.oge.gov). OGE has posted on its Web site various Executive Orders, statutes, and regulations that together form the basis for the executive branch ethics program. The site also contains ethics advisory opinions and letters published by OGE, as well as other pertinent information.
(c) Telephone numbers. OGE’s main telephone number is 202-482-9300. Persons who are deaf or speech impaired may contact OGE at the following TDD (Telecommunications Device for the Deaf and Speech Impaired) number: 202-482-9293. The main OGE FAX number is 202-482-9237.
§ 2600.103 Office of Government Ethics organization and functions.
OGE’s Director is appointed by the President and confirmed by the Senate for a five-year term. Additional information regarding OGE’s organization and functions is available on its Web site at www.oge.gov.
PART 2601—IMPLEMENTATION OF OFFICE OF GOVERNMENT ETHICS STATUTORY GIFT ACCEPTANCE AUTHORITY
Subpart A—General Provisions
§ 2601.101 Authority.
Section 2 of the Office of Government Ethics Authorization Act of 1996, amending the Ethics in Government Act of 1978, as codified at 5 U.S.C. app. 403(b), authorizes the Office of Government Ethics (OGE) to accept and utilize gifts for the purpose of aiding or facilitating the work of OGE.
§ 2601.102 Purpose.
The purpose of this part is to establish guidelines governing the implementation of OGE’s gift authority by defining its scope and application, by prescribing the policies, standards and procedures that govern the solicitation, acceptance and use of gifts, and by setting forth accounting requirements related to the use of this authority.
§ 2601.103 Policy.
(a) Scope. OGE may use its statutory authority to solicit, accept and utilize gifts to the agency that aid or facilitate the agency’s work. The authority to solicit, accept and utilize gifts includes the authority to receive, administer, spend, invest and dispose of gifts. Gifts to the agency from individuals or organizations can be a useful adjunct to appropriated funds and may enhance the agency’s ability to fulfill its mission, as well as further mutually beneficial public/private partnerships, or other useful arrangements or relationships. Such uses of this authority are appropriate provided that solicitation or acceptance of a gift does not compromise the integrity of OGE, its programs or employees.
(b) Use of gifts. Gifts to OGE may be used to carry out any activity that furthers the mission, programs, responsibilities, functions or activities of the agency. Gifts may be used to carry out program functions whether or not appropriated funds are available for that purpose, provided that such expenditures are not barred by law or regulation. Gifts may also be used for official travel by employees to events or activities required to carry out the agency’s statutory or regulatory functions. Gifts to the agency may also be used for the travel expenses of spouses accompanying employees on official travel, if such travel could be paid for by appropriated funds.
(c) Sources. Generally, gifts may be solicited or accepted from any source, including a prohibited source, provided that the standards of this part are met. Gifts generally should be made directly to the agency and not through intermediaries. However, where a gift is offered by an intermediary, both the intermediary and the ultimate source of the gift should be analyzed to determine whether acceptance would be appropriate.
(d) Endorsement. Acceptance of a gift pursuant to this part will not in any way be deemed to be an endorsement of the donor, or the donor’s products, services, activities, or policies. Letters to a donor expressing appreciation of a gift are permitted.
(e) Type of gift. The agency may solicit or accept any gift that is within its statutory authority. However, as a matter of policy, OGE will not solicit or accept gifts of currency pursuant to this part. Donors who offer currency should be advised that the gift may be made by check or money order payable to the U.S. Office of Government Ethics.
(a) This part does not apply to gifts to the agency of:
(1) Travel and travel-related expenses made pursuant to the authority set forth in 31 U.S.C. 1353; or
(2) Volunteer services made pursuant to the authority set forth in 5 U.S.C. 3111.
(b) This part does not apply to gifts to an individual agency employee, including:
(1) Gifts of contributions, awards or other expenses for training made pursuant to the authority set forth in the Government Employees Training Act, 5 U.S.C. 4111;
(2) Gifts made by a foreign government or organization, or representative thereof, pursuant to the authority set forth in 5 U.S.C. 7342;
(3) Gifts made by a political organization that may be accepted by an agency employee who, in accordance with the terms of the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in political management or in political campaigns; or
(4) Gifts made directly or indirectly that an employee may accept in a personal capacity pursuant to the authority set forth in 5 CFR part 2635, subpart B or subpart C.
§ 2601.105 Definitions.
As used in this part:
Agency means the U.S. Office of Government Ethics (OGE).
Authorized agency official means the Director of OGE or the Director’s delegee.
Director means the Director of OGE.
Employee means an employee of OGE.
Gift means any gift, donation, bequest or devise of money, use of facilities, personal property, or services and may include travel reimbursements or payments for attendance at or participation in meetings or events.
Money means currency, checks, money orders or other forms of negotiable instruments.
Personal property means all property, tangible or intangible, not defined as real property, and includes stocks and bonds.
Prohibited source means any source described in 5 CFR 2635.203(d).
Services means all forms of voluntary and uncompensated personal services.
Use of facilities means use of space, equipment and all other facilities.
Subpart B—Guidelines for Solicitation and Acceptance of Gifts
§ 2601.201 Delegation.
(a) The authority to solicit, accept, and utilize gifts in accordance with this part resides with the Director.
(b) The Director may delegate this authority.
(c) Authorities delegated in accordance with paragraph (b) of this section may be redelegated only through a written delegation authorizing an agency employee to solicit or accept specific types of gifts, or a gift for a specific purpose, function, or event.
§ 2601.202 Procedure.
(a) The authorized agency official will have the authority to solicit, accept, refuse, return, or negotiate the terms of acceptance of a gift.
(b) An employee, other than an authorized agency official, will immediately forward all offers of gifts covered by this part regardless of value to an authorized agency official for consideration and will provide a description of the gift offered. An employee will also inform an authorized agency official of all discussions of the possibility of a gift. An employee will not provide a donor with any commitment, privilege, concession or other present or future benefit (other than an appropriate acknowledgment) in return for a gift.
(c) Only an authorized agency official may solicit, accept or decline a gift after making the determination required under the conflict of interest standard in § 2601.203. An authorized agency official may find that, while acceptance of an offered gift is permissible, it is in the interest of the agency to qualify acceptance by, for example, limiting the gift in some way. Approval of acceptance of a gift in-kind after receipt of the gift may be granted as deemed appropriate by the authorized agency official.
(d) Gifts may be acknowledged in writing in the form of a letter of acceptance to the donor. The amount of a monetary gift will be specified. In the case of nonmonetary gifts, the letter will not make reference to the value of the gift. Valuation of nonmonetary gifts is the responsibility of the donor. Letters of acceptance will not include any statement regarding the tax implications of a gift, which remain the responsibility of the donor. No statement of endorsement should appear in a letter of acceptance to the donor.
(e) A gift may be declined by an authorized official orally or in writing. A donor may be advised of the reason why the gift has been declined. A gift may be declined solely as a matter of agency discretion, even though acceptance would not be precluded under the conflict of interest standard in § 2601.203.
(f) A gift of money or the proceeds of a gift will be deposited in an appropriately documented agency fund. A check or money order should be made payable to the “U.S. Office of Government Ethics.”
§ 2601.203 Conflict of interest analysis.
(a) A gift will not be solicited or accepted if the authorized agency official determines that such solicitation or acceptance of the gift would reflect unfavorably upon the ability of the agency, or any employee of the agency, to carry out OGE responsibilities or official duties in a fair and objective manner, or would compromise the integrity or the appearance of the integrity of its programs or any official involved in those programs.
(b) In making the determination required under paragraph (a) of this section, an authorized agency official may be guided by all relevant considerations, including, but not limited to the following:
(1) The identity of the donor;
(2) The monetary or estimated market value or the cost to the donor;
(3) The purpose of the gift as described in any written statement or oral proposal by the donor;
(4) The identity of any other expected recipients of the gift on the same occasion, if any;
(5) The timing of the gift;
(6) The nature and sensitivity of any matter pending at the agency affecting the interests of the donor;
(7) The significance of an individual employee’s role in any matter affecting the donor, if benefits of the gift will accrue to the employee;
(8) The nature of the gift offered;
(9) The frequency of other gifts received from the same donor; and
(10) The agency activity, purpose or need that the gift will aid or facilitate.
(c) An authorized agency official may ask the donor to provide in writing any additional information needed to assist in making the determination under this section. Such information may include a description of the donor’s business or organizational affiliation and any matters that are pending or are expected to be pending before the agency.
§ 2601.204 Conditions for acceptance.
(a) No gift may be accepted that:
(1) Attaches conditions inconsistent with applicable laws or regulations;
(2) Is conditioned upon or will require the expenditure of appropriated funds that are not available to the agency;
(3) Requires the agency to provide the donor with some privilege, concession or other present or future benefit in return for the gift;
(4) Requires the agency to adhere to particular requirements as to deposit, investment, or management of funds donated;
(5) Requires the agency to undertake or engage in activities that are not related to the agency’s mission, programs or statutory authorities; or
(6) Would reflect unfavorably upon the ability of the agency, or any of its employees, to carry out its responsibilities or official duties in a fair and objective manner, or would compromise or appear to compromise the integrity or the appearance of the integrity of its programs or any official involved in those programs.
(b) [Reserved]
Nothing in this part will prohibit the agency from offering or providing the donor an appropriate acknowledgment of its gift in a publication, speech or other medium.
Subpart C—Accounting Requirements
§ 2601.301 Accounting of gifts.
(a) OGE’s Designated Agency Ethics Official (DAEO) will ensure that gifts are properly accounted for by following appropriate internal controls and accounting procedures.
(b) The DAEO will maintain an inventory of donated personal property valued at over $500. The inventory will be updated each time an item is sold, excessed, destroyed or otherwise disposed of or discarded.
(c) The DAEO will maintain a log of all gifts valued at over $500 accepted pursuant to this part. The log will include, to the extent known:
(1) The name and address of the donor;
(2) A description of the gift; and
(3) The date the gift is accepted.
PART 2602—EMPLOYEE RESPONSIBILITIES AND CONDUCT, ADDENDUM [RESERVED]
PART 2604—FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS
Subpart A—General Provisions
§ 2604.101 Purpose.
This part contains the regulations of the U.S. Office of Government Ethics (OGE) implementing the Freedom of Information Act (FOIA), as amended. It describes how any person may obtain records from OGE under the FOIA. It also implements section 105(b)(1) of the Ethics in Government Act of 1978 (Ethics Act), as amended, which authorizes an agency to charge reasonable fees to cover the cost of reproduction and mailing of public financial disclosure reports requested by any person.
§ 2604.102 Applicability.
(a) General. The FOIA and this rule apply to all OGE records. However, if another law sets forth procedures for the disclosure of specific types of records, such as section 105 of the Ethics in Government Act of 1978, 5 U.S.C. appendix, OGE will process a request for those records in accordance with the procedures that apply to those specific records. See 5 CFR 2634.603 and subpart G of this part. If there is any record which is not required to be released under those provisions, OGE will consider the request under the FOIA and this rule, provided that the special Ethics Act access procedures cited must be complied with as to any record within the scope thereof.
(b) The relationship between the FOIA and the Privacy Act of 1974. The Freedom of Information Act applies to third-party requests for documents concerning the general activities of the government and of OGE in particular. The Privacy Act of 1974, 5 U.S.C. 552a, applies to records that are about individuals, but only if the records are in a system of records as defined in the Privacy Act. When an individual requests access to his or her own records that are contained in an OGE system of records, the individual is making a Privacy Act request, not a FOIA request. Although OGE determines whether a request is a FOIA or Privacy Act request, OGE processes requests in accordance with both laws and will not deny access by a first party to a record under the FOIA or the Privacy Act if the record is available to that individual under both statutes. This provides the greatest degree of lawful access while safeguarding individuals’ personal privacy.
(c) Records available through routine distribution procedures. When the record requested includes material published and offered for sale (e.g., by the Government Publishing Office) or which is available to the public through an established distribution system (such as that of the National Technical Information Service of the Department of Commerce), OGE will explain how the record may be obtained through those channels. If the requester, after having been advised of such alternative access, asks for regular FOIA processing instead, OGE will provide the record in accordance with its usual FOIA procedures under this part.
§ 2604.103 Definitions.
As used in this part:
Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 552(f).
Business information means trade secrets or other commercial or financial information, provided to OGE by a submitter, which arguably is protected from disclosure under Exemption 4 of the Freedom of Information Act.
Business submitter means any person who provides business information, directly or indirectly, to OGE and who has a proprietary interest in the information.
Chief FOIA Officer means the OGE official designated in 5 U.S.C. 552(j)(1) to provide oversight of all of OGE’s FOIA program operations.
Commercial use means, when referring to a request, that the request is 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 of a person on whose behalf the request is made. Whether a request is for a commercial use depends on the purpose of the request and the use to which the records will be put. When a request is from a representative of the news media, a purpose or use supporting the requester’s news dissemination function is not a commercial use.
Direct costs means those expenditures actually incurred in searching for and duplicating (and, in the case of commercial use requesters, reviewing) records to respond to a FOIA request. Direct costs include the salary of the employee performing the work and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space and heating or lighting of the facility in which the records are stored.
Duplication means the process of making a copy of a record. Such copies include photocopies, flash drives, and optical discs.
Educational institution means a preschool, elementary or secondary school, institution of undergraduate or graduate higher education, or institute of professional or vocational education, which operates a program of scholarly research.
Fee waiver means waiving or reducing processing fees if a requester can demonstrate that certain statutory standards are satisfied, including that the information is in the public interest and is not requested for a commercial interest.
FOIA Officer means the OGE employee designated to handle various initial FOIA matters, including requests and related matters such as fees.
FOIA Public Liaison means the OGE official designated in 5 U.S.C. 552(a)(6)(B)(ii) and 552(l) to review upon request any concerns of FOIA requesters about the service received from OGE’s FOIA Requester Service Center and to address any other FOIA-related inquiries.
FOIA Requester Service Center means the OGE unit designated under E.O. 13392 and referenced in 5 U.S.C. 552(l) to answer any questions requesters have about the status of OGE’s processing of their FOIA requests.
Freedom of Information Act or FOIA means 5 U.S.C. 552.
Noncommercial scientific institution means an institution that is not operated solely for purposes of furthering its own or someone else’s business, trade, or profit interests, and that is operated for purposes of conducting scientific research the results of which are not intended to promote any particular product or industry.
Office or OGE means the United States Office of Government Ethics.
Person has the meaning given in 5 U.S.C. 551(2), including “an individual, partnership, corporation, association, or public or private organization other than an agency.”
Records means any handwritten, typed, or printed documents (such as memoranda, books, brochures, studies, writings, drafts, letters, transcripts, and minutes) and documentary material in other forms (such as electronic documents, electronic mail, magnetic tapes, cards or discs, paper tapes, audio or video recordings, maps, photographs, slides, microfilm and motion pictures) that are either created or obtained by OGE and are under its control. It does not include objects or articles such as exhibits, models, equipment, and duplication machines or audiovisual processing materials.
Representative of the news media means a person or entity that gathers information of potential interest to a segment of the public, uses editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, 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 broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who distribute their products to the general public or who make their products available for purchase or subscription by the general public, and entities that may disseminate news through other media, such as electronic dissemination of text. Freelance journalists will be considered as representatives of a news media entity if they can show a solid basis for expecting publication through such an entity. A publication contract is such a basis, and the requester’s past publication record may show such a basis.
Request means any request for records made pursuant to 5 U.S.C. 552(a)(3).
Requester means any person who makes a request for records to OGE.
Requester category means one of three classifications that OGE assigns to requesters to determine whether OGE will charge fees for search, review and duplication. These categories are: Commercial requesters; noncommercial scientific or educational institutions or representatives of the news media; and all other requesters.
Review means the process of initially, or upon appeal (see § 2604.501(b)(3)), examining documents located in a response to a request to determine whether any portion of any document is permitted to be withheld. It also includes processing documents for disclosure, such as redacting portions which may be withheld. Review does not include time spent resolving general legal and policy issues regarding the application of exemptions.
Search means the time spent looking for material manually or by automated means that is responsive to a request, including page-by-page or line-by-line identification of material within documents.
Working days means calendar days, excepting Saturdays, Sundays, and legal public holidays.
§ 2604.104 Preservation of records.
OGE will preserve all correspondence pertaining to the requests that it receives under this part, as well as copies of all responsive records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration’s General Records Schedule. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit.
§ 2604.105 Other rights and services.
Nothing in this part will be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Subpart B—FOIA Public Reading Room Facility and Web Site; Index Identifying Information for the Public
§ 2604.201 Public reading room facility and Web site.
(a)(1) Location of public reading room facility. OGE maintains a public reading room facility at its offices located at 1201 New York Avenue NW., Suite 500, Washington, DC 20005-3917. Persons desiring to utilize the reading room facility should contact OGE, in writing or by telephone: 202-482-9300, TDD: 202-482-9293, or FAX: 202-482-9237, to arrange a time to inspect the materials available there.
(2) Web site. The records listed in paragraph (b) of this section that were created on or after November 1, 1996, or which OGE is otherwise able to make electronically available, along with the OGE FOIA and Public Records Guide and OGE’s annual FOIA reports, are also available via OGE’s Web site (www.oge.gov). OGE will proactively identify additional records of interest to the public and will post such records on its Web site when practicable.
(b) Records available. The OGE Web site contains OGE records which are required by 5 U.S.C. 552(a)(2) to be made available for public inspection in an electronic format, including:
(1) Any final opinions, as well as orders, made in the adjudication of cases;
(2) Any statements of policy and interpretation which have been adopted by OGE and are not published in the
(3) Any administrative staff manuals and instructions to staff that affect a member of the public, and which are not exempt from disclosure under section (b) of the FOIA;
(4) Copies of records created by OGE that have been released to any person under subpart C of this part and that, because of the nature of their subject matter, OGE determines have become or are likely to become the subject of subsequent requests for substantially the same records or that have been requested three or more times; and
(5) A general index of the records referred to under § 2604.201(b)(4).
(c) OGE may delete from the copies of materials made available under this section any identifying details necessary to prevent a clearly unwarranted invasion of personal privacy. Any such deletions will be explained in writing and the extent of such deletions will be indicated on the portion of the records that are made available or published, unless the indication would harm an interest protected by the FOIA exemption pursuant to which the deletions are made. If technically feasible, the extent of any such deletions will be indicated at the place in the records where they are made.
§ 2604.202 Index identifying information for the public.
(a) OGE will maintain and make available for public inspection in an electronic format a current index of the materials available on its Web site that are required to be indexed under 5 U.S.C. 552(a)(2).
(b) The Director of the Office of Government Ethics has determined that it is unnecessary and impracticable to publish quarterly or more frequently and distribute (by sale or otherwise) copies of each index and supplements thereto, as provided in 5 U.S.C. 552(a)(2). The Office will provide copies of such indexes upon request, at a cost not to exceed the direct cost of duplication and mailing, if sending records by other than ordinary mail.
Subpart C—Production and Disclosure of Records Under FOIA
§ 2604.301 Requests for records.
(a) Addressing requests. Requests for copies of records may be made by mail or email. Requests sent by mail should be addressed to the FOIA Officer, U.S. Office of Government Ethics, 1201 New York Avenue NW., Suite 500, Washington, DC 20005-3917. The envelope containing the request and the letter itself should both clearly indicate that the subject is a Freedom of Information Act request. Email requests should be sent to [email protected] and should indicate in the subject line that the message contains a Freedom of Information Act request.
(b) Description of records. Each request must reasonably describe the desired records in sufficient detail to enable OGE personnel to locate the records with a reasonable amount of effort. A request for a specific category of records will be regarded as fulfilling this requirement if it enables responsive records to be identified by a technique or process that is not unreasonably burdensome or disruptive of OGE operations.
(1) Wherever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record.
(2) If the FOIA Officer determines that a request does not reasonably describe the records sought, the FOIA Officer will either advise the requester what additional information is needed to locate the record, or otherwise state why the request is insufficient. The FOIA Officer will also extend to the requester an opportunity to confer with OGE personnel with the objective of reformulating the request in a manner which will meet the requirements of this section.
(c) Agreement to pay fees. The filing of a request under this subpart will be deemed to constitute an agreement by the requester to pay all applicable fees charged under subpart E of this part, up to $25.00, unless a waiver of fees is sought. The request may also specify a limit on the amount the requester is willing to spend, or may indicate a willingness to pay an amount greater than $25.00, if applicable. In cases where a requester has been notified that actual or estimated fees may amount to more than $25.00, the request will be deemed not to have been received until the requester has agreed to pay the anticipated total fee. If, in the course of negotiating fees, the requester does not respond to correspondence from OGE, OGE will administratively close the FOIA request after 30 calendar days have passed from the date of its last correspondence to the requester.
(d) Requests for records relating to corrective actions. No record developed pursuant to the authority of 5 U.S.C. app. 402(f)(2) concerning the investigation of an employee for a possible violation of any provision relating to a conflict of interest will be made available pursuant to this part unless the request for such information identifies the employee to whom the records relate and the subject matter of any alleged violation to which the records relate. Nothing in this subsection will affect the application of subpart D of this part to any record so identified.
(e) Seeking expedited processing. (1) A requester may seek expedited processing of a FOIA request if a compelling need for the requested records can be shown.
(2) “Compelling need” means:
(i) Circumstances in which failure to obtain copies of the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if the request is made by a person primarily engaged in disseminating information.
(3) A requester seeking expedited processing should so indicate in the initial request, and should state all the facts supporting the need to obtain the requested records quickly. The requester must also certify in writing that these facts are true and correct to the best of the requester’s knowledge and belief.
§ 2604.302 Response to requests.
(a) Acknowledgement of requests. If the FOIA Officer determines that a request will take longer than 10 working days to process, OGE will send a written acknowledgment that includes the request’s individualized tracking number.
(b) Response to initial request. The FOIA Officer is authorized to grant or deny any request for a record and to determine appropriate fees.
(c) Referral to, or consultation with, another agency. When a requester seeks access to records that originated in another Government agency subject to the FOIA, OGE will normally refer the request to the other agency for response; alternatively, OGE may consult with the other agency in the course of deciding itself whether to grant or deny a request for access to such records. If OGE refers the request to another agency, it will notify the requester of the referral and provide a point of contact within the receiving agency. If release of certain records may adversely affect United States relations with foreign governments, OGE will usually consult with the Department of State. A request for any records classified by some other agency will be referred to that agency for response.
(d) Honoring form or format requests. In making any record available to a requester, OGE will provide the record in the form or format requested, if the record already exists or is readily reproducible by OGE in that form or format. If a form or format request cannot be honored, OGE will so inform the requester and provide a copy of a nonexempt record in its existing form or format or another convenient form or format which is readily reproducible. OGE will not, however, generally develop a completely new record (as opposed to providing a copy of an existing record in a readily reproducible new form or format, as requested) of information in order to satisfy a request.
(e) Record cannot be located. If a requested record cannot be located from the information supplied, the FOIA Officer will so notify the requester in writing.
§ 2604.303 Form and content of responses.
(a) Form of notice granting a request. After the FOIA Officer has made a determination to grant a request in whole or in part, the requester will be notified in writing. The notice will describe the manner in which the record will be disclosed, whether by providing a copy of the record with the response or at a later date, or by making a copy of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection may not unreasonably disrupt OGE operations. The response letter will inform the requester of the right of the requester to seek assistance from the FOIA Public Liaison. The response letter will also inform the requester in the response of any fees to be charged in accordance with the provisions of subpart E of this part.
(b) Form of notice denying a request. When the FOIA Officer denies a request in whole or in part, the FOIA Officer will so notify the requester in writing. The response will be signed by the FOIA Officer and will include:
(1) The name and title or position of the person making the denial;
(2) A brief statement of the reason or reasons for the denial, including the FOIA exemption or exemptions which the FOIA Officer has relied upon in denying the request;
(3) When only a portion of a document is being withheld, the amount of information deleted and the FOIA exemption(s) justifying the deletion will generally be indicated on the copy of the released portion of the document. If technically feasible, such indications will appear at the place in the copy of the document where any deletion is made. If a document is withheld in its entirety, an estimate of the volume of the withheld material will generally be given. However, neither an indication of the amount of information deleted nor an estimation of the volume of material withheld will be included in a response if doing so would harm an interest protected by any of the FOIA exemptions pursuant to which the deletion or withholding is made; and
(4) A statement that the denial may be appealed under § 2604.304, and a description of the requirements of that section; and
(5) A statement of the right of the requester to seek dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services (OGIS).
§ 2604.304 Appeal of denials.
(a) Right of appeal. If a request has been denied in whole or in part, the requester may appeal the denial by mail or email to the Program Counsel of the U.S. Office of Government Ethics. Requests sent by mail should be addressed to 1201 New York Avenue NW., Suite 500, Washington, DC 20005-3917. The envelope containing the request and the letter itself should both clearly indicate that the subject is a Freedom of Information Act appeal. Email requests should be sent to [email protected] and should indicate in the subject line that the message contains a Freedom of Information Act appeal.
(b) Letter of appeal. The appeal must be in writing and must be sent within 90 calendar days of receipt of the denial letter. An appeal should include a copy of the initial request, a copy of the letter denying the request in whole or in part, and a statement of the circumstances, reasons or arguments advanced in support of disclosure of the record.
(c) Action on appeal. The disposition of an appeal will be in writing and will constitute the final action of OGE on a request. A decision affirming in whole or in part the denial of a request will include a brief statement of the reason or reasons for affirmance, including each FOIA exemption relied on. If the denial of a request is reversed in whole or in part on appeal, the request will be processed promptly in accordance with the decision on appeal.
(d) Judicial review. If the denial of the request for records is upheld in whole or in part, OGE will notify the person making the request of the right to seek judicial review under 5 U.S.C. 552(a)(4).
(e) Dispute Resolution Services. If the denial of the request for records is upheld in whole or in part, OGE will notify the requester about the dispute resolution services offered by the Office of Government Information Services (OGIS) and provide contact information for that office.
§ 2604.305 Time limits.
(a)(1) Initial request. Following receipt of a request for records, the FOIA Officer will determine whether to comply with the request and will notify the requester in writing of the determination within 20 working days.
(2) Tolling. OGE may toll the 20-working day period once while awaiting a response to information reasonably requested from the requester. OGE may also toll the 20-working day period while awaiting a response to a request for clarification regarding fees. There is no limit on the number of times OGE may toll the statutory time period to request clarification regarding fees. In either case, the tolling period ends upon receipt of the requester’s response to the request for information or clarification. If OGE does not receive a response to a request for clarification regarding fees within 30 calendar days, it will consider the request “closed.”
(3) Request for expedited processing. When a request for expedited processing under § 2604.301(e) is received, the FOIA Officer will respond within 10 calendar days from the date of receipt of the request, stating whether or not the request for expedited processing has been granted. If the request for expedited processing is denied, any appeal of that decision will be acted upon expeditiously.
(b) Appeal. A written determination on an appeal submitted in accordance with § 2604.304 will be issued within 20 working days after receipt of the appeal.
(c) Extension of time limits. When additional time is required for one of the reasons stated in paragraph (d) of this section, OGE will, within the statutory 20-working day period, issue written notice to the requester setting forth the reasons for the extension and the date on which a determination is expected to be made. If more than 10 additional working days are needed, the requester will be notified and provided an opportunity to limit the scope of the request or to arrange for an alternative time frame for processing the request or a modified request. To aid the requester, OGE will make available its FOIA Public Liaison to assist in the resolution of any disputes. Additionally, OGE will notify the requester of the right of the requester to seek dispute resolution services from OGIS.
(d) For the purposes of paragraph (c) of this section, unusual circumstances means that there is a need to:
(1) Search for and collect records from archives;
(2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(3) Consult with another agency having a substantial interest in the determination of the request, or consult with various OGE components that have substantial subject matter interest in the records requested.
Subpart D—Exemptions Under FOIA
§ 2604.401 Policy.
(a) Foreseeable harm standard. A requested record will not be withheld from inspection or copying unless it comes within one of the classes of records exempted by 5 U.S.C. 552 and OGE reasonably foresees that disclosure would harm an interest protected by an exemption described in 5 U.S.C. 552(b) or is prohibited by law. Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3).
(b) Pledge of confidentiality. Information obtained from any individual or organization, furnished in reliance on a provision for confidentiality authorized by applicable statute, Executive Order or regulation, will not be disclosed to the extent it can be withheld under one of the exemptions. However, this paragraph (b) does not itself authorize the giving of any pledge of confidentiality by any officer or employee of OGE.
(c) Exception for law enforcement information. OGE may treat records compiled for law enforcement purposes as not subject to the requirements of the Freedom of Information Act when:
(1) The investigation or proceeding involves a possible violation of criminal law;
(2) There is reason to believe that the subject of the investigation or proceeding is unaware of its pendency; and
(3) The disclosure of the existence of the records could reasonably be expected to interfere with the enforcement proceedings.
(d) Partial application of exemptions. Any reasonably segregable portion of a record will be provided to any person requesting the record after deletion of the portions which are exempt under this subpart.
§ 2604.402 Business information.
(a) In general. Business information provided to OGE by a submitter will not be disclosed pursuant to a Freedom of Information Act request except in accordance with this section.
(b) Designation of business information. Submitters of business information should use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, those portions of their submissions which they deem to be protected under Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). Any such designation will expire 10 years after the records were submitted to the Government, unless the submitter requests, and provides reasonable justification for, a designation period of longer duration.
(c) Predisclosure notification. The FOIA Officer will provide a submitter with prompt written notice of a FOIA request regarding its business information if:
(1) The information has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the FOIA; or
(2) The FOIA Officer has reason to believe that the information may be protected from disclosure under Exemption 4 of the FOIA. Such written notice will either describe the exact nature of the business information requested or provide copies of the records containing the business information. The requester also will be notified that notice and an opportunity to object are being provided to a submitter.
(d) Opportunity to object to disclosure. OGE will give a submitter a reasonable time, up to 10 working days, from receipt of the predisclosure notification to provide a written statement of any objection to disclosure. Such statement will specify all the grounds for withholding any of the information under any exemption of the FOIA and, in the case of Exemption 4, will demonstrate why the information is deemed to be a trade secret or commercial or financial information that is privileged or confidential. Information provided by a submitter pursuant to this paragraph (d) may itself be subject to disclosure under the FOIA.
(e) Notice of intent to disclose. The FOIA Officer will consider all objections raised by a submitter and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever the FOIA Officer decides to disclose business information over the objection of a submitter, the FOIA Officer will send the submitter a written notice at least 10 working days before the date of disclosure containing:
(1) A statement of the reasons why the submitter’s objections were not sustained;
(2) A copy of the records which will be disclosed or a written description of the records; and
(3) A specified disclosure date. The requester will also be notified of the FOIA Officer’s determination to disclose records over a submitter’s objections.
(f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of business information, the FOIA Officer will promptly notify the submitter.
(g) Exceptions to predisclosure notification. The notice requirements in paragraph (c) of this section do not apply if:
(1) The FOIA Officer determines that the information should not be disclosed;
(2) The information has been published previously or has been officially made available to the public;
(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or
(4) The designation made by the submitter in accordance with paragraph (b) of this section appears obviously frivolous; except that, in such a case, the FOIA Officer will provide the submitter with written notice of any final decision to disclose business information within a reasonable number of days prior to a specified disclosure date.
Subpart E—Schedule of Fees
§ 2604.501 Fees to be charged—general.
(a) Policy. Fees will be assessed according to the schedule contained in paragraph (b) of this section and the category of requesters described in § 2604.502 for services rendered in responding to and processing requests for records under subpart C of this part. All fees will be charged to the requester, except where the charging of fees is limited under § 2604.503(a) and (b) or where a waiver or reduction of fees is granted under § 2604.503(c). Requesters will pay fees by check or money order made payable to the Treasury of the United States.
(b) Types of charges. The types of charges that may be assessed in connection with the production of records in response to a FOIA request are as follows:
(1) Searches—(i) Manual searches for records. Whenever feasible, OGE will charge at the salary rate (i.e., basic pay plus 16%) of the employee making the search. However, where a homogeneous class of personnel is used exclusively in a search (e.g., all clerical time or all professional time) OGE will charge $16.00 per hour for clerical time and $28.00 per hour for professional time. Charges for search time will be billed by 15minute segments.
(ii) Computer searches for records. Requesters will be charged the actual direct cost of conducting a search using existing programming. These direct costs will include the cost of operating a central processing unit for that portion of operating time that is directly attributable to searching for records responsive to a request, as well as the cost of operator/programmer salary apportionable to the search. OGE will not alter or develop programming to conduct a search.
(iii) Unproductive searches. OGE will charge search fees even if no records are found which are responsive to the request, or if the records found are exempt from disclosure.
(2) Duplication. The standard copying charge for documents in paper copy is $0.15 per page. When responsive information is provided in a format other than paper copy, such as in the form of computer tapes, flash drives, and discs, the requester may be charged the direct costs of the medium used to produce the information, as well as any related reproduction costs.
(3) Review. Costs associated with the review of documents, as defined in § 2604.103, will be charged at the salary rate (i.e., basic pay plus 16%) of the employee conducting the review. Except as noted below, charges may be assessed only for review at the initial level, i.e., the review undertaken the first time the documents are analyzed to determine the applicability of specific exemptions to a particular record or portion of the records. A requester will not be charged for review at the administrative appeal level concerning the applicability of an exemption already applied at the initial level. However, when a record has been withheld pursuant to an exemption which is subsequently determined not to apply and the record is reviewed again at the appeal level to determine the potential applicability of other exemptions, the costs of such additional review may be assessed.
(4) Other services and materials. Where OGE elects, as a matter of administrative discretion, to comply with a request for a special service or materials, such as certifying that records are true copies or sending records by special methods, the actual direct costs of providing the service or materials will be charged.
§ 2604.502 Fees to be charged—categories of requesters.
(a) Fees for various requester categories. The paragraphs below state, for each category of requester, the type of fees generally charged by OGE. However, for each of these categories, the fees may be limited, waived or reduced in accordance with the provisions set forth in § 2604.503. In determining whether a requester belongs in any of the following categories, OGE will determine the use to which the requester will put the documents requested. If OGE has reasonable cause to doubt the use to which the requester will put the records sought, or where the use is not clear from the request itself, OGE will seek clarification before assigning the request to a specific category.
(b) Commercial use requester. OGE will charge the full costs of search, review, and duplication. Commercial use requesters are not entitled to two hours of free search time or 100 free pages of reproduction as described in § 2604.503(a); however, the minimum fees provision of § 2604.503(b) does apply to such requesters.
(c) Educational and noncommercial scientific institutions and news media. If the request is from an educational institution or a noncommercial scientific institution, operated for scholarly or scientific research, or a representative of the news media, and the request is not for a commercial use, OGE will charge only for duplication of documents, excluding charges for the first 100 pages.
(d) All other requesters. If the request is not one described in paragraph (b) or (c) of this section, OGE will charge the full and direct costs of searching for and reproducing records that are responsive to the request, excluding the first 100 pages of duplication and the first two hours of search time.
§ 2604.503 Limitations on charging fees.
(a) In general. Except for requesters seeking records for a commercial use as described in § 2604.502(b), OGE will provide, without charge, the first 100 pages of duplication and the first two hours of search time, or their cost equivalent.
(b) Minimum fees. OGE will not assess fees for individual requests if the total charge would be $10.00 or less.
(c) Waiver or reduction of fees. Records responsive to a request under 5 U.S.C. 552 will be furnished without charge or at a reduced charge if a requester can demonstrate that certain statutory standards are satisfied, including that the 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. Requests for a waiver or reduction of fees will be considered on a case-by-case basis.
(1) In determining whether disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government, OGE will consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the Government. The subject matter of the requested records, in the context of the request, must specifically and directly concern identifiable operations or activities of the Federal Government. Furthermore, the records must be sought for their informative value with respect to those Government operations or activities;
(ii) The informative value of the information to be disclosed: Whether the information is likely to contribute to an understanding of Government operations or activities. The disclosable portions of the requested records must be meaningfully informative on specific Government operations or activities in order to hold potential for contributing to increased public understanding of those operations and activities. The disclosure of information which is already in the public domain, in either a duplicative or substantially identical form, would not be likely to contribute to such understanding, as nothing new would be added to the public record;
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to public understanding. The disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. A requester’s identity and qualifications—e.g., expertise in the subject area and ability and intention to convey information to the general public—will be considered; and
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute significantly to public understanding of Government operations or activities. The public’s understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be significantly enhanced by the disclosure.
(2) In determining whether disclosure of the requested information is not primarily in the commercial interest of the requester, OGE will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. OGE will consider all commercial interests of the requester, or any person on whose behalf the requester may be acting, which would be furthered by the requested disclosure. In assessing the magnitude of identified commercial interests, consideration will be given to the effect that the information disclosed would have on those commercial interests; and
(ii) The primary interest in disclosure: Whether the magnitude of 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. A fee waiver or reduction is warranted only where the public interest can fairly be regarded as greater in magnitude than the requester’s commercial interest in disclosure. OGE will ordinarily presume that, where a news media requester has satisfied the public interest standard, the public interest will be served primarily by disclosure to that requester. Disclosure to data brokers and others who compile and market Government information for direct economic return will not be presumed to primarily serve the public interest.
(3) Where only a portion of the requested record satisfies the requirements for a waiver or reduction of fees under this paragraph (c), a waiver or reduction will be granted only as to that portion.
(4) A request for a waiver or reduction of fees must accompany the request for disclosure of records, and should include:
(i) A clear statement of the requester’s interest in the documents;
(ii) The proposed use of the documents and whether the requester will derive income or other benefit from such use;
(iii) A statement of how the public will benefit from release of the requested documents; and
(iv) If specialized use of the documents is contemplated, a statement of the requester’s qualifications that are relevant to the specialized use.
(5) A requester may appeal the denial of a request for a waiver or reduction of fees in accordance with the provisions of § 2604.304.
(d) If OGE does not comply with one of the time limits under § 2604.305, it will not assess search fees (or in the case of a requester described under § 2604.502(c), duplication fees), except as provided in paragraphs (d)(1) through (d)(3) of this section.
(1) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and OGE provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limit is excused for an additional 10 days.
(2) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are necessary to respond to the request, OGE may charge search fees (or in the case of requesters described under § 2604.502(c), duplication fees) if OGE has provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and OGE 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 has determined that exceptional circumstances exist, as defined in 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limits shall be excused for the length of time provided by the court order.
§ 2604.504 Miscellaneous fee provisions.
(a) Notice of anticipated fees in excess of $25.00. Where OGE determines or estimates that the fees to be assessed under this section may amount to more than $25.00, it will notify the requester as soon as practicable of the actual or estimated amount of fees, unless the requester has indicated in advance the willingness to pay fees as high as those anticipated. Where a requester has been notified that the actual or estimated fees may exceed $25.00, the request will be deemed not to have been received until the requester has agreed to pay the anticipated total fee. A notice to the requester pursuant to this paragraph (a) will include the opportunity to confer with OGE personnel in order to reformulate the request to meet the requester’s needs at a lower cost.
(b) Aggregating requests. A requester may not file multiple requests, each seeking portions of a document or documents in order to avoid the payment of fees. Where there is reason to believe that a requester, or group of requesters acting in concert, is attempting to divide a request into a series of requests for the purpose of evading the assessment of fees, OGE may aggregate the requests and charge accordingly. OGE will presume that multiple requests of this type made within a 30-calendar day period have been made in order to evade fees. Multiple requests regarding unrelated matters will not be aggregated.
(c) Advance payments. An advance payment before work is commenced or continued will not be required unless:
(1) OGE estimates or determines that the total fee to be assessed under this section is likely to exceed $250.00. When a determination is made that the allowable charges are likely to exceed $250.00, the requester will be notified of the likely cost and will be required to provide satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or will be required to submit an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days of the date of the billing). In such cases the requester may be required to pay the full amount owed plus any applicable interest as provided by paragraph (e) of this section, and to make an advance payment of the full amount of the estimated fee before OGE begins to process a new request.
(3) When OGE requests an advance payment of fees, the administrative time limits described in subsection (a)(6) of the FOIA will begin to run only after OGE has received the advance payment.
(d) Billing and payment. Normally OGE will require a requester to pay all fees before furnishing the requested records. However, OGE may send a bill along with, or following the furnishing of records, in cases where the requester has a history of prompt payment.
(e) Interest charges. Interest charges on an unpaid bill may be assessed starting on the 31st calendar day following the day on which the billing was sent. Interest will be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of billing. To collect unpaid bills, OGE will follow the provisions of the Debt Collection Act of 1982, as amended (96 Stat. 1749 et seq.) including the use of consumer reporting agencies, collection agencies, and offset.
Subpart F—Annual OGE FOIA Report
§ 2604.601 Electronic posting and submission of annual OGE FOIA report.
On or before February 1 of each year, OGE will submit to the Office of Information Policy at the United States Department of Justice and to the Director of OGIS an Annual FOIA Report. The report will include the information required by 5 U.S.C. 552(e). OGE will electronically post on its Web site the report and the raw statistical data used in each report, in accordance with 5 U.S.C. 552(e)(3).
Subpart G—Fees for the Reproduction and Mailing of Public Financial Disclosure Reports
§ 2604.701 Policy.
Fees for the reproduction and mailing of public financial disclosure reports requested pursuant to section 105 of the Ethics in Government Act of 1978, as amended, and § 2634.603 of this chapter will be assessed according to the schedule contained in § 2604.702. Requesters will pay fees by check or money order made payable to the Treasury of the United States. Except as provided in § 2604.702(d), nothing concerning fees in subpart E of this part supersedes the charges set forth in this subpart for records covered in this subpart.
§ 2604.702 Charges.
(a) Duplication. Except as provided in paragraph (c) of this section, copies of public financial disclosure reports requested pursuant to section 105 of the Ethics in Government Act of 1978, as amended, and § 2634.603 of this chapter will be provided upon payment of $0.15 per page furnished.
(b) Mailing. Except as provided in paragraph (c) of this section, the actual direct cost of mailing public financial disclosure reports will be charged for all forms requested. Where OGE elects to comply, as a matter of administrative discretion, with a request for special mailing services, the actual direct cost of such service will be charged.
(c) Minimum fees. OGE will not assess fees for individual requests if the total charge would be $10.00 or less.
(d) Miscellaneous fee provisions. The miscellaneous fee provisions set forth in § 2604.504 apply to requests for public financial disclosure reports pursuant to § 2634.603 of this chapter.
PART 2606—PRIVACY ACT RULES
Subpart A—General Provisions
§ 2606.101 Purpose.
This part sets forth the regulations of the Office of Government Ethics (OGE) implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). It governs access, maintenance, disclosure, and amendment of records contained in OGE’s executive branch Governmentwide and internal systems of records, and establishes rules of conduct for OGE employees who have responsibilities under the Act.
§ 2606.102 Definitions.
For the purpose of this part, the terms listed below are defined as follows:
Access means providing a copy of a record to, or allowing review of the original record by, the data subject or the requester’s authorized representative, parent or legal guardian;
Act means the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
Amendment means the correction, addition, deletion, or destruction of a record or specific portions of a record;
Data subject means the individual to whom the information pertains and by whose name or other individual identifier the information is maintained or retrieved;
He, his, and him include she, hers and her.
Office or OGE means the U.S. Office of Government Ethics;
System manager means the Office or other agency official who has the authority to decide Privacy Act matters relative to a system of records;
System of records means a group of any records containing personal information controlled and managed by OGE from which information is retrieved by the name of an individual or by some personal identifier assigned to that individual;
Working day as used in calculating the date when a response is due means calendar days, excepting Saturdays, Sundays, and legal public holidays.
§ 2606.103 Systems of records.
(a) Governmentwide systems of records. The Office of Government Ethics maintains two executive branch Governmentwide systems of records: the OGE/GOVT-1 system of records, comprised of Executive Branch Personnel Public Financial Disclosure Reports and Other Name-Retrieved Ethics Program Records; and the OGE/GOVT-2 system of records, comprised of Executive Branch Confidential Financial Disclosure Reports. These Governmentwide systems of records are maintained by OGE, and through Office delegations of authority, by Federal executive branch departments and agencies with regard to their own employees, applicants for employment, individuals nominated to a position requiring Senate confirmation, candidates for a position, and former employees.
(b) OGE Internal systems of records. The Office of Government Ethics internal systems of records are under OGE’s physical custody and control and are established and maintained by the Office on current and former OGE employees regarding matters relating to the internal management of the Office. These systems of records consist of the OGE/INTERNAL-1 system, comprised of Pay, Leave and Travel Records; the OGE/INTERNAL-2 system, comprised of Telephone Call Detail Records; the OGE/INTERNAL-3 system, comprised of Grievance Records; the OGE/INTERNAL-4 system, comprised of Computer Systems Activity and Access Records; and the OGE/INTERNAL-5 system, comprised of Employee Locator and Emergency Notification Records.
§ 2606.104 OGE and agency responsibilities.
(a) The procedures in this part apply to:
(1) All initial Privacy Act access and amendment requests regarding records contained in an OGE system of records.
(2) Administrative appeals from an Office or agency denial of an initial request for access to, or to amend, records contained in an OGE system of records.
(b) For records contained in an OGE Governmentwide system of records, each agency is responsible (unless specifically excepted by the Office) for responding to initial requests for access or amendment of records in its custody and administrative appeals of denials thereof.
(c) For records and material of another agency that are in the custody of OGE, but not under its control or ownership, OGE may refer a request for the records to that other agency, consult with the other agency prior to responding, or notify the requester that the other agency is the proper agency to contact.
§ 2606.105 Rules for individuals seeking to ascertain if they are the subject of a record.
An individual seeking to ascertain if any OGE system of records contains a record pertaining to him must follow the access procedures set forth at § 2606.201(a) and (b).
§ 2606.106 OGE employee Privacy Act rules of conduct and responsibilities.
Each OGE employee involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record covered by the Privacy Act, shall comply with the pertinent provisions of the Act relating to the treatment of such information. Particular attention is directed to the following provisions of the Privacy Act:
(a) 5 U.S.C. 552a(e)(7). The requirement to maintain in a system of records no record describing how any individual exercises rights guaranteed by the First Amendment of the Constitution of the United States unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
(b) 5 U.S.C. 552a(b). The requirement that no agency shall disclose any record which is contained in a system of records by any means of communication to any person or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, except under certain limited conditions specified in subsections (b)(1) through (b)(12) of the Privacy Act.
(c) 5 U.S.C. 552a(e)(1). The requirement for an agency to maintain in its systems of records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by Executive order.
(d) 5 U.S.C. 552a(e)(2). The requirement to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs.
(e) 5 U.S.C. 552a(e)(3). The requirement to inform each individual asked to supply information to be maintained in a system of records the authority which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary; the principal purpose or purposes for which the information is intended to be used; the routine uses which may be made of the information; and the effects on the individual, if any, of not providing all or any part of the requested information.
(f) 5 U.S.C. 552a(b) and (e)(10). The requirement to comply with established safeguards and procedures to ensure the security and confidentiality of records and to protect personal data from any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual on whom information is maintained in a system of records.
(g) 5 U.S.C. 552a(c)(1), (c)(2) and (c)(3). The requirement to maintain an accounting of specified disclosures of personal information from systems of records in accordance with established Office procedures.
(h) 5 U.S.C. 552a(e)(5) and (e)(6). The requirements to maintain all records in a system of records which are used by the agency in making any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination; and to make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes, prior to disseminating any record about an individual to any person other than an agency (unless the dissemination is required by the Freedom of Information Act, 5 U.S.C. 552).
(i) 5 U.S.C. 552a(d)(1), (d)(2) and (d)(3). The requirement to permit individuals to have access to records pertaining to themselves in accordance with established Office procedures and to have an opportunity to request that such records be amended.
(j) 5 U.S.C. 552a(c)(4) and (d)(4). The requirement to inform any person or other agency about any correction or notation of dispute made by the agency in accordance with subsection (d) of the Act of any record that has been disclosed to the person or agency if an accounting of the disclosure was made; and, in any disclosure of information about which an individual has filed a statement of disagreement, to note clearly any portion of the record which is disputed and to provide copies of the statement (and if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed.
(k) 5 U.S.C. 552a(n). The requirement for an agency not to sell or rent an individual’s name or address, unless such action is specifically authorized by law.
(l) 5 U.S.C. 552a(i). The criminal penalties to which an employee may be subject for failing to comply with certain provisions of the Privacy Act.
Subpart B—Access to Records and Accounting of Disclosures
§ 2606.201 Requests for access.
(a) Records in an OGE Governmentwide system of records. An individual requesting access to records pertaining to him in an OGE Governmentwide system of records should submit a written request, which includes the words “Privacy Act Request” on both the envelope and at the top of the request letter, to the appropriate system manager as follows:
(1) Records filed directly with OGE by non-OGE employees: The Deputy Director, Office of Agency Programs, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917;
(2) Records filed with a Designated Agency Ethics Official (DAEO) or the head of a department or agency: The DAEO at the department or agency concerned; or
(3) Records filed with the Federal Election Commission by candidates for President or Vice President: The General Counsel, Office of General Counsel, Federal Election Commission, 999 E Street, NW., Washington, DC 20463.
(b) Records in an OGE Internal System of Records. An individual requesting access to records pertaining to him in an OGE internal system of records should submit a written request, which includes the words “Privacy Act Request” on both the envelope and at the top of the request letter, to the Deputy Director, Office of Administration and Information Management, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917.
(c) Content of request. (1) A request should contain a specific reference to the OGE system of records from which access to the records is sought. Notices of OGE systems of records subject to the Privacy Act are published in the
(2) If the written inquiry does not refer to a specific system of records, it should include other information that will assist in the identification of the records for which access is being requested. Such information may include, for example, the individual’s full name (including her maiden name, if pertinent), dates of employment, social security number (if any records in the system include this identifier), current or last place and date of Federal employment. If the request for access follows a prior request to determine if an individual is the subject of a record, 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 response to that request is attached.
(3) The request should state whether the requester wants a copy of the record, or wants to examine the record in person.
§ 2606.202 OGE or other agency action on requests.
A response to a request for access should include the following:
(a) A statement that there is a record or records as requested or a statement that there is not a record in the system of records;
(b) The method of access (if a copy of all the records requested is not provided with the response);
(c) The amount of any fees to be charged for copies of records under § 2606.206 of this part or other agencies’ Privacy Act regulations as referenced in that section;
(d) The name, title, and telephone number of the official having operational control over the record; and
(e) If the request is denied in whole or in part, or no record is found in the system, a statement of the reasons for the denial, or a statement that no record has been found, and notice of the procedures for appealing the denial or no record finding.
§ 2606.203 Granting access.
(a) The methods for allowing access to records, when such access has been granted by OGE or the other agency concerned are:
(1) Examination in person in a designated office during the hours specified by OGE or the other agency;
(2) Providing photocopies of the records; or
(3) Transfer of records at the option of OGE or the other agency to another more convenient Federal facility.
(b) When a requester has not indicated whether he wants a copy of the record, or wants to examine the record in person, the appropriate system manager may choose the means of granting access. However, the means chosen should not unduly impede the data subject’s right of access. A data subject may elect to receive a copy of the records after having examined them.
(c) Generally, OGE or the other agency concerned will not furnish certified copies of records. When copies are to be furnished, they may be provided as determined by OGE or the other agency concerned.
(d) When the data subject seeks to obtain original documentation, the Office and the other agencies concerned reserve the right to limit the request to copies of the original records. Original records should be made available for review only in the presence of the appropriate system manager or his designee.
Section 2071(a) of title 18 of the United States Code makes it a crime to conceal, remove, mutilate, obliterate, or destroy any record filed in a public office, or to attempt to do so.
(e) Identification requirements—(1) Access granted in person—(i) Current or former employees. Current or former employees requesting access to records pertaining to them in a system of records 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 their identity verified by visual observation. If the current or former employee cannot be so identified by the official having operational control over the records, adequate identification documentation will be required, e.g., an employee identification card, driver’s license, passport, or other officially issued document with a picture of the person requesting access.
(ii) Other than current or former employees. Individuals other than current or former employees requesting access to records pertaining to them in a system of records must produce adequate identification documentation prior to being granted access. The extent of the identification documentation required will depend on the type of records to be accessed. In most cases, identification verification will be accomplished by the presentation of two forms of identification with a picture of the person requesting access (such as a driver’s license and passport). Any additional requirements are specified in the system notices published pursuant to subsection (e)(4) of the Act.
(2) Access granted by mail. For records to be accessed by mail, the appropriate system manager 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 data subject of information required to be made available to the public by 5 U.S.C. 552, the Freedom of Information Act. When, in the opinion of the system manager, 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 may be required.
(3) 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 criminal fine of up to $5,000 under subsection (i)(3) of the Act. In addition, depending upon the sensitivity of the records sought to be accessed, the appropriate system manager or 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 data subject. No verification of identity will be required of data subjects seeking access to records which are otherwise available to any person under 5 U.S.C. 552.
(4) Inadequate identification. If the official having operational control over the records in a system of records determines that an individual seeking access has not provided sufficient identification documentation to permit access, the official shall consult with the appropriate system manager prior to denying the individual access. Whenever the system manager determines, in accordance with the procedures herein, that access will not be granted, the response will also include a statement of the procedures to obtain a review of the decision to deny access in accordance with § 2606.205.
(f) Access by the parent of a minor, or legal guardian. A parent of a minor, upon presenting suitable personal identification as otherwise provided under this section, may access on behalf of the minor any record pertaining to the minor in a system of records. A legal guardian, upon presentation of documentation establishing guardianship and suitable personal identification as otherwise provided under this section, may similarly act on behalf of a data subject declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction. Minors are not precluded from exercising on their own behalf rights given to them by the Privacy Act.
(g) Accompanying individual. A data subject requesting access to his records in a system of records may be accompanied by another individual of the data subject’s choice during the course of the examination of the record. The official having operational control of the record may require the data subject making the request to submit a signed statement authorizing the accompanying individual’s access to the record.
(h) Access to medical records. When a request for access involves medical or psychological records that the appropriate system manager believes requires special handling, the data subject should be advised that the material will be provided only to a physician designated by the data subject. Upon receipt of the designation and upon verification of the physician’s identity as otherwise provided under this section, the records will be made available to the physician, who will disclose those records to the data subject.
(i) Exclusion. Nothing in these regulations permits a data subject’s access to any information compiled in reasonable anticipation of a civil action or proceeding (see subsection (d)(5) of the Act).
(j) Maximum access. This regulation is not intended to preclude access by a data subject to records that are available to that individual under other processes, such as the Freedom of Information Act (5 U.S.C. 552) or the rules of civil or criminal procedure, provided that the appropriate procedures for requesting access thereunder are followed.
§ 2606.204 Request for review of an initial denial of access.
(a)(1) A data subject may submit a written appeal of the decision by OGE or the other agency to deny an initial request for access to records or a no record response.
(i) For records filed directly with OGE, the appeal must be submitted to the Director, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917.
(ii) For records in OGE’s executive branch Governmentwide systems of records that are filed directly with an agency (including the Federal Election Commission) other than OGE, the appeal must be submitted to the Privacy Act access appeals official as specified in the agency’s own Privacy Act regulations or the respective head of the agency concerned if it does not have any Privacy Act regulations.
(2) The words “Privacy Act Appeal” should be included on the envelope and at the top of the letter of appeal.
(b) The appeal should contain a brief description of the records involved or copies of the correspondence from OGE or the agency in which the initial request for access was denied. The appeal should attempt to refute the reasons given by OGE or the other agency concerned in its decision to deny the initial request for access or the no record finding.
§ 2606.205 Response to a request for review of an initial denial of access.
(a) If the OGE Director or agency reviewing official determines that access to the records should be granted, the response will state how access will be provided if the records are not included with the response.
(b) Any decision that either partially or fully affirms the initial decision to deny access shall inform the requester of the right to seek judicial review of the decision in accordance with 5 U.S.C. 552a(g) of the Privacy Act.
§ 2606.206 Fees.
(a) Fees for records filed with OGE—(1) Services for which fees will not be charged:
(i) The search and review time expended by OGE to produce a record;
(ii) The first copy of the records provided; or
(iii) The Office of Government Ethics making the records available to be personally reviewed by the data subject.
(2) Additional copies of records. When additional copies of records are requested, an individual may be charged $.15 per page.
(i) Notice of anticipated fees in excess of $25.00. If the charge for these additional copies amounts to more than $25.00, the requester will be notified and payment of fees may be required before the additional copies are provided, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated.
(ii) Advance payments. An advance payment before additional copies of the records are made will be required if:
(A) The Office estimates or determines that the total fee to be assessed under this section is likely to exceed $250.00. When a determination is made that the allowable charges are likely to exceed $250.00, the requester will be notified of the likely cost and will be required to provide satisfactory assurance of full payment where the requester has a history of prompt payment of Privacy Act fees, or will be required to submit an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(B) The requester has previously failed to pay a Privacy Act fee charged in a timely fashion (i.e., within 30 days of the date of the billing). In such cases, the requester may be required to pay the full amount owed plus any applicable interest as provided by paragraph (a)(2)(iii) of this section, and to make an advance payment of the full amount of the estimated fee before the Office begins to process a new request.
(iii) Interest charges. Interest charges on an unpaid bill may be assessed starting on the 31st day following the day on which the billing was sent. Interest shall be at the rate prescribed in 31 U.S.C. 3717 and shall accrue from the date of billing. To collect unpaid bills, the Office will follow the provisions of the Debt Collection Act of 1982, as amended (96 Stat. 1749 et seq.) and the Debt Collection Improvement Act of 1996 (110 Stat. 1321-358 et seq.), including the use of consumer reporting agencies, collection agencies, and offset.
(iv) Remittance. Remittance should be made by either a personal check, bank draft or a money order that is payable to the Department of the Treasury of the United States.
(b) Fees for records filed with agencies other than OGE. An agency shall apply its own Privacy Act fee schedule for records in OGE’s executive branch Governmentwide systems that are filed directly with the agency. An agency that does not have a Privacy Act fee schedule may apply the fee schedule in this section.
§ 2606.207 Accounting of disclosures.
(a) The Office of Government Ethics or the other agency concerned will maintain an accounting of disclosures in cases where records about the data subject are disclosed from OGE’s system of records except—
(1) When the disclosure is made pursuant to the Freedom of Information Act, as amended (5 U.S.C. 552); or
(2) When the disclosure is made to those officers and employees of OGE or the other agency which maintains the records who have a need for the records in the performance of their duties.
(b) This accounting of disclosures will be retained for at least five years or for the life of the record, whichever is longer, and will contain the following information:
(1) A brief description of the record disclosed;
(2) The date, nature, and purpose for the disclosure; and
(3) The name and address of the individual, agency, or other entity to whom the disclosure is made.
(c) Under sections 102 and 105 of the Ethics in Government Act, 18 U.S.C. 208(d) and 5 CFR parts 2634 and 2640 of OGE’s executive branch regulations, a requester other than the data subject must submit a signed, written application on the OGE Form 201 or agency equivalent form to inspect or receive copies of certain records, such as SF 278 Public Financial Disclosure Reports, Certificates of Divestiture, 18 U.S.C. 208(b)(1) and (b)(3) waivers, and OGE certified qualified blind and diversified trust instruments and other publicly available qualified trust materials. The written application requests the name, occupation and address of the requester as well as lists the prohibitions on obtaining or using the records. These applications are used as the accounting of disclosures for these records.
(d) Except for the accounting of a disclosure made under subsection (b)(7) of the Privacy Act for a civil or criminal law enforcement activity that is authorized by law, the accounting of disclosures will be made available to the data subject upon request in accordance with the access procedures of this part.
Subpart C—Amendment of Records
§ 2606.301 Requests to amend records.
(a) Amendment request. A data subject seeking to amend a record or records that pertain to him in a system of records must submit his request in writing in accordance with the following procedures, unless this requirement is waived by the appropriate system manager. Records not subject to the Privacy Act will not be amended in accordance with these provisions.
(b) Addresses—(1) Records in an OGE Governmentwide system of records. A request to amend a record in an OGE Governmentwide system of records should be sent to the appropriate system manager as follows:
(i) Records filed directly with OGE by non-OGE employees: The Deputy Director, Office of Agency Programs, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917;
(ii) Records filed with a Designated Agency Ethics Official (DAEO) or the head of a department or agency: The DAEO at the department or agency concerned; or
(iii) Records filed with the Federal Election Commission by candidates for President or Vice President: The General Counsel, Office of General Counsel, Federal Election Commission, 999 E Street, NW., Washington, DC 20463.
(2) Records in an OGE internal system of records. A request to amend a record in an OGE internal system of records should include the words “Privacy Act Amendment Request” on both the envelope and at the top of the request letter, and should be sent to the Deputy Director, Office of Administration and Information Management, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917.
(c) Contents of request. (1) A request to amend a record in an OGE Governmentwide system of records or an OGE internal system of records should include the words “Privacy Act Amendment Request” on both the envelope and at the top of the request letter.
(2) The name of the system of records and a brief description of the record(s) proposed for amendment must be included in any request for amendment. In the event the request to amend the record(s) is the result of the data subject’s having gained access to the record(s) in accordance with the provisions concerning access to records as set in subpart B of this part, copies of previous correspondence between the requester and OGE or the agency will serve in lieu of a separate description of the record.
(3) The exact portion of the record(s) the data subject seeks to have amended should be indicated clearly. If possible, proposed alternative language should be set forth, or, at a minimum, the reasons why the data subject believes his record is not accurate, relevant, timely, or complete should be set forth with enough particularity to permit OGE or the other agency concerned not only to understand the data subject’s basis for the request, but also to make an appropriate amendment to the record.
(d) Burden of proof. The data subject has the burden of proof when seeking the amendment of a record. The data subject must furnish sufficient facts to persuade the appropriate system manager of the inaccuracy, irrelevance, untimeliness, or incompleteness of the record.
(e) Identification requirement. When the data subject’s identity has been previously verified pursuant to § 2606.203, further verification of identity is not required as long as the communication does not suggest a need for verification. If the data subject’s identity has not been previously verified, the appropriate system manager may require identification validation as described in § 2606.203.
§ 2606.302 OGE or other agency action on requests.
(a) Time limit for acknowledging a request for amendment. To the extent possible, OGE or the other agency concerned will acknowledge receipt of a request to amend a record or records within 10 working days.
(b) Initial determination on an amendment request. The decision of OGE or the other agency in response to a request for amendment of a record in a system of records may grant in whole, or deny any part of the request to amend the record(s).
(1) If OGE or the other agency concerned grants the request, the appropriate system manager will amend the record(s) and provide a copy of the amended record(s) to the data subject. Where an accounting of disclosure has been maintained, the system manager shall advise all previous recipients of the record that an amendment has been made and give the substance of the amendment. Where practicable, the system manager shall send a copy of the amended record to previous recipients.
(2) If OGE or the other agency concerned denies the request in whole or in part, the reasons for the denial will be stated in the response letter. In addition, the response letter will state:
(i) The name and address of the official with whom an appeal of the denial may be lodged; and
(ii) A description of any other procedures which may be required of the data subject in order to process the appeal.
§ 2606.303 Request for review of an initial refusal to amend a record.
(a)(1) A data subject may submit a written appeal of the initial decision by OGE or an agency denying a request to amend a record in an OGE system of records.
(i) For records which are filed directly with OGE, the appeal must be submitted to the Director, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917.
(ii) For records which are filed directly with an agency (including the Federal Election Commission) other than OGE, the appeal must be submitted to the Privacy Act amendments appeals official as specified in the agency’s own Privacy Act regulations, or to the respective head of the agency concerned if it does not have Privacy Act regulations.
(2) The words “Privacy Act Appeal” should be included on the envelope and at the top of the letter of the appeal.
(b) The request for review should contain a brief description of the record(s) involved or copies of the correspondence from OGE or the agency in which the request to amend was denied, and the reasons why the data subject believes that the disputed information should be amended.
§ 2606.304 Response to a request for review of an initial refusal to amend; disagreement statements.
(a) The OGE Director or agency reviewing official should make a final determination in writing not later than 30 days from the date the appeal was received. The 30-day period may be extended for good cause. Notice of the extension and the reasons therefor will be sent to the data subject within the 30-day period.
(b) If the OGE Director or agency reviewing official determines that the record(s) should be amended in accordance with the data subject’s request, the OGE Director or agency reviewing official will take the necessary steps to advise the data subject, and to direct the appropriate system manager:
(1) To amend the record(s), and
(2) To notify previous recipients of the record(s) for which there is an accounting of disclosure that the record(s) have been amended.
(c) If the appeal decision does not grant in full the request for amendment, the decision letter will notify the data subject that he may:
(1) Obtain judicial review of the decision in accordance with the terms of the Privacy Act at 5 U.S.C. 552a(g); and
(2) File a statement setting forth his reasons for disagreeing with the decision.
(d)(1) A data subject’s disagreement statement must be concise. The appropriate system manager has the authority to determine the “conciseness” of the statement, taking into account the scope of the disagreement and the complexity of the issues.
(2) In any disclosure of information about which an individual has filed a statement of disagreement, the appropriate system manager will clearly note any disputed portion(s) of the record(s) and will provide a copy of the statement to persons or other agencies to whom the disputed record or records has been disclosed and for whom an accounting of disclosure has been maintained. A concise statement of the reasons for not making the amendments requested may also be provided.
PART 2608—TESTIMONY BY OGE EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A—General Provisions
§ 2608.101 Scope and purpose.
(a) This part sets forth policies and procedures you must follow when you submit a demand or request to an employee of the Office of Government Ethics (OGE) to produce official records and information, or provide testimony relating to official information, in connection with a legal proceeding. You must comply with these requirements when you request the release or disclosure of official records and information.
(b) The Office of Government Ethics intends these provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize the possibility of involving OGE in controversial issues not related to our functions;
(3) Maintain OGE’s impartiality among private litigants where OGE is not a named party; and
(4) Protect sensitive, confidential information and the deliberative processes of OGE.
(c) In providing for these requirements, OGE does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of OGE. 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.
§ 2608.102 Applicability.
This part applies to demands and requests to employees for factual or expert testimony relating to official information, or for production of official records or information, in legal proceedings in which OGE is not a named party. However, it does not apply to:
(a) Demands upon or requests for an OGE 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 OGE;
(b) Demands upon or requests for a former OGE employee to testify as to matters in which the former employee was not directly or materially involved while at the OGE;
(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; and
(d) Congressional demands and requests for testimony or records.
§ 2608.103 Definitions.
The following definitions apply to this part:
Demand means a subpoena, or an order 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 OGE employee that is issued in a legal proceeding.
General Counsel means the General Counsel of OGE or a person to whom the General Counsel has delegated authority under this part.
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.
OGE means the U.S. Office of Government Ethics.
OGE employee or employee means:
(1)(i) Any current or former officer or employee of OGE;
(ii) Any other individual hired through contractual agreement by or on behalf of OGE or who has performed or is performing services under such an agreement for OGE; and
(iii) Any individual who served or is serving in any consulting or advisory capacity to OGE, whether formal or informal.
(2) Provided, that this definition does not include persons who are no longer employed by OGE and who are retained or hired as expert witnesses or 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 OGE.
Records or official records and information mean:
(1) All documents and materials which are OGE agency records under the Freedom of Information Act, 5 U.S.C. 552;
(2) All other documents and materials contained in OGE files; and
(3) All other information or materials acquired by an OGE employee in the performance of his or her official duties or because of his or her official status.
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 or other competent authority.
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—Requests for Testimony and Production of Documents
§ 2608.201 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.
§ 2608.202 Factors OGE 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) OGE has an interest in the decision that may be rendered in the legal proceeding;
(d) Allowing such testimony or production of records would assist or hinder OGE in performing its statutory duties or use OGE resources where responding to the demand or request will interfere with the ability of OGE employees to do their work;
(e) Allowing such testimony or production of records would be in the best interest of OGE or the United States;
(f) The records or testimony can be obtained from other sources;
(g) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose;
(h) Disclosure would violate a statute, Executive order or regulation;
(i) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential commercial or financial information, otherwise protected information, or information which would otherwise be inappropriate for release;
(j) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceedings, or compromise constitutional rights;
(k) Disclosure would result in OGE appearing to favor one litigant over another;
(l) Disclosure relates to documents that were produced by another agency;
(m) A substantial Government interest is implicated;
(n) The demand or request is within the authority of the party making it; and
(o) The demand or request is sufficiently specific to be answered.
§ 2608.203 Filing requirements for demands or requests for documents or testimony.
You must comply with the following requirements whenever you issue demands or requests to an OGE employee for official records and information or testimony:
(a) Your request must be in writing and must be submitted to the General Counsel. If you serve a subpoena on OGE or an OGE employee before submitting a written request and receiving a final determination, OGE will oppose the subpoena on grounds that your request was not submitted in accordance with this subpart.
(b) Your 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 the need to maintain any confidentiality of the information and outweighs the burden on OGE 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 OGE employee, such as a retained expert;
(6) If testimony is requested, the intended use of the testimony, a general summary of the desired 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 with each OGE employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(c) The Office of Government Ethics reserves the right to require additional information to complete your request where appropriate.
(d) Your request should be submitted at least 45 days before the date that records or testimony is required. Requests submitted in less than 45 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 your request.
§ 2608.204 Service of subpoenas or requests.
Subpoenas or requests for official records or information or testimony must be served on the General Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917.
§ 2608.205 Processing demands or requests.
(a) After service of a demand or request to testify, the General Counsel will review the demand or 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) The Office of Government Ethics will process requests in the order in which they are received. Absent exigent or unusual circumstances, OGE will respond within 45 days from the date that we receive it. The time for response will depend upon the scope of the request.
(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 OGE or the United States or for other good cause.
§ 2608.206 Final determination.
The General Counsel makes the final determination on demands and requests to employees for production of official records and information or testimony. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and the court or other authority of the final determination, the reasons for the grant or denial of the demand or request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of an OGE employee.
§ 2608.207 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on the testimony of OGE employees including, for example, limiting the areas of testimony or requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal or will only be used or made available 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 Office of Government Ethics 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 OGE 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 OGE unless testimony is being given on behalf of the United States (see also § 2635.805 of this chapter).
§ 2608.208 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, OGE 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 OGE records may be presented for examination in response to a demand or request, but they are not to be presented as evidence or otherwise used in a manner by which they could lose their identity as official OGE records, nor are they to be marked or altered. In lieu of the original records, certified copies will be presented for evidentiary purposes (see 28 U.S.C. 1733).
§ 2608.209 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 § 2608.201, 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 demand or request is being reviewed, and seek a stay of the demand or request pending a final determination.
§ 2608.210 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay the demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear 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. Touhy v. Ragen, 340 U.S. 462 (1951). A written response may be offered to a request, or to a demand, if permitted by the court or other competent authority.
Subpart C—Schedule of Fees
§ 2608.301 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 OGE.
(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 demand or 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, allowance, and benefits). Fees for duplication will be the same as those charged by OGE in its Freedom of Information Act and Ethics in Government Act fee regulations at 5 CFR part 2604, subparts E and G.
(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 court closest to the location where the witness will appear. Such fees will include cost of time spent by the witness to prepare for testimony, in travel, and for attendance in the legal proceeding.
(d) Payment of fees. You must pay witness fees for current OGE employees and any records certification fees by submitting to the General Counsel a check or money order for the appropriate amount made payable to the Treasury of the United States. In the case of testimony by former OGE employees, you must pay applicable fees directly to the former employee in accordance with 28 U.S.C. 1821 or other applicable statutes.
(e) Certification (authentication) of copies of records. The Office of Government Ethics may certify that records are true copies in order to facilitate their use as evidence. If you seek certification, you must request certified copies from OGE at least 45 days before the date they will be needed. The request should be sent to the General Counsel. You will be charged a certification fee of $15.00 for each document certified.
(f) 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.
(g) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less.
Subpart D—Penalties
§ 2608.401 Penalties.
(a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by OGE or as ordered by a Federal court after OGE has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former OGE employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current OGE employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary action.
PART 2610—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT
Subpart A—General Provisions
§ 2610.101 Definitions.
(a) Act means the Equal Access to Justice Act, 5 U.S.C. 504, as amended.
(b) Adjudicative officer means the official, without regard to whether the official is designated as a hearing examiner, administrative law judge, administrative judge, or otherwise, who presided at the adversary adjudication.
(c) Adversary adjudication means:
(1) An adjudication under 5 U.S.C. 554 in which the position of the United States is represented by counsel or otherwise, but not including an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license; and
(2) An appeal of a decision of a contracting officer made pursuant to section 6 of the Contracts Disputes Act of 1978 (41 U.S.C. 605) as provided in section 8 of that statute (41 U.S.C. 607).
(d) Agency counsel means:
(1) When the position of the Office is being represented, the attorney or attorneys designated by the Office’s General Counsel to represent the Office in a proceeding covered by this part; and
(2) When the position of another agency of the United States is being represented, the representative or representatives as designated by that agency.
(e) Office means the United States Office of Government Ethics, or the organizational unit within the Office responsible for conducting an adversary adjudication subject to this part.
(f) Proceeding means an adversary adjudication as defined above.
(g) Director means the Director of the United States Office of Government Ethics.
§ 2610.102 Purpose.
The Act provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (“adversary adjudications”) before the Office of Government Ethics. An eligible party may receive an award when it prevails over the Office, unless the Office’s position in the proceeding was substantially justified or special circumstances make an award unjust. An eligible party may also receive an award when the demand of the Office is substantially in excess of the decision in the adversary adjudication and is unreasonable when compared with such decision, under the facts and circumstances of the case, unless the party has committed a willful violation of law or otherwise acted in bad faith or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Office will use to make them.
§ 2610.103 When the Act applies.
The Act applies to any adversary adjudication pending or commenced before the Office of Government Ethics on or after October 1, 1989, which is the date the Office became a separate executive agency. Prior to October 1, 1989, the Office was part of the Office of Personnel Management. Any adversary adjudication pending or commenced before October 1, 1989, and not finally disposed of by that date, is governed by the rules and policies implementing the Equal Access to Justice Act as adopted by the Office of Personnel Management.
§ 2610.104 Proceedings covered.
(a) This part applies to adversary administrative adjudications conducted by the Office of Government Ethics. When all other conditions in the Act and in these rules are met, the types of proceedings to which this part applies are adversary administrative adjudications conducted by the Office under:
(1) The Debt Collection Act of 1982, 5 U.S.C. 5514;
(2) The Contract Disputes Act of 1978, 41 U.S.C. 605, 607;
(3) The Ethics in Government Act of 1978, section 402(f)(2), 5 U.S.C. app., and subpart E of part 2638 of this chapter.
(b) The Office’s failure to identify a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in the proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered matters.
§ 2610.105 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B of this part.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2,000,000;
(2) The sole owner of an unincorporated business who has a net worth of not more than $7,000,000, including both personal and business interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3), with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act, 12 U.S.C. 1141j(a), with not more than 500 employees;
(5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of not more than $7,000,000 and not more than 500 employees; and
(6) For purposes of § 2610.106(b), a small entity as defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the underlying proceeding was initiated. For appeals of decisions of contracting officers made pursuant to section 6 of the Contracts Disputes Act of 1978, the net worth and number of employees of an applicant shall be determined as of the date the applicant filed its appeal under 41 U.S.C. 606.
(d) An applicant who owns an unincorporated business will be considered as an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant’s direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. An individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interests of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
§ 2610.106 Standards for awards.
(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding or in a significant and discrete substantive portion of the proceeding, unless the position of the Office was substantially justified. The position of the Office includes, in addition to the position taken by the Office in the adversary adjudication, the action or failure to act by the Office upon which the adversary adjudication is based. The burden of proof that an award should not be made to an eligible prevailing applicant because the Office’s position was substantially justified is on the Office. No presumption arises that the Office’s position was not substantially justified simply because the Office did not prevail.
(b) If, in a proceeding arising from an Office action to enforce an applicant’s compliance with a statutory or regulatory requirement, the demand of the Office is substantially in excess of the decision in the proceeding and is unreasonable when compared with that decision under the facts and circumstances of the case, the applicant shall be awarded the fees and other expenses related to defending against the excessive demand, unless the applicant has committed a willful violation of law or otherwise acted in bad faith or special circumstances make an award unjust. The burden of proof that the demand of the Office is substantially in excess of the decision and is unreasonable when compared with such decision is on the applicant. As used in this paragraph, “demand” means the express demand of the Office which led to the adversary adjudication, but it does not include a recitation by the Office of the maximum statutory penalty in the administrative complaint, or elsewhere when accompanied by an express demand for a lesser amount. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance.
(c) Awards for fees and expenses incurred before the date on which a proceeding was initiated will be made only if the applicant can demonstrate that they were reasonably incurred in preparation for the proceeding.
(d) An award under this part will be reduced or denied if the Office’s position was substantially justified in law and fact, if the applicant has unduly or unreasonably protracted the proceeding, if the applicant has falsified the application (including documentation) or net worth exhibit, or if special circumstances make the award unjust.
§ 2610.107 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at reduced rate to the applicant.
(b) Except as provided in § 2610.108, no award for the fee of an attorney or agent under these rules may exceed $125.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Office pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agency, or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative officer shall consider the following:
(1) If the attorney, agent or witness is in private practice, his or her customary fees for similar services, or, if an employee of the applicant, the fully allocated costs of the services;
(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the services does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of applicant’s case.
§ 2610.108 Rulemaking on maximum rate for attorney and agent fees.
(a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys or agents qualified to handle certain types of proceedings), the Office may adopt regulations providing that attorney or agent fees may be awarded at a rate higher than $125.00 per hour in some or all of the types of proceedings covered by this part. The Office will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. 553.
(b) Any person may file with the Office a petition for rulemaking to increase the maximum rate for attorney or agent fees as provided in 5 U.S.C. 504(b)(1)(A)(ii). The petition should identify the rate the petitioner believes the Office should establish and the types of proceedings in which the rate should be used. It should also explain fully the reasons why the higher rate is warranted. The Office will respond to the petition within 60 days after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action.
§ 2610.109 Awards against other agencies.
If an applicant is entitled to an award because it prevails over another agency of the United States that participates in a proceeding before the Office of Government Ethics and takes a position that is not substantially justified, the award or an appropriate portion of the award shall be made against that agency.
Subpart B—Information Required From Applicants
§ 2610.201 Contents of application.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. Unless the applicant is an individual, the application shall further state the number of employees of the applicant and describe briefly the type and purpose of its organization or business. The application shall also:
(1) Show that the applicant has prevailed and identify the position of the Office in the proceeding that the applicant alleges was not substantially justified; or
(2) Show that the demand by the Office in the proceeding was substantially in excess of, and was unreasonable when compared with, the decision in the proceeding.
(b) The application shall also include, for purposes of § 2610.106 (a) or (b), a statement that the applicant’s net worth does not exceed $2,000,000 (for individuals) or $7,000,000 (for all other applicants, including their affiliates) or alternatively, for purposes of § 2610.106(b) only, a declaration that the applicant is a small entity as defined in 5 U.S.C. 601. However, an applicant may omit the statement concerning its net worth if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant’s belief that it qualifies under such section; or
(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes the Office to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification made by the applicant or authorized officer or attorney of the applicant under oath or under penalty of perjury that the information provided in the application is true and correct.
(f) These collections of information are not subject to Office of Management and Budget review under the Paperwork Reduction Act (44 U.S.C. chapter 35) because they are expected to involve nine or fewer persons each year.
§ 2610.202 Net worth exhibit.
(a) Each applicant, except a qualified tax-exempt organization or cooperative association, must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 2610.105(f)) when the underlying adversary adjudication was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant’s and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the Office, but need not be served on any other party to the proceeding, if any. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request by another party or the public to inspect or copy the exhibit shall be resolved in accordance with the Office of Government Ethics’ established procedures under the Freedom of Information Act.
§ 2610.203 Documentation of fees and expenses.
The application shall be accompanied by full and itemized documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rates at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, logs, or other documentation for any fees or expenses claimed, pursuant to § 2610.306.
§ 2610.204 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding. An application may also be filed when the demand of the Office is substantially in excess of the decision in the proceeding and is unreasonable when compared with such decision. In no case may an application be filed later than 30 days after the Office of Government Ethics’ final disposition of the proceeding.
(b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the Office and to the courts.
(c) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed or has been subjected to a demand from the Office substantially in excess of the decision in the adversary adjudication and unreasonable when compared to that decision, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.
Subpart C—Procedures for Considering Applications
§ 2610.301 Jurisdiction of adjudicative officer.
Any provision in the Office’s rules and regulations other than this part which limits or terminates the jurisdiction of an adjudicative officer upon the effective date of his or her decision in the underlying proceeding shall not in any way affect his or her jurisdiction to render a decision under this part.
§ 2610.302 Filing and service of documents.
Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 2610.202(b) for confidential financial information.
§ 2610.303 Answer to application.
(a) Within 30 days after service of an application, counsel representing the Office may file an answer to the application. Agency counsel may request an extension of time for filing. If agency counsel fails to answer or otherwise fails to contest or settle the application within the 30-day period, the adjudicative officer, upon a satisfactory showing of entitlement by the applicant, may make an award for the applicant’s fees and other expenses under the Act.
(b) If agency counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted for good cause by the adjudicative officer upon request by agency counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of agency counsel’s position. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 2610.307.
§ 2610.304 Reply.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 2610.307.
§ 2610.305 Comments by other parties.
Any party to a proceeding other than the applicant and agency counsel may file comments on an application within 30 days after it is served, or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
§ 2610.306 Settlement.
The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the settlement procedure applicable to the underlying procedure. If an eligible prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.
§ 2610.307 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or agency counsel, or on his or her own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant’s eligibility or substantiation of fees and expenses), pertinent discovery or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the position of the Office was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
§ 2610.308 Decision.
The adjudicative officer shall issue an initial decision on the application within 30 days after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant’s eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Office’s position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.
§ 2610.309 Agency review.
Within 30 days after issuance of an initial decision under this part, either the applicant or agency counsel may seek review of the initial decision on the fee application, or the Director (or his or her designee) may decide to review the initial decision on his or her own initiative, in accordance with the Office’s review or appeal procedures applicable to the underlying proceeding. If neither the applicant nor agency counsel seeks review and the Director (or designee) does not take review on his or her own initiative, the initial decision on the application shall become a final decision of the Office of Government Ethics 30 days after it is issued. Whether to review a decision is a matter within the discretion of the Director (or his or her designee, if any). If review is taken, the Office will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
§ 2610.310 Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
§ 2610.311 Payment of award.
An applicant seeking payment of an award shall submit a copy of the Office’s final decision granting the award, accompanied by a certification that the applicant will not seek review of the decision in the United States courts, to the Associate Director for Administration, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917. The Office will pay the amount awarded to the applicant within 60 days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant, the Office, or any other party to the proceedings.
SUBCHAPTER B—GOVERNMENT ETHICS
PART 2634—EXECUTIVE BRANCH FINANCIAL DISCLOSURE, QUALIFIED TRUSTS, AND CERTIFICATES OF DIVESTITURE
Subpart A—General Provisions
§ 2634.101 Authority.
The regulation in this part is issued pursuant to the authority of the Ethics in Government Act of 1978, as amended; 26 U.S.C. 1043; the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015; the Stop Trading on Congressional Knowledge Act (STOCK Act), as amended; and Executive Order 12674 of April 12, 1989, as modified by Executive Order 12731 of October 17, 1990.
§ 2634.102 Purpose and overview.
(a) The regulation in this part supplements and implements title I of the Act, sections 8(a)-(b) and 11 of the STOCK Act, and section 201(d) of Executive Order 12674 (as modified by Executive Order 12731) with respect to executive branch employees, by setting forth more specifically the uniform procedures and requirements for financial disclosure and for the certification and use of qualified blind and diversified trusts. Additionally, this part implements section 502 of the Reform Act by establishing procedures for executive branch personnel to obtain Certificates of Divestiture, which permit deferred recognition of capital gain in certain instances.
(b) The rules in this part govern both public and confidential (nonpublic) financial disclosure systems. Subpart I of this part contains the rules applicable to the confidential disclosure system.
§ 2634.103 Executive agency supplemental regulations.
(a) The regulation in this part is intended to provide uniformity for executive branch financial disclosure systems. However, an agency may, subject to the prior written approval of the Office of Government Ethics (OGE), issue supplemental regulations implementing this part, if necessary to address special or unique agency circumstances. Such regulations:
(1) Must be consistent with the Act, the STOCK Act, Executive Orders 12674 and 12731, and this part; and
(2) Must not impose additional reporting requirements on either public or confidential filers, unless specifically authorized by the Office of Government Ethics as supplemental confidential reporting.
Supplemental regulations will not be used to satisfy the separate requirement of 5 U.S.C. app. (Ethics in Government Act of 1978, section 402(d)(1)) that each agency have established written procedures on how to collect, review, evaluate, and, where appropriate, make publicly available, financial disclosure statements filed with it.
(b) Requests for approval of supplemental regulations under paragraph (a) of this section must be submitted in writing to the Office of Government Ethics, and must set forth the agency’s need for any proposed supplemental reporting requirements. See § 2634.901(b) and (c).
(c) Agencies should review all of their existing financial disclosure regulations to determine which of those regulations must be modified or revoked in order to conform with the requirements of this part. Any amendatory agency regulations will be processed in accordance with paragraphs (a) and (b) of this section.
§ 2634.104 Policies.
(a) Title I of the Act requires that high-level Federal officials disclose publicly their personal financial interests, to ensure confidence in the integrity of the Federal Government by demonstrating that they are able to carry out their duties without compromising the public trust. Title I also authorizes the Office of Government Ethics to establish a confidential (nonpublic) financial disclosure system for less senior executive branch personnel in certain designated positions, to facilitate internal agency conflict-of-interest review.
(b) Public and confidential financial disclosure serves to prevent conflicts of interest and to identify potential conflicts, by providing for a systematic review of the financial interests of both current and prospective officers and employees. These reports assist agencies in administering their ethics programs and providing counseling to employees.
(c) Financial disclosure reports are not net worth statements. Financial disclosure systems seek only the information that the President, Congress, or OGE as the supervising ethics office for the executive branch has deemed relevant to the administration and application of the criminal conflict of interest laws, other statutes on ethical conduct or financial interests, and Executive orders or regulations on standards of ethical conduct.
(d) Nothing in the Act, the STOCK Act, or this part requiring reporting of information or the filing of any report will be deemed to authorize receipt of income, honoraria, gifts, or reimbursements; holding of assets, liabilities, or positions; or involvement in transactions that are prohibited by law, Executive order, or regulation.
(e) The provisions of title I of the Act, the STOCK Act, and this part requiring the reporting of information supersede any general requirement under any other provision of law or regulation on the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest. However, the provisions of title I and this part do not supersede the requirements of 5 U.S.C. 7342 (the Foreign Gifts and Decorations Act).
(f) This part is intended to be gender-neutral; therefore, use of the terms he, his, and him include she, hers, and her, and vice versa.
§ 2634.105 Definitions.
For purposes of this part:
(a) Act means the Ethics in Government Act of 1978 (Pub. L. 95-521), as amended, as modified by the Ethics Reform Act of 1989 (Pub. L. 101-194), as amended.
(b) Agency means any executive agency as defined in 5 U.S.C. 105 (any executive department, Government corporation, or independent establishment in the executive branch), any military department as defined in 5 U.S.C. 102, and the Postal Service and the Postal Regulatory Commission. It does not include the Government Accountability Office.
(c) Confidential filer. For the definition of “confidential filer,” see § 2634.904.
(d) Dependent child means, when used with respect to any reporting individual, any individual who is a son, daughter, stepson, or stepdaughter and who:
(1) Is unmarried, under age 21, and living in the household of the reporting individual; or
(2) Is a dependent of the reporting individual within the meaning of section 152 of the Internal Revenue Code of 1986, see 26 U.S.C. 152.
(e) Designated agency ethics official means the primary officer or employee who is designated by the head of an agency to administer the provisions of title I of the Act and this part within an agency, and in the designated agency ethics official’s absence the alternate who is designated by the head of the agency. The term also includes a delegate of such an official, unless otherwise indicated. See part 2638 of this chapter on the appointment and additional responsibilities of a designated agency ethics official and alternate.
(f) Executive branch means any agency as defined in paragraph (b) of this section and any other entity or administrative unit in the executive branch.
(g) Filer is used interchangeably with “reporting individual,” and may refer to a “confidential filer” as defined in paragraph (c) of this section, a “public filer” as defined in paragraph (m) of this section, or a nominee or candidate as described in § 2634.201.
(h) Gift means a payment, advance, forbearance, rendering, free attendance at an event, deposit of money, or anything of value, unless consideration of equal or greater value is received by the donor, but does not include:
(1) Bequests and other forms of inheritance;
(2) Suitable mementos of a function honoring the reporting individual;
(3) Food, lodging, transportation, and entertainment provided by a foreign government within a foreign country or by the United States Government, the District of Columbia, or a State or local government or political subdivision thereof;
(4) Food and beverages, unless they are consumed in connection with a gift of overnight lodging;
(5) Communications to the offices of a reporting individual, including subscriptions to newspapers and periodicals;
(6) Consumable products provided by home-state businesses to the offices of the President or Vice President, if those products are intended for consumption by persons other than the President or Vice President; or
(7) Exclusions and exceptions as described at § 2634.304(c) and (d).
(i) Honorarium means a payment of money or anything of value for an appearance, speech, or article.
(j) Income means all income from whatever source derived. It includes but is not limited to the following items: Earned income such as compensation for services, fees, commissions, salaries, wages, and similar items; gross income derived from business (and net income if the individual elects to include it); gains derived from dealings in property including capital gains; interest; rents; royalties; dividends; annuities; income from the investment portion of life insurance and endowment contracts; pensions; income from discharge of indebtedness; distributive share of partnership income; and income from an interest in an estate or trust. The term includes all income items, regardless of whether they are taxable for Federal income tax purposes, such as interest on municipal bonds. Generally, income means “gross income” as determined in conformity with the Internal Revenue Service principles at 26 CFR 1.61-1 through 1.61-15 and 1.61-21.
(k) Personal hospitality of any individual means hospitality extended for a nonbusiness purpose by an individual, not a corporation or organization, at the personal residence of or on property or facilities owned by that individual or the individual’s family.
(l) Personal residence means any property used exclusively as a private dwelling by the reporting individual or his spouse, which is not rented out during any portion of the reporting period. The term is not limited to one’s domicile; there may be more than one personal residence, including a vacation home.
(m) Public filer. For the definition of “public filer,” see § 2634.202.
(n) Reimbursement means any payment or other thing of value received by the reporting individual (other than gifts, as defined in paragraph (h) of this section) to cover travel-related expenses of such individual, other than those which are:
(1) Provided by the United States Government, the District of Columbia, or a State or local government or political subdivision thereof;
(2) Required to be reported by the reporting individual under 5 U.S.C. 7342 (the Foreign Gifts and Decorations Act); or
(3) Required to be reported under section 304 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30104) (relating to reports of campaign contributions).
Payments which are not made to the individual are not reimbursements for purposes of this part. Thus, payments made to the filer’s employing agency to cover official travel-related expenses do not fit this definition of reimbursement. For example, payments being accepted by the agency pursuant to statutory authority such as 31 U.S.C. 1353, as implemented by 41 CFR part 304-1, are not considered reimbursements under this part, because they are not payments received by the reporting individual. On the other hand, travel payments made to the employee by an outside entity for private travel are considered reimbursements for purposes of this part. Likewise, travel payments received from certain nonprofit entities under authority of 5 U.S.C. 4111 are considered reimbursements, even though for official travel, since that statute specifies that such payments must be made to the individual directly (with prior approval from the individual’s agency).
(o) Relative means an individual who is related to the reporting individual, as father, mother, son, daughter, brother, sister, uncle, aunt, great uncle, great aunt, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, half-sister, or who is the grandfather or grandmother of the spouse of the reporting individual, and will be deemed to include the fiancé or fiancée of the reporting individual.
(p) Reporting individual is used interchangeably with “filer,” and may refer to a “confidential filer” as defined in § 2634.904, a “public filer” as defined in § 2634.202, or a nominee or candidate as described in § 2634.201(c) and (d).
(q) Reviewing official means the designated agency ethics official or the delegate, the Secretary concerned, the head of the agency, or the Director of the Office of Government Ethics.
(r) Secretary concerned has the meaning set forth in 10 U.S.C. 101(a)(9) (relating to the Secretaries of the Army, Navy, Air Force, and for certain Coast Guard matters, the Secretary of Homeland Security); and, in addition, means:
(1) The Secretary of Commerce, in matters concerning the National Oceanic and Atmospheric Administration;
(2) The Secretary of Health and Human Services, with respect to matters concerning the Public Health Service; and
(3) The Secretary of State with respect to matters concerning the Foreign Service.
(s) Special Government employee has the meaning given to that term by the first sentence of 18 U.S.C. 202(a): An officer or employee of an agency who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not to exceed 130 days during any period of 365 consecutive days, either on a full-time or intermittent basis.
(t) STOCK Act means the Stop Trading on Congressional Knowledge Act (Pub. L. 112-105), as amended.
(u) Value means a good faith estimate of the fair market value if the exact value is neither known nor easily obtainable by the reporting individual without undue hardship or expense. In the case of any interest in property, see the alternative valuation options in § 2634.301(e). For gifts and reimbursements, see § 2634.304(e).
Subpart B—Persons Required To File Public Financial Disclosure Reports
§ 2634.201 General requirements, filing dates, and extensions.
(a) Incumbents. A public filer as defined in § 2634.202 who, during any calendar year, performs the duties of the position or office, as described in that section, for a period in excess of 60 days must file a public financial disclosure report containing the information prescribed in subpart C of this part, on or before May 15 of the succeeding year.
(b) New entrants. (1) Within 30 days of assuming a public filer position or office described in § 2634.202, an individual must file a public financial disclosure report containing the information prescribed in subpart C of this part.
(2) However, no report will be required if the individual:
(i) Has, within 30 days prior to assuming such position, left another position or office for which a public financial disclosure report under the Act was required to be filed; or
(ii) Has already filed such a report as a nominee or candidate for the position.
While Y did not have to file a new entrant report with the Commerce Department, that Department should request a copy of the last report which he filed with the Treasury Department, so that Commerce could determine whether or not there would be any conflicts or potential conflicts in connection with Y’s new employment. Additionally, Y will have to file an incumbent report covering the 2014 calendar year, in accordance with paragraph (a) of this section, due not later than May 15, 2015, with Commerce, which should provide a copy to Treasury so that both may review it.
(c) Nominees. (1) At any time after a public announcement by the President or President-elect of the intention to nominate an individual to an executive branch position, appointment to which requires the advice and consent of the Senate, such individual may, and in any event within five days after the transmittal of the nomination to the Senate must, file a public financial disclosure report containing the information prescribed in subpart C of this part.
(2) This requirement will not apply to any individual who is nominated to a position as:
(i) An officer of the uniformed services; or
(ii) A Foreign Service Officer.
Although the statute, 5 U.S.C. app. (Ethics in Government Act of 1978, section 101(b)(1)), exempts uniformed service officers only if they are nominated for appointment to a grade or rank for which the pay grade is 0-6 or below, the Senate confirmation committees have adopted a practice of exempting all uniformed service officers, unless otherwise specified by the committee assigned.
(3) Section 2634.605(c) provides expedited procedures in the case of individuals described in paragraph (c)(1) of this section. Those individuals referred to in paragraph (c)(2) of this section as being exempt from filing nominee reports must file new entrant reports, if required by paragraph (b) of this section.
(d) Candidates. A candidate (as defined in section 301 of the Federal Election Campaign Act of 1971, 52 U.S.C. 30101) for nomination or election to the office of President or Vice President (other than an incumbent) must file a public financial disclosure report containing the information prescribed in subpart C of this part, in accordance with the following:
(1) Within 30 days of becoming a candidate or on or before May 15 of the calendar year in which the individual becomes a candidate, whichever is later, but in no event later than 30 days before the election; and
(2) On or before May 15 of each successive year an individual continues to be a candidate. However, in any calendar year in which an individual continues to be a candidate but all elections relating to such candidacy were held in prior calendar years, the individual need not file a report unless the individual becomes a candidate for a vacancy during that year.
(e) Termination of employment. (1) On or before the thirtieth day after termination of employment from a public filer position or office described in § 2634.202 but no more than 15 days prior to termination, an individual must file a public financial disclosure report containing the information prescribed in subpart C of this part. If the individual files prior to the termination date and there are any changes between the filing date and the termination date, the individual must update the report.
(2) However, if within 30 days of such termination the individual assumes employment in another position or office for which a public report under the Act is required to be filed, no report will be required by the provisions of this paragraph. See the related Example in paragraph (b) of this section.
(f) Transactions occurring throughout the calendar year. (1) A public filer as defined in § 2634.202 who, during any calendar year, performs, or is reasonably expected to perform, the duties of his position or office, as described in that section, for a period in excess of 60 days must file a transaction report within 30 days of receiving notification of a covered transaction, but not later than 45 days after such transaction. The report must contain the information prescribed in subpart C of this part.
(2) A covered transaction is any purchase, sale, or exchange required to be reported according to the provisions of § 2634.309.
(g) Extensions generally. The reviewing official may, for good cause shown, grant to any public filer or class thereof an extension of time for filing which must not exceed 45 days. The reviewing official may, for good cause shown, grant an additional extension of time which must not exceed 45 days. The employee must set forth in writing specific reasons why such additional extension of time is necessary. The reviewing official must approve or deny such requests in writing. Such records must be maintained as part of the official report file. For extensions on confidential financial disclosure reports, see § 2634.903(d).
(h) Exceptions for individuals in combat zones. In the case of an individual who is serving in the Armed Forces, or serving in support of the Armed Forces, in an area while that area is designated by the President by Executive order as a combat zone for purposes of section 112 of the Internal Revenue Code of 1986:
(1) The date for the filing of any report will be extended so that the date is 180 days after the later of:
(i) The last day of the individual’s service in such area during such designated period; or
(ii) The last day of the individual’s hospitalization as a result of injury received or disease contracted while serving in such area; and
(2) The exception described in this paragraph will apply automatically to any individual who qualifies for the exception, unless the Secretary of Defense establishes written guidelines for determining eligibility or for requesting an extension under this paragraph.
§ 2634.202 Public filer defined.
The term public filer includes:
(a) The President;
(b) The Vice President;
(c) Each officer or employee in the executive branch, including a special Government employee as defined in 18 U.S.C. 202(a), whose position is classified above GS-15 of the General Schedule prescribed by 5 U.S.C. 5332, or the rate of basic pay for which is fixed, other than under the General Schedule, at a rate equal to or greater than 120% of the minimum rate of basic pay for GS-15 of the General Schedule; each member of a uniformed service whose pay grade is at or in excess of O-7 under 37 U.S.C. 201; and each officer or employee in any other position determined by the Director of the Office of Government Ethics to be of equal classification;
(d) Each employee who is an administrative law judge appointed pursuant to 5 U.S.C. 3105;
(e) Any employee not otherwise described in paragraph (c) of this section who is in a position in the executive branch which is excepted from the competitive service by reason of being of a confidential or policy-making character, unless excluded by virtue of a determination under § 2634.203;
(f) The Postmaster General, the Deputy Postmaster General, each Governor of the Board of Governors of the United States Postal Service and each officer or employee of the United States Postal Service or Postal Regulatory Commission whose basic rate of pay is equal to or greater than 120% of the minimum rate of basic pay for GS-15 of the General Schedule;
(g) The Director of the Office of Government Ethics and each agency’s designated agency ethics official;
(h) Any civilian employee not otherwise described in paragraph (c) of this section who is employed in the Executive Office of the President (other than a special Government employee, as defined in 18 U.S.C. 202(a)) and holds a commission of appointment from the President; and
(i) Anyone whose employment in a position or office described in paragraphs (a) through (h) of this section has terminated, but who has not yet satisfied the filing requirements of § 2634.201(e).
§ 2634.203 Persons excluded by rule.
(a) In general. Any individual or group of individuals described in § 2634.202(e) (relating to positions of a confidential or policy-making character) may be excluded by rule from the public reporting requirements of this subpart when the Director of the Office of Government Ethics determines, in his sole discretion, that such exclusion would not affect adversely the integrity of the Government or the public’s confidence in the integrity of the Government.
(b) Exclusion determination for employees at or below the GS-13 grade level. (1) The determination required by paragraph (a) of this section has been made for any individual who, as a factual matter, serves in a position that meets the criteria set forth in this paragraph. The exclusion applies to a position upon a written determination by the designated agency ethics official that the position meets the following criteria:
(i) The position is paid at the GS-13 grade level or below or, in the case of a position not under the General Schedule, both the level of pay and the nature of responsibilities of the position are commensurate with the GS-13 grade level or below; and
(ii) The incumbent in the position does not have a substantial policy-making role with respect to agency programs.
(2) The designated agency ethics official must consider whether the position meets the standards for filing a confidential financial disclosure report enumerated in § 2634.904(a)(4).
(c) Exclusion determination for employees at or below the GS-15 grade level, but above the GS-13 grade level. The exclusion determination required by paragraph (a) of this section may also be made on a case-by-case basis by the Office of Government Ethics. To receive an exclusion determination, an agency must follow the procedures set forth in paragraph (d) of this section and must demonstrate that the employee:
(1) Has a position that has been established at the GS-14 or GS-15 grade level or, in the case of a position not under the General Schedule, both the level of pay and the nature of responsibilities of the position are commensurate with the GS-14 or GS-15 grade level; and
(2) Has no policy-making role with respect to agency programs. In the event that the Office of Government Ethics permits the requested exclusion, the designated agency ethics official must consider whether the position meets the standards for filing a confidential financial disclosure report enumerated in § 2634.904(a)(4).
(d) Procedure. (1) The exclusion of any individual from reporting requirements pursuant to paragraph (c) of this section will be effective as of the time the employing agency files with the Office of Government Ethics the name of the employee, the name of any incumbent in the position, and a position description. Exclusions should be requested prior to due dates for the reports which such employees would otherwise have to file. If the position description changes in a substantive way, the employing agency must provide the Office of Government Ethics with a revised position description.
(2) If the Office of Government Ethics finds that one or more positions has been improperly excluded, it will advise the agency and set a date for the filing of any report that is due.
§ 2634.204 Employment of sixty days or less.
(a) In general. Any public filer or nominee who, as determined by the official specified in this paragraph, is not reasonably expected to perform the duties of an office or position described in § 2634.201(c) or § 2634.202 for more than 60 days in any calendar year will not be subject to the reporting requirements of § 2634.201(b), (c), or (e). This determination will be made by:
(1) The designated agency ethics official or Secretary concerned, in a case to which the provisions of § 2634.201(b) or (e) (relating to new entrant and termination reports) would otherwise apply; or
(2) The Director of the Office of Government Ethics, in a case to which the provisions of § 2634.201(c) (relating to nominee reports) would otherwise apply.
(b) Alternative reporting. Any new entrant who is exempted from filing a public financial report under paragraph (a) of this section and who is a special Government employee is subject to confidential reporting under § 2634.903(b). See § 2634.904(a)(2).
(c) Exception. If the public filer or nominee actually performs the duties of an office or position referred to in paragraph (a) of this section for more than 60 days in a calendar year, the public report otherwise required by:
(1) Section 2634.201(b) or (c) (relating to new entrant and nominee reports) must be filed within 15 calendar days after the sixtieth day of duty; and
(2) Section 2634.201(e) (relating to termination reports) must be filed as provided in that paragraph.
§ 2634.205 Special waiver of public reporting requirements.
(a) General rule. In unusual circumstances, the Director of the Office of Government Ethics may grant a request for a waiver of the public reporting requirements under this subpart for an individual who is reasonably expected to perform, or has performed, the duties of an office or position for fewer than 130 days in a calendar year, but only if the Director determines that:
(1) The individual is a special Government employee, as defined in 18 U.S.C. 202(a), who performs temporary duties either on a full-time or intermittent basis;
(2) The individual is able to provide services specially needed by the Government;
(3) It is unlikely that the individual’s outside employment or financial interests will create a conflict of interest; and
(4) Public financial disclosure by the individual is not necessary under the circumstances.
(b) Procedure. (1) Requests for waivers must be submitted to the Office of Government Ethics, via the requester’s agency, within 10 days after an employee learns that the employee will hold a position which requires reporting and that the employee will serve in that position for more than 60 days in any calendar year, or upon serving in such a position for more than 60 days, whichever is earlier.
(2) The request must consist of:
(i) A cover letter which identifies the individual and the position, states the approximate number of days in a calendar year which the employee expects to serve in that position, and requests a waiver of public reporting requirements under this section;
(ii) An enclosure which states the reasons for the individual’s belief that the conditions of paragraphs (a)(1) through (4) of this section are met in the particular case; and
(iii) The report otherwise required by this subpart, as a factual basis for the determination required by this section. The report must bear the legend: “CONFIDENTIAL: WAIVER REQUEST PENDING PURSUANT TO 5 CFR 2634.205.”
(3) The agency in which the individual serves must advise the Office of Government Ethics as to the justification for a waiver.
(4) In the event a waiver is granted, the report will not be subject to the public disclosure requirements of § 2634.603; however, the waiver request cover letter will be subject to those requirements. In the event that a waiver is not granted, the confidential legend will be removed from the report, and the report will be subject to public disclosure; however, the waiver request cover letter will not then be subject to public disclosure.
Subpart C—Contents of Public Reports
§ 2634.301 Interests in property.
(a) In general. Except reports required under § 2634.201(f), each financial disclosure report filed pursuant to this subpart must include a brief description of any interest in property held by the filer at the end of the reporting period in a trade or business, or for investment or the production of income, having a fair market value in excess of $1,000. The report must designate the category of value of the property in accordance with paragraph (d) of this section. Each item of real and personal property must be disclosed separately. Note that for Individual Retirement Accounts (IRAs), defined contribution plans, brokerage accounts, trusts, mutual or pooled investment funds and other entities with portfolio holdings, each underlying asset must be separately disclosed, unless the entity qualifies for special treatment under § 2634.312.
(b) Types of property reportable. Subject to the exceptions in paragraph (c) of this section, examples of the types of property required to be reported include, but are not limited to:
(1) Real estate;
(2) Stocks, bonds, securities, and futures contracts;
(3) Mutual funds, exchange-traded funds, and other pooled investment funds;
(4) Pensions and annuities;
(5) Vested beneficial interests in trusts;
(6) Ownership interests in businesses or partnerships;
(7) Deposits in banks or other financial institutions; and
(8) Accounts receivable.
(c) Exceptions. The following property interests are exempt from the reporting requirements under paragraphs (a) and (b) of this section:
(1) Any personal liability owed to the filer, spouse, or dependent child by a spouse, or by a parent, brother, sister, or child of the filer, spouse, or dependent child;
(2) Personal savings accounts (defined as any form of deposit in a bank, savings and loan association, credit union, or similar financial institution) in a single financial institution or holdings in a single money market mutual fund, aggregating $5,000 or less in that institution or fund;
(3) A personal residence of the filer or spouse, as defined in § 2634.105(l); and
(4) Financial interests in any retirement system of the United States (including the Thrift Savings Plan) or under the Social Security Act.
(d) Valuation categories. The valuation categories specified for property items are as follows:
(1) None (or less than $1,001);
(2) $1,001 but not more than $15,000;
(3) Greater than $15,000 but not more than $50,000;
(4) Greater than $50,000 but not more than $100,000;
(5) Greater than $100,000 but not more than $250,000;
(6) Greater than $250,000 but not more than $500,000;
(7) Greater than $500,000 but not more than $1,000,000; and
(8) Greater than $1,000,000;
(9) Provided that, with respect to items held by the filer alone or held jointly by the filer with the filer’s spouse and/or dependent children, the following additional categories over $1,000,000 will apply:
(i) Greater than $1,000,000 but not more than $5,000,000;
(ii) Greater than $5,000,000 but not more than $25,000,000;
(iii) Greater than $25,000,000 but not more than $50,000,000; and
(iv) Greater than $50,000,000.
(e) Valuation of interests in property. A good faith estimate of the fair market value of interests in property may be made in any case in which the exact value cannot be obtained without undue hardship or expense to the filer. If a filer is unable to make a good faith estimate of the value of an asset, the filer may indicate on the report that the “value is not readily ascertainable.” Value may also be determined by:
(1) The purchase price (in which case, the filer should indicate date of purchase);
(2) Recent appraisal;
(3) The assessed value for tax purposes (adjusted to reflect the market value of the property used for the assessment if the assessed value is computed at less than 100 percent of that market value);
(4) The year-end book value of nonpublicly traded stock, the year-end exchange value of corporate stock, or the face value of corporate bonds or comparable securities;
(5) The net worth of a business partnership;
(6) The equity value of an individually owned business; or
(7) Any other recognized indication of value (such as the last sale on a stock exchange).
§ 2634.302 Income.
(a) Noninvestment income. Except reports required under § 2634.201(f), each financial disclosure report filed pursuant to this subpart must disclose the source, type, and the actual amount or value, of earned or other noninvestment income in excess of $200 from any one source which is received by the filer during the reporting period, including:
(1) Salaries, fees, commissions, wages and any other compensation for personal services (other than from United States Government employment);
(2) Retirement benefits (other than from United States Government employment, including the Thrift Savings Plan, or from Social Security);
(3) Any honoraria, and the date services were provided, including payments made or to be made to charitable organizations on behalf of the filer in lieu of honoraria; and
(4) Any other noninvestment income, such as prizes, awards, or discharge of indebtedness.
In calculating the amount of an honorarium, subtract any actual and necessary travel expenses incurred by the recipient and one relative. If such expenses are paid or reimbursed by the honorarium source, they shall not be counted as part of the honorarium payment.
(b) Investment income. Except as indicated in § 2634.309, each financial disclosure report filed pursuant to this subpart must disclose:
(1) The source and type of investment income, characterized as dividends, rent, interest, capital gains, or income from qualified or excepted trusts or excepted investment funds (see § 2634.312), which is received by the filer during the reporting period, and which exceeds $200 in amount or value from any one source. Examples include, but are not limited to, income derived from real estate, collectible items, stocks, bonds, notes, copyrights, pensions, mutual funds, the investment portion of life insurance contracts, loans, and personal savings accounts (as defined in § 2634.301(c)(2)). Note that for entities with portfolio holdings, such as brokerage accounts or trusts, each underlying source of income must be separately disclosed, unless the entity qualifies for special treatment under § 2634.312. The amount or value of income from each reported source must also be disclosed and categorized in accordance with the following table:
(i) None (or less than $201);
(ii) $201 but not more than $1,000;
(iii) Greater than $1,000 but not more than $2,500;
(iv) Greater than $2,500 but not more than $5,000;
(v) Greater than $5,000 but not more than $15,000;
(vi) Greater than $15,000 but not more than $50,000;
(vii) Greater than $50,000 but not more than $100,000;
(viii) Greater than $100,000 but not more than $1,000,000; and
(ix) Greater than $1,000,000;
(x) Provided that, with respect to investment income of the filer alone or joint investment income of the filer with the filer’s spouse and/or dependent children, the following additional categories over $1,000,000 will apply:
(A) Greater than $1,000,000 but not more than $5,000,000; and
(B) Greater than $5,000,000.
(2) The source, type, and the actual amount or value of gross income from a business, distributive share of a partnership, joint business venture income, payments from an estate or an annuity or endowment contract, or any other items of income not otherwise covered by paragraphs (a) or (b)(1) of this section which are received by the filer during the reporting period and which exceed $200 from any one source.
§ 2634.303 Purchases, sales, and exchanges.
(a) In general. Except for reports required under § 2634.201(f) and as indicated in § 2634.310(b), each financial disclosure report filed pursuant to this subpart must include a brief description, the date, and value (using the categories of value in § 2634.301(d)(2) through (9)) of any purchase, sale, or exchange by the filer during the reporting period, in which the amount involved in the transaction exceeds $1,000. The acquisition of an asset through inheritance is not considered a transaction for purposes of this section. Reportable transactions include:
(1) Of real property, other than a personal residence of the filer or spouse, as defined in § 2634.105(l); and
(2) Of stocks, bonds, commodity futures, mutual fund shares, and other forms of securities.
(b) Exceptions. The following transactions need not be reported under paragraph (a) of this section:
(1) Transactions solely by and between the reporting individual, the reporting individual’s spouse, or the reporting individual’s dependent children;
(2) Transactions involving Treasury bills, notes, and bonds; money market mutual funds or accounts; and bank accounts (as defined in § 2634.301(c)(2)), provided they occur at rates, terms, and conditions available generally to members of the public;
(3) Transactions involving holdings of trusts and investment funds described in § 2634.312(b) and (c);
(4) Transactions which occurred at a time when the reporting individual was not a public financial disclosure filer or was not a Federal Government officer or employee; and
(5) Transactions fully disclosed in any public financial disclosure report filed during the calendar year pursuant to § 2634.309.
§ 2634.304 Gifts and reimbursements.
(a) Gifts. Except reports required under § 2634.201(f) and as indicated in § 2634.310(b), each financial disclosure report filed pursuant to this subpart must contain the identity of the source, a brief description, and the value of all gifts aggregating more than $480 in value which are received by the filer during the reporting period from any one source. For in-kind travel-related gifts, include a travel itinerary, dates, and nature of expenses provided.
Under the Ethics in Government Act, 5 U.S.C. 13104(a)(2)(A) and (B), the reporting thresholds for gifts, reimbursements, and travel expenses are tied to the dollar amount for the “minimal value” threshold for foreign gifts established by the Foreign Gifts and Decorations Act, 5 U.S.C. 7342(a)(5). The General Services Administration (GSA), in consultation with the Secretary of State, redefines the value every 3 years. In 2023, the amount was set at $480. In paragraph (d) of this section, the Office of Government Ethics sets the aggregation exception amount and redefines the value every 3 years. In 2023, the amount was set at $192. The Office of Government Ethics will update this part in 2026 and every three years thereafter to reflect the new amounts.
(b) Reimbursements. Except as indicated in §§ 2634.309 and 2634.310(b), each financial disclosure report filed pursuant to this subpart must contain the identity of the source, a brief description (including a travel itinerary, dates, and the nature of expenses provided), and the value of any travel-related reimbursements aggregating more than $480 in value, which are received by the filer during the reporting period from any one source. The filer is not required to report travel reimbursements received from the filer’s non-Federal employer.
(c) Exclusions. Reports need not contain any information about gifts and reimbursements to which the provisions of this section would otherwise apply which are received from relatives (see § 2634.105(o)) or during a period in which the filer was not an officer or employee of the Federal Government. Additionally, any food, lodging, or entertainment received as “personal hospitality of any individual,” as defined in § 2634.105(k), need not be reported. See also exclusions specified in the definitions of gift and reimbursement, at § 2634.105(h) and (n).
(d) Aggregation exception. Any gift or reimbursement with a fair market value of $192 or less need not be aggregated for purposes of the reporting rules of this section. However, the acceptance of gifts, whether or not reportable, is subject to the restrictions imposed by Executive Order 12674, as modified by Executive Order 12731, and the implementing regulations on standards of ethical conduct.
1. Dinner for two at a local restaurant—$200.
2. Round-trip taxi fare to meet donor at the restaurant—$25.
3. Dinner at donor’s city residence—(value uncertain).
4. Round-trip airline transportation and hotel accommodations to visit Epcot Center in Florida—$600.
5. Weekend at donor’s country home, including duck hunting and tennis match—(value uncertain).
Based on the minimal value threshold established in 2023, the official need only disclose Gift 4. Gift 1 falls within the exclusion in § 2634.105(h)(4) for food and beverages not consumed in connection with a gift of overnight lodging. Gifts 3 and 5 need not be disclosed because they fall within the exception for personal hospitality of an individual. Gift 2 need not be aggregated and reported, because its value does not exceed $192.
(e) Valuation of gifts and reimbursements. The value to be assigned to a gift or reimbursement is its fair market value in the United States. For most reimbursements, this will be the amount actually received. For gifts, the value should be determined in one of the following manners:
(1) Except as provided in paragraph (e)(4) of this section, if the gift is readily available in the market, the value is its retail price. The filer need not contact the donor, but may contact a retail establishment selling similar items to determine the present cost in the market.
(2) If the item is not readily available in the market, such as a piece of art, a handmade item, or an antique, the filer may make a good faith estimate of the value of the item.
(3) The term “readily available in the market” means that an item generally is available for retail purchase.
(4) The market value of a ticket entitling the holder to attend an event which includes food, refreshments, entertainment, or other benefits is the face value of the ticket, which may exceed the actual cost of the food and other benefits.
(f) Waiver rule in the case of certain gifts. In unusual cases, the value of a gift as defined in § 2634.105(h) need not be aggregated for reporting threshold purposes under this section, and therefore the gift need not be reported on a public financial disclosure report, if the Director of the Office of Government Ethics grants a publicly available waiver to a public filer.
(1) Standard. If the Director receives a written request for a waiver, the Director will issue a waiver upon determining that:
(i) Both the basis of the relationship between the grantor and the grantee and the motivation behind the gift are personal; and
(ii) No countervailing public purpose requires public disclosure of the nature, source, and value of the gift.
(2) Public disclosure of waiver request. If approved in whole or in part, the cover letter requesting the waiver and the waiver will be subject to the public disclosure requirements in § 2634.603. Enclosures to the cover letter, required by paragraph (3)(ii) of this section, are not covered by § 2634.603.
(3) Procedure. (i) A public filer seeking a waiver under this section must submit a request to the designated agency ethics official for the employee’s agency. The designated agency ethics official must sign a cover letter that identifies the filer and the filer’s position and states that a waiver is requested under this section. To the extent practicable, the designated agency ethics official should avoid including other personal identifying information about the employee in the cover letter.
(ii) In an enclosure to the cover letter, the filer must set forth:
(A) The identity and occupation of the donor;
(B) A statement that the relationship between the donor and the filer is personal in nature;
(C) An explanation of all relevant circumstances surrounding the gift, including whether any donor is a prohibited source, as defined in § 2635.203(d), or represents a prohibited source and whether the gift was given because of the employee’s official position; and
(D) A brief description of the gift and the value of the gift.
(iii) With respect to the information required in paragraph (f)(3)(ii) of this section, if a gift has more than one donor, the filer shall provide the necessary information for each donor.
(iv) The Director will approve or disapprove any request for a waiver in writing. In the event that a waiver is granted, the Director will avoid including personal information about the filer to the extent practicable.
§ 2634.305 Liabilities.
(a) In general. Except reports required under § 2634.201(f), each financial disclosure report filed pursuant to this subpart must identify and include a brief description of the filer’s liabilities exceeding $10,000 owed to any creditor at any time during the reporting period, and the name of the creditors to whom such liabilities are owed. The report also must designate the category of value of the liabilities in accordance with § 2634.301(d) based on the greatest amount owed to the creditor during the period, except that the amount of a revolving charge account is based on the balance at the end of the reporting period.
(b) Exceptions. The following are not required to be reported under paragraph (a) of this section:
(1) Personal liabilities owed to a spouse or to the parent, brother, sister, or child of the filer, spouse, or dependent child; and
(2) Any loan secured by a personal motor vehicle, household furniture, or appliances, provided that the loan does not exceed the purchase price of the item which secures it; and
(c) Limited exception for mortgages on personal residences. (1) The President, the Vice President, and a filer nominated for or appointed by the President to a position that requires the advice and consent of the Senate, other than those identified in paragraph (c)(2) of this section, must disclose a mortgage on a personal residence.
(2) Other public filers are not required to disclose a mortgage on a personal residence. Such filers include individuals who are nominated or appointed by the President to a Senate-confirmed position as a Foreign Service Officer below the rank of ambassador or a special Government employee.
1. Mortgage on personal residence—$200,000.
2. Mortgage on rental property—$150,000.
3. VISA Card—$1,000.
4. Loan balance of $15,000, secured by family automobile purchased for $16,200.
5. Loan balance of $10,500, secured by antique furniture purchased for $8,000.
6. Loan from parents—$20,000.
7. A personal line of credit up to $20,000 on which no draws have been made.
The loans indicated in items 2 and 5 must be disclosed in the official’s annual financial disclosure report. Loan 1 is exempt from disclosure under paragraph (c) of this section because it is secured by the personal residence and the filer is not covered by the STOCK Act provision requiring reporting. Loan 3 need not be disclosed under paragraph (a) of this section because it is considered to be a revolving charge account with an outstanding liability that does not exceed $10,000 at the end of the reporting period. Loan 4 need not be disclosed under paragraph (b)(2) of this section because it is secured by a personal motor vehicle which was purchased for more than the value of the loan. Loan 6 need not be disclosed because the creditors are persons specified in paragraph (b)(1) of this section. Loan 7 need not be disclosed because the filer has not drawn on the line of credit and, as a result, had no outstanding liability associated with the line of credit during the reporting period.
§ 2634.306 Agreements and arrangements.
Except reports required under § 2634.201(f), each financial disclosure report filed pursuant to this subpart must identify the parties to and the date of, and must briefly describe the terms of, any agreement or arrangement of the filer in existence at any time during the reporting period with respect to:
(a) Future employment;
(b) A leave of absence from employment during the period of the reporting individual’s Government service;
(c) Continuation of payments by a former employer other than the United States Government; and
(d) Continuing participation in an employee welfare or benefit plan maintained by a former employer, other than the United States Government.
§ 2634.307 Outside positions.
(a) In general. Except reports required under § 2634.201(f), each financial disclosure report filed pursuant to this subpart must identify all positions held at any time by the filer during the reporting period, as an officer, director, trustee, general partner, proprietor, representative, executor, employee, or consultant of any corporation, company, firm, partnership, trust, or other business enterprise, any nonprofit organization, any labor organization, or any educational or other institution other than the United States.
(b) Exceptions. The following need not be reported under paragraph (a) of this section:
(1) Positions held in any religious, social, fraternal, or political entity; and
(2) Positions solely of an honorary nature, such as those with an emeritus designation.
§ 2634.308 Filer’s sources of compensation exceeding $5,000 in a year
(a) In general. A public filer required to file a report as a New Entrant or a Nominee, pursuant to § 2634.201(b) or (c), must identify the filer’s sources of compensation which exceed $5,000 in any one calendar year. This requirement includes compensation paid to another person, such as an employer, in exchange for the filer’s services (e.g., payments to a law firm exceeding $5,000 in any one calendar year in exchange for the services of a partner or associate attorney). The filer must also briefly describe the nature of the duties performed or services rendered (e.g., “legal services”).
(b) Exceptions. (1) The name of a source of compensation may be excluded only if that information is specifically determined to be confidential as a result of a privileged relationship established by law and if the disclosure is specifically prohibited by law or regulation, by a rule of a professional licensing organization, or by a client agreement that at the time of engagement of the filer’s services expressly provided that the client’s name would not be disclosed publicly to any person. If the filer excludes the name of any source, the filer must indicate in the report that such information has been excluded, the number of sources excluded, and, if applicable, a citation to the statute, regulation, rule of professional conduct, or other authority pursuant to which disclosure of the information is specifically prohibited.
(2) The report need not contain any information with respect to any person for whom services were provided by any firm or association of which the filer was a member, partner, or employee, unless the filer was directly involved in the provision of such services.
(3) The President, the Vice President, and a candidate referred to in § 2634.201(d) are not required to report this information.
§ 2634.309 Periodic reporting of transactions.
(a) In general. Each financial disclosure report filed pursuant to § 2634.201(f) must include a brief description, the date, and value (using the categories of value in § 2634.301(d)(2) through (9)) of any purchase, sale, or exchange of stocks, bonds, commodity futures, and other forms of securities by the filer during the reporting period, in which the amount involved in the transaction exceeds $1,000.
(b) Exceptions. The following transactions need not be reported under paragraph (a) of this section:
(1) Transactions solely by and between the reporting individual, the reporting individual’s spouse, or the reporting individual’s dependent children;
(2) Transactions of excepted investment funds as defined in § 2634.312(c);
(3) Transactions involving Treasury bills, notes, and bonds; money market mutual funds or accounts; and bank accounts (as defined in § 2634.301(c)(2)), provided they occur at rates, terms, and conditions available generally to members of the public;
(4) Transactions involving holdings of trusts and investment funds described in § 2634.312(b) and (c); and
(5) Transactions which occurred at a time when the reporting individual was not a public financial disclosure filer or was not a Federal Government officer or employee.
§ 2634.310 Reporting periods.
(a) Incumbents. Each financial disclosure report filed pursuant to § 2634.201(a) must include a full and complete statement of the information required to be reported under this subpart, for the preceding calendar year (except for §§ 2634.303 and 2634.304, relating to transactions and gifts/reimbursements, for which the reporting period does not include any portion of the previous calendar year during which the filer was not a Federal employee). In the case of §§ 2634.306 and 2634.307, the reporting period also includes the current calendar year up to the date of filing.
(b) New entrants, nominees, and candidates. Each financial disclosure report filed pursuant to § 2634.201(b) through (d) must include a full and complete statement of the information required to be reported under this subpart, except for § 2634.303 (relating to purchases, sales, and exchanges of certain property) and § 2634.304 (relating to gifts and reimbursements). The following special rules apply:
(1) Interests in property. For purposes of § 2634.301, the report must include all interests in property specified by that section which are held on or after a date which is fewer than 31 days before the date on which the report is filed.
(2) Income. For purposes of § 2634.302, the report must include all income items specified by that section which are received during the period beginning on January 1 of the preceding calendar year and ending on the date on which the report is filed, except as otherwise provided by § 2634.606 relating to updated disclosure for nominees.
(3) Liabilities. For purposes of § 2634.305, the report must include all liabilities specified by that section which are owed during the period beginning on January 1 of the preceding calendar year and ending fewer than 31 days before the date on which the report is filed.
(4) Agreements and arrangements. For purposes of § 2634.306, the report will include only those agreements and arrangements which still exist at the time of filing.
(5) Outside positions. For purposes of § 2634.307, the report must include all such positions held during the preceding two calendar years and the current calendar year up to the date of filing.
(6) Certain sources of compensation. For purposes of § 2634.308, the report must also identify the filer’s sources of compensation which exceed $5,000 during either of the preceding two calendar years or during the current calendar year up to the date of filing.
(c) Termination reports. Each financial disclosure report filed under § 2634.201(e) must include a full and complete statement of the information required to be reported under this subpart, covering the preceding calendar year if an incumbent report required by § 2634.201(a) has not been filed and covering the portion of the calendar year in which such termination occurs up to the date the individual left such office or position.
(d) Periodic reporting of transactions. Each financial disclosure report filed under § 2634.201(f) must include a full and complete statement of the information required to be reported according to the provisions of § 2634.309. The report must be filed within 30 days of receiving notification of a covered transaction, but not later than 45 days after the date such transaction was executed.
§ 2634.311 Spouses and dependent children.
(a) Special disclosure rules. Each report required by the provisions of subpart B of this part must also include the following information with respect to the spouse or dependent children of the reporting individual:
(1) Income. For purposes of § 2634.302:
(i) With respect to a spouse, the source but not the amount of earned income (other than honoraria) which exceeds $1,000 from any one source; and if earned income is derived from a spouse’s self-employment in a business or profession, the nature of the business or profession but not the amount of the earned income;
(ii) With respect to a spouse, the source and the actual amount or value of any honoraria received by the spouse (or payments made or to be made to charity on the spouse’s behalf in lieu of honoraria) which exceed $200 from any one source, and the date on which the services were provided; and
(iii) With respect to a spouse or dependent child, the type and source, and the amount or value (category or actual amount, in accordance with § 2634.302), of all other income exceeding $200 from any one source, such as investment income from interests in property (if the property itself is reportable according to § 2634.301).
(2) Gifts and reimbursements. For purposes of § 2634.304, gifts and reimbursements received by a spouse or dependent child, unless the gift was given to the spouse or dependent child totally independent of their relationship to the filer.
(3) Interests in property, transactions, and liabilities. For purposes of §§ 2634.301, 2634.303, 2634.305, and 2634.309, all information concerning property interests, transactions, or liabilities referred to by those sections of a spouse or dependent child.
(b) Exception. For reports filed as a new entrant, nominee, or candidate under § 2634.201(b) through (d), no information regarding gifts and reimbursements or transactions is required for a spouse or dependent child.
(c) Divorce and separation. A reporting individual need not report any information about:
(1) A spouse living separate and apart from the reporting individual with the intention of terminating the marriage or providing for permanent separation;
(2) A former spouse or a spouse from whom the reporting individual is permanently separated; or
(3) Any income or obligations of the reporting individual arising from dissolution of the reporting individual’s marriage or permanent separation from a spouse.
(d) Unusual circumstances. In very rare cases, certain interests in property, transactions, and liabilities of a spouse or a dependent child are excluded from reporting requirements, provided that each requirement of this paragraph is strictly met.
(1) The filer must certify without qualification that the item represents the spouse’s or dependent child’s sole financial interest or responsibility, and that the filer has no knowledge regarding that item;
(2) The item must not be in any way, past or present, derived from the income, assets or activities of the filer; and
(3) The filer must not derive, or expect to derive, any financial or economic benefit from the item.
The exception described in paragraph (d) is not available to most filers. A filer who files a joint tax return with a spouse will normally be deemed to derive a financial or economic benefit from every financial interest of the spouse, and the filer will not be able to rely on this exception. If a filer and the filer’s spouse cohabitate, share any expenses, or are jointly responsible for the care of children, the filer will be deemed to derive an economic benefit from every financial interest of the spouse.
§ 2634.312 Trusts, estates, and investment funds.
(a) In general. (1) Except as otherwise provided in this section, each financial disclosure report must include the information required by this subpart about the holdings of and income from the holdings of any trust, estate, investment fund or other financial arrangement from which income is received by, or with respect to which a beneficial interest in principal or income is held by, the filer, the filer’s spouse, or dependent child.
(2) Information about the underlying holdings of a trust is required if the filer, filer’s spouse, or dependent child currently is entitled to receive income from the trust or is entitled to access the principal of the trust. If a filer, filer’s spouse, or dependent child has a beneficial interest in a trust that either will provide income or the ability to access the principal in the future, the filer should determine whether there is a vested interest in the trust under controlling state law. However, no information about the underlying holdings of the trust is required for a nonvested beneficial interest in the principal or income of a trust.
Nothing in this section requires the reporting of the holdings or income of a revocable inter vivos trust (also known as a “living trust”) with respect to which the filer, the filer’s spouse, or dependent child has only a remainder interest, whether or not vested, provided that the grantor of the trust is neither the filer, the filer’s spouse, nor the filer’s dependent child. Furthermore, nothing in this section requires the reporting of the holdings or income of a revocable inter vivos trust from which the filer, the filer’s spouse, or dependent child receives any discretionary distribution, provided that the grantor of the trust is neither the filer, the filer’s spouse, nor the filer’s dependent child.
(b) Qualified trusts and excepted trusts. (1) A filer should not report information about the holdings of or income from holdings of, any qualified blind trust (as defined in § 2634.402) or any qualified diversified trust (as defined in § 2634.402). For a qualified blind trust, a public financial disclosure report must disclose the category of the aggregate amount of the trust’s income attributable to the beneficial interest of the filer, the filer’s spouse, or dependent child in the trust. For a qualified diversified trust, a public financial disclosure report must disclose the category of the aggregate amount of income with respect to such a trust which is actually received by the filer, the filer’s spouse, or dependent child, or applied for the benefit of any of them.
(2) In the case of an excepted trust, a filer should indicate the general nature of its holdings, to the extent known, but will not otherwise need to report information about the trust’s holdings or income from holdings. The category of the aggregate amount of income from an excepted trust which is received by the filer, the filer’s spouse, or dependent child must be reported on public financial disclosure reports. For purposes of this part, the term “excepted trust” means a trust:
(i) Which was not created directly by the filer, spouse, or dependent child; and
(ii) The holdings or sources of income of which the filer, spouse, or dependent child have no specific knowledge through a report, disclosure, or constructive receipt, whether intended or inadvertent.
(c) Excepted investment funds. (1) No information is required under paragraph (a) of this section about the underlying holdings of or income from underlying holdings of an excepted investment fund as defined in paragraph (c)(2) of this section, except that the fund itself must be identified as an interest in property and/or a source of income. Filers must also disclose the category of value of the fund interest held; aggregate amount of income from the fund which is received by the filer, the filer’s spouse, or dependent child; and value of any transactions involving shares or units of the fund.
(2) For purposes of financial disclosure reports filed under the provisions of this part, an “excepted investment fund” means a widely held investment fund (whether a mutual fund, regulated investment company, common trust fund maintained by a bank or similar financial institution, pension or deferred compensation plan, or any other pooled investment fund), if:
(i)(A) The fund is publicly traded or available; or
(B) The assets of the fund are widely diversified; and
(ii) The filer neither exercises control over nor has the ability to exercise control over the financial interests held by the fund.
(3) A fund is widely diversified if it does not have a stated policy of concentrating its investments in any industry, business, or single country other than the United States or bonds of a single state within the United States.
The fact that an investment fund qualifies as an excepted investment fund is not relevant to a determination as to whether the investment qualifies for an exemption to the criminal conflict of interest statute at 18 U.S.C. 208(a), pursuant to part 2640 of this chapter. Some excepted investment funds qualify for exemptions pursuant to part 2640, while other excepted investment funds do not qualify for such exemptions. If an employee holds an excepted investment fund that is not exempt from 18 U.S.C. 208(a), the ethics official may need additional information from the filer to determine if the holdings of the fund create a conflict of interest and should advise the employee to monitor the fund’s holdings for potential conflicts of interest.
§ 2634.313 Special rules.
(a) Political campaign funds. Political campaign funds, including campaign receipts and expenditures, need not be included in any report filed under this part. However, if the individual has authority to exercise control over the fund’s assets for personal use rather than campaign or political purposes, that portion of the fund over which such authority exists must be reported.
(b) Reporting standards. (1) A filer may attach to the financial disclosure report, a copy of a statement which, in a clear and concise fashion, readily discloses all information that the filer would otherwise have been required to enter, but only if authorized by the designated agency ethics official or for reports that are reviewed by the Office of Government Ethics, the Director. The filer must annotate the report clearly to the extent necessary to identify information required by this part, including, when required, the identification of assets as excepted investment funds and the identification of income types. In addition, the statement must identify all income required to be disclosed for the entire reporting period. Any statement attached to a financial disclosure report and its contents may be subject to public release. A filer who attaches a statement to a reporting form is solely responsible for redacting personal information not otherwise subject to disclosure prior to filing the financial disclosure report (e.g., account numbers, addresses, etc.).
(2) In lieu of reporting the category of amount or value of any item listed in any report filed pursuant to this subpart, a filer may report the actual dollar amount of such item.
Subpart D—Qualified Trusts
§ 2634.401 Overview.
(a) Purpose. The Ethics in Government Act of 1978 created two types of qualified trusts, the qualified blind trust and the qualified diversified trust, that may be used by employees to reduce real or apparent conflicts of interest. The primary purpose of an executive branch qualified trust is to confer on an independent trustee and any other designated fiduciary the sole responsibility to administer the trust and to manage trust assets without participation by, or the knowledge of, any interested party or any representative of an interested party. This responsibility includes the duty to decide when and to what extent the original assets of the trust are to be sold or disposed of, and in what investments the proceeds of sale are to be reinvested. Because the requirements set forth in the Ethics in Government Act and this part assure true “blindness,” employees who have a qualified trust cannot be influenced in the performance of their official duties by their financial interests in the trust assets. Their official actions, under these circumstances, should be free from collateral attack arising out of real or apparent conflicts of interest.
(b) Scope. Two characteristics of the qualified trust assure that true “blindness” exists: The independence of the trustee and the restriction on communications between the independent trustee and the interested parties. In order to serve as a trustee for an executive branch qualified trust, an entity must meet the strict requirements for independence set forth in the Ethics in Government Act and this part. Restrictions on communications also reinforce the independence of the trustee from the interested parties. During both the establishment of the trust and the administration of the trust, communications are limited to certain reports that are required by the Act and to written communications that are pre-screened by the Office of Government Ethics. No other communications, even about matters not connected to the trust, are permitted between the independent trustee and the interested parties.
§ 2634.402 Definitions.
As used in this subpart:
(a) Director means the Director of the Office of Government Ethics.
(b) Employee means an officer or employee of the executive branch of the United States.
(c) Independent trustee means a trustee who meets the requirements of § 2634.405 and who is approved by the Director under this subpart.
(d) Interested party means the President, the Vice President, an employee, a nominee or candidate as described in § 2634.201, and the spouse and any minor or dependent child of the President, Vice President, employee, or a nominee or candidate as described in § 2634.201, in any case in which the employee, spouse, or minor or dependent child has a beneficial interest in the principal or income of a trust proposed for certification under this subpart or certified under this subpart.
(e) Qualified blind trust means a trust in which the interested party has a beneficial interest and which:
(1) Is certified pursuant to § 2634.407 by the Director;
(2) Has a portfolio as specified in § 2634.406(a);
(3) Follows the model trust document prepared by the Office of Government Ethics; and
(4) Has an independent trustee as defined in § 2634.405.
(f) Qualified diversified trust means a trust in which the interested party has a beneficial interest and which:
(1) Is certified pursuant to § 2634.407 by the Director;
(2) Has a portfolio as specified in § 2634.406(b);
(3) Follows the model trust document prepared by the Office of Government Ethics; and
(4) Has an independent trustee as defined in § 2634.405.
(g) Qualified trust means a trust described in the Ethics in Government Act of 1978 and this part and certified by the Director under this subpart. There are two types of qualified trusts, the qualified blind trust and the qualified diversified trust.
§ 2634.403 General description of trusts.
(a) Qualified blind trust. (1) The qualified blind trust is the most universally adaptable qualified trust. An interested party may put most types of assets (such as cash, stocks, bonds, mutual funds, or real estate) into a qualified blind trust.
(2) In the case of a qualified blind trust, 18 U.S.C. 208 and other Federal conflict of interest statutes and regulations apply to the assets that an interested party transfers to the trust until such time as he or she is notified by the independent trustee that such asset has been disposed of or has a value of less than $1,000. Because the interested party knows what assets he or she placed in the trust and there is no requirement that these assets be diversified, the possibility still exists that the interested party could be influenced in the performance of official duties by those interests.
(b) Qualified diversified trust. (1) An interested party may put only readily marketable securities into a qualified diversified trust. In addition, the portfolio must meet the diversification requirements of § 2634.406(b)(2).
(2) In the case of a qualified diversified trust, the conflict of interest laws do not apply to the assets that an interested party transfers to the trust. Because the assets that an interested party puts into this trust must meet the diversification requirements set forth in this part, the diversification achieves “blindness” with regard to the initial assets.
(3) Special notice for Presidential appointees—(i) In general. In any case in which the establishment of a qualified diversified trust is contemplated with respect to an individual whose nomination is being considered by a Senate committee, that individual must inform the committee of the intention to establish a qualified diversified trust at the time of filing a financial disclosure report with the committee.
(ii) Applicability. Paragraph (b)(3)(i) of this section is not applicable to members of the uniformed services or Foreign Service officers. The special notice requirement of this section will not preclude an individual from seeking the certification of a qualified blind trust or qualified diversified trust after the Senate has given its advice and consent to a nomination.
(c) Conflict of interest laws. In the case of each type of trust, the conflict of interest laws do not apply to the assets that the independent trustee or any other designated fiduciary adds to the trust.
§ 2634.404 Summary of procedures for creation of a qualified trust.
(a) Consultation with the Office of Government Ethics. Any interested party (or that party’s representative) who is considering setting up a qualified blind or qualified diversified trust must contact the Office of Government Ethics prior to beginning the process of creating the trust. The Office of Government Ethics is the only entity that has the authority to certify a qualified trust. Because an interested party must propose, for the approval of the Office of Government Ethics, an entity to serve as the independent trustee, the Office of Government Ethics will explain the requirements that an entity must meet in order to qualify as an independent trustee. Such information is essential in order for the interested party to interview entities for the position of independent trustee. The Office of Government Ethics will also explain the restrictions on the communications between the interested parties and the proposed trustee.
(b) Selecting an independent trustee. After consulting with the Office of Government Ethics, the interested party may interview entities who meet the requirements of § 2634.405(a) in order to find one to serve as an independent trustee. At an interview, the interested party may ask general questions about the institution, such as how long it has been in business, its policies and philosophy in managing assets, the types of clients it serves, its prior performance record, and the qualifications of the personnel who would be handling the trust. Because the purpose of a qualified trust is to give an independent trustee the sole responsibility to manage the trust assets without the interested party having any knowledge of the identity of the assets in the trust, the interested party may communicate his or her general financial interests and needs to any institution which he or she interviews. For example, the interested party may communicate a preference for maximizing income or long-term capital gain or for balancing safety of capital with growth. The interested party may not give more specific instructions to the proposed trustee, such as instructing it to maintain a specific allocation between stocks and bonds, or choosing stocks in a particular industry.
(c) The proposed independent trustee. (1) The entity selected by an interested party as a possible trustee must contact the Office of Government Ethics to receive guidance on the qualified trust program. The Office of Government Ethics will ask the proposed trustee to submit a letter describing its past and current contacts, including banking and client relationships, with the interested party, spouse, and minor or dependent children. The extent of these contacts will determine whether the proposed trustee is independent under the Act and this part.
(2) In addition, an interested party may select an investment manager or other fiduciary. Other proposed fiduciaries selected by an interested party, such as an investment manager, must meet the independence requirements.
(d) Approval of the independent trustee. If the Director determines that the proposed trustee meets the requirements of independence, the Director will approve, in writing, that entity as the trustee for the qualified trust.
(e) Confidentiality agreement. If any person other than the independent trustee or designated fiduciary has access to information that may not be shared with an interested party or that party’s representative, that person must file a Confidentiality Agreement with the Office of Government Ethics. Persons filing a Confidentiality Agreement must certify that they will not make prohibited contacts with an interested party or that party’s representative.
(f) Drafting the trust instrument. The representative of the interested party will use the model documents provided by the Office of Government Ethics to draft the trust instrument. There are two annexes to the model trust document: An annex describing any current, permissible banking or client relationships between any interested parties and the independent trustee or other fiduciaries and an annex listing the initial assets that the interested party transfers to the trust. Any deviations from the model trust documents must be approved by the Director.
(g) Certification of the trust. The representative then presents the unexecuted trust instrument to the Office of Government Ethics for review. If the Director finds that the instrument conforms to one of the model documents, the Director will certify the qualified trust. After certification, the interested party and the independent trustee will sign the trust instrument. They will submit a copy of the executed instrument to the Office of Government Ethics within 30 days of execution. The interested party will then transfer the assets to the trust.
Existing qualified trusts approved under any State law or by the legislative or judicial branches of the Federal Government of the United States will not be recertified by the Director. Individuals with existing qualified trusts who are required to file a financial disclosure report upon entering the executive branch, becoming a nominee for a position appointed by the President and subject to confirmation by the Senate, or becoming a candidate for President or Vice President must file a complete financial disclosure form that includes a full disclosure of items in the trust. After filing a complete form, the individual may establish a qualified trust under the policies and provisions of this rule.
§ 2634.405 Standards for becoming an independent trustee or other fiduciary.
(a) Eligible entities. An interested party must select an entity that meets the requirements of this part to serve as an independent trustee or other fiduciary. The type of entity that is allowed to serve as an independent trustee is a financial institution, not more than 10 percent of which is owned or controlled by a single individual, which is:
(1) A bank, as defined in 12 U.S.C. 1841(c); or
(2) An investment adviser, as defined in 15 U.S.C. 80b-2(a)(11).
By the terms of paragraph (3)(A)(i) of section 102(f) of the Act, an individual who is an attorney, a certified public accountant, a broker, or an investment advisor is also eligible to serve as an independent trustee. However, experience of the Office of Government Ethics over the years dictates the necessity of limiting service as a trustee or other fiduciary to the financial institutions referred to in this paragraph, to maintain effective administration of trust arrangements and preserve confidence in the Federal qualified trust program. Accordingly, under its authority pursuant to paragraph (3)(D) of section 102(f) of the Act, the Office of Government Ethics will not approve proposed trustees or other fiduciaries who are not financial institutions, except in unusual cases where compelling necessity is demonstrated to the Director, in his or her sole discretion.
(b) Orientation. After the interested party selects a proposed trustee, that proposed trustee should contact the Office of Government Ethics for an orientation about the qualified trust program.
(c) Independence requirements. The Director will determine that a proposed trustee is independent if:
(1) The entity is independent of and unassociated with any interested party so that it cannot be controlled or influenced in the administration of the trust by any interested party;
(2) The entity is not and has not been affiliated with any interested party, and is not a partner of, or involved in any joint venture or other investment or business with, any interested party; and
(3) Any director, officer, or employee of such entity:
(i) Is independent of and unassociated with any interested party so that such director, officer, or employee cannot be controlled or influenced in the administration of the trust by any interested party;
(ii) Is not and has not been employed by any interested party, not served as a director, officer, or employee of any organization affiliated with any interested party, and is not and has not been a partner of, or involved in any joint venture or other investment with, any interested party; and
(iii) Is not a relative of any interested party.
(d) Required documents. In order to make this determination, the proposed trustee must submit the following documentation to the Director:
(1) A letter describing its past and current contacts, including banking and client relationships, with the interested party, spouse, or minor or dependent child; and
(2) A Certificate of Independence, which follows the model Certificate of Independence prepared by the Office of Government Ethics. Any variation from the model document must be approved by the Director.
(e) Determination. If the Director determines that the current relationships, if any, between the interested party and the independent trustee do not violate the independence requirements, these relationships will be disclosed in an annex to the trust instrument. No additional relationships with the independent trustee may be established unless they are approved by the Director.
(f) Approval of the trustee. If the Director determines that the proposed trustee meets applicable requirements, the Office of Government Ethics will send the interested parties and their representatives a letter indicating its approval of a proposed trustee.
(g) Revocation. The Director may revoke the approval of a trustee or any other designated fiduciary pursuant to the rules of subpart E of this part.
(h) Adding fiduciaries. An independent trustee may employ or consult other entities, such as investment counsel, investment advisers, accountants, and tax preparers, to assist in any capacity to administer the trust or to manage and control the trust assets, if all of the following conditions are met:
(1) When any interested party or any representative of an interested party learns about such employment or consultation, the person must sign the trust instrument as a party, subject to the prior approval of the Director;
(2) Under all the facts and circumstances, the person is determined pursuant to the requirements for eligible entities under paragraphs (a) through (f) of this section to be independent of an interested party with respect to the trust arrangement;
(3) The person is instructed by the independent trustee or other designated fiduciary not to disclose publicly or to any interested party information which might specifically identify current trust assets or those assets which have been sold or disposed of from trust holdings, other than information relating to the sale or disposition of original trust assets in the case of the blind trust; and
(4) The person is instructed by the independent trustee or other designated fiduciary to have no direct communication with respect to the trust with any interested party or any representative of an interested party, and to make all indirect communications with respect to the trust only through the independent trustee, pursuant to § 2634.408(a).
§ 2634.406 Initial portfolio.
(a) Qualified blind trust. (1) An interested party may not place any asset in the blind trust that any interested party would be prohibited from holding by the Act, by the implementing regulations, or by any other applicable Federal law, Executive order, or regulation.
(2) Except as described in paragraph (a)(1) of this section, an interested party may put most types of assets (such as cash, stocks, bonds, mutual funds, or real estate) into a qualified blind trust.
(b) Qualified diversified trust. (1) The initial portfolio may not contain securities of entities having substantial activities in an employee’s primary area of Federal responsibility. If requested by the Director, the designated agency ethics official for the employee’s agency must certify whether the proposed portfolio meets this standard.
(2) The initial assets of a diversified trust must comprise a well-diversified portfolio of readily marketable securities.
(i) A portfolio will be well diversified if:
(A) The value of the securities concentrated in any particular or limited economic or geographic sector is no more than 20 percent of the total; and
(B) The value of the securities of any single entity (other than the United States Government) is no more than five percent of the total.
(ii) A security will be readily marketable if:
(A) Daily price quotations for the security appear regularly in media, including websites, that publish the information; and
(B) The trust holds the security in a quantity that does not unduly impair liquidity.
(iii) The interested party or the party’s representative must provide the Director with a detailed list of the securities proposed for inclusion in the portfolio, specifying their fair market value and demonstrating that these securities meet the requirements of this paragraph. The Director will determine whether the initial assets of the trust proposed for certification comprise a widely diversified portfolio of readily marketable securities.
(c) Hybrid qualified trust. A qualified trust may contain both a blind portfolio of assets and a diversified portfolio of assets. The Office of Government Ethics refers to this arrangement as a hybrid qualified trust.
§ 2634.407 Certification of qualified trust by the Office of Government Ethics.
(a) General. After the Director approves the independent trustee, the interested party or a representative will prepare the trust instrument for review by the Director. The representative of the interested party will use the model documents provided by the Office of Government Ethics to draft the trust instrument. Any deviations from the model trust documents must be approved by the Director. No trust will be considered qualified for purposes of the Act until the Office of Government Ethics certifies the trust prior to execution.
(b) Certification procedures. (1) After the Director has approved the trustee, the interested party or the party’s representative must submit the following documents to the Office of Government Ethics for review:
(i) A copy of the proposed, unexecuted trust instrument;
(ii) A list of the assets which the interested party proposes to place in the trust; and
(iii) In the case of a pre-existing trust as described in § 2634.409 which the interested party asks the Office of Government Ethics to certify, a copy of the pre-existing trust instrument and a list of that trust’s assets categorized as to value in accordance with § 2634.301(d).
(2) In order to assure timely trust certification, the interested parties and their representatives will be responsible for the expeditious submission to the Office of Government Ethics of all required documents and responses to requests for information.
(3) The Director will indicate that he or she has certified the trust in a letter to the interested parties or their representatives. The interested party and the independent trustee may then execute the trust instrument.
(4) Within 30 days after the trust is certified under this section by the Director, the interested party or that party’s representative must file with the Director a copy of the executed trust instrument and all annexed schedules (other than those provisions which relate to the testamentary disposition of the trust assets), including a list of the assets which were transferred to the trust, categorized as to value of each asset in accordance with § 2634.301(d).
(5) Once a trust is classified as a qualified blind or qualified diversified trust in the manner discussed in this section, § 2634.312(b) applies less inclusive financial disclosure requirements to the trust assets.
(c) Certification standard. A trust will be certified for purposes of this subpart only if:
(1) It is established to the Director’s satisfaction that the requirements of section 102(f) of the Act and this subpart have been met; and
(2) The Director determines that approval of the trust arrangement as a qualified trust is appropriate to assure compliance with applicable laws and regulations.
(d) Revocation. The Director may revoke certification of a trust pursuant to the rules of subpart E of this part.
§ 2634.408 Administration of a qualified trust.
(a) General rules on communications between the independent fiduciaries and the interested parties. (1) There must be no direct or indirect communications with respect to the qualified trust between an interested party or the party’s representative and the independent trustee or any other designated fiduciary with respect to the trust unless:
(i) In the case of the blind trust, the proposed communication is approved in advance by the Director and it relates to:
(A) A distribution of cash or other unspecified assets of the trust;
(B) The general financial interest and needs of the interested party including, but not limited to, a preference for maximizing income or long-term capital gain;
(C) Notification to the independent trustee by the employee that the employee is prohibited by a subsequently applicable statute, Executive order, or regulation from holding an asset, and to direction to the independent trustee that the trust may not hold that asset; or
(D) Instructions to the independent trustee to sell all of an asset which was initially placed in the trust by an interested party, and which in the determination of the employee creates a real or apparent conflict due to duties the employee subsequently assumed (but nothing herein requires such instructions); or
(ii) In the case of the diversified trust, the proposed communication is approved in advance by the Director and it relates to:
(A) A distribution of cash or other unspecified assets of the trust;
(B) The general financial interest and needs of the interested party including, but not limited to, a preference for maximizing income or long-term capital gain; or
(C) Information, documents, and funds concerning income tax obligations arising from sources other than the property held in trust that are required by the independent trustee to enable him to file, on behalf of an interested party, the personal income tax returns and similar tax documents which may contain information relating to the trust.
(2) The person initiating a communication approved under paragraphs (a)(1)(i) or (a)(1)(ii) of this section must file a copy of the communication with the Director within five days of the date of its transmission.
By the terms of paragraph (3)(C)(vi) of section 102(f) of the Act, communications which solely consist of requests for distributions of cash or other unspecified assets of the trust are not required to be in writing. Further, there is no statutory mechanism for pre-screening of proposed communications. However, experience of the Office of Government Ethics over the years dictates the necessity of prohibiting any oral communications between the trustee and an interested party with respect to the trust and pre-screening all proposed written communications, to prevent inadvertent prohibited communications and preserve confidence in the Federal qualified trust program. Accordingly, under its authority pursuant to paragraph (3)(D) of section 102(f) of the Act, the Office of Government Ethics will not approve proposed trust instruments that do not contain language conforming to this policy, except in unusual cases where compelling necessity is demonstrated to the Director, in his or her sole discretion.
(b) Required reports from the independent trustee to the interested parties—(1) Quarterly reports. The independent trustee must, without identifying specifically an asset or holding, report quarterly to the interested parties and their representatives the aggregate market value of the assets representing the interested party’s interest in the trust. The independent trustee must follow the model document for this report and must file a copy of the report, within five days of the date of its transmission, with the Director.
(2) Annual report. In the case of a qualified blind trust, the independent trustee must, without identifying specifically an asset or holding, report annually to the interested parties and their representatives the aggregate amount of the trust’s income attributable to the interested party’s beneficial interest in the trust, categorized in accordance with § 2634.302(b) to enable the employee to complete the public financial disclosure form. In the case of a qualified diversified trust, the independent trustee must, without identifying specifically an asset or holding, report annually to the interested parties and their representatives the aggregate amount actually distributed from the trust to the interested party or applied for the party’s benefit. Additionally, in the case of the blind trust, the independent trustee must report on Schedule K-1 the net income or loss of the trust and any other information necessary to enable the interested party to complete an individual tax return. The independent trustee must follow the model document for each report and must file a copy of the report, within five days of the date of its transmission, with the Director.
(3) Report of sale of asset. In the case of the qualified blind trust, the independent trustee must promptly notify the employee and the Director when any particular asset transferred to the trust by an interested party has been completely disposed of or when the value of that asset is reduced to less than $1,000. The independent trustee must file a copy of the report, within five days of the date of its transmission, with the Director.
(c) Communications regarding trust and beneficiary taxes. The Act establishes special tax filing procedures to be used by the independent trustee and the trust beneficiaries in order to maintain the substantive separation between trust beneficiaries and trust administrators.
(1) Trust taxes. Because a trust is a separate entity distinct from its beneficiaries, an independent trustee must file an annual fiduciary tax return for the trust (IRS Form 1041). The independent trustee is prohibited from providing the interested parties and their representatives with a copy of the trust tax return.
(2) Beneficiary taxes. The trust beneficiaries must report income received from the trust on their individual tax returns.
(i) For beneficiaries of qualified blind trusts, the independent trustee sends a modified K-1 summarizing trust income in appropriate categories to enable the beneficiaries to file individual tax returns. The independent trustee is prohibited from providing the interested parties or their representatives with the identity of the assets.
(ii) For beneficiaries of qualified diversified trusts, the Act requires the independent trustee to file the individual tax returns on behalf of the trust beneficiaries. The interested parties must give the independent trustee a power of attorney to prepare and file, on their behalf, the personal income tax returns and similar tax documents which may contain information relating to the trust. Appropriate Internal Revenue Service power of attorney forms will be used for this purpose. The beneficiaries must transmit to the trustee materials concerning taxable transactions and occurrences outside of the trust, pursuant to the requirements in each trust instrument which detail this procedure. This communication must be approved in advance by the Director in accordance with paragraph (a) of this section.
(iii) Some qualified trust beneficiaries may pay estimated income taxes.
(A) In order to pay the proper amount of estimated taxes each quarter, the beneficiaries of a qualified blind trust will need to receive information about the amount of income, if any, generated by the trust each quarter. To assist the beneficiaries, the independent trustee is permitted to send, on a quarterly basis, information about the amount of income generated by the trust in that quarter. This communication must be approved in advance by the Director in accordance with paragraph (a) of this section.
(B) In order to pay the proper amount of estimated taxes each quarter, the independent trustee of a qualified diversified trust will need to receive information about the amount of income, if any, earned by the beneficiaries on assets that are not in the trust. To assist the independent trustee, the beneficiaries are permitted to send, on a quarterly basis, information about the amount of income they earned in that quarter on assets that are outside of the trust. This communication must be approved in advance by the Director in accordance with paragraph (a) of this section.
(d) Responsibilities of the independent trustee and other fiduciaries. (1) Any independent trustee or any other designated fiduciary of a qualified trust may not knowingly and willfully, or negligently:
(i) Disclose any information to an interested party or that party’s representative with respect to the trust that may not be disclosed under title I of the Act, the implementing regulations, or the trust instrument;
(ii) Acquire any holding:
(A) Directly from an interested party or that party’s representative without the prior written approval of the Director; or
(B) The ownership of which is prohibited by, or not in accordance with, title I of the Act, the implementing regulations, the trust instrument, or with other applicable statutes and regulations;
(iii) Solicit advice from any interested party or any representative of that party with respect to such trust, which solicitation is prohibited by title I of the Act, the implementing regulations, or the trust instrument; or
(iv) Fail to file any document required by the implementing regulations or the trust instrument.
(2) The independent trustee and any other designated fiduciary, in the exercise of their authority and discretion to manage and control the assets of the trust, may not consult or notify any interested party or that party’s representative.
(3) The independent trustee may not acquire by purchase, grant, gift, exercise of option, or otherwise, without the prior written approval of the Director, securities, cash, or other property from any interested party or any representative of an interested party.
(4) Certificate of Compliance. An independent trustee and any other designated fiduciary must file, with the Director by May 15 following any calendar year during which the trust was in existence, a properly executed Certificate of Compliance that follows the model Certificate of Compliance prepared by the Office of Government Ethics. Any variation from the model must be approved by the Director.
(5) In addition, the independent trustee and such fiduciary must maintain and make available for inspection by the Office of Government Ethics, as it may from time to time direct, the trust’s books of account and other records and copies of the trust’s tax returns for each taxable year of the trust.
(e) Responsibilities of the interested parties and their representatives. (1) Interested parties to a qualified trust and their representatives may not knowingly and willfully, or negligently:
(i) Solicit or receive any information about the trust that may not be disclosed under title I of the Act, the implementing regulations or the trust instrument; or
(ii) Fail to file any document required by this subpart or the trust instrument.
(2) The interested parties and their representatives may not take any action to obtain, and must take reasonable action to avoid receiving, information with respect to the holdings and the sources of income of the trust, including a copy of any trust tax return filed by the independent trustee, or any information relating to that return, except for the reports and information specified in paragraphs (b) and (c) of this section.
(3) In the case of any qualified trust, the interested party must, within 30 days of transferring an asset, other than cash, to a previously established qualified trust, file a report with the Director, which identifies each asset, categorized as to value in accordance with § 2634.301(d).
(4) Any portfolio asset transferred to the trust by an interested party must be free of any restriction with respect to its transfer or sale, except as fully described in schedules attached to the trust instrument, and as approved by the Director.
(5) During the term of the trust, the interested parties may not pledge, mortgage, or otherwise encumber their interests in the property held by the trust.
(f) Amendment of the trust. The independent trustee and the interested parties may amend the terms of a qualified trust only with the prior written approval of the Director and upon a showing of necessity and appropriateness.
§ 2634.409 Pre-existing trusts.
An interested party may place a pre-existing irrevocable trust into a qualified trust, which may then be certified by the Office of Government Ethics. This arrangement should be considered in the case of a pre-existing trust whose terms do not permit amendments that are necessary to satisfy the rules of this subpart. All of the relevant parties (including the employee, any other interested parties, the trustee of the pre-existing trust, and all of the other parties and beneficiaries of the pre-existing trust) will be required pursuant to section 102(f)(7) of the Act to enter into an umbrella trust agreement. The umbrella trust agreement will specify that the pre-existing trust will be administered in accordance with the provisions of this subpart. A parent or guardian may execute the umbrella trust agreement on behalf of a required participant who is a minor child. The Office of Government Ethics has prepared model umbrella trust agreements that the interested party can use in this circumstance. The umbrella trust agreement will be certified as a qualified trust if all of the requirements of this subpart are fulfilled under conditions where required confidentiality with respect to the trust can be assured.
§ 2634.410 Dissolution.
Within 30 days of dissolution of a qualified trust, the interested party must file a report of the dissolution with the Director and a list of assets of the trust at the time of the dissolution, categorized as to value in accordance with § 2634.301(d).
§ 2634.411 Reporting on financial disclosure reports.
An employee who files a public or confidential financial disclosure report must report the trust on the financial disclosure report.
(a) Public financial disclosure report. If the employee files a public financial disclosure report, the employee must report the trust as an asset, including the overall category of value of the trust. Additionally, in the case of a qualified blind trust, the employee must disclose the category of value of income earned by the trust. In the case of a qualified diversified trust, the employee must report the category of value of income received from the trust by the employee, the employee’s spouse, or dependent child, or applied for the benefit of any of them.
(b) Confidential financial disclosure report. In the case of a confidential financial disclosure report, the employee must report the trust as an asset.
§ 2634.412 Sanctions and enforcement.
Section 2634.702 sets forth civil sanctions, as provided by sections 102(f)(6)(C)(i) and (ii) of the Act and as adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act, which apply to any interested party, independent trustee, or other trust fiduciary who violates the obligations under the Act, its implementing regulations, or the trust instrument. Subpart E of this part delineates the procedure which must be followed with respect to the revocation of trust certificates and trustee approvals.
§ 2634.413 Public access.
(a) Documents subject to public disclosure requirements. The following qualified trust documents filed by a public filer, nominee, or candidate are subject to the public disclosure requirements of § 2634.603:
(1) The executed trust instrument and any amendments (other than those provisions which relate to the testamentary disposition of the trust assets), and a list of the assets which were transferred to the trust, categorized as to the value of each asset;
(2) The identity of each additional asset (other than cash) transferred to a qualified trust by an interested party during the life of the trust, categorized as to the value of each asset;
(3) The report of the dissolution of the trust and a list of the assets of the trust at the time of the dissolution, categorized as to the value of each asset;
(4) In the case of a blind trust, the lists provided by the independent trustee of initial assets placed in the trust by an interested party which have been sold or whose value is reduced to less than $1,000; and
(5) The Certificates of Independence and Compliance.
(b) Documents exempt from public disclosure requirements. The following documents are exempt from the public disclosure requirements of § 2634.603 and also may not be disclosed to any interested party:
(1) Any document (and the information contained therein) filed under the requirements of § 2634.408(a) and (c); and
(2) Any document (and the information contained therein) inspected under the requirements of § 2634.408(d)(4) (other than a Certificate of Compliance).
§ 2634.414 OMB control number.
The various model trust documents and Certificates of Independence and Compliance referenced in this subpart, together with the underlying regulatory provisions, are all approved by the Office of Management and Budget under control number 3209-0007.
Subpart E—Revocation of Trust Certificates and Trustee Approvals
§ 2634.501 Purpose and scope.
(a) Purpose. This subpart establishes the procedures of the Office of Government Ethics for enforcement of the qualified blind trust, qualified diversified trust, and independent trustee provisions of title I of the Ethics in Government Act of 1978, as amended, and the regulation issued thereunder (subpart D of this part).
(b) Scope. This subpart applies to all trustee approvals and trust certifications pursuant to §§ 2634.405 and 2634.407, respectively.
§ 2634.502 Definitions.
For purposes of this subpart (unless otherwise indicated), the term “trust restrictions” means the applicable provisions of title I of the Ethics in Government Act of 1978, subpart D of this part, and the trust instrument.
§ 2634.503 Determinations.
(a) Violations. If the Office of Government Ethics learns that violations or apparent violations of the trust restrictions exist that may warrant revocations of trust certification or trustee approval previously granted under § 2634.407 or § 2634.405, the Director may, pursuant to the procedure specified in paragraph (b) of this section, appoint an attorney on the staff of the Office of Government Ethics to review the matter. After completing the review, the attorney will submit findings and recommendations to the Director.
(b) Review procedure. (1) In the review of the matter, the attorney will perform such examination and analysis of violations or apparent violations as the attorney deems reasonable.
(2) The attorney will provide an independent trustee and, if appropriate, the interested parties, with:
(i) Notice that revocation of trust certification or trustee approval is under consideration pursuant to the procedures in this subpart;
(ii) A summary of the violation or apparent violations that will state the preliminary facts and circumstances of the transactions or occurrences involved with sufficient particularity to permit the recipients to determine the nature of the allegations; and
(iii) Notice that the recipients may present evidence and submit statements on any matter in issue within 10 business days of the recipient’s actual receipt of the notice and summary.
(c) Determination. (1) In making determinations with respect to the violations or apparent violations under this section, the Director will consider the findings and recommendations submitted by the attorney, as well as any written statements submitted by the independent trustee or interested parties.
(2) The Director may take one of the following actions upon finding a violation or violations of the trust restrictions:
(i) Issue an order revoking trust certification or trustee approval;
(ii) Resolve the matter through any other remedial action within the Director’s authority;
(iii) Order further examination and analysis of the violation or apparent violation; or
(iv) Decline to take further action.
(3) If the Director issues an order of revocation, parties to the trust instrument will receive prompt written notification. The notice will state the basis for the revocation and will inform the parties of the consequence of the revocation, which will be either of the following:
(i) The trust is no longer a qualified blind or qualified diversified trust for any purpose under Federal law; or
(ii) The independent trustee may no longer serve the trust in any capacity and must be replaced by a successor, who is subject to the prior written approval of the Director.
Subpart F—Procedure
§ 2634.601 Report forms.
(a) This section prescribes the required forms for financial disclosure made pursuant to this part.
(1) New entrant, annual, and termination public financial disclosure reports. The Office of Government Ethics provides a form for publicly disclosing the information described in subpart B of this part in connection with new entrant, nominee, incumbent, and termination reports filed pursuant to § 2634.201(a) through (e). That form is the OGE Form 278e (Executive Branch Personnel Public Financial Disclosure Report) or any successor form.
(2) Periodic transaction public financial disclosure reports. The Office of Government Ethics provides a form for publicly disclosing the information described in subpart B of this part in connection with periodic transaction public financial disclosure reports filed pursuant to § 2634.201(f). That form is the OGE Form 278-T (Periodic Transaction Report), or any successor form.
(3) Confidential financial disclosure reports. The Office of Government Ethics also provides a form for confidentially disclosing information described in subpart I of this part in connection with confidential financial disclosure reports filed pursuant to § 2634.903. That form is the OGE Form 450 (Confidential Financial Disclosure Report), or any successor form.
(b) Supplies of the OGE Form 278e, OGE Form 278-T, and OGE Form 450 are to be reproduced locally by each agency. The Office of Government Ethics has published copies on its official website.
(c) Subject to the prior written approval of the Director of the Office of Government Ethics, an agency may require employees to file additional confidential financial disclosure forms which supplement the standard form referred to in paragraph (a)(3) of this section, if necessary because of special or unique agency circumstances. The Director may approve such agency forms when, in his opinion, the supplementation is shown to be necessary for a comprehensive and effective agency ethics program to identify and resolve conflicts of interest. See §§ 2634.103 and 2634.901.
(d) The information collection and recordkeeping requirements have been approved by the Office of Management and Budget under control number 3209-0001 for the OGE Form 278e, and control number 3209-0006 for OGE Form 450. OGE Form 278-T has been determined not to require an OMB paperwork control number, as the form is used exclusively by current Government employees.
§ 2634.602 Filing of reports.
(a) Except as otherwise provided in this section, the reporting individual will file financial disclosure reports required under this part with the designated agency ethics official or the delegate at the agency where the individual is employed, or was employed immediately prior to termination of employment, or in which the individual will serve, unless otherwise directed by the employee’s home agency. Detailees will file with their home agency. Reports are due at the times indicated in § 2634.201 (public disclosure) or § 2634.903 (confidential disclosure), unless an extension is granted pursuant to the provisions of subparts B or I of this part. Filers must certify that the information contained in the report is true, correct, and complete to their best knowledge.
(b) The President, the Vice President, any independent counsel, and persons appointed by independent counsel under 28 U.S.C. chapter 40, will file the public financial disclosure reports required under this part with the Director of the Office of Government Ethics.
(c)(1) Each agency receiving the public financial disclosure reports required to be filed under this part by the following individuals must transmit copies to the Director of the Office of Government Ethics:
(i) The Postmaster General;
(ii) The Deputy Postmaster General;
(iii) The Governors of the Board of Governors of the United States Postal Service;
(iv) The designated agency ethics official;
(v) Employees of the Executive Office of the President who are appointed under 3 U.S.C. 105(a)(2)(A) or (B) or 3 U.S.C. 107(a)(1)(A) or (b)(1)(A)(i), and employees of the Office of Vice President who are appointed under 3 U.S.C. 106(a)(1)(A) or (B); and
(vi) Officers and employees in, and nominees to, offices or positions which require confirmation by the Senate, other than members of the uniformed services.
(2) Prior to transmitting a copy of a report to the Director of the Office of Government Ethics, the designated agency ethics official or the delegate must review that report in accordance with § 2634.605, except for the designated agency ethics official’s own report, which must be reviewed by the agency head or by a delegate of the agency head.
(3) For nominee reports, the Director of the Office of Government Ethics must forward a copy to the Senate committee that is considering the nomination. See § 2634.605(c) for special procedures regarding the review of such reports.
(d) The Director of the Office of Government Ethics must file the Director’s financial disclosure report with the Office of Government Ethics, which will make it immediately available to the public in accordance with this part.
(e) Candidates for President and Vice President identified in § 2634.201(d), other than an incumbent President or Vice President, must file their financial disclosure reports with the Federal Election Commission, which will review and send copies of such reports to the Director of the Office of Government Ethics.
(f) Members of the uniformed services identified in § 2634.202(c) must file their financial disclosure reports with the Secretary concerned, or the Secretary’s delegate.
§ 2634.603 Custody of and access to public reports.
(a) Each agency must make available to the public in accordance with the provisions of this section those public reports filed with the agency by reporting individuals described under subpart B of this part.
(b) This section does not require public availability of those reports filed by:
(1) Any individual in the Office of the Director of National Intelligence, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, or the National Security Agency, or any individual engaged in intelligence activities in any agency of the United States, if the President finds or has found that, due to the nature of the office or position occupied by that individual, public disclosure of the report would, by revealing the identity of the individual or other sensitive information, compromise the national interest of the United States. Individuals referred to in this paragraph who are exempt from the public availability requirement may also be authorized, notwithstanding § 2634.701, to file any additional reports necessary to protect their identity from public disclosure, if the President finds or has found that such filings are necessary in the national interest; or
(2) An independent counsel whose identity has not been disclosed by the Court under 28 U.S.C chapter 40, or any person appointed by that independent counsel under such chapter.
(c) Each agency will, within 30 days after any public report is received by the agency, permit inspection of the report by, or furnish a copy of the report to, any person who makes written application as provided by agency procedure. Agency reviewing officials and the support staffs who maintain the files, the staff of the Office of Government Ethics, and Special Agents of the Federal Bureau of Investigation who are conducting a criminal inquiry into possible conflict of interest violations need not submit an application. The agency may utilize Office of Government Ethics Form 201 for such applications. An application must state:
(1) The requesting person’s name, occupation, and address;
(2) The name and address of any other person or organization on whose behalf the inspection or copy is requested; and
(3) That the requesting person is aware of the prohibitions on obtaining or using the report set forth in paragraph (f) of this section.
(d) Applications for the inspection of or copies of public reports will also be made available to the public throughout the period during which the report itself is made available, utilizing the procedures in paragraph (c) of this section.
(e) The agency may require a reasonable fee, established by agency regulation, to recover the direct cost of reproduction or mailing of a public report, excluding the salary of any employee involved. A copy of the report may be furnished without charge or at a reduced charge if the agency determines that waiver or reduction of the fee is in the public interest. The criteria used by an agency to determine when a fee will be reduced or waived will be established by regulation. Agency regulations contemplated by paragraph (e) of this section do not require approval pursuant to § 2634.103.
(f) It is unlawful for any person to obtain or use a public report:
(1) For any unlawful purpose;
(2) For any commercial purpose, other than by news and communications media for dissemination to the general public;
(3) For determining or establishing the credit rating of any individual; or
(4) For use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose.
(g)(1) Any public report filed with an agency or transmitted to the Director of the Office of Government Ethics under this section will be retained by the agency, and by the Office of Government Ethics when it receives a copy. The report will be made available to the public for a period of six years after receipt. After the six-year period, the report must be destroyed unless needed in an ongoing investigation, except that in the case of an individual who filed the report pursuant to § 2634.201(c) as a nominee and was not subsequently confirmed by the Senate, or who filed the report pursuant to § 2634.201(d) as a candidate and was not subsequently elected, the report, unless needed in an ongoing investigation, must be destroyed one year after the individual either is no longer under consideration by the Senate or is no longer a candidate for nomination or election to the Office of President or Vice President. See also the OGE/GOVT-1 Governmentwide executive branch Privacy Act system of records (available for inspection at the Office of Government Ethics or on OGE’s website, www.oge.gov), as well as any applicable agency system of records.
(2) For purposes of paragraph (g)(1) of this section, in the case of a reporting individual with respect to whom a trust has been certified under subpart D of this part, a copy of the qualified trust agreement, the list of assets initially placed in the trust, and all other publicly available documents relating to the trust will be retained and made available to the public until the periods for retention of all other reports of the individual have lapsed under paragraph (g)(1) of this section.
§ 2634.604 Custody of and denial of public access to confidential reports.
(a) Any report filed with an agency under subpart I of this part will be retained by the agency for a period of six years after receipt. After the six-year period, the report must be destroyed unless needed in an ongoing investigation. See also the OGE/GOVT-2 Governmentwide executive branch Privacy Act system of records (available for inspection at the Office of Government Ethics or on OGE’s website, www.oge.gov), as well as any applicable agency system of records.
(b) The reports filed pursuant to subpart I of this part are confidential. No member of the public will have access to such reports, except pursuant to the order of a Federal court or as otherwise provided under the Privacy Act. See 5 U.S.C. 552a and the OGE/GOVT-2 Privacy Act system of records (and any applicable agency system); 5 U.S.C. app. (Ethics in Government Act of 1978, section 107(a)); sections 201(d) and 502(b) of Executive Order 12674, as modified by Executive Order 12731; and § 2634.901(d).
§ 2634.605 Review of reports.
(a) In general. The designated agency ethics official will normally serve as the reviewing official for reports submitted to the official’s agency. That responsibility may be delegated, except in the case of certification of nominee reports required by paragraph (c) of this section. See also § 2634.105(q). The designated agency ethics official will note on any report or supplemental report the date on which it is received. Except as indicated in paragraph (c) of this section, all reports must be reviewed within 60 days after the date of filing. Reports that are reviewed by the Director of the Office of Government Ethics must be forwarded promptly by the designated agency ethics official to the Director. The Director will review the reports within 60 days from the date on which they are received by the Office of Government Ethics. If additional information is needed, the Director will notify the agency. In the event that additional information must be obtained from the filer, the agency will require that the filer provide that information as promptly as is practical but not more than 30 days after the request. Final certification in accordance with paragraph (b)(3) of this section may, of necessity, occur later, when additional information is being sought or remedial action is being taken under this section.
(b) Responsibilities of reviewing official—(1) Initial review. As a part of the initial review, the reviewing official may request an intermediate review by the filer’s supervisor or another reviewer. In the case of a filer who is detailed to another agency for more than 60 days during the reporting period, the reviewing official will coordinate with the ethics official at the agency at which the employee is serving the detail if the report reveals a potential conflict of interest.
(2) Standards of Review. The reviewing official must examine the report to determine, to the reviewing official’s satisfaction, that:
(i) Each required part of the report is completed; and
(ii) No interest or position disclosed on the report violates or appears to violate:
(A) Any applicable provision of chapter 11 of title 18, United States Code;
(B) The Act, as amended, and the implementing regulations;
(C) Executive Order 12674, as modified by Executive Order 12731, and the implementing regulations;
(D) Any other applicable Executive Order in force at the time of the review; or
(E) Any other agency-specific statute or regulation which governs the filer.
(3) Signature by reviewing official. If the reviewing official is of the opinion that the report meets the requirements of paragraph (b)(2) of this section, the reviewing official will certify it by signature and date. The reviewing official need not audit the report to ascertain whether the disclosures are correct. Disclosures will be taken at “face value” as correct, unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report. However, a report which is signed by a reviewing official certifies that the filer’s agency has reviewed the report, that the reviewing official is of the opinion that each required part of the report has been completed, and that on the basis of information contained in such report the filer is in compliance with applicable laws and regulations noted in paragraph (b)(2)(ii) of this section.
(4) Requests for, and review based on, additional information. If the reviewing official believes that additional information is required to be reported, the reviewing official will request that any additional information be submitted within 30 days from the date of the request, unless the reviewing official grants an extension in writing. This additional information will be incorporated into the report. If the reviewing official concludes, on the basis of the information disclosed in the report and any additional information submitted, that the report fulfills the requirements of paragraph (b)(2) of this section, the reviewing official will sign and date the report.
(5) Compliance with applicable laws and regulations. If the reviewing official concludes that information disclosed in the report may reveal a violation of applicable laws and regulations as specified in paragraph (b)(2)(ii) of this section, the official must:
(i) Notify the filer of that conclusion;
(ii) Afford the filer a reasonable opportunity for an oral or written response; and
(iii) Determine, after considering any response, whether or not the filer is then in compliance with applicable laws and regulations specified in paragraph (b)(2)(ii) of this section. If the reviewing official concludes that the report does fulfill the requirements, the reviewing official will sign and date the report. If the reviewing official determines that it does not and additional remedial actions are required, the reviewing official must:
(A) Notify the filer of the conclusion;
(B) Afford the filer an opportunity for personal consultation if practicable;
(C) Determine what remedial action under paragraph (b)(6) of this section should be taken to bring the report into compliance with the requirements of paragraph (b)(2)(ii) of this section; and
(D) Notify the filer in writing of the remedial action which is needed, and the date by which such action should be taken.
(6) Remedial action. (i) Except in unusual circumstances, which must be fully documented to the satisfaction of the reviewing official, remedial action must be completed not later than three months from the date on which the filer received notice that the action is required.
(ii) Remedial action may include, as appropriate:
(A) Divestiture of a conflicting interest (see subpart J of this part);
(B) Resignation from a position with a non-Federal business or other entity;
(C) Restitution;
(D) Establishment of a qualified blind or diversified trust under the Act and subpart D of this part;
(E) Procurement of a waiver under 18 U.S.C. 208(b)(1) or (b)(3);
(F) Recusal; or
(G) Voluntary request by the filer for transfer, reassignment, limitation of duties, or resignation.
(7) Compliance or referral. (i) If the filer complies with a written request for remedial action under paragraph (b)(6) of this section, the reviewing official will memorialize what remedial action has been taken. The official will also sign and date the report.
(ii) If the filer does not comply by the designated date with the written request for remedial action transmitted under paragraph (b)(6) of this section, the reviewing official must, in the case of a public filer under subpart B of this part, notify the head of the agency and the Office of Government Ethics for appropriate action. Where the filer is in a position in the executive branch (other than in the uniformed services or the Foreign Service), appointment to which requires the advice and consent of the Senate, the Director of the Office of Government Ethics shall refer the matter to the President. In the case of the Postmaster General or Deputy Postmaster General, the Director of the Office of Government Ethics shall recommend to the Governors of the Board of Governors of the United States Postal Service the action to be taken. For confidential filers, the reviewing official will follow agency procedures.
(c) Expedited procedure in the case of individuals appointed by the President and subject to confirmation by the Senate. In the case of a report filed by an individual described in § 2634.201(c) who is nominated by the President for appointment to a position that requires the advice and consent of the Senate:
(1) In most cases, the Executive Office of the President will furnish the applicable financial disclosure report form to the nominee. It will forward the completed report to the designated agency ethics official at the agency where the nominee is serving or will serve, or it may direct the nominee to file the completed report directly with the designated agency ethics official.
(2) The designated agency ethics official will complete an accelerated review of the report, in accordance with the standards and procedures in paragraph (b) of this section. If that official concludes that the report reveals no unresolved conflict of interest under applicable laws and regulations, the official will:
(i) Personally certify the report by signature, and date the certification;
(ii) Write an opinion letter to the Director of the Office of Government Ethics, personally certifying that there is no unresolved conflict of interest under applicable laws and regulations;
(iii) Provide a copy of any commitment, agreement, or other undertaking which is reduced to writing in accordance with subpart H of this part; and
(iv) Transmit the letter and the report to the Director of the Office of Government Ethics, within three working days after the designated agency ethics official receives the report.
The designated agency ethics official’s certification responsibilities in § 2634.605(c) are nondelegable and must be accomplished by him personally, or by the agency’s alternate designated agency ethics official, in his absence.
(3) The Director of the Office of Government Ethics will review the report and the letter from the designated agency ethics official. If the Director is satisfied that no unresolved conflicts of interest exist, then the Director will sign and date the report form. The Director will then submit the report with a letter to the appropriate Senate committee, expressing the Director’s opinion whether, on the basis of information contained in the report, the nominee has complied with all applicable conflict laws and regulations.
(4) If, in the case of any nominee or class of nominees, the expedited procedure specified in this paragraph cannot be completed within the time set forth in paragraph (c)(2)(iv) of this section, the designated agency ethics official must inform the Director. When necessary and appropriate, the Director may modify the rule of that paragraph for a nominee or a class of nominees with respect to a particular department or agency.
§ 2634.606 Updated disclosure of advice-and-consent nominees.
(a) General rule. Each individual described in § 2634.201(c) who is nominated by the President for appointment to a position that requires advice and consent of the Senate must submit a letter updating the information in the report previously filed under § 2634.201(c) through the period ending no more than five days prior to the commencement of the first hearing of a Senate Committee considering the nomination to all Senate Committees considering the nomination. The letter must update the information required with respect to receipt of:
(1) Outside earned income; and
(2) Honoraria, as defined in § 2634.105(i).
(b) Timing. The nominee’s letter must be submitted to the Senate committees considering the nomination by the agency at or before the commencement of the first committee hearing to consider the nomination. The agency must also transmit copies of the nominee’s letter to the designated agency ethics official referred to in § 2634.605(c)(1) and to the Office of Government Ethics.
(c) Additional certification. In each case to which this section applies, the Director of the Office of Government Ethics will, at the request of the committee considering the nomination, submit to the committee an opinion letter of the nature described in § 2634.605(c)(3) concerning the updated disclosure. If the committee requests such a letter, the expedited procedure provided by § 2634.605(c) will govern review of the updated disclosure, which will be deemed a report filed for purposes of that paragraph.
§ 2634.607 Advice and opinions.
To assist employees in avoiding situations in which they might violate applicable financial disclosure laws and regulations:
(a) The Director of the Office of Government Ethics will render formal advisory opinions and informal advisory letters on generally applicable matters, or on important matters of first impression. See also part 2638 of this chapter. The Director will ensure that these advisory opinions and letters are compiled, published, and made available to agency ethics officials and the public.
(b) Designated agency ethics officials will offer advice and guidance to employees as needed, to assist them in complying with the requirements of the Act and this part on financial disclosure.
(c) Employees who have questions about the application of this part or any supplemental agency regulations to particular situations should seek advice from an agency ethics official. Disciplinary action for violating this part will not be taken against an employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics official, provided that the employee, in seeking such advice, has made full disclosure of all relevant circumstances. Where the employee’s conduct violates a criminal statute, reliance on the advice of an agency ethics official cannot ensure that the employee will not be prosecuted under that statute. However, good faith reliance on the advice of an agency ethics official is a factor that may be taken into account by the Department of Justice in the selection of cases for prosecution. Disclosures made by an employee to an agency ethics official are not protected by an attorney-client privilege. An agency ethics official is required by 28 U.S.C. 535 to report any information he receives relating to a violation of the criminal code, title 18 of the United States Code.
Subpart G—Penalties
§ 2634.701 Failure to file or falsifying reports.
(a) Referral of cases. The head of each agency, each Secretary concerned, or the Director of the Office of Government Ethics, as appropriate, must refer to the Attorney General the name of any individual when there is reasonable cause to believe that such individual has willfully failed to file a public report or information required on such report, or has willfully falsified any information (public or confidential) required to be reported under this part.
(b) Civil action. The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information required by filers of public reports under subpart B of this part. The court in which the action is brought may assess against the individual a civil monetary penalty in any amount, not to exceed the amounts set forth in Table 1 to this section, as provided by 5 U.S.C. 13106(a)(1), and as adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
Table 1 to § 2634.701
| Date of violation | Penalty |
|---|---|
| Violation occurring between Sept. 14, 2007 and Nov. 2, 2015 | $50,000 |
| Violation occurring after Nov. 2, 2015 | 73,627 |
(c) Criminal action. An individual may also be prosecuted under criminal statutes for supplying false information on any financial disclosure report.
(d) Administrative remedies. The President, the Vice President, the Director of the Office of Government Ethics, the Secretary concerned, the head of each agency, and the Office of Personnel Management may take appropriate personnel or other action in accordance with applicable law or regulation against any individual for failing to file public or confidential reports required by this part, for filing such reports late, or for falsifying or failing to report required information. This may include adverse action under 5 CFR part 752, if applicable.
§ 2634.702 Breaches by trust fiduciaries and interested parties.
(a) The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully violates the provisions of § 2634.408(d)(1) or (e)(1). The court in which the action is brought may assess against the individual a civil monetary penalty in any amount, not to exceed the amounts set forth in Table 1 to this paragraph (a), as provided by section 5 U.S.C. 13104(f)(6)(C)(i) and as adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
Table 1 to § 2634.702
| Date of violation | Penalty |
|---|---|
| Violation occurring between Sept. 29, 1999 and Nov. 2, 2015 | $11,000 |
| Violation occurring after Nov. 2, 2015 | 24,496 |
(b) The Attorney General may bring a civil action in any appropriate United States district court against any individual who negligently violates the provisions of § 2634.408(d)(1) or (e)(1). The court in which the action is brought may assess against the individual a civil monetary penalty in any amount, not to exceed the amounts set forth in Table 2 to this paragraph (b), as provided by 5 U.S.C. 13104(f)(6)(C)(ii) and as adjusted in accordance with the inflation adjustment procedures of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
Table 2 to § 2634.702
| Date of violation | Penalty |
|---|---|
| Violation occurring between Sept. 29, 1999 and Nov. 2, 2015 | $5,500 |
| Violation occurring after Nov. 2, 2015 | 12,249 |
§ 2634.703 Misuse of public reports.
(a) The Attorney General may bring a civil action against any person who obtains or uses a report filed under this part for any purpose prohibited by 5 U.S.C. 13107(c)(1), as incorporated in § 2634.603(f). The court in which the action is brought may assess against the person a civil monetary penalty in any amount, not to exceed the amounts set forth in Table 1 to this section, as provided by 5 U.S.C. 13107(c)(2) and as adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
Table 1 to § 2634.703
| Date of violation | Penalty |
|---|---|
| Violation occurring between Sept. 29, 1999 and Nov. 2, 2015 | $11,000 |
| Violation occurring after Nov. 2, 2015 | 24,496 |
(b) This remedy shall be in addition to any other remedy available under statutory or common law.
§ 2634.704 Late filing fee.
(a) In general. In accordance with section 104(d) of the Act, any reporting individual who is required to file a public financial disclosure report by the provisions of this part must remit a late filing fee of $200 to the appropriate agency, payable to the U.S. Treasury, if such report is filed more than 30 days after the later of:
(1) The date such report is required to be filed pursuant to the provisions of this part; or
(2) The last day of any filing extension period granted pursuant to § 2634.201(g).
(b) Exceptions. (1) The designated agency ethics official may waive the late filing fee if the designated agency ethics official determines that the delay in filing was caused by extraordinary circumstances. These circumstances include, but are not limited to, the agency’s failure to notify a filer of the requirement to file the public financial disclosure report, which made the delay reasonably necessary.
(2) Employees requesting a waiver of the late filing fee from the designated agency ethics official must request the waiver in writing. The designated agency ethics official’s determination must be made in writing to the employee with a copy maintained by the agency. The designated agency ethics official may consult with the Office of Government Ethics prior to approving any waiver of the late filing fee.
(c) Procedure. (1) Each report received by the agency must be marked with the date of receipt. For any report which has not been received by the end of the period specified in paragraph (a) of this section, the agency will advise the delinquent filer, in writing, that:
(i) Because the financial disclosure report is more than 30 days overdue, a $200 late filing fee will become due at the time of filing, by reason of section 104(d) of the Act and § 2634.704;
(ii) The filer is directed to remit to the agency, with the completed report, the $200 fee, payable to the United States Treasury;
(iii) If the filer fails to remit the $200 fee when filing a late report, it will be subject to agency debt collection procedures; and
(iv) If extraordinary circumstances exist that would justify a request for a fee waiver, pursuant to paragraph (b) of this section, such request and any supporting documentation must be submitted immediately.
(2) Upon receipt from the reporting individual of the $200 late filing fee, the collecting agency will note the payment in its records, and will then forward the money to the U.S. Treasury for deposit as miscellaneous receipts, in accordance with 31 U.S.C. 3302 and Part 5 of Volume 1 of the Treasury Financial Manual. If payment is not forthcoming, agency debt collection procedures may be utilized, which may include salary or administrative offset, initiation of a tax refund offset, or other authorized action.
(d) Late filing fee not exclusive remedy. The late filing fee is in addition to other sanctions which may be imposed for late filing. See § 2634.701.
(e) Confidential filers. The late filing fee does not apply to confidential filers. Late filing of confidential reports will be handled administratively under § 2634.701(d).
(f) Date of filing. The date of filing for purposes of determining whether a public financial disclosure report is filed more than 30 days late under this section will be the date of receipt by the agency, which should be noted on the report in accordance with § 2634.605(a). The 30-day grace period on imposing a late filing fee is adequate allowance for administrative delays in the receipt of reports by an agency.
Subpart H—Ethics Agreements
§ 2634.801 Scope.
This subpart applies to ethics agreements made by any reporting individual under either subpart B or I of this part, to resolve potential or actual conflicts of interest.
§ 2634.802 Requirements.
(a) Ethics agreement defined. The term ethics agreement will include, for the purposes of this subpart, any oral or written promise by a reporting individual to undertake specific actions in order to alleviate an actual or apparent conflict of interest, such as:
(1) Recusal;
(2) Divestiture of a financial interest;
(3) Resignation from a position with a non-Federal business or other entity;
(4) Procurement of a waiver pursuant to 18 U.S.C. 208(b)(1) or (b)(3); or
(5) Establishment of a qualified blind or diversified trust under the Act and subpart D of this part.
(b) Time limit. The ethics agreement will specify that the individual must complete the action which he or she has agreed to undertake within a period not to exceed three months from the date of the agreement (or of Senate confirmation, if applicable). Exceptions to the three-month deadline can be made in cases of unusual hardship, as determined by the Office of Government Ethics, for those ethics agreements which are submitted to it (see § 2634.803), or by the designated agency ethics official for all other ethics agreements.
§ 2634.803 Notification of ethics agreements.
(a) Nominees to positions requiring the advice and consent of the Senate. (1) In the case of a nominee referred to in § 2634.201(c), the designated agency ethics official will include with the report submitted to the Office of Government Ethics any ethics agreement which the nominee has made.
(2) A designated agency ethics official must immediately notify the Office of Government Ethics of any ethics agreement of a nominee which is made or becomes known to the designated agency ethics official after the submission of the nominee’s report to the Office of Government Ethics. This requirement includes an ethics agreement made between a nominee and the Senate confirmation committee. The nominee must immediately report to the designated agency ethics official any ethics agreement made with the committee.
(3) The Office of Government Ethics must immediately apprise the designated agency ethics official and the Senate confirmation committee of any ethics agreements made directly between the nominee and the Office of Government Ethics.
(4) Any ethics agreement approved by the Office of Government Ethics during its review of a nominee’s financial disclosure report may not be modified without prior approval from the Office of Government Ethics.
(b) Incumbents and other reporting individuals. Incumbents and other reporting individuals may be required to enter into an ethics agreement with the designated agency ethics official for the employee’s agency. Where an ethics agreement has been made with someone other than the designated agency ethics official, the officer or employee involved must promptly apprise the designated agency ethics official of the agreement.
§ 2634.804 Evidence of compliance.
(a) Requisite evidence of action taken. (1) For ethics agreements of nominees to positions requiring the advice and consent of the Senate, evidence of any action taken to comply with the terms of such ethics agreements must be submitted to the designated agency ethics official. The designated agency ethics official will promptly notify the Office of Government Ethics and the Senate confirmation committee of actions taken to comply with the ethics agreement.
(2) In the case of incumbents and all other reporting individuals, evidence of any action taken to comply with the terms of an ethics agreement must be sent promptly to the designated agency ethics official.
(b) The following materials and any other appropriate information constitute evidence of the action taken:
(1) Recusal. A copy of a recusal statement listing and describing the specific matters or subjects to which the recusal applies, a statement of the method by which the agency will enforce the recusal. A recusal statement is not required for a general affirmation that the filer will comply with ethics laws.
(2) Divestiture or resignation. Written notification that the divestiture or resignation has occurred.
(3) Waivers. A copy of any waivers issued pursuant to 18 U.S.C. 208(b)(1) or (b)(3) and signed by the appropriate supervisory official.
(4) Blind or diversified trusts. Information required by subpart D of this part to be submitted to the Office of Government Ethics for its certification of any qualified trust instrument. If the Office of Government Ethics does not certify the trust, the designated agency ethics official and, as appropriate, the Senate confirmation committee should be informed immediately.
§ 2634.805 Retention.
Records of ethics agreements and actions described in this subpart will be maintained by the agency. In addition, copies of such record will be maintained by the Office of Government Ethics with respect to filers whose reports are certified by the Office of Government Ethics.
Subpart I—Confidential Financial Disclosure Reports
§ 2634.901 Policies of confidential financial disclosure reporting.
(a) The confidential financial reporting system set forth in this subpart is designed to complement the public reporting system established by title I of the Act. High-level officials in the executive branch are required to report certain financial interests publicly to ensure that every citizen can have confidence in the integrity of the Federal Government. It is equally important in order to guarantee the efficient and honest operation of the Government that other, less senior, executive branch employees, whose Government duties involve the exercise of significant discretion in certain sensitive areas, report their financial interests and outside business activities to their employing agencies, to facilitate the review of possible conflicts of interest. These reports assist an agency in administering its ethics program and counseling its employees. Such reports are filed on a confidential basis.
(b) The confidential reporting system seeks from employees only that information which is relevant to the administration and application of criminal conflict of interest laws, administrative standards of conduct, and agency-specific statutory and program-related restrictions. The basic content of the reports required by § 2634.907 reflects that certain information is generally relevant to all agencies. However, depending upon an agency’s authorized activities and any special or unique circumstances, additional information may be necessary. In these situations, and subject to the prior written approval of the Director of the Office of Government Ethics, agencies may formulate supplemental reporting requirements by following the procedures of §§ 2634.103 and 2634.601(b).
(c) This subpart also allows an agency to request, on a confidential basis, additional information from persons who are already subject to the public reporting requirements of this part. The public reporting requirements of the Act address Governmentwide concerns. The reporting requirements of this subpart allow agencies to confront special or unique agency concerns. If those concerns prompt an agency to seek more extensive reporting from employees who file public reports, it may proceed on a confidential, nonpublic basis, with prior written approval from the Director of the Office of Government Ethics, under the procedures of §§ 2634.103 and 2634.601(b).
(d) The reports filed pursuant to this subpart are specifically characterized as “confidential,” and are required to be withheld from the public, pursuant to section 107(a) of the Act. Section 107(a) leaves no discretion on this issue with the agencies. See also § 2634.604. Further, Executive Order 12674 as modified by Executive Order 12731 provides, in section 201(d), for a system of nonpublic (confidential) executive branch financial disclosure to complement the Act’s system of public disclosure. The confidential reports provided for by this subpart contain sensitive commercial and financial information, as well as personal privacy-protected information. These reports and the information which they contain are, accordingly, exempt from being released to the public, under exemptions 3(A) and (B), 4, and 6 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(3)(A) and (B), (b)(4), and (b)(6). Additional FOIA exemptions may apply to particular reports or portions of reports. Agency personnel will not publicly release the reports or the information which these reports contain, except pursuant to an order issued by a Federal court, or as otherwise provided under applicable provisions of the Privacy Act (5 U.S.C. 552a), and in the OGE/GOVT-2 Governmentwide executive branch Privacy Act system of records, as well as any applicable agency records system. If an agency statute requires the public reporting of certain information and, for purposes of convenience, an agency chooses to collect that information on the confidential report form filed under this subpart, only the special statutory information may be released to the public, pursuant to the terms of the statute under which it was collected.
(e) Executive branch agencies hire or use the paid and unpaid services of many individuals on an advisory or other less than full-time basis as special Government employees. These employees may include experts and consultants to the Government, as well as members of Government advisory committees. It is important for those agencies that utilize such services, and for the individuals who provide the services, to anticipate and avoid real or apparent conflicts of interest. The confidential financial disclosure system promotes that goal, with special Government employees among those required to file confidential reports.
(f) For additional policies and definitions of terms applicable to both the public and confidential reporting systems, see §§ 2634.104 and 2634.105.
§ 2634.902 [Reserved]
§ 2634.903 General requirements, filing dates, and extensions.
(a) Incumbents. A confidential filer who holds a position or office described in § 2634.904(a) and who performs the duties of that position or office for a period in excess of 60 days during the calendar year (including more than 60 days in an acting capacity) must file a confidential report as an incumbent, containing the information prescribed in §§ 2634.907 and 2634.908 on or before February 15 of the following year. This requirement does not apply if the employee has left Government service or has left a covered position prior to the due date for the report. No incumbent reports are required of special Government employees described in § 2634.904(a)(2), but who must file new entrant reports under paragraph (b) of this section upon each appointment or reappointment. For confidential filers under § 2634.904(a)(3), consult agency supplemental regulations.
(b) New entrants. (1) Not later than 30 days after assuming a new position or office described in § 2634.904(a) (which also encompasses the reappointment or redesignation of a special Government employee, including one who is serving on an advisory committee), a confidential filer must file a confidential report containing the information prescribed in §§ 2634.907 and 2634.908. For confidential filers under § 2634.904(a)(3), consult agency supplemental regulations.
(2) However, no report will be required if the individual:
(i) Has, within 30 days prior to assuming the position, left another position or office referred to in § 2634.904(a) or in § 2634.202, and has previously satisfied the reporting requirements applicable to that former position, but a copy of the report filed by the individual while in that position should be made available to the appointing agency, and the individual must comply with any agency requirement for a supplementary report for the new position;
(ii) Has already filed such a report in connection with consideration for appointment to the position. The agency may request that the individual update such a report if more than six months has expired since it was filed; or
(iii) Is not reasonably expected to perform the duties of an office or position referred to in § 2634.904(a) for more than 60 days in the following 12-month period, as determined by the designated agency ethics official or delegate. That may occur most commonly in the case of an employee who temporarily serves in an acting capacity in a position described by § 2634.904(a)(1). If the individual actually performs the duties of such position for more than 60 days in the 12-month period, then a confidential financial disclosure report must be filed within 15 calendar days after the sixtieth day of such service in the position. Paragraph (b)(2)(iii) of this section does not apply to new entrants filing as special Government employees under § 2634.904(a)(2).
(3) Notwithstanding the filing deadline prescribed in paragraph (b)(1) of this section, agencies may at their discretion, require that prospective entrants into positions described in § 2634.904(a) file their new entrant confidential financial disclosure reports prior to serving in such positions, to ensure that there are no insurmountable ethics concerns. Additionally, a special Government employee who has been appointed to serve on an advisory committee must file the required report before any advice is rendered by the employee to the agency, or in no event, later than the first committee meeting.
(c) Advisory committee definition. For purposes of this subpart, the term advisory committee will have the meaning given to that term under section 3 of the Federal Advisory Committee Act (5 U.S.C. app). Specifically, it means any committee, board, commission, council, conference, panel, task force, or other similar group which is established by statute or reorganization plan, or established or utilized by the President or one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government. Such term includes any subcommittee or other subgroup of any advisory committee, but does not include the Advisory Commission on Intergovernmental Relations, the Commission on Government Procurement, or any committee composed wholly of full-time officers or employees of the Federal Government.
(d) Extensions—(1) Agency extensions. The agency reviewing official may, for good cause shown, grant to any employee or class of employees a filing extension or several extensions totaling not more than 90 days.
(2) Certain service during period of national emergency. In the case of an active duty military officer or enlisted member of the Armed Forces, a Reserve or National Guard member on active duty under orders issued pursuant to title 10 or title 32 of the United States Code, a commissioned officer of the Uniformed Services (as defined in 10 U.S.C. 101), or any other employee, who is deployed or sent to a combat zone or required to perform services away from the employee’s permanent duty station in support of the Armed Forces or other governmental entities following a declaration by the President of a national emergency, the date of filing will be extended to 90 days after the last day of:
(i) The employee’s service in the combat zone or away from the employee’s permanent duty station; or
(ii) The employee’s hospitalization as a result of injury received or disease contracted while serving during the national emergency.
(3) Agency procedures. Each agency may prescribe procedures to provide for the implementation of the extensions provided for by this paragraph.
(e) Termination reports not required. An employee who is required to file a confidential financial disclosure report is not required to file a termination report upon leaving the filing position.
§ 2634.904 Confidential filer defined.
(a) The term confidential filer includes:
(1) Each officer or employee in the executive branch whose position is classified at GS-15 or below of the General Schedule prescribed by 5 U.S.C. 5332, or the rate of basic pay for which is fixed, other than under the General Schedule, at a rate which is less than 120% of the minimum rate of basic pay for GS-15 of the General Schedule; each officer or employee of the United States Postal Service or Postal Rate Commission whose basic rate of pay is less than 120% of the minimum rate of basic pay for GS-15 of the General Schedule; each member of a uniformed service whose pay grade is less than 0-7 under 37 U.S.C. 201; and each officer or employee in any other position determined by the designated agency ethics official to be of equal classification; if:
(i) The agency concludes that the duties and responsibilities of the employee’s position require that employee to participate personally and substantially (as defined in §§ 2635.402(b)(4) and 2640.103(a)(2) of this chapter) through decision or the exercise of significant judgment, and without substantial supervision and review, in taking a Government action regarding:
(A) Contracting or procurement;
(B) Administering or monitoring grants, subsidies, licenses, or other federally conferred financial or operational benefits;
(C) Regulating or auditing any non-Federal entity; or
(D) Other activities in which the final decision or action will have a direct and substantial economic effect on the interests of any non-Federal entity; or
(ii) The agency concludes that the duties and responsibilities of the employee’s position require the employee to file such a report to avoid involvement in a real or apparent conflict of interest, or to carry out the purposes behind any statute, Executive order, rule, or regulation applicable to or administered by the employee. Positions which might be subject to a reporting requirement under this subparagraph include those with duties which involve investigating or prosecuting violations of criminal or civil law.
(2) Unless required to file public financial disclosure reports by subpart B of this part, all executive branch special Government employees who:
(i) Have a substantial role in the formulation of agency policy;
(ii) Serve on a Federal Advisory Committee; or
(iii) Meet the requirements of paragraph (a)(1) of this section.
(3) Each public filer referred to in § 2634.202 on public disclosure who is required by agency regulations and forms issued in accordance with §§ 2634.103 and 2634.601(b) to file a supplemental confidential financial disclosure report which contains information that is more extensive than the information required in the reporting individual’s public financial disclosure report under this part.
(4) Any employee who, notwithstanding the employee’s exclusion from the public financial reporting requirements of this part by virtue of a determination under § 2634.203, is covered by the criteria of paragraph (a)(1) of this section.
(b) Any individual or class of individuals described in paragraph (a) of this section, including special Government employees unless otherwise noted, may be excluded from all or a portion of the confidential reporting requirements of this subpart, when the agency head or designee determines that the duties of a position make remote the possibility that the incumbent will be involved in a real or apparent conflict of interest.
§ 2634.905 Use of alternative procedures.
Agencies are encouraged to consider whether an alternative procedure would allow the agency to more effectively assess possible conflicts of interest. With the prior written approval of OGE, an agency may use an alternative procedure in lieu of filing the OGE Form 450. The alternative procedure may be an agency-specific form to be filed in place thereof. An agency must submit for approval a description of its proposed alternative procedure to OGE.
§ 2634.906 Review of confidential filer status.
The head of each agency, or an officer designated by the head of the agency for that purpose, will review any complaint by an individual that the individual’s position has been improperly determined by the agency to be one which requires the submission of a confidential financial disclosure report pursuant to this subpart. A decision by the agency head or designee regarding the complaint will be final.
§ 2634.907 Report contents.
(a) Other than the reports described in § 2634.904(a)(3), each confidential financial disclosure report must comply with instructions issued by the Office of Government Ethics and include on the standardized form prescribed by OGE (see § 2634.601) the information described in paragraphs (b) through (g) of this section for the filer. Each report must also include the information described in paragraph (h) of this section for the filer’s spouse and dependent children.
(b) Noninvestment income. Each financial disclosure report must disclose the source of earned or other noninvestment income in excess of $1,000 received by the filer from any one source during the reporting period, including:
(1) Salaries, fees, commissions, wages and any other compensation for personal services (other than from United States Government employment);
(2) Any honoraria, including payments made or to be made to charitable organizations on behalf of the filer in lieu of honoraria; and
In determining whether an honorarium exceeds the $1,000 threshold, subtract any actual and necessary travel expenses incurred by the filer and one relative, if the expenses are paid or reimbursed by the filer. If such expenses are paid or reimbursed by the honorarium source, they will not be counted as part of the honorarium payment.
(3) Any other noninvestment income, such as prizes, scholarships, awards, gambling income or discharge of indebtedness.
(c) Assets and investment income. Each financial disclosure report must disclose separately:
(1) Each item of real and personal property having a fair market value in excess of $1,000 held by the filer at the end of the reporting period in a trade or business, or for investment or the production of income, including but not limited to:
(i) Real estate;
(ii) Stocks, bonds, securities, and futures contracts;
(iii) Sector mutual funds, sector exchange-traded funds, and other pooled investment funds;
(iv) Pensions and annuities;
(v) Vested beneficial interests in trusts;
(vi) Ownership interest in businesses and partnerships; and
(vii) Accounts receivable.
(2) The source of investment income (dividends, rents, interest, capital gains, or the income from qualified or excepted trusts or excepted investment funds (see paragraph (i) of this section)), which is received by the filer during the reporting period, and which exceeds $1,000 in amount or value from any one source, including but not limited to income derived from:
(i) Real estate;
(ii) Collectible items;
(iii) Stocks, bonds, and notes;
(iv) Copyrights;
(v) Vested beneficial interests in trusts and estates;
(vi) Pensions;
(vii) Sector mutual funds (see definition at § 2640.102(q) of this chapter);
(viii) The investment portion of life insurance contracts;
(ix) Loans;
(x) Gross income from a business;
(xi) Distributive share of a partnership;
(xii) Joint business venture income; and
(xiii) Payments from an estate or an annuity or endowment contract.
For Individual Retirement Accounts (IRAs), brokerage accounts, trusts, mutual or pension funds, and other entities with portfolio holdings, each underlying asset must be separately disclosed, unless the entity qualifies for special treatment under paragraph (i) of this section.
(3) Exceptions. The following assets and investment income are excepted from the reporting requirements of paragraphs (c)(1) and (c)(2) of this section:
(i) A personal residence, as defined in § 2634.105(l);
(ii) Accounts (including both demand and time deposits) in depository institutions, including banks, savings and loan associations, credit unions, and similar depository financial institutions;
(iii) Money market mutual funds and accounts;
(iv) U.S. Government obligations, including Treasury bonds, bills, notes, and savings bonds;
(v) Government securities issued by U.S. Government agencies;
(vi) Financial interests in any retirement system of the United States (including the Thrift Savings Plan) or under the Social Security Act;
(vii) Financial interest in any diversified fund held in any pension plan established or maintained by State government or any political subdivision of a State government for its employees;
(viii) A diversified fund in an employee benefit plan; and
(ix) Diversified mutual funds and unit investment trusts.
For purposes of this section, “diversified” means that the fund does not have a stated policy of concentrating its investments in any industry, business, single country other than the United States, or bonds of a single State within the United States and, in the case of an employee benefit plan, means that the plan’s independent trustee has a written policy of varying plan investments. Whether a fund meets this standard may be determined by checking the fund’s prospectus or by calling a broker or the manager of the fund.
(d) Liabilities. Each financial disclosure report filed pursuant to this subpart must identify liabilities in excess of $10,000 owed by the filer at any time during the reporting period, and the name and location of the creditors to whom such liabilities are owed, except:
(1) Personal liabilities owed to a spouse or to the parent, brother, sister, or child of the filer, spouse, or dependent child;
(2) Any mortgage secured by a personal residence of the filer or the filer’s spouse;
(3) Any loan secured by a personal motor vehicle, household furniture, or appliances, provided that the loan does not exceed the purchase price of the item which secures it;
(4) Any revolving charge account;
(5) Any student loan; and
(6) Any loan from a bank or other financial institution on terms generally available to the public.
(e) Positions with non-Federal organizations—(1) In general. Each financial disclosure report filed pursuant to this subpart must identify all positions held at any time by the filer during the reporting period, other than with the United States, as an officer, director, trustee, general partner, proprietor, representative, executor, employee, or consultant of any corporation, company, firm, partnership, trust, or other business enterprise, any nonprofit organization, any labor organization, or any educational or other institution.
(2) Exceptions. The following positions are excepted from the reporting requirements of paragraph (e)(1) of this section:
(i) Positions held in religious, social, fraternal, or political entities; and
(ii) Positions solely of an honorary nature, such as those with an emeritus designation.
(f) Agreements and arrangements. Each financial disclosure report filed pursuant to this subpart must identify the parties to, and must briefly describe the terms of, any agreement or arrangement of the filer in existence at any time during the reporting period with respect to:
(1) Future employment (including the date on which the filer entered into the agreement for future employment);
(2) A leave of absence from employment during the period of the filer’s Government service;
(3) Continuation of payments by a current or former employer other than the United States Government; and
(4) Continuing participation in an employee welfare or benefit plan maintained by a current or former employer other than the United States Government. Confidential filers are not required to disclose continuing participation in a defined contribution plan, such as a 401(k) plan, to which a former employer is no longer making contributions.
Even if the agreement is not reportable, the filer must disclose any reportable asset, such as a sector fund or a stock, held in the account.
(g) Gifts and travel reimbursements. (1) Each annual financial disclosure report filed pursuant to this subpart must contain a brief description of all gifts and travel reimbursements aggregating more than $480 in value which are received by the filer during the reporting period from any one source, as well as the identity of the source. For travel-related items, the report must include a travel itinerary, the dates, and the nature of expenses provided. Special government employees are not required to report the travel reimbursements received from their non-Federal employers.
(2) Aggregation exception. Any gift or travel reimbursement with a fair market value of $192 or less need not be aggregated for purposes of the reporting rules of this section. However, the acceptance of gifts, whether or not reportable, is subject to the restrictions imposed by Executive Order 12674, as modified by Executive Order 12731, and the implementing regulations on standards of ethical conduct.
The Office of Government Ethics sets these amounts every 3 years using the same disclosure thresholds as those for public financial disclosure filers. In 2023, the reporting thresholds were set at $480 and the aggregation threshold was set at $192. The Office of Government Ethics will update this part in 2026 and every three years thereafter to reflect the new amount.
(3) Valuation of gifts and travel reimbursements. The value to be assigned to a gift or travel reimbursement is its fair market value. For most reimbursements, this will be the amount actually received. For gifts, the value should be determined in one of the following manners:
(i) If the gift is readily available in the market, the value will be its retail price. The filer need not contact the donor, but may contact a retail establishment selling similar items to determine the present cost in the market.
(ii) If the item is not readily available in the market, such as a piece of art, the filer may make a good faith estimate of the value of the item.
(iii) The term “readily available in the market” means that an item generally is available for retail purchase.
(4) New entrants, as described in § 2634.903(b), need not report any information on gifts and travel reimbursements.
(5) Exceptions. Reports need not contain any information about:
(i) Gifts and travel reimbursements received from relatives (see § 2634.105(o)).
(ii) Gifts and travel reimbursements received during a period in which the filer was not an officer or employee of the Federal Government.
(iii) Any food, lodging, or entertainment received as “personal hospitality of any individual,” as defined in § 2634.105(k).
(iv) Any payments for legal expenses from a legal expense fund or the provision of pro bono legal services, as defined in subpart J of part 2635 of this chapter, or any payments for legal expenses or the provision of pro bono legal services that otherwise qualify for a gift exclusion or gift exception in subpart B of part 2635 of this chapter, if the confidential filer is an anonymous whistleblower as defined by § 2635.1003 of this chapter.
(v) Any exclusions specified in the definitions of “gift” and “reimbursement” at § 2634.105(h) and (n).
(h) Disclosure rules for spouses and dependent children—(1) Noninvestment income. (i) Each financial disclosure report required by the provisions of this subpart must disclose the source of earned income in excess of $1,000 from any one source, which is received by the filer’s spouse during the reporting period. If earned income is derived from a spouse’s self-employment in a business or profession, the report must disclose the nature of the business or profession. The filer is not required to report other noninvestment income received by the spouse such as prizes, scholarships, awards, gambling income, or a discharge of indebtedness.
(ii) Each report must disclose the source of any honoraria received by the spouse (or payments made or to be made to charity on the spouse’s behalf in lieu of honoraria) in excess of $1,000 from any one source during the reporting period.
(2) Assets and investment income. Each confidential financial disclosure report must disclose the assets and investment income described in paragraph (c) of this section and held by the spouse or dependent child of the filer.
(3) Liabilities. Each confidential financial disclosure report must disclose all information concerning liabilities described in paragraph (d) of this section and owed by a spouse or dependent child.
(4) Gifts and travel reimbursements. (i) Each annual confidential financial disclosure report must disclose gifts and reimbursements described in paragraph (g) of this section and received by a spouse or dependent child which are not received totally independently of their relationship to the filer.
(ii) A filer who is a new entrant as described in § 2634.903(b) is not required to report information regarding gifts and reimbursements received by a spouse or dependent child.
(5) Divorce and separation. A filer need not report any information about:
(i) A spouse living separate and apart from the filer with the intention of terminating the marriage or providing for permanent separation;
(ii) A former spouse or a spouse from whom the filer is permanently separated; or
(iii) Any income or obligations of the filer arising from dissolution of the filer’s marriage or permanent separation from a spouse.
(6) Unusual circumstances. In very rare cases, certain interests in property, transactions, and liabilities of a spouse or a dependent child are excluded from reporting requirements, provided that each requirement of this paragraph is strictly met.
(i) The filer must certify without qualification that the item represents the spouse’s or dependent child’s sole financial interest or responsibility, and that the filer has no knowledge regarding that item;
(ii) The item must not be in any way, past or present, derived from the income, assets or activities of the filer; and
(iii) The filer must not derive, or expect to derive, any financial or economic benefit from the item.
The exception described in paragraph (6) of this section is not available to most filers. One who prepares or files a joint tax return with a spouse will normally derive a financial or economic benefit from assets held by the spouse, and will also be presumed to have knowledge of such items; therefore one could not avail oneself of this exception after preparing or filing a joint tax return. If the filer and the spouse cohabitate and share household expenses, the filer will be deemed to derive an economic benefit from the item, unless the item is beyond the filer’s control.
(i) Trusts, estates, and investment funds—(1) In general. (i) Except as otherwise provided in this section, each confidential financial disclosure report must include the information required by this subpart about the holdings of any trust, estate, investment fund or other financial arrangement from which income is received by, or with respect to which a beneficial interest in principal or income is held by, the filer, the filer’s spouse, or dependent child.
(ii) Information about the underlying holdings of a trust is required if the filer, filer’s spouse, or dependent child currently is entitled to receive income from the trust or is entitled to access the principal of the trust. If a filer, filer’s spouse, or dependent child has a beneficial interest in a trust that either will provide income or the ability to access the principal in the future, the filer should determine whether there is a vested interest in the trust under controlling state law. However, no information about the underlying holdings of the trust is required for a nonvested beneficial interest in the principal or income of a trust.
Nothing in this section requires the reporting of the holdings of a revocable inter vivos trust (also known as a “living trust”) with respect to which the filer, the filer’s spouse or dependent child has only a remainder interest, whether or not vested, provided that the grantor of the trust is neither the filer, the filer’s spouse, nor the filer’s dependent child. Furthermore, nothing in this section requires the reporting of the holdings of a revocable inter vivos trust from which the filer, the filer’s spouse or dependent child receives any discretionary distribution, provided that the grantor of the trust is neither the filer, the filer’s spouse, nor the filer’s dependent child.
(2) Qualified trusts and excepted trusts. (i) A filer should not report information about the holdings of any qualified blind trust (as defined in § 2634.402) or any qualified diversified trust (as defined in § 2634.402).
(ii) In the case of an excepted trust, a filer should indicate the general nature of its holdings, to the extent known, but does not otherwise need to report information about the trust’s holdings. For purposes of this part, the term “excepted trust” means a trust:
(A) Which was not created directly by the filer, spouse, or dependent child; and
(B) The holdings or sources of income of which the filer, spouse, or dependent child have no specific knowledge through a report, disclosure, or constructive receipt, whether intended or inadvertent.
(3) Excepted investment funds. (i) No information is required under paragraph (i)(1) of this section about the underlying holdings of an excepted investment fund as defined in paragraph (i)(3)(ii) of this section, except that the fund itself must be identified as an interest in property and/or a source of income.
(ii) For purposes of financial disclosure reports filed under the provisions of this subpart, an “excepted investment fund” means a widely held investment fund (whether a mutual fund, regulated investment company, common trust fund maintained by a bank or similar financial institution, pension or deferred compensation plan, or any other investment fund), if:
(A)(1) The fund is publicly traded or available; or
(2) The assets of the fund are widely diversified; and
(B) The filer neither exercises control over nor has the ability to exercise control over the financial interests held by the fund.
(iii) A fund is widely diversified if it does not have a stated policy of concentrating its investments in any industry, business, single country other than the United States, or bonds of a single State within the United States.
The fact that an investment fund qualifies as an excepted investment fund is not relevant to a determination as to whether the investment qualifies for an exemption to the criminal conflict of interest statute at 18 U.S.C. 208(a), pursuant to part 2640 of this chapter. Some excepted investment funds qualify for exemptions pursuant to part 2640, while other excepted investment funds do not qualify for such exemptions. If an employee holds an excepted investment fund that is not exempt from 18 U.S.C. 208(a), the ethics official may need additional information from the filer to determine if the holdings of the fund create a conflict of interest and should advise the employee to monitor the fund’s holdings for potential conflicts of interest.
(j) Special rules. (1) Political campaign funds, including campaign receipts and expenditures, need not be included in any report filed under this subpart. However, if the individual has authority to exercise control over the fund’s assets for personal use rather than campaign or political purposes, that portion of the fund over which such authority exists must be reported.
(2) With permission of the designated agency ethics official, a filer may attach to the reporting form a copy of a statement which, in a clear and concise fashion, readily discloses all information which the filer would otherwise have been required to enter on the concerned part of the report form.
(k) For reports of confidential filers described in § 2634.904(a)(3), each supplemental confidential financial disclosure report will include only the supplemental information:
(1) Which is more extensive than that required in the reporting individual’s public financial disclosure report under this part; and
(2) Which has been approved by the Office of Government Ethics for collection by the agency concerned, as set forth in supplemental agency regulations and forms, issued under §§ 2634.103 and 2634.601(b) (see § 2634.901(b) and (c)).
§ 2634.908 Reporting periods.
(a) Incumbents. Each confidential financial disclosure report filed under § 2634.903(a) must include the information required to be reported under this subpart for the preceding calendar year, or for any portion of that period not covered by a previous confidential or public financial disclosure report filed under this part.
(b) New entrants. Each confidential financial disclosure report filed under § 2634.903(b) must include the information required to be reported under this subpart for the following reporting periods:
(1) Noninvestment income for the preceding 12 months;
(2) Assets held on the date of filing. New entrant filers are not required to report assets no longer held at the time of appointment, even if the assets previously produced income before the filers were appointed to their confidential positions;
(3) Liabilities owed on the date of filing;
(4) Positions with non-Federal organizations for the preceding 12 months; and
(5) Agreements and arrangements held on the date of filing.
§ 2634.909 Procedures, penalties, and ethics agreements.
(a) The provisions of subpart F of this part govern the filing procedures and forms for, and the custody and review of, confidential disclosure reports filed under this subpart.
(b) For penalties and remedial action which apply in the event that the reporting individual fails to file, falsifies information, or files late with respect to confidential financial disclosure reports, see subpart G of this part.
(c) Subpart H of this part on ethics agreements applies to both the public and confidential reporting systems under this part.
Subpart J—Certificates of Divestiture
§ 2634.1001 Overview.
(a) Scope. 26 U.S.C. 1043 and the rules of this subpart allow an eligible person to defer paying capital gains tax on property sold to comply with conflict of interest requirements. To defer the gains, an eligible person must obtain a Certificate of Divestiture from the Director of the Office of Government Ethics before selling the property. This subpart describes the circumstances when an eligible person may obtain a Certificate of Divestiture and establishes the procedure that the Office of Government Ethics uses to issue Certificates of Divestiture.
(b) Purpose. The purpose of section 1043 and this subpart is to minimize the burden that would result from paying capital gains tax on the sale of assets to comply with conflict of interest requirements. Minimizing this burden aids in attracting and retaining highly qualified personnel in the executive branch and ensures the confidence of the public in the integrity of Government officials and decision-making processes.
§ 2634.1002 Role of the Internal Revenue Service.
The Internal Revenue Service (IRS) has jurisdiction over the tax aspects of a divestiture made pursuant to a Certificate of Divestiture. Eligible persons seeking to defer capital gains:
(a) Must follow IRS requirements for reporting dispositions of property and electing under section 1043 not to recognize capital gains; and
(b) Should consult a personal tax advisor or the IRS for guidance on these matters.
§ 2634.1003 Definitions.
For purposes of this subpart:
(a) Eligible person means:
(1) Any officer or employee of the executive branch of the Federal Government, except a person who is a special Government employee as defined in 18 U.S.C. 202;
(2) The spouse or any minor or dependent child of the individual referred to in paragraph (1) of this definition; and
(3) Any trustee holding property in a trust in which an individual referred to in paragraph (1) or (2) of this definition has a beneficial interest in principal or income.
(b) Permitted property means:
(1) An obligation of the United States; or
(2) A diversified investment fund. A diversified investment fund is a diversified mutual fund (including diversified exchange-traded funds) or a diversified unit investment trust, as defined in 5 CFR 2640.102(a), (k) and (u);
(3) Provided, however, a permitted property cannot be any holding prohibited by statute, regulation, rule, or Executive order. As a result, requirements applicable to specific agencies and positions may limit an eligible person’s choices of permitted property. An employee seeking a Certificate of Divestiture should consult the appropriate designated agency ethics official to determine whether a statute, regulation, rule, or Executive order may limit choices of permitted property.
§ 2634.1004 General rule.
(a) The Director of the Office of Government Ethics may issue a Certificate of Divestiture for specific property in accordance with the procedures of § 2634.1005 if:
(1) The Director determines that divestiture of the property by an eligible person is reasonably necessary to comply with 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or Executive order; or
(2) A congressional committee requires divestiture as a condition of confirmation.
(b) The Director of the Office of Government Ethics cannot issue a Certificate of Divestiture for property that already has been sold.
§ 2634.1005 How to obtain a Certificate of Divestiture.
(a) Employee’s request to the designated agency ethics official. An employee seeking a Certificate of Divestiture must submit a written request to the designated agency ethics official at his or her agency. The request must contain:
(1) A full and specific description of the property that will be divested. For example, if the property is corporate stock, the request must include the number of shares for which the eligible person seeks a Certificate of Divestiture;
(2) A brief description of how the eligible person acquired the property;
(3) A statement that the eligible person holding the property has agreed to divest the property; and
(4)(i) The date that the requirement to divest first applied; or
(ii) The date the employee first agreed that the eligible person would divest the property in order to comply with conflict of interest requirements.
(b) Designated agency ethics official’s submission to the Office of Government Ethics. The designated agency ethics official must forward to the Director of the Office of Government Ethics the employee’s written request described in paragraph (a) of this section. In addition, the designated agency ethics official must submit:
(1) A copy of the employee’s most recent Incumbent financial disclosure report, or New Entrant report, if an Incumbent report has not been filed, and any subsequent Periodic Transaction reports, as required by this part. If the employee is not required to file a financial disclosure report, the designated agency ethics official must obtain from the employee, and submit to the Office of Government Ethics, a listing of the employee’s interests that would be required to be disclosed on a confidential financial disclosure report excluding gifts and travel reimbursements. For purposes of this listing, the reporting period is the preceding 12 months from the date the requirement to divest first applied or the date the employee first agreed that the eligible person would divest the property;
(2) An opinion that describes why divestiture of the property is reasonably necessary to comply with 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or Executive order;
(3) If applicable, a statement identifying any factors that, in the opinion of the designated agency ethics official, weigh against the issuance of a certificate of divestiture; and
(4) A brief description of the employee’s position or a citation to a statute that sets forth the duties of the position.
(c) Divestitures required by a congressional committee. In the case of a divestiture required by a congressional committee as a condition of confirmation, the designated agency ethics official must submit appropriate evidence that the committee requires the divestiture. A transcript of congressional testimony or a written statement from the designated agency ethics official concerning the committee’s custom regarding divestiture are examples of evidence of the committee’s requirements.
(d) Divestitures for property held in a trust. In the case of divestiture of property held in a trust, the employee must submit a copy of the trust instrument, as well as a list of the trust’s current holdings, unless the holdings are listed on the employee’s most recent financial disclosure report. In certain cases involving divestiture of property held in a trust, the Director may not issue a Certificate of Divestiture unless the parties take actions which, in the opinion of the Director, are appropriate to exclude, to the extent practicable, parties other than eligible persons from benefitting from the deferral of capital gains. Such actions may include, as permitted by applicable State law, division of the trust into separate portfolios, special distributions, dissolution of the trust, or anything else deemed feasible by the Director, in his or her sole discretion.
(e) Time requirements. A request for a Certificate of Divestiture does not extend the time in which an employee otherwise must divest property required to be divested pursuant to an ethics agreement, or prohibited by statute, regulation, rule, or Executive order. Therefore, an employee must submit his or her request for a Certificate of Divestiture as soon as possible once the requirement to divest becomes applicable. The Office of Government Ethics will consider requests submitted beyond the applicable time period for divestiture. If the designated agency ethics official submits a request to the Office of Government Ethics beyond the applicable time period for divestiture, he must explain the reason for the delay. See §§ 2634.802 and 2635.403 for rules relating to the time requirements for divestiture.
(f) Response by the Office of Government Ethics. After reviewing the materials submitted by the employee and the designated agency ethics official, and making a determination that all requirements have been met, the Director will issue a Certificate of Divestiture. The certificate will be sent to the designated agency ethics official who will then forward it to the employee.
§ 2634.1006 Rollover into permitted property.
(a) Reinvestment of proceeds. In order to qualify for deferral of capital gains, an eligible person must reinvest the proceeds from the sale of the property divested pursuant to a Certificate of Divestiture into permitted property during the 60-day period beginning on the date of the sale. The proceeds may be reinvested into one or more types of permitted property.
(b) Internal Revenue Service reporting requirements. An eligible person who elects to defer the recognition of capital gains from the sale of property pursuant to a Certificate of Divestiture must follow Internal Revenue Service rules for reporting the sale of the property and the reinvestment transaction.
§ 2634.1007 Cases in which Certificates of Divestiture will not be issued.
The Director of the Office of Government Ethics, in his or her sole discretion, may deny a request for a Certificate of Divestiture in cases where an unfair or unintended benefit would result. Examples of such cases include:
(a) Employee benefit plans. The Director will not issue a Certificate of Divestiture if the property is held in a pension, profit-sharing, stock bonus, or other employee benefit plan and can otherwise be rolled over into an eligible tax-deferred retirement plan within the 60-day reinvestment period.
(b) Tax-Deferred and Tax-Advantaged Accounts. The Director will not issue a Certificate of Divestiture if the property is held in an Individual Retirement Account, college savings plan (529 plan), or other tax-deferred or tax-advantaged account (e.g., 401(k), 403(b), 457 plans, etc.), which allow the account holder to exchange the property for permissible property without incurring a capital gain.
(c) Complete divestiture. The Director will not issue a Certificate of Divestiture unless the employee agrees to divest all of the property that presents a conflict of interest, as well as other similar or related property that presents a conflict of interest under a Federal conflict of interest statute, regulation, rule, or Executive order. However, any property that qualifies for a regulatory exemption at part 2640 of this chapter need not be divested for a Certificate of Divestiture to be issued.
(d) Property acquired under improper circumstances. The Director will not issue a Certificate of Divestiture:
(1) If the eligible person acquired the property at a time when its acquisition was prohibited by statute, regulation, rule, or Executive order; or
(2) If circumstances would otherwise create the appearance of a conflict with the conscientious performance of Government responsibilities.
§ 2634.1008 Public access to a Certificate of Divestiture.
A Certificate of Divestiture issued pursuant to the provisions of this subpart is available to the public in accordance with the rules of § 2634.603.
PART 2635—STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH
Subpart A—General Provisions
§ 2635.101 Basic obligation of public service.
(a) Public service is a public trust. Each employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.
(b) General principles. The following general principles apply to every employee and may form the basis for the standards contained in this part. Where a situation is not covered by the standards set forth in this part, employees shall apply the principles set forth in this section in determining whether their conduct is proper.
(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty.
(3) Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
(4) An employee shall not, except as permitted by subpart B of this part, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee’s agency, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
(5) Employees shall put forth honest effort in the performance of their duties.
(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private organization or individual.
(9) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
(10) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
(12) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as Federal, State, or local taxes—that are imposed by law.
(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
(c) Related statutes. In addition to the standards of ethical conduct set forth in this part, there are conflict of interest statutes that prohibit certain conduct. Criminal conflict of interest statutes of general applicability to all employees, 18 U.S.C. 201, 203, 205, 208, and 209, are summarized in the appropriate subparts of this part and must be taken into consideration in determining whether conduct is proper. Citations to other generally applicable statutes relating to employee conduct are set forth in subpart I and employees are further cautioned that there may be additional statutory and regulatory restrictions applicable to them generally or as employees of their specific agencies. Because an employee is considered to be on notice of the requirements of any statute, an employee should not rely upon any description or synopsis of a statutory restriction, but should refer to the statute itself and obtain the advice of an agency ethics official as needed.
§ 2635.102 Definitions.
The definitions listed below are used throughout this part. Additional definitions appear in the subparts or sections of subparts to which they apply. For purposes of this part:
(a) Agency means an executive agency as defined in 5 U.S.C. 105 and the Postal Service and the Postal Rate Commission. It does not include the General Accounting Office or the Government of the District of Columbia.
(b) Agency designee refers to any employee who, by agency regulation, instruction, or other issuance, has been delegated authority to make any determination, give any approval, or take any other action required or permitted by this part with respect to another employee. An agency may delegate these authorities to any number of agency designees necessary to ensure that determinations are made, approvals are given, and other actions are taken in a timely and responsible manner. Any provision that requires a determination, approval, or other action by the agency designee shall, where the conduct in issue is that of the agency head, be deemed to require that such determination, approval or action be made or taken by the agency head in consultation with the designated agency ethics official.
(c) Agency ethics official refers to the designated agency ethics official or to the alternate designated agency ethics official, referred to in § 2638.202(b) of this chapter, and to any deputy ethics official, described in § 2638.204 of this chapter, who has been delegated authority to assist in carrying out the responsibilities of the designated agency ethics official.
(d) Agency programs or operations refers to any program or function carried out or performed by an agency, whether pursuant to statute, Executive order, or regulation.
(e) Corrective action includes any action necessary to remedy a past violation or prevent a continuing violation of this part, including but not limited to restitution, change of assignment, disqualification, divestiture, termination of an activity, waiver, the creation of a qualified diversified or blind trust, or counseling.
(f) Designated agency ethics official refers to the official designated under § 2638.201 of this chapter.
(g) Disciplinary action includes those disciplinary actions referred to in Office of Personnel Management regulations and instructions implementing provisions of title 5 of the United States Code or provided for in comparable provisions applicable to employees not subject to title 5, including but not limited to reprimand, suspension, demotion, and removal. In the case of a military officer, comparable provisions may include those in the Uniform Code of Military Justice.
(h) Employee means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. It includes employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. For purposes other than subparts B and C of this part, it does not include the President or Vice President. Status as an employee is unaffected by pay or leave status or, in the case of a special Government employee, by the fact that the individual does not perform official duties on a given day.
(i) Head of an agency means, in the case of an agency headed by more than one person, the chair or comparable member of such agency.
(j) He, his, and him include she, hers and her.
(k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary’s voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity.
(l) Special Government employee means those executive branch officers or employees specified in 18 U.S.C. 202(a). A special Government employee is retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any consecutive 365-day period.
(m) Supplemental agency regulation means a regulation issued pursuant to § 2635.105.
§ 2635.103 Applicability to members of the uniformed services.
The provisions of this part, except this section, are not applicable to enlisted members of the uniformed services. Each agency with jurisdiction over enlisted members of the uniformed services shall issue regulations defining the ethical conduct obligations of enlisted members under its jurisdiction. Those regulations shall be consistent with Executive Order 12674, April 12, 1989, as modified, and may prescribe the full range of statutory and regulatory sanctions, including those available under the Uniform Code of Military Justice, for failure to comply with such regulations.
§ 2635.104 Applicability to employees on detail.
(a) Details to other agencies. Except as provided in paragraph (d) of this section, an employee on detail, including a uniformed officer on assignment, from his employing agency to another agency for a period in excess of 30 calendar days shall be subject to any supplemental agency regulations of the agency to which he is detailed rather than to any supplemental agency regulations of his employing agency.
(b) Details to the legislative or judicial branch. An employee on detail, including a uniformed officer on assignment, from his employing agency to the legislative or judicial branch for a period in excess of 30 calendar days shall be subject to the ethical standards of the branch or entity to which detailed. For the duration of any such detail or assignment, the employee shall not be subject to the provisions of this part, except this section, or, except as provided in paragraph (d) of this section, to any supplemental agency regulations of his employing agency, but shall remain subject to the conflict of interest prohibitions in title 18 of the United States Code.
(c) Details to non-Federal entities. Except to the extent exempted in writing pursuant to this paragraph, an employee detailed to a non-Federal entity remains subject to this part and to any supplemental agency regulation of his employing agency. When an employee is detailed pursuant to statutory authority to an international organization or to a State or local government for a period in excess of six months, the designated agency ethics official may grant a written exemption from subpart B of this part based on his determination that the entity has adopted written ethical standards covering solicitation and acceptance of gifts which will apply to the employee during the detail and which will be appropriate given the purpose of the detail.
(d) Applicability of special agency statutes. Notwithstanding paragraphs (a) and (b) of this section, an employee who is subject to an agency statute which restricts his activities or financial holdings specifically because of his status as an employee of that agency shall continue to be subject to any provisions in the supplemental agency regulations of his employing agency that implement that statute.
§ 2635.105 Supplemental agency regulations.
In addition to the regulations set forth in this part, an employee shall comply with any supplemental agency regulations issued by his employing agency under this section.
(a) An agency that wishes to supplement this part shall prepare and submit to the Office of Government Ethics, for its concurrence and joint issuance, any agency regulations that supplement the regulations contained in this part. Supplemental agency regulations which the agency determines are necessary and appropriate, in view of its programs and operations, to fulfill the purposes of this part shall be:
(1) In the form of a supplement to the regulations in this part; and
(2) In addition to the substantive provisions of this part.
(b) After concurrence and co-signature by the Office of Government Ethics, the agency shall submit its supplemental agency regulations to the
(c) This section applies to any supplemental agency regulations or amendments thereof issued under this part. It does not apply to:
(1) A handbook or other issuance intended merely as an explanation of the standards contained in this part or in supplemental agency regulations;
(2) An instruction or other issuance the purpose of which is to:
(i) Delegate to an agency designee authority to make any determination, give any approval or take any other action required or permitted by this part or by supplemental agency regulations; or
(ii) Establish internal agency procedures for documenting or processing any determination, approval or other action required or permitted by this part or by supplemental agency regulations, or for retaining any such documentation; or
(3) Regulations or instructions that an agency has authority, independent of this part, to issue, such as regulations implementing an agency’s gift acceptance statute, protecting categories of nonpublic information or establishing standards for use of Government vehicles. Where the content of any such regulations or instructions was included in the agency’s standards of conduct regulations issued pursuant to Executive Order 11222 and the Office of Government Ethics concurs that they need not be issued as part of an agency’s supplemental agency regulations, those regulations or instructions may be promulgated separately from the agency’s supplemental agency regulations.
(d) Employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq., are subject to any requirements, in addition to those in this part, established by a supplemental agency regulation issued under this section to the extent that such regulation expressly provides.
§ 2635.106 Disciplinary and corrective action.
(a) Except as provided in § 2635.107, a violation of this part or of supplemental agency regulations may be cause for appropriate corrective or disciplinary action to be taken under applicable Governmentwide regulations or agency procedures. Such action may be in addition to any action or penalty prescribed by law.
(b) It is the responsibility of the employing agency to initiate appropriate disciplinary or corrective action in individual cases. However, corrective action may be ordered or disciplinary action recommended by the Director of the Office of Government Ethics under the procedures at part 2638 of this chapter.
(c) A violation of this part or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person. Thus, for example, an individual who alleges that an employee has failed to adhere to laws and regulations that provide equal opportunity regardless of race, color, religion, sex, national origin, age, or handicap is required to follow applicable statutory and regulatory procedures, including those of the Equal Employment Opportunity Commission.
§ 2635.107 Ethics advice.
(a) As required by §§ 2638.201 and 2638.202(b) of this chapter, each agency has a designated agency ethics official who, on the agency’s behalf, is responsible for coordinating and managing the agency’s ethics program, as well as an alternate. The designated agency ethics official has authority under § 2638.204 of this chapter to delegate certain responsibilities, including that of providing ethics counseling regarding the application of this part, to one or more deputy ethics officials.
(b) Employees who have questions about the application of this part or any supplemental agency regulations to particular situations should seek advice from an agency ethics official. Disciplinary action for violating this part or any supplemental agency regulations will not be taken against an employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics official, provided that the employee, in seeking such advice, has made full disclosure of all relevant circumstances. Where the employee’s conduct violates a criminal statute, reliance on the advice of an agency ethics official cannot ensure that the employee will not be prosecuted under that statute. However, good faith reliance on the advice of an agency ethics official is a factor that may be taken into account by the Department of Justice in the selection of cases for prosecution. Disclosures made by an employee to an agency ethics official are not protected by an attorney-client privilege. An agency ethics official is required by 28 U.S.C. 535 to report any information he receives relating to a violation of the criminal code, title 18 of the United States Code.
Subpart B— Gifts From Outside Sources
§ 2635.201 Overview and considerations for declining otherwise permissible gifts.
(a) Overview. This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or any gift given because of the employee’s official position, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
(b) Considerations for declining otherwise permissible gifts. (1) Every employee has a fundamental responsibility to the United States and its citizens to place loyalty to the Constitution, laws, and ethical principles above private gain. An employee’s actions should promote the public’s trust that this responsibility is being met. For this reason, employees should consider declining otherwise permissible gifts if they believe that a reasonable person with knowledge of the relevant facts would question the employee’s integrity or impartiality as a result of accepting the gift.
(2) An employee who is considering whether acceptance of a gift would lead a reasonable person with knowledge of the relevant facts to question his or her integrity or impartiality may consider, among other relevant factors, whether:
(i) The gift has a high market value;
(ii) The timing of the gift creates the appearance that the donor is seeking to influence an official action;
(iii) The gift was provided by a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and
(iv) Acceptance of the gift would provide the donor with significantly disproportionate access.
(3) Notwithstanding paragraph (b)(1) of this section, an employee who accepts a gift that qualifies for an exception under § 2635.204 does not violate this subpart or the Principles of Ethical Conduct set forth in § 2635.101(b).
(4) Employees who have questions regarding this subpart, including whether the employee should decline a gift that would otherwise be permitted under an exception found in § 2635.204, should seek advice from an agency ethics official.
§ 2635.202 General prohibition on solicitation or acceptance of gifts.
(a) Prohibition on soliciting gifts. Except as provided in this subpart, an employee may not, directly or indirectly:
(1) Solicit a gift from a prohibited source; or
(2) Solicit a gift to be given because of the employee’s official position.
(b) Prohibition on accepting gifts. Except as provided in this subpart, an employee may not, directly or indirectly:
(1) Accept a gift from a prohibited source; or
(2) Accept a gift given because of the employee’s official position.
(c) Relationship to illegal gratuities statute. A gift accepted pursuant to an exception found in this subpart will not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B), unless it is accepted in return for being influenced in the performance of an official act. As more fully described in § 2635.205(d)(1), an employee may not solicit or accept a gift if to do so would be prohibited by the Federal bribery statute, 18 U.S.C. 201(b).
§ 2635.203 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Agency has the meaning set forth in § 2635.102(a). However, for purposes of this subpart, an executive department, as defined in 5 U.S.C. 101, may, by supplemental agency regulation, designate as a separate agency any component of that department which the department determines exercises distinct and separate functions.
(b) Gift includes any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred. The term excludes the following:
(1) Modest items of food and non-alcoholic refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal;
(2) Greeting cards and items with little intrinsic value, such as plaques, certificates, and trophies, which are intended primarily for presentation;
(3) Loans from banks and other financial institutions on terms generally available to the public;
(4) Opportunities and benefits, including favorable rates and commercial discounts, available to the public or to a class consisting of all Government employees or all uniformed military personnel, whether or not restricted on the basis of geographic considerations;
(5) Rewards and prizes given to competitors in contests or events, including random drawings, open to the public unless the employee’s entry into the contest or event is required as part of the employee’s official duties;
(6) Pension and other benefits resulting from continued participation in an employee welfare and benefits plan maintained by a current or former employer;
(7) Anything which is paid for by the Government or secured by the Government under Government contract;
(8) Free attendance to an event provided by the sponsor of the event to:
(i) An employee who is assigned to present information on behalf of the agency at the event on any day when the employee is presenting;
(ii) An employee whose presence on any day of the event is deemed to be essential by the agency to the presenting employee’s participation in the event, provided that the employee is accompanying the presenting employee; and
(iii) The spouse or one other guest of the presenting employee on any day when the employee is presenting, provided that others in attendance will generally be accompanied by a spouse or other guest, the offer of free attendance for the spouse or other guest is unsolicited, and the agency designee, orally or in writing, has authorized the presenting employee to accept;
(9) Any gift accepted by the Government under specific statutory authority, including:
(i) Travel, subsistence, and related expenses accepted by an agency under the authority of 31 U.S.C. 1353 in connection with an employee’s attendance at a meeting or similar function relating to the employee’s official duties which take place away from the employee’s duty station, provided that the agency’s acceptance is in accordance with the implementing regulations at 41 CFR chapter 304; and
(ii) Other gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute; and
(10) Anything for which market value is paid by the employee.
(c) Market value means the cost that a member of the general public would reasonably expect to incur to purchase the gift. An employee who cannot ascertain the market value of a gift may estimate its market value by reference to the retail cost of similar items of like quality. The market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit is deemed to be the face value of the ticket.
(d) Prohibited source means any person who:
(1) Is seeking official action by the employee’s agency;
(2) Does business or seeks to do business with the employee’s agency;
(3) Conducts activities regulated by the employee’s agency;
(4) Has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; or
(5) Is an organization a majority of whose members are described in paragraphs (d)(1) through (4) of this section.
(e) Given because of the employee’s official position. A gift is given because of the employee’s official position if the gift is from a person other than an employee and would not have been given had the employee not held the status, authority, or duties associated with the employee’s Federal position.
Gifts between employees are subject to the limitations set forth in subpart C of this part.
(f) Indirectly solicited or accepted. A gift which is solicited or accepted indirectly includes a gift:
(1) Given with the employee’s knowledge and acquiescence to the employee’s parent, sibling, spouse, child, dependent relative, or a member of the employee’s household because of that person’s relationship to the employee; or
(2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee, except the employee has not indirectly solicited or accepted a gift by the raising of funds or other support for a charitable organization if done in accordance with § 2635.808.
(g) Free attendance includes waiver of all or part of the fee for an event or the provision of food, refreshments, entertainment, instruction or materials furnished to all attendees as an integral part of the event. It does not include travel expenses, lodgings, or entertainment collateral to the event. It does not include meals taken other than in a group setting with all other attendees, unless the employee is a presenter at the event and is invited to a separate meal for participating presenters that is hosted by the sponsor of the event. Where the offer of free attendance has been extended to an accompanying spouse or other guest, the market value of the gift of free attendance includes the market value of free attendance by both the employee and the spouse or other guest.
(h) Legal expense fund has the meaning set forth in § 2635.1003.
(i) Pro bono legal services has the meaning set forth in § 2635.1003.
§ 2635.204 Exceptions to the prohibition for acceptance of certain gifts.
Subject to the limitations in § 2635.205, this section establishes exceptions to the prohibitions set forth in § 2635.202(a) and (b). Even though acceptance of a gift may be permitted by one of the exceptions contained in this section, it is never inappropriate and frequently prudent for an employee to decline a gift if acceptance would cause a reasonable person to question the employee’s integrity or impartiality. Section 2635.201(b) identifies considerations for declining otherwise permissible gifts.
(a) Gifts of $20 or less. An employee may accept unsolicited gifts having an aggregate market value of $20 or less per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph (a) does not exceed $50 in a calendar year. This exception does not apply to gifts of cash or of investment interests such as stock, bonds, or certificates of deposit. Where the market value of a gift or the aggregate market value of gifts offered on any single occasion exceeds $20, the employee may not pay the excess value over $20 in order to accept that portion of the gift or those gifts worth $20. Where the aggregate value of tangible items offered on a single occasion exceeds $20, the employee may decline any distinct and separate item in order to accept those items aggregating $20 or less.
(b) Gifts based on a personal relationship. An employee may accept a gift given by an individual under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history and nature of the relationship and whether the family member or friend personally pays for the gift.
(c) Discounts and similar benefits. In addition to those opportunities and benefits excluded from the definition of a gift by § 2635.203(b)(4), an employee may accept:
(1) A reduction or waiver of the fees for membership or other fees for participation in organization activities offered to all Government employees or all uniformed military personnel by professional organizations if the only restrictions on membership relate to professional qualifications; and
(2) Opportunities and benefits, including favorable rates, commercial discounts, and free attendance or participation not precluded by paragraph (c)(3) of this section:
(i) Offered to members of a group or class in which membership is unrelated to Government employment;
(ii) Offered to members of an organization, such as an employees’ association or agency credit union, in which membership is related to Government employment if the same offer is broadly available to large segments of the public through organizations of similar size;
(iii) Offered by a person who is not a prohibited source to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of type of official responsibility or on a basis that favors those of higher rank or rate of pay or
(iv) Offered to employees by an established employee organization, such as an association composed of Federal employees or a nonprofit employee welfare organization, because of the employees’ Government employment, so long as the employee is part of the class of individuals eligible for assistance from the employee organization as set forth in the organization’s governing documents.
(3) An employee may not accept for personal use any benefit to which the Government is entitled as the result of an expenditure of Government funds, unless authorized by statute or regulation (e.g., 5 U.S.C. 5702, note, regarding frequent flyer miles).
(d) Awards and honorary degrees—(1) Awards. An employee may accept a bona fide award for meritorious public service or achievement and any item incident to the award, provided that:
(i) The award and any item incident to the award are not from a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties, or from an association or other organization if a majority of its members have such interests; and
(ii) If the award or any item incident to the award is in the form of cash or an investment interest, or if the aggregate value of the award and any item incident to the award, other than free attendance to the event provided to the employee and to members of the employee’s family by the sponsor of the event, exceeds $200, the agency ethics official has made a written determination that the award is made as part of an established program of recognition.
(2) Established program of recognition. An award and an item incident to the award are made pursuant to an established program of recognition if:
(i) Awards have been made on a regular basis or, if the program is new, there is a reasonable basis for concluding that awards will be made on a regular basis based on funding or funding commitments; and
(ii) Selection of award recipients is made pursuant to written standards.
(3) Honorary degrees. An employee may accept an honorary degree from an institution of higher education, as defined at 20 U.S.C. 1001, or from a similar foreign institution of higher education, based on a written determination by an agency ethics official that the timing of the award of the degree would not cause a reasonable person to question the employee’s impartiality in a matter affecting the institution.
When the honorary degree is offered by a foreign institution of higher education, the agency may need to make a separate determination as to whether the institution of higher education is a foreign government for purposes of the Emoluments Clause of the U.S. Constitution (U.S. Const., art. I, sec. 9, cl. 8), which forbids employees from accepting emoluments, presents, offices, or titles from foreign governments, without the consent of Congress. The Foreign Gifts and Decorations Act, 5 U.S.C. 7342, however, may permit the acceptance of honorary degrees in some circumstances.
(4) Presentation events. An employee who may accept an award or honorary degree pursuant to paragraph (d)(1) or (3) of this section may also accept free attendance to the event provided to the employee and to members of the employee’s family by the sponsor of an event. In addition, the employee may also accept unsolicited offers of travel to and from the event provided to the employee and to members of the employee’s family by the sponsor of the event. Travel expenses accepted under this paragraph (d)(4) must be added to the value of the award for purposes of determining whether the aggregate value of the award exceeds $200.
(e) Gifts based on outside business or employment relationships. An employee may accept meals, lodgings, transportation and other benefits:
(1) Resulting from the business or employment activities of an employee’s spouse when it is clear that such benefits have not been offered or enhanced because of the employee’s official position;
(2) Resulting from the employee’s outside business or employment activities when it is clear that such benefits are based on the outside business or employment activities and have not been offered or enhanced because of the employee’s official status;
(3) Customarily provided by a prospective employer in connection with bona fide employment discussions. If the prospective employer has interests that could be affected by performance or nonperformance of the employee’s duties, acceptance is permitted only if the employee first has complied with the disqualification requirements of subpart F of this part applicable when seeking employment; or
(4) Provided by a former employer to attend a reception or similar event when other former employees have been invited to attend, the invitation and benefits are based on the former employment relationship, and it is clear that such benefits have not been offered or enhanced because of the employee’s official position.
(5) For purposes of paragraphs (e)(1) through (4) of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services.
(f) Gifts in connection with political activities permitted by the Hatch Act Reform Amendments. An employee who, in accordance with the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in political management or in political campaigns, may accept meals, lodgings, transportation, and other benefits, including free attendance at events, for the employee and an accompanying spouse or other guests, when provided, in connection with such active participation, by a political organization described in 26 U.S.C. 527(e). Any other employee, such as a security officer, whose official duties require him or her to accompany an employee to a political event, may accept meals, free attendance, and entertainment provided at the event by such an organization.
(g) Gifts of free attendance at widely attended gatherings—(1) Authorization. When authorized in writing by the agency designee pursuant to paragraph (g)(3) of this section, an employee may accept an unsolicited gift of free attendance at all or appropriate parts of a widely attended gathering. For an employee who is subject to a leave system, attendance at the event will be on the employee’s own time or, if authorized by the employee’s agency, on excused absence pursuant to applicable guidelines for granting such absence, or otherwise without charge to the employee’s leave account.
(2) Widely attended gatherings. A gathering is widely attended if it is expected that a large number of persons will attend, that persons with a diversity of views or interests will be present, for example, if it is open to members from throughout the interested industry or profession or if those in attendance represent a range of persons interested in a given matter, and that there will be an opportunity to exchange ideas and views among invited persons.
(3) Written authorization by the agency designee. The agency designee may authorize an employee or employees to accept a gift of free attendance at all or appropriate parts of a widely attended gathering only if the agency designee issues a written determination after finding that:
(i) The event is a widely attended gathering, as set forth in paragraph (g)(2) of this section;
(ii) The employee’s attendance at the event is in the agency’s interest because it will further agency programs or operations;
(iii) The agency’s interest in the employee’s attendance outweighs the concern that the employee may be, or may appear to be, improperly influenced in the performance of official duties; and
(iv) If a person other than the sponsor of the event invites or designates the employee as the recipient of the gift of free attendance and bears the cost of that gift, the event is expected to be attended by more than 100 persons and the value of the gift of free attendance does not exceed $480.
(4) Determination of agency interest. In determining whether the agency’s interest in the employee’s attendance outweighs the concern that the employee may be, or may appear to be, improperly influenced in the performance of official duties, the agency designee may consider relevant factors including:
(i) The importance of the event to the agency;
(ii) The nature and sensitivity of any pending matter affecting the interests of the person who extended the invitation and the significance of the employee’s role in any such matter;
(iii) The purpose of the event;
(iv) The identity of other expected participants;
(v) Whether acceptance would reasonably create the appearance that the donor is receiving preferential treatment;
(vi) Whether the Government is also providing persons with views or interests that differ from those of the donor with access to the Government; and
(vii) The market value of the gift of free attendance.
(5) Cost provided by person other than the sponsor of the event. The cost of the employee’s attendance will be considered to be provided by a person other than the sponsor of the event where such person designates the employee to be invited and bears the cost of the employee’s attendance through a contribution or other payment intended to facilitate the employee’s attendance. Payment of dues or a similar assessment to a sponsoring organization does not constitute a payment intended to facilitate a particular employee’s attendance.
(6) Accompanying spouse or other guest. When others in attendance will generally be accompanied by a spouse or other guest, and where the invitation is from the same person who has invited the employee, the agency designee may authorize an employee to accept an unsolicited invitation of free attendance to an accompanying spouse or one other accompanying guest to participate in all or a portion of the event at which the employee’s free attendance is permitted under paragraph (g)(1) this section. The authorization required by this paragraph (g)(6) must be provided in writing.
(h) Social invitations. An employee may accept food, refreshments, and entertainment, not including travel or lodgings, for the employee and an accompanying spouse or other guests, at a social event attended by several persons if:
(1) The invitation is unsolicited and is from a person who is not a prohibited source;
(2) No fee is charged to any person in attendance; and
(3) If either the sponsor of the event or the person extending the invitation to the employee is not an individual, the agency designee has made a written determination after finding that the employee’s attendance would not cause a reasonable person with knowledge of the relevant facts to question the employee’s integrity or impartiality, consistent with § 2635.201(b).
(i) Meals, refreshments, and entertainment in foreign areas. An employee assigned to duty in, or on official travel to, a foreign area as defined in 41 CFR 300-3.1 may accept unsolicited food, refreshments, or entertainment in the course of a breakfast, luncheon, dinner, or other meeting or event provided:
(1) The market value in the foreign area of the food, refreshments or entertainment provided at the meeting or event, as converted to U.S. dollars, does not exceed the per diem rate for the foreign area specified in the U.S. Department of State’s Maximum Per Diem Allowances for Foreign Areas, Per Diem Supplement Section 925 to the Standardized Regulations (GC-FA), available on the Internet at www.state.gov;
(2) There is participation in the meeting or event by non-U.S. citizens or by representatives of foreign governments or other foreign entities;
(3) Attendance at the meeting or event is part of the employee’s official duties to obtain information, disseminate information, promote the export of U.S. goods and services, represent the United States, or otherwise further programs or operations of the agency or the U.S. mission in the foreign area; and
(4) The gift of meals, refreshments, or entertainment is from a person other than a foreign government as defined in 5 U.S.C. 7342(a)(2).
(j) Gifts to the President or Vice President. Because of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or the Vice President may accept any gift on his or her own behalf or on behalf of any family member, provided that such acceptance does not violate § 2635.205(a) or (b), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.
(k) Gifts authorized by supplemental agency regulation. An employee may accept any gift when acceptance of the gift is specifically authorized by a supplemental agency regulation issued with the concurrence of the Office of Government Ethics, pursuant to § 2635.105.
(l) Gifts accepted under specific statutory authority. The prohibitions on acceptance of gifts from outside sources contained in this subpart do not apply to any item which a statute specifically authorizes an employee to accept. Gifts which may be accepted by an employee under the authority of specific statutes include, but are not limited to:
(1) Free attendance, course or meeting materials, transportation, lodgings, food and refreshments or reimbursements therefor incident to training or meetings when accepted by the employee under the authority of 5 U.S.C. 4111. The employee’s acceptance must be approved by the agency in accordance with part 410 of this title; or
(2) Gifts from a foreign government or international or multinational organization, or its representative, when accepted by the employee under the authority of the Foreign Gifts and Decorations Act, 5 U.S.C. 7342. As a condition of acceptance, an employee must comply with requirements imposed by the agency’s regulations or procedures implementing that Act.
(m) Gifts of informational materials. (1) An employee may accept unsolicited gifts of informational materials, provided that:
(i) The aggregate market value of all informational materials received from any one person does not exceed $100 in a calendar year; or
(ii) If the aggregate market value of all informational materials from the same person exceeds $100 in a calendar year, an agency designee has made a written determination after finding that acceptance by the employee would not be inconsistent with the standard set forth in § 2635.201(b).
(2) Informational materials are writings, recordings, documents, records, or other items that:
(i) Are educational or instructive in nature;
(ii) Are not primarily created for entertainment, display, or decoration; and
(iii) Contain information that relates in whole or in part to the following categories:
(A) The employee’s official duties or position, profession, or field of study;
(B) A general subject matter area, industry, or economic sector affected by or involved in the programs or operations of the agency; or
(C) Another topic of interest to the agency or its mission.
(n) Legal expense funds and pro bono legal services. An employee who seeks legal representation for a matter arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team may accept:
(1) Payments for legal expenses paid out of a legal expense fund that is established and operated in accordance with subpart J of this part; and
(2) Pro bono legal services provided in accordance with subpart J of this part.
§ 2635.205 Limitations on use of exceptions.
Notwithstanding any exception provided in this subpart, other than § 2635.204(j), an employee may not:
(a) Accept a gift in return for being influenced in the performance of an official act;
(b) Use, or permit the use of, the employee’s Government position, or any authority associated with public office, to solicit or coerce the offering of a gift;
(c) Accept gifts from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using the employee’s public office for private gain;
(d) Accept a gift in violation of any statute; relevant statutes applicable to all employees include, but are not limited to:
(1) 18 U.S.C. 201(b), which prohibits a public official from, directly or indirectly, corruptly demanding, seeking, receiving, accepting, or agreeing to receive or accept anything of value personally or for any other person or entity in return for being influenced in the performance of an official act; being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or for being induced to do or omit to do any action in violation of his or her official duty. As used in 18 U.S.C. 201(b), the term “public official” is broadly construed and includes regular and special Government employees as well as all other Government officials; and
(2) 18 U.S.C. 209, which prohibits an employee, other than a special Government employee, from receiving any salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government employee. The statute contains several specific exceptions to this general prohibition, including an exception for contributions made from the treasury of a State, county, or municipality;
(e) Accept a gift in violation of any Executive Order; or
(f) Accept any gift when acceptance of the gift is specifically prohibited by a supplemental agency regulation issued with the concurrence of the Office of Government Ethics, pursuant to § 2635.105.
§ 2635.206 Proper disposition of prohibited gifts.
(a) Unless a gift is accepted by an agency acting under specific statutory authority, an employee who has received a gift that cannot be accepted under this subpart must dispose of the gift in accordance with the procedures set forth in this section. The employee must promptly complete the authorized disposition of the gift. The obligation to dispose of a gift that cannot be accepted under this subpart is independent of an agency’s decision regarding corrective or disciplinary action under § 2635.106.
(1) Gifts of tangible items. The employee must promptly return any tangible item to the donor or pay the donor its market value; or, in the case of a tangible item with a market value of $100 or less, the employee may destroy the item. An employee who cannot ascertain the actual market value of an item may estimate its market value by reference to the retail cost of similar items of like quality.
(2) Gifts of perishable items. When it is not practical to return a tangible item in accordance with paragraph (a)(1) of this section because the item is perishable, the employee may, at the discretion of the employee’s supervisor or the agency designee, give the item to an appropriate charity, share the item within the recipient’s office, or destroy the item.
(3) Gifts of intangibles. The employee must promptly reimburse the donor the market value for any entertainment, favor, service, benefit or other intangible. Subsequent reciprocation by the employee does not constitute reimbursement.
(4) Gifts from foreign governments or international organizations. The employee must dispose of gifts from foreign governments or international organizations in accordance with 41 CFR part 102-42.
(b) An agency may authorize disposition or return of gifts at Government expense. Employees may use penalty mail to forward reimbursements required or permitted by this section.
(c) An employee who, on his or her own initiative, promptly complies with the requirements of this section will not be deemed to have improperly accepted an unsolicited gift. An employee who promptly consults his or her agency ethics official to determine whether acceptance of an unsolicited gift is proper and who, upon the advice of the ethics official, returns the gift or otherwise disposes of the gift in accordance with this section, will be considered to have complied with the requirements of this section on the employee’s own initiative.
(d) Employees are encouraged to record any actions they have taken to properly dispose of gifts that cannot be accepted under this subpart, such as by sending an electronic mail message to the appropriate agency ethics official or the employee’s supervisor.
Subpart C—Gifts Between Employees
§ 2635.301 Overview.
This subpart contains standards that prohibit an employee from giving, donating to, or soliciting contributions for, a gift to an official superior and from accepting a gift from an employee receiving less pay than himself, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
§ 2635.302 General standards.
(a) Gifts to superiors. Except as provided in this subpart, an employee may not:
(1) Directly or indirectly, give a gift to or make a donation toward a gift for an official superior; or
(2) Solicit a contribution from another employee for a gift to either his own or the other employee’s official superior.
(b) Gifts from employees receiving less pay. Except as provided in this subpart, an employee may not, directly or indirectly, accept a gift from an employee receiving less pay than himself unless:
(1) The two employees are not in a subordinate-official superior relationship; and
(2) There is a personal relationship between the two employees that would justify the gift.
(c) Limitation on use of exceptions. Notwithstanding any exception provided in this subpart, an official superior shall not coerce the offering of a gift from a subordinate.
§ 2635.303 Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Gift has the meaning set forth in § 2635.203(b). For purposes of that definition an employee will be deemed to have paid market value for any benefit received as a result of his participation in any carpool or other such mutual arrangement involving another employee or other employees if he bears his fair proportion of the expense or effort involved.
(b) Indirectly, for purposes of § 2635.302(b), has the meaning set forth in § 2635.203(f). For purposes of § 2635.302(a), it includes a gift:
(1) Given with the employee’s knowledge and acquiescence by his parent, sibling, spouse, child, or dependent relative; or
(2) Given by a person other than the employee under circumstances where the employee has promised or agreed to reimburse that person or to give that person something of value in exchange for giving the gift.
(c) Subject to paragraph (a) of this section, market value has the meaning set forth in § 2635.203(c).
(d) Official superior means any other employee, other than the President and the Vice President, including but not limited to an immediate supervisor, whose official responsibilities include directing or evaluating the performance of the employee’s official duties or those of any other official superior of the employee. For purposes of this subpart, an employee is considered to be the subordinate of any of his official superiors.
(e) Solicit means to request contributions by personal communication or by general announcement.
(f) Voluntary contribution means a contribution given freely, without pressure or coercion. A contribution is not voluntary unless it is made in an amount determined by the contributing employee, except that where an amount for a gift is included in the cost for a luncheon, reception or similar event, an employee who freely chooses to pay a proportionate share of the total cost in order to attend will be deemed to have made a voluntary contribution. Except in the case of contributions for a gift included in the cost of a luncheon, reception or similar event, a statement that an employee may choose to contribute less or not at all shall accompany any recommendation of an amount to be contributed for a gift to an official superior.
§ 2635.304 Exceptions.
The prohibitions set forth in § 2635.302(a) and (b) do not apply to a gift given or accepted under the circumstances described in paragraph (a) or (b) of this section. A contribution or the solicitation of a contribution that would otherwise violate the prohibitions set forth in § 2635.302(a) and (b) may only be made in accordance with paragraph (c) of this section.
(a) General exceptions. On an occasional basis, including any occasion on which gifts are traditionally given or exchanged, the following may be given to an official superior or accepted from a subordinate or other employee receiving less pay:
(1) Items, other than cash, with an aggregate market value of $10 or less per occasion;
(2) Items such as food and refreshments to be shared in the office among several employees;
(3) Personal hospitality provided at a residence which is of a type and value customarily provided by the employee to personal friends;
(4) Items given in connection with the receipt of personal hospitality if of a type and value customarily given on such occasions; and
(5) Leave transferred under subpart I of part 630 of this title to an employee who is not an immediate supervisor, unless obtained in violation of § 630.912 of this title.
(b) Special, infrequent occasions. A gift appropriate to the occasion may be given to an official superior or accepted from a subordinate or other employee receiving less pay:
(1) In recognition of infrequently occurring occasions of personal significance such as marriage, illness, or the birth or adoption of a child; or
(2) Upon occasions that terminate a subordinate-official superior relationship, such as retirement, resignation, or transfer.
(c) Voluntary contributions. An employee may solicit voluntary contributions of nominal amounts from fellow employees for an appropriate gift to an official superior and an employee may make a voluntary contribution of a nominal amount to an appropriate gift to an official superior:
(1) On a special, infrequent occasion as described in paragraph (b) of this section; or
(2) On an occasional basis, for items such as food and refreshments to be shared in the office among several employees.
An employee may accept such gifts to which a subordinate or other employee receiving less pay than himself has contributed.
Subpart D—Conflicting Financial Interests
§ 2635.401 Overview.
This subpart contains two provisions relating to financial interests. One is a disqualification requirement and the other is a prohibition on acquiring or continuing to hold specific financial interests. An employee may acquire or hold any financial interest not prohibited by § 2635.403. Notwithstanding that his acquisition or holding of a particular interest is proper, an employee is prohibited in accordance with § 2635.402 of this subpart from participating in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest. See also part 2640 of this chapter, for additional guidance amplifying § 2635.402.
§ 2635.402 Disqualifying financial interests.
(a) Statutory prohibition. An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest.
Standards applicable when seeking non-Federal employment are contained in subpart F of this part and, if followed, will ensure that an employee does not violate 18 U.S.C. 208(a) or this section when he is negotiating for or has an arrangement concerning future employment. In all other cases where the employee’s participation would violate 18 U.S.C. 208(a), an employee shall disqualify himself from participation in the matter in accordance with paragraph (c) of this section or obtain a waiver or determine that an exemption applies, as described in paragraph (d) of this section.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Direct and predictable effect. (i) A particular matter will have a direct effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A particular matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effects on the general economy does not have a direct effect within the meaning of this subpart.
(ii) A particular matter will have a predictable effect if there is a real, as opposed to a speculative possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.
If a particular matter involves a specific party or parties, generally the matter will at most only have a direct and predictable effect, for purposes of this subpart, on a financial interest of the employee in or with a party, such as the employee’s interest by virtue of owning stock. There may, however, be some situations in which, under the above standards, a particular matter will have a direct and predictable effect on an employee’s financial interests in or with a nonparty. For example, if a party is a corporation, a particular matter may also have a direct and predictable effect on an employee’s financial interests through ownership of stock in an affiliate, parent, or subsidiary of that party. Similarly, the disposition of a protest against the award of a contract to a particular company may also have a direct and predictable effect on an employee’s financial interest in another company listed as a subcontractor in the proposal of one of the competing offerors.
(2) Imputed interests. For purposes of 18 U.S.C. 208(a) and this subpart, the financial interests of the following persons will serve to disqualify an employee to the same extent as if they were the employee’s own interests:
(i) The employee’s spouse;
(ii) The employee’s minor child;
(iii) The employee’s general partner;
(iv) An organization or entity which the employee serves as officer, director, trustee, general partner or employee; and
(v) A person with whom the employee is negotiating for or has an arrangement concerning prospective employment. (Employees who are seeking other employment should refer to and comply with the standards in subpart F of this part).
(3) Particular matter. The term particular matter encompasses only matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered by this subpart even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interests of such a discrete and identifiable class of persons. The term particular matter, however, does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons. The particular matters covered by this subpart include a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation or arrest.
(4) Personal and substantial. To participate personally means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the matter. To participate substantially means that the employee’s involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. Personal and substantial participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation or the rendering of advice in a particular matter.
(c) Disqualification. Unless the employee is authorized to participate in the particular matter by virtue of a waiver or exemption described in paragraph (d) of this section or because the interest has been divested in accordance with paragraph (e) of this section, an employee shall disqualify himself from participating in a particular matter in which, to his knowledge, he or a person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest. Disqualification is accomplished by not participating in the particular matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee’s disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter from which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
(d) Waiver of or exemptions from disqualification. An employee who would otherwise be disqualified by 18 U.S.C. 208(a) may be permitted to participate in a particular matter where the otherwise disqualifying financial interest is the subject of a regulatory exemption or individual waiver described in this paragraph, or results from certain Indian birthrights as described in 18 U.S.C. 208(b)(4).
(1) Regulatory exemptions. Under 18 U.S.C. 208(b)(2), regulatory exemptions of general applicability have been issued by the Office of Government Ethics, based on its determination that particular interests are too remote or too inconsequential to affect the integrity of the services of employees to whom those exemptions apply. See the regulations in subpart B of part 2640 of this chapter, which supersede any preexisting agency regulatory exemptions.
(2) Individual waivers. An individual waiver enabling the employee to participate in one or more particular matters may be issued under 18 U.S.C. 208(b)(1) if, in advance of the employee’s participation:
(i) The employee:
(A) Advises the Government official responsible for the employee’s appointment (or other Government official to whom authority to issue such a waiver for the employee has been delegated) about the nature and circumstances of the particular matter or matters; and
(B) Makes full disclosure to such official of the nature and extent of the disqualifying financial interest; and
(ii) Such official determines, in writing, that the employee’s financial interest in the particular matter or matters is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such employee. See also subpart C of part 2640 of this chapter, for additional guidance.
(3) Federal advisory committee member waivers. An individual waiver may be issued under 18 U.S.C. 208(b)(3) to a special Government employee serving on, or under consideration for appointment to, an advisory committee within the meaning of the Federal Advisory Committee Act if the Government official responsible for the employee’s appointment (or other Government official to whom authority to issue such a waiver for the employee has been delegated):
(i) Reviews the financial disclosure report filed by the special Government employee pursuant to the Ethics in Government Act of 1978; and
(ii) Certifies in writing that the need for the individual’s services outweighs the potential for a conflict of interest created by the otherwise disqualifying financial interest. See also subpart C of part 2640 of this chapter, for additional guidance.
(4) Consultation and notification regarding waivers. When practicable, an official is required to consult formally or informally with the Office of Government Ethics prior to granting a waiver referred to in paragraph (d)(2) or (3) of this section. A copy of each such waiver is to be forwarded to the Director of the Office of Government Ethics.
(e) Divestiture of a disqualifying financial interest. Upon sale or other divestiture of the asset or other interest that causes his disqualification from participation in a particular matter, 18 U.S.C. 208(a) and paragraph (c) of this section will no longer prohibit the employee’s participation in the matter.
(1) Voluntary divestiture. An employee who would otherwise be disqualified from participation in a particular matter may voluntarily sell or otherwise divest himself of the interest that causes the disqualification.
(2) Directed divestiture. An employee may be required to sell or otherwise divest himself of the disqualifying financial interest if his continued holding of that interest is prohibited by statute or by agency supplemental regulation issued in accordance with § 2635.403(a), or if the agency determines in accordance with § 2635.403(b) that a substantial conflict exists between the financial interest and the employee’s duties or accomplishment of the agency’s mission.
(3) Eligibility for special tax treatment. An employee who is directed to divest an interest may be eligible to defer the tax consequences of divestiture under subpart J of part 2634 of this chapter. An employee who divests before obtaining a certificate of divestiture will not be eligible for this special tax treatment.
(f) Official duties that give rise to potential conflicts. Where an employee’s official duties create a substantial likelihood that the employee may be assigned to a particular matter from which he is disqualified, the employee should advise his supervisor or other person responsible for his assignments of that potential so that conflicting assignments can be avoided, consistent with the agency’s needs.
§ 2635.403 Prohibited financial interests.
An employee shall not acquire or hold any financial interest that he is prohibited from acquiring or holding by statute, by agency regulation issued in accordance with paragraph (a) of this section or by reason of an agency determination of substantial conflict under paragraph (b) of this section.
There is no statute of Governmentwide applicability prohibiting employees from holding or acquiring any financial interest. Statutory restrictions, if any, are contained in agency statutes which, in some cases, may be implemented by agency regulations issued independent of this part.
(a) Agency regulation prohibiting certain financial interests. An agency may, by supplemental agency regulation issued after February 3, 1993, prohibit or restrict the acquisition or holding of a financial interest or a class of financial interests by agency employees, or any category of agency employees, and the spouses and minor children of those employees, based on the agency’s determination that the acquisition or holding of such financial interests would cause a reasonable person to question the impartiality and objectivity with which agency programs are administered. Where the agency restricts or prohibits the holding of certain financial interests by its employees’ spouses or minor children, any such prohibition or restriction shall be based on a determination that there is a direct and appropriate nexus between the prohibition or restriction as applied to spouses and minor children and the efficiency of the service.
(b) Agency determination of substantial conflict. An agency may prohibit or restrict an individual employee from acquiring or holding a financial interest or a class of financial interests based upon the agency designee’s determination that the holding of such interest or interests will:
(1) Require the employee’s disqualification from matters so central or critical to the performance of his official duties that the employee’s ability to perform the duties of his position would be materially impaired; or
(2) Adversely affect the efficient accomplishment of the agency’s mission because another employee cannot be readily assigned to perform work from which the employee would be disqualified by reason of the financial interest.
(c) Definition of financial interest. For purposes of this section:
(1) Except as provided in paragraph (c)(2) of this section, the term financial interest is limited to financial interests that are owned by the employee or by the employee’s spouse or minor children. However, the term is not limited to only those financial interests that would be disqualifying under 18 U.S.C. 208(a) and § 2635.402. The term includes any current or contingent ownership, equity, or security interest in real or personal property or a business and may include an indebtedness or compensated employment relationship. It thus includes, for example, interests in the nature of stocks, bonds, partnership interests, fee and leasehold interests, mineral and other property rights, deeds of trust, and liens, and extends to any right to purchase or acquire any such interest, such as a stock option or commodity future. It does not include a future interest created by someone other than the employee, his spouse, or dependent child or any right as a beneficiary of an estate that has not been settled.
(2) The term financial interest includes service, with or without compensation, as an officer, director, trustee, general partner or employee of any person, including a nonprofit entity, whose financial interests are imputed to the employee under § 2635.402(b)(2) (iii) or (iv).
(d) Reasonable period to divest or terminate. Whenever an agency directs divestiture of a financial interest under paragraph (a) or (b) of this section, the employee shall be given a reasonable period of time, considering the nature of his particular duties and the nature and marketability of the interest, within which to comply with the agency’s direction. Except in cases of unusual hardship, as determined by the agency, a reasonable period shall not exceed 90 days from the date divestiture is first directed. However, as long as the employee continues to hold the financial interest, he remains subject to any restrictions imposed by this subpart.
(e) Eligibility for special tax treatment. An employee required to sell or otherwise divest a financial interest may be eligible to defer the tax consequences of divestiture under subpart J of part 2634 of this chapter.
Subpart E—Impartiality in Performing Official Duties
§ 2635.501 Overview.
(a) This subpart contains two provisions intended to ensure that an employee takes appropriate steps to avoid an appearance of loss of impartiality in the performance of his official duties. Under § 2635.502, unless he receives prior authorization, an employee should not participate in a particular matter involving specific parties which he knows is likely to affect the financial interests of a member of his household, or in which he knows a person with whom he has a covered relationship is or represents a party, if he determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter. An employee who is concerned that other circumstances would raise a question regarding his impartiality should use the process described in § 2635.502 to determine whether he should or should not participate in a particular matter.
(b) Under § 2635.503, an employee who has received an extraordinary severance or other payment from a former employer prior to entering Government service is subject, in the absence of a waiver, to a two-year period of disqualification from participation in particular matters in which that former employer is or represents a party.
Questions regarding impartiality necessarily arise when an employee’s official duties impact upon the employee’s own financial interests or those of certain other persons, such as the employee’s spouse or minor child. An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he, his spouse, general partner or minor child has a financial interest, if the particular matter will have a direct and predictable effect on that interest. The statutory prohibition also extends to an employee’s participation in a particular matter in which, to his knowledge, an organization in which the employee is serving as officer, director, trustee, general partner or employee, or with whom he is negotiating or has an arrangement concerning prospective employment has a financial interest. Where the employee’s participation in a particular matter would affect any one of these financial interests, the standards set forth in subparts D or F of this part apply and only a statutory waiver or exemption, as described in §§ 2635.402(d) and 2635.605(a), will enable the employee to participate in that matter. The authorization procedures in § 2635.502(d) may not be used to authorize an employee’s participation in any such matter. Where the employee complies with all terms of the waiver, the granting of a statutory waiver will be deemed to constitute a determination that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of agency programs and operations. Similarly, where the employee meets all prerequisites for the application of one of the exemptions set forth in subpart B of part 2640 of this chapter, that also constitutes a determination that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of agency programs and operations.
§ 2635.502 Personal and business relationships.
(a) Consideration of appearances by the employee. Where an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency designee of the appearance problem and received authorization from the agency designee in accordance with paragraph (d) of this section.
(1) In considering whether a relationship would cause a reasonable person to question his impartiality, an employee may seek the assistance of his supervisor, an agency ethics official or the agency designee.
(2) An employee who is concerned that circumstances other than those specifically described in this section would raise a question regarding his impartiality should use the process described in this section to determine whether he should or should not participate in a particular matter.
(b) Definitions. For purposes of this section:
(1) An employee has a covered relationship with:
(i) A person, other than a prospective employer described in § 2635.603(c), with whom the employee has or seeks a business, contractual or other financial relationship that involves other than a routine consumer transaction;
An employee who is seeking employment within the meaning of § 2635.603 shall comply with subpart F of this part rather than with this section.
(ii) A person who is a member of the employee’s household, or who is a relative with whom the employee has a close personal relationship;
(iii) A person for whom the employee’s spouse, parent or dependent child is, to the employee’s knowledge, serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
(iv) Any person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
(v) An organization, other than a political party described in 26 U.S.C. 527(e), in which the employee is an active participant. Participation is active if, for example, it involves service as an official of the organization or in a capacity similar to that of a committee or subcommittee chairperson or spokesperson, or participation in directing the activities of the organization. In other cases, significant time devoted to promoting specific programs of the organization, including coordination of fundraising efforts, is an indication of active participation. Payment of dues or the donation or solicitation of financial support does not, in itself, constitute active participation.
Nothing in this section shall be construed to suggest that an employee should not participate in a matter because of his political, religious or moral views.
(2) Direct and predictable effect has the meaning set forth in § 2635.402(b)(1).
(3) Particular matter involving specific parties has the meaning set forth in § 2637.102(a)(7) of this chapter.
(c) Determination by agency designee. Where he has information concerning a potential appearance problem arising from the financial interest of a member of the employee’s household in a particular matter involving specific parties, or from the role in such matter of a person with whom the employee has a covered relationship, the agency designee may make an independent determination as to whether a reasonable person with knowledge of the relevant facts would be likely to question the employee’s impartiality in the matter. Ordinarily, the agency designee’s determination will be initiated by information provided by the employee pursuant to paragraph (a) of this section. However, at any time, including after the employee has disqualified himself from participation in a matter pursuant to paragraph (e) of this section, the agency designee may make this determination on his own initiative or when requested by the employee’s supervisor or any other person responsible for the employee’s assignment.
(1) If the agency designee determines that the employee’s impartiality is likely to be questioned, he shall then determine, in accordance with paragraph (d) of this section, whether the employee should be authorized to participate in the matter. Where the agency designee determines that the employee’s participation should not be authorized, the employee will be disqualified from participation in the matter in accordance with paragraph (e) of this section.
(2) If the agency designee determines that the employee’s impartiality is not likely to be questioned, he may advise the employee, including an employee who has reached a contrary conclusion under paragraph (a) of this section, that the employee’s participation in the matter would be proper.
(d) Authorization by agency designee. Where an employee’s participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations. Factors which may be taken into consideration include:
(1) The nature of the relationship involved;
(2) The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;
(3) The nature and importance of the employee’s role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;
(4) The sensitivity of the matter;
(5) The difficulty of reassigning the matter to another employee; and
(6) Adjustments that may be made in the employee’s duties that would reduce or eliminate the likelihood that a reasonable person would question the employee’s impartiality.
Authorization by the agency designee shall be documented in writing at the agency designee’s discretion or when requested by the employee. An employee who has been authorized to participate in a particular matter involving specific parties may not thereafter disqualify himself from participation in the matter on the basis of an appearance problem involving the same circumstances that have been considered by the agency designee.
(e) Disqualification. Unless the employee is authorized to participate in the matter under paragraph (d) of this section, an employee shall not participate in a particular matter involving specific parties when he or the agency designee has concluded, in accordance with paragraph (a) or (c) of this section, that the financial interest of a member of the employee’s household, or the role of a person with whom he has a covered relationship, is likely to raise a question in the mind of a reasonable person about his impartiality. Disqualification is accomplished by not participating in the matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter involving specific parties to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee’s disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a particular matter involving specific parties from which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is specifically asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
(f) Relevant considerations. An employee’s reputation for honesty and integrity is not a relevant consideration for purposes of any determination required by this section.
§ 2635.503 Extraordinary payments from former employers.
(a) Disqualification requirement. Except as provided in paragraph (c) of this section, an employee shall be disqualified for two years from participating in any particular matter in which a former employer is a party or represents a party if he received an extraordinary payment from that person prior to entering Government service. The two-year period of disqualification begins to run on the date that the extraordinary payment is received.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Extraordinary payment means any item, including cash or an investment interest, with a value in excess of $10,000, which is paid:
(i) On the basis of a determination made after it became known to the former employer that the individual was being considered for or had accepted a Government position; and
(ii) Other than pursuant to the former employer’s established compensation, partnership, or benefits program. A compensation, partnership, or benefits program will be deemed an established program if it is contained in bylaws, a contract or other written form, or if there is a history of similar payments made to others not entering into Federal service.
(2) Former employer includes any person which the employee served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee.
(c) Waiver of disqualification. The disqualification requirement of this section may be waived based on a finding that the amount of the payment was not so substantial as to cause a reasonable person to question the employee’s ability to act impartially in a matter in which the former employer is or represents a party. The waiver shall be in writing and may be given only by the head of the agency or, where the recipient of the payment is the head of the agency, by the President or his designee. Waiver authority may be delegated by agency heads to any person who has been delegated authority to issue individual waivers under 18 U.S.C. 208(b) for the employee who is the recipient of the extraordinary payment.
Subpart F—Seeking Other Employment
§ 2635.601 Overview.
This subpart contains a recusal requirement that applies to employees when seeking non-Federal employment with persons whose financial interests would be directly and predictably affected by particular matters in which the employees participate personally and substantially. Specifically, it addresses the requirement of 18 U.S.C. 208(a) that an employee not participate personally and substantially in any particular matter that, to the employee’s knowledge, will have a direct and predictable effect on the financial interests of a person “with whom the employee is negotiating or has any arrangement concerning prospective employment.” See § 2635.402 and § 2640.103 of this chapter. Beyond this statutory requirement, this subpart also addresses issues of lack of impartiality that require recusal from particular matters affecting the financial interests of a prospective employer when an employee’s actions in seeking employment fall short of actual employment negotiations. In addition, this subpart contains the statutory notification requirements that apply to public filers when they negotiate for or have agreements of future employment or compensation. Specifically, it addresses the requirements of section 17 of the Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act), Public Law 112-105, 126 Stat. 303, 5 U.S.C. app. 101 note, that a public filer must submit a written statement identifying the entity involved in the negotiations or agreement within three business days after commencement of such negotiations or agreement and must submit a notification of recusal whenever there is a conflict of interest or an appearance of a conflict of interest.
(a) Applicability. (1) To ensure that an employee does not violate 18 U.S.C. 208(a), section 17 of the STOCK Act, or the principles of ethical conduct contained in § 2635.101(b), an employee who is seeking employment or who has an arrangement concerning prospective employment must comply with the applicable recusal requirements of §§ 2635.604 and 2635.606 if particular matters in which the employee will be participating personally and substantially would, to the employee’s knowledge, directly and predictably affect the financial interests of a prospective employer or of a person with whom the employee has an arrangement concerning prospective employment. Compliance with this subpart also will ensure that the employee does not violate subpart D or E of this part. In addition, a public filer who negotiates for or has an agreement of future employment or compensation must comply with the requirements of § 2635.607.
(2) An employee who is seeking employment with a person whose financial interests are not, to the employee’s knowledge, affected directly and predictably by particular matters in which the employee participates personally and substantially has no obligation to recuse under this subpart. In addition, nothing in this subpart requires an employee, other than a public filer, to notify anyone that the employee is seeking employment unless a notification is necessary to implement a recusal pursuant to § 2635.604(b). A public filer who negotiates for or has an agreement of future employment or compensation must comply with the notification requirements in § 2635.607. An employee may, however, be subject to other statutes that impose requirements on employment contacts or discussions, such as 41 U.S.C. 2103, which is applicable to agency officials involved in certain procurement matters. Employees are encouraged to consult with their ethics officials if they have any questions about how this subpart may apply to them. Ethics officials are not obligated by this subpart to inform supervisors that employees are seeking employment.
(b) Related restrictions—(1) Outside employment while a Federal employee. An employee who is contemplating outside employment to be undertaken concurrently with the employee’s Federal employment must abide by any limitations applicable to the employee’s outside activities under subparts G and H of this part, including any requirements under supplemental agency regulations to obtain prior approval before engaging in outside employment or activities and any prohibitions under supplemental agency regulations related to outside employment or activities. The employee must also comply with any applicable recusal requirement of this subpart, as well as any applicable recusal requirements under subpart D or E of this part as a result of the employee’s outside employment activities.
(2) Post-employment restrictions. An employee who is contemplating employment to be undertaken following the termination of the employee’s Federal employment should consult an agency ethics official to obtain advice regarding any post-employment restrictions that may be applicable. The regulation implementing the Governmentwide post-employment statute, 18 U.S.C. 207, is contained in part 2641 of this chapter. Employees are cautioned that they may be subject to additional statutory prohibitions on post-employment acceptance of compensation from contractors, such as 41 U.S.C. 2104.
(3) Interview trips and entertainment. Where a prospective employer who is a prohibited source as defined in § 2635.203(d) offers to reimburse an employee’s travel expenses, or provide other reasonable amenities incident to employment discussions, the employee may accept such amenities in accordance with § 2635.204(e)(3). Where a prospective employer is a foreign government or international organization, the employee must also ensure that he or she is in compliance with the Foreign Gifts and Decorations Act, 5 U.S.C. 7342.
§ 2635.603 Definitions.
For purposes of this subpart:
(a) Employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee, whether to be undertaken at the same time as or subsequent to Federal employment. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee.
(b) An employee is seeking employment once the employee has begun seeking employment within the meaning of paragraph (b)(1) of this section and until the employee is no longer seeking employment within the meaning of paragraph (b)(2) of this section.
(1) An employee has begun seeking employment if the employee has directly or indirectly:
(i) Engaged in negotiations for employment with any person. For these purposes, as for 18 U.S.C. 208(a) and section 17 of the STOCK Act, the term negotiations means discussion or communication with another person, or such person’s agent or intermediary, mutually conducted with a view toward reaching an agreement regarding possible employment with that person. The term is not limited to discussions of specific terms and conditions of employment in a specific position;
(ii) Made an unsolicited communication to any person, or such person’s agent or intermediary, regarding possible employment with that person. However, the employee has not begun seeking employment if that communication was for the sole purpose of requesting a job application; or
(iii) Made a response, other than rejection, to an unsolicited communication from any person, or such person’s agent or intermediary, regarding possible employment with that person.
(2) An employee is no longer seeking employment when:
(i) The employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have terminated; or
(ii) Two months have transpired after the employee’s dispatch of an unsolicited resume or employment proposal, provided the employee has received no indication of interest in employment discussions from the prospective employer.
(3) For purposes of this definition, a response that defers discussions until the foreseeable future does not constitute rejection of an unsolicited employment overture, proposal, or resume nor rejection of a prospective employment possibility.
(c) Prospective employer means any person with whom the employee is seeking employment. Where contacts that constitute seeking employment are made by or with an agent or other intermediary, the term prospective employer means:
(1) A person who uses that agent or other intermediary for the purpose of seeking to establish an employment relationship with the employee if the agent identifies the prospective employer to the employee; and
(2) A person contacted by the employee’s agent or other intermediary for the purpose of seeking to establish an employment relationship if the agent identifies the prospective employer to the employee.
(d) Direct and predictable effect, particular matter, and personal and substantial have the respective meanings set forth in § 2635.402(b)(1), (3), and (4).
(e) Public filer means a person required to file a public financial disclosure report as set forth in § 2634.202 of this chapter.
§ 2635.604 Recusal while seeking employment.
(a) Obligation to recuse. (1) Except as provided in paragraph (a)(2) of this section or where the employee’s participation has been authorized in accordance with § 2635.605, the employee may not participate personally and substantially in a particular matter that, to the employee’s knowledge, has a direct and predictable effect on the financial interests of a prospective employer with whom the employee is seeking employment within the meaning of § 2635.603(b). Recusal is accomplished by not participating in the particular matter.
(2) The employee may participate in a particular matter under paragraph (a)(1) of this section when:
(i) The employee’s only communication with the prospective employer in connection with the search for employment is the submission of an unsolicited resume or other employment proposal;
(ii) The prospective employer has not responded to the employee’s unsolicited communication with a response indicating an interest in employment discussions; and
(iii) The matter is not a particular matter involving specific parties.
(b) Notification. An employee who becomes aware of the need to recuse from participation in a particular matter to which the employee has been assigned must take whatever steps are necessary to ensure that the employee does not participate in the matter. Appropriate oral or written notification of the employee’s recusal may be made to an agency ethics official, coworkers, or a supervisor to document and help effectuate the employee’s recusal. Public filers must comply with additional notification requirements set forth in § 2635.607.
(c) Documentation. An employee, other than a public filer, need not file a written recusal statement unless the employee is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or a designated agency ethics official, or is specifically directed by an agency ethics official or the person responsible for the employee’s assignment to file a written recusal statement. However, it is often prudent for an employee to create a record of his or her actions by providing written notice to an agency ethics official, a supervisor, or other appropriate official. Public filers must comply with the documentation requirements set forth in § 2635.607.
(d) Agency determination of substantial conflict. Where the agency determines that the employee’s action in seeking employment with a particular person will require the employee’s recusal from matters so central or critical to the performance of the employee’s official duties that the employee’s ability to perform the duties of the employee’s position would be materially impaired, the agency may allow the employee to take annual leave or leave without pay while seeking employment, or may take other appropriate action.
(a) Waiver. Where, as defined in § 2635.603(b)(1)(i), an employee is engaged in employment negotiations for purposes of 18 U.S.C. 208(a), the employee may not participate personally and substantially in a particular matter that, to the employee’s knowledge, has a direct and predictable effect on the financial interests of a prospective employer. The employee may participate in such matters only where the employee has received a written waiver issued under the authority of 18 U.S.C. 208(b)(1) or (3). These waivers are described in § 2635.402(d) and part 2640, subpart C of this chapter. For certain employees, a regulatory exemption under the authority of 18 U.S.C. 208(b)(2) may also apply (see part 2640, subpart B of this chapter), including § 2640.203(g) and (i).
(b) Authorization by agency designee. Where an employee is seeking employment within the meaning of § 2635.603(b)(1)(ii) or (iii) and is not negotiating for employment, a reasonable person would be likely to question the employee’s impartiality if the employee were to participate personally and substantially in a particular matter that, to the employee’s knowledge, has a direct and predictable effect on the financial interests of any such prospective employer. The employee may participate in such matters only where the agency designee has authorized in writing the employee’s participation in accordance with the standards set forth in § 2635.502(d).
§ 2635.606 Recusal based on an arrangement concerning prospective employment or otherwise after negotiations.
(a) Employment or arrangement concerning employment. An employee may not participate personally and substantially in a particular matter that, to the employee’s knowledge, has a direct and predictable effect on the financial interests of the person by whom he or she is employed or with whom he or she has an arrangement concerning future employment, unless authorized to participate in the matter by a written waiver issued under the authority of 18 U.S.C. 208(b)(1) or (3), or by a regulatory exemption under the authority of 18 U.S.C. 208(b)(2). These waivers and exemptions are described in § 2635.402(d) and part 2640, subparts B and C of this chapter.
(b) Offer rejected or not made. The agency designee for the purpose of § 2635.502(c) may, in an appropriate case, determine that an employee not covered by the preceding paragraph who has sought but is no longer seeking employment nevertheless will be subject to a period of recusal upon the conclusion of employment negotiations. Any such determination will be based on a consideration of all the relevant factors, including those listed in § 2635.502(d), and a determination that the concern that a reasonable person may question the integrity of the agency’s decision-making process outweighs the Government’s interest in the employee’s participation in the particular matter.
§ 2635.607 Notification requirements for public financial disclosure report filers regarding negotiations for or agreement of future employment or compensation.
(a) Notification regarding negotiations for or agreement of future employment or compensation. A public filer who is negotiating for or has an agreement of future employment or compensation with a non-Federal entity must file a statement notifying an agency ethics official of such negotiation or agreement within three business days after commencement of the negotiation or agreement. This notification statement must be in writing, must be signed by the public filer, and must include the name of the non-Federal entity involved in such negotiation or agreement and the date on which the negotiation or agreement commenced. When a public filer has previously complied with the notification requirement in this section regarding the commencement of negotiations, the filer need not file a separate notification statement when an agreement of future employment or compensation is reached with the previously identified non-Federal entity. There is also no requirement to file another notification when negotiations have been unsuccessful. However, employees may want to do so to facilitate the resumption of their duties.
(b) Notification of recusal. A public filer who files a notification statement pursuant to paragraph (a) of this section must file with an agency ethics official a notification of recusal whenever there is a conflict of interest or appearance of a conflict of interest with the non-Federal entity identified in the notification statement. The notification statement and the recusal statement may be contained in a single document or in separate documents.
(c) Advance filing of notification and recusal statements. When a public filer is seeking employment within the meaning of § 2635.603(b)(1)(ii) or (iii) or is considering seeking employment, the public filer may elect to file the notification statement pursuant to paragraph (a) of this section before negotiations have commenced and before an agreement of future employment or compensation is reached. A public filer may also elect to file the recusal statement pursuant to paragraph (b) of this section before the public filer has a conflict of interest or appearance of a conflict of interest with the non-Federal entity identified in the notification statement. The public filer need not file the document again upon commencing negotiations or reaching an agreement of future employment or compensation. The advance filing of any such document is not construed as a statement that negotiations have or have not commenced or that a conflict of interest does or does not exist. Although the Office of Government Ethics encourages advance filing when a public filer anticipates a realistic possibility of negotiations or an agreement, the failure to make an advance filing does not violate this subpart or the principles of ethical conduct contained in § 2635.101(b).
(d) Agreement of future employment or compensation for the purposes of § 2635.607 means any arrangement concerning employment that will commence after the termination of Government service. The term also means any arrangement to compensate in exchange for services that will commence after the termination of Government service. The term includes, among other things, an arrangement to compensate for teaching, speaking, or writing that will commence after the termination of Government service.
Subpart G—Misuse of Position
§ 2635.701 Overview.
This subpart contains provisions relating to the proper use of official time and authority, and of information and resources to which an employee has access because of his Federal employment. This subpart sets forth standards relating to:
(a) Use of public office for private gain;
(b) Use of nonpublic information;
(c) Use of Government property; and
(d) Use of official time.
§ 2635.702 Use of public office for private gain.
An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.
(a) Inducement or coercion of benefits. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.
(b) Appearance of governmental sanction. Except as otherwise provided in this part, an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another. When teaching, speaking, or writing in a personal capacity, he may refer to his official title or position only as permitted by § 2635.807(b). He may sign a letter of recommendation using his official title only in response to a request for an employment recommendation or character reference based upon personal knowledge of the ability or character of an individual with whom he has dealt in the course of Federal employment or whom he is recommending for Federal employment.
(c) Endorsements. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office to endorse any product, service or enterprise except:
(1) In furtherance of statutory authority to promote products, services or enterprises; or
(2) As a result of documentation of compliance with agency requirements or standards or as the result of recognition for achievement given under an agency program of recognition for accomplishment in support of the agency’s mission.
(d) Performance of official duties affecting a private interest. To ensure that the performance of his official duties does not give rise to an appearance of use of public office for private gain or of giving preferential treatment, an employee whose duties would affect the financial interests of a friend, relative or person with whom he is affiliated in a nongovernmental capacity shall comply with any applicable requirements of § 2635.502.
(e) Use of terms of address and ranks. Nothing in this section prohibits an employee who is ordinarily addressed using a general term of address, such as “The Honorable”, or a rank, such as a military or ambassadorial rank, from using that term of address or rank in connection with a personal activity.
§ 2635.703 Use of nonpublic information.
(a) Prohibition. An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.
(b) Definition of nonpublic information. For purposes of this section, nonpublic information is information that the employee gains by reason of Federal employment and that he knows or reasonably should know has not been made available to the general public. It includes information that he knows or reasonably should know:
(1) Is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive order or regulation;
(2) Is designated as confidential by an agency; or
(3) Has not actually been disseminated to the general public and is not authorized to be made available to the public on request.
§ 2635.704 Use of Government property.
(a) Standard. An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.
(b) Definitions. For purposes of this section:
(1) Government property includes any form of real or personal property in which the Government has an ownership, leasehold, or other property interest as well as any right or other intangible interest that is purchased with Government funds, including the services of contractor personnel. The term includes office supplies, telephone and other telecommunications equipment and services, the Government mails, automated data processing capabilities, printing and reproduction facilities, Government records, and Government vehicles.
(2) Authorized purposes are those purposes for which Government property is made available to members of the public or those purposes authorized in accordance with law or regulation.
§ 2635.705 Use of official time.
(a) Use of an employee’s own time. Unless authorized in accordance with law or regulations to use such time for other purposes, an employee shall use official time in an honest effort to perform official duties. An employee not under a leave system, including a Presidential appointee exempted under 5 U.S.C. 6301(2), has an obligation to expend an honest effort and a reasonable proportion of his time in the performance of official duties.
(b) Use of a subordinate’s time. An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation.
Subpart H—Outside Activities
§ 2635.801 Overview.
(a) This subpart contains provisions relating to outside employment, outside activities and personal financial obligations of employees that are in addition to the principles and standards set forth in other subparts of this part. Several of these provisions apply to uncompensated as well as to compensated outside activities.
(b) An employee who wishes to engage in outside employment or other outside activities must comply with all relevant provisions of this subpart, including, when applicable:
(1) The prohibition on outside employment or any other outside activity that conflicts with the employee’s official duties;
(2) Any agency-specific requirement for prior approval of outside employment or activities;
(3) The limitations on receipt of outside earned income by certain Presidential appointees and other noncareer employees;
(4) The limitations on paid and unpaid service as an expert witness;
(5) The limitations on participation in professional organizations;
(6) The limitations on paid and unpaid teaching, speaking, and writing; and
(7) The limitations on fundraising activities.
(c) Outside employment and other outside activities of an employee must also comply with applicable provisions set forth in other subparts of this part and in supplemental agency regulations. These include the principle that an employee shall endeavor to avoid actions creating an appearance of violating any of the ethical standards in this part and the prohibition against use of official position for an employee’s private gain or for the private gain of any person with whom he has employment or business relations or is otherwise affiliated in a nongovernmental capacity.
(d) In addition to the provisions of this and other subparts of this part, an employee who wishes to engage in outside employment or other outside activities must comply with applicable statutes and regulations. Relevant provisions of law, many of which are listed in subpart I of this part, may include:
(1) 18 U.S.C. 201(b), which prohibits a public official from seeking, accepting or agreeing to receive or accept anything of value in return for being influenced in the performance of an official act or for being induced to take or omit to take any action in violation of his official duty;
(2) 18 U.S.C. 201(c), which prohibits a public official, otherwise than as provided by law for the proper discharge of official duty, from seeking, accepting, or agreeing to receive or accept anything of value for or because of any official act;
(3) 18 U.S.C. 203(a), which prohibits an employee from seeking, accepting, or agreeing to receive or accept compensation for any representational services, rendered personally or by another, in relation to any particular matter in which the United States is a party or has a direct and substantial interest, before any department, agency, or other specified entity. This statute contains several exceptions, as well as standards for special Government employees that limit the scope of the restriction;
(4) 18 U.S.C. 205, which prohibits an employee, whether or not for compensation, from acting as agent or attorney for anyone in a claim against the United States or from acting as agent or attorney for anyone, before any department, agency, or other specified entity, in any particular matter in which the United States is a party or has a direct and substantial interest. It also prohibits receipt of any gratuity, or any share of or interest in a claim against the United States, in consideration for assisting in the prosecution of such claim. This statute contains several exceptions, as well as standards for special Government employees that limit the scope of the restrictions;
(5) 18 U.S.C. 209, which prohibits an employee, other than a special Government employee, from receiving any salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government employee. The statute contains several exceptions that limit its applicability;
(6) The Emoluments Clause of the United States Constitution, article I, section 9, clause 8, which prohibits anyone holding an office of profit or trust under the United States from accepting any gift, office, title or emolument, including salary or compensation, from any foreign government except as authorized by Congress. In addition, 18 U.S.C. 219 generally prohibits any public official from being or acting as an agent of a foreign principal, including a foreign government, corporation or person, if the employee would be required to register as a foreign agent under 22 U.S.C. 611 et seq.;
(7) The Hatch Act Reform Amendments, 5 U.S.C. 7321 through 7326, which govern the political activities of executive branch employees; and
(8) The limitations on outside employment, 5 U.S.C. App. (Ethics in Government Act of 1978), which prohibit a covered noncareer employee’s receipt of compensation for specified activities and provide that he shall not allow his name to be used by any firm or other entity which provides professional services involving a fiduciary relationship. Implementing regulations are contained in §§ 2636.305 through 2636.307 of this chapter.
§ 2635.802 Conflicting outside employment and activities.
An employee shall not engage in outside employment or any other outside activity that conflicts with his official duties. An activity conflicts with an employee’s official duties:
(a) If it is prohibited by statute or by an agency supplemental regulation; or
(b) If, under the standards set forth in §§ 2635.402 and 2635.502, it would require the employee’s disqualification from matters so central or critical to the performance of his official duties that the employee’s ability to perform the duties of his position would be materially impaired.
Employees are cautioned that even though an outside activity may not be prohibited under this section, it may violate other principles or standards set forth in this part or require the employee to disqualify himself from participation in certain particular matters under either subpart D or subpart E of this part.
§ 2635.803 Prior approval for outside employment and activities.
When required by agency supplemental regulation issued after February 3, 1993, an employee shall obtain prior approval before engaging in outside employment or activities. Where it is determined to be necessary or desirable for the purpose of administering its ethics program, an agency shall, by supplemental regulation, require employees or any category of employees to obtain prior approval before engaging in specific types of outside activities, including outside employment.
§ 2635.804 Outside earned income limitations applicable to certain Presidential appointees and other noncareer employees.
(a) Presidential appointees to full-time noncareer positions. A Presidential appointee to a full-time noncareer position shall not receive any outside earned income for outside employment, or for any other outside activity, performed during that Presidential appointment. This limitation does not apply to any outside earned income received for outside employment, or for any other outside activity, carried out in satisfaction of the employee’s obligation under a contract entered into prior to April 12, 1989.
(b) Covered noncareer employees. Covered noncareer employees, as defined in § 2636.303(a) of this chapter, may not, in any calendar year, receive outside earned income attributable to that calendar year which exceeds 15 percent of the annual rate of basic pay for level II of the Executive Schedule under 5 U.S.C. 5313, as in effect on January 1 of such calendar year. Employees should consult the regulations implementing this limitation, which are contained in §§ 2636.301 through 2636.304 of this chapter.
In addition to the 15 percent limitation on outside earned income, covered noncareer employees are prohibited from receiving any compensation for: practicing a profession which involves a fiduciary relationship; affiliating with or being employed by a firm or other entity which provides professional services involving a fiduciary relationship; serving as an officer or member of the board of any association, corporation or other entity; or teaching without prior approval. Implementing regulations are contained in §§ 2636.305 through 2636.307 of this chapter.
(c) Definitions. For purposes of this section:
(1) Outside earned income has the meaning set forth in § 2636.303(b) of this chapter, except that § 2636.303(b)(7) shall not apply.
(2) Presidential appointee to a full-time noncareer position means any employee who is appointed by the President to a full-time position described in 5 U.S.C. 5312 through 5317 or to a position that, by statute or as a matter of practice, is filled by Presidential appointment, other than:
(i) A position filled under the authority of 3 U.S.C. 105 or 3 U.S.C. 107(a) for which the rate of basic pay is less than that for GS-9, step 1 of the General Schedule;
(ii) A position, within a White House operating unit, that is designated as not normally subject to change as a result of a Presidential transition;
(iii) A position within the uniformed services; or
(iv) A position in which a member of the foreign service is serving that does not require advice and consent of the Senate.
§ 2635.805 Service as an expert witness.
(a) Restriction. An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee’s participation is authorized by the agency under paragraph (c) of this section. Except as provided in paragraph (b) of this section, this restriction shall apply to a special Government employee only if he has participated as an employee or special Government employee in the particular proceeding or in the particular matter that is the subject of the proceeding.
(b) Additional restriction applicable to certain special Government employees. (1) In addition to the restriction described in paragraph (a) of this section, a special Government employee described in paragraph (b)(2) of this section shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which his employing agency is a party or has a direct and substantial interest, unless the employee’s participation is authorized by the agency under paragraph (c) of this section.
(2) The restriction in paragraph (b)(1) of this section shall apply to a special Government employee who:
(i) Is appointed by the President;
(ii) Serves on a commission established by statute; or
(iii) Has served or is expected to serve for more than 60 days in a period of 365 consecutive days.
(c) Authorization to serve as an expert witness. Provided that the employee’s testimony will not violate any of the principles or standards set forth in this part, authorization to provide expert witness service otherwise prohibited by paragraphs (a) and (b) of this section may be given by the designated agency ethics official of the agency in which the employee serves when:
(1) After consultation with the agency representing the Government in the proceeding or, if the Government is not a party, with the Department of Justice and the agency with the most direct and substantial interest in the matter, the designated agency ethics official determines that the employee’s service as an expert witness is in the interest of the Government; or
(2) The designated agency ethics official determines that the subject matter of the testimony does not relate to the employee’s official duties within the meaning of § 2635.807(a)(2)(i).
(d) Nothing in this section prohibits an employee from serving as a fact witness when subpoenaed by an appropriate authority.
§ 2635.806 Participation in professional associations. [Reserved]
§ 2635.807 Teaching, speaking and writing.
(a) Compensation for teaching, speaking or writing. Except as permitted by paragraph (a)(3) of this section, an employee, including a special Government employee, shall not receive compensation from any source other than the Government for teaching, speaking or writing that relates to the employee’s official duties.
(1) Relationship to other limitations on receipt of compensation. The compensation prohibition contained in this section is in addition to any other limitation on receipt of compensation set forth in this chapter, including:
(i) The requirement contained in § 2636.307 of this chapter that covered noncareer employees obtain advance authorization before engaging in teaching for compensation; and
(ii) The prohibitions and limitations in § 2635.804 and in § 2636.304 of this chapter on receipt of outside earned income applicable to certain Presidential appointees and to other covered noncareer employees.
(2) Definitions. For purposes of this paragraph:
(i) Teaching, speaking or writing relates to the employee’s official duties if:
(A) The activity is undertaken as part of the employee’s official duties;
(B) The circumstances indicate that the invitation to engage in the activity was extended to the employee primarily because of his official position rather than his expertise on the particular subject matter;
(C) The invitation to engage in the activity or the offer of compensation for the activity was extended to the employee, directly or indirectly, by a person who has interests that may be affected substantially by performance or nonperformance of the employee’s official duties;
(D) The information conveyed through the activity draws substantially on ideas or official data that are nonpublic information as defined in § 2635.703(b); or
(E) Except as provided in paragraph (a)(2)(i)(E)(4) of this section, the subject of the activity deals in significant part with:
(1) Any matter to which the employee presently is assigned or to which the employee had been assigned during the previous one-year period;
(2) Any ongoing or announced policy, program or operation of the agency; or
(3) In the case of a noncareer employee as defined in § 2636.303(a) of this chapter, the general subject matter area, industry, or economic sector primarily affected by the programs and operations of his agency.
(4) The restrictions in paragraphs (a)(2)(i)(E) (2) and (3) of this section do not apply to a special Government employee. The restriction in paragraph (a)(2)(i)(E)(1) of this section applies only during the current appointment of a special Government employee; except that if the special Government employee has not served or is not expected to serve for more than 60 days during the first year or any subsequent one year period of that appointment, the restriction applies only to particular matters involving specific parties in which the special Government employee has participated or is participating personally and substantially.
Section 2635.807(a)(2)(i)(E) does not preclude an employee, other than a covered noncareer employee, from receiving compensation for teaching, speaking or writing on a subject within the employee’s discipline or inherent area of expertise based on his educational background or experience even though the teaching, speaking or writing deals generally with a subject within the agency’s areas of responsibility.
(ii) Agency has the meaning set forth in § 2635.102(a), except that any component of a department designated as a separate agency under § 2635.203(a) shall be considered a separate agency.
(iii) Compensation includes any form of consideration, remuneration or income, including royalties, given for or in connection with the employee’s teaching, speaking or writing activities. Unless accepted under specific statutory authority, such as 31 U.S.C. 1353, 5 U.S.C. 4111 or 7342, or an agency gift acceptance statute, it includes transportation, lodgings and meals, whether provided in kind, by purchase of a ticket, by payment in advance or by reimbursement after the expense has been incurred. It does not include:
(A) Items offered by any source that could be accepted from a prohibited source under subpart B of this part;
(B) Meals or other incidents of attendance such as waiver of attendance fees or course materials furnished as part of the event at which the teaching or speaking takes place;
(C) Copies of books or of publications containing articles, reprints of articles, tapes of speeches, and similar items that provide a record of the teaching, speaking or writing activity; or
(D) In the case of an employee other than a covered noncareer employee as defined in 5 CFR 2636.303(a), travel expenses, consisting of transportation, lodgings or meals, incurred in connection with the teaching, speaking or writing activity.
Independent of § 2635.807(a), other authorities, such as 18 U.S.C. 209, in some circumstances may limit or entirely preclude an employee’s acceptance of travel expenses. In addition, employees who file financial disclosure reports should be aware that, subject to applicable thresholds and exclusions, travel and travel reimbursements accepted from sources other than the United States Government must be reported on their financial disclosure reports.
(iv) Receive means that there is actual or constructive receipt of the compensation by the employee so that the employee has the right to exercise dominion and control over the compensation and to direct its subsequent use. Compensation received by an employee includes compensation which is:
(A) Paid to another person, including a charitable organization, on the basis of designation, recommendation or other specification by the employee; or
(B) Paid with the employee’s knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative.
(v) Particular matter involving specific parties has the meaning set forth in § 2637.102(a)(7) of this chapter.
(vi) Personal and substantial participation has the meaning set forth in § 2635.402(b)(4).
(3) Exception for teaching certain courses. Notwithstanding that the activity would relate to his official duties under paragraphs (a)(2)(i) (B) or (E) of this section, an employee may accept compensation for teaching a course requiring multiple presentations by the employee if the course is offered as part of:
(i) The regularly established curriculum of:
(A) An institution of higher education as defined at 20 U.S.C. 1141(a);
(B) An elementary school as defined at 20 U.S.C. 2891(8); or
(C) A secondary school as defined at 20 U.S.C. 2891(21); or
(ii) A program of education or training sponsored and funded by the Federal Government or by a State or local government which is not offered by an entity described in paragraph (a)(3)(i) of this section.
(b) Reference to official position. An employee who is engaged in teaching, speaking or writing as outside employment or as an outside activity shall not use or permit the use of his official title or position to identify him in connection with his teaching, speaking or writing activity or to promote any book, seminar, course, program or similar undertaking, except that:
(1) An employee may include or permit the inclusion of his title or position as one of several biographical details when such information is given to identify him in connection with his teaching, speaking or writing, provided that his title or position is given no more prominence than other significant biographical details;
(2) An employee may use, or permit the use of, his title or position in connection with an article published in a scientific or professional journal, provided that the title or position is accompanied by a reasonably prominent disclaimer satisfactory to the agency stating that the views expressed in the article do not necessarily represent the views of the agency or the United States; and
(3) An employee who is ordinarily addressed using a general term of address, such as “The Honorable,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank in connection with his teaching, speaking or writing.
Some agencies may have policies requiring advance agency review, clearance, or approval of certain speeches, books, articles or similar products to determine whether the product contains an appropriate disclaimer, discloses nonpublic information, or otherwise complies with this section.
§ 2635.808 Fundraising activities.
An employee may engage in fundraising only in accordance with the restrictions in part 950 of this title on the conduct of charitable fundraising in the Federal workplace and in accordance with paragraphs (b) and (c) of this section.
(a) Definitions. For purposes of this section: (1) Fundraising means the raising of funds for a nonprofit organization, other than a political organization as defined in 26 U.S.C. 527(e), through:
(i) Solicitation of funds or sale of items; or
(ii) Participation in the conduct of an event by an employee where any portion of the cost of attendance or participation may be taken as a charitable tax deduction by a person incurring that cost.
(2) Participation in the conduct of an event means active and visible participation in the promotion, production, or presentation of the event and includes serving as honorary chairperson, sitting at a head table during the event, and standing in a reception line. The term does not include mere attendance at an event provided that, to the employee’s knowledge, his attendance is not used by the nonprofit organization to promote the event. While the term generally includes any public speaking during the event, it does not include the delivery of an official speech as defined in paragraph (a)(3) of this section or any seating or other participation appropriate to the delivery of such a speech. Waiver of a fee for attendance at an event by a participant in the conduct of that event does not constitute a gift for purposes of subpart B of this part.
This section does not prohibit fundraising for a political party, candidate for partisan political office, or partisan political group. However, there are statutory restrictions that apply to political fundraising. For example, under the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323(a), employees may not knowingly solicit, accept, or receive a political contribution from any person, except under limited circumstances. In addition, employees are prohibited by 18 U.S.C. 607 from soliciting or receiving political contributions in Federal offices, and, except as permitted by the Hatch Act Reform Amendments, are prohibited by 18 U.S.C. 602 from knowingly soliciting political contributions from other employees.
(3) Official speech means a speech given by an employee in his official capacity on a subject matter that relates to his official duties, provided that the employee’s agency has determined that the event at which the speech is to be given provides an appropriate forum for the dissemination of the information to be presented and provided that the employee does not request donations or other support for the nonprofit organization. Subject matter relates to an employee’s official duties if it focuses specifically on the employee’s official duties, on the responsibilities, programs, or operations of the employee’s agency as described in § 2635.807(a)(2)(i)(E), or on matters of Administration policy on which the employee has been authorized to speak.
(4) Personally solicit means to request or otherwise encourage donations or other support either through person-to-person contact or through the use of one’s name or identity in correspondence or by permitting its use by others. It does not include the solicitation of funds through the media or through either oral remarks, or the contemporaneous dispatch of like items of mass-produced correspondence, if such remarks or correspondence are addressed to a group consisting of many persons, unless it is known to the employee that the solicitation is targeted at subordinates or at persons who are prohibited sources within the meaning of § 2635.203(d). It does not include behind-the-scenes assistance in the solicitation of funds, such as drafting correspondence, stuffing envelopes, or accounting for contributions.
(b) Fundraising in an official capacity. An employee may participate in fundraising in an official capacity if, in accordance with a statute, Executive order, regulation or otherwise as determined by the agency, he is authorized to engage in the fundraising activity as part of his official duties. When authorized to participate in an official capacity, an employee may use his official title, position and authority.
(c) Fundraising in a personal capacity. An employee may engage in fundraising in his personal capacity provided that he does not:
(1) Personally solicit funds or other support from a subordinate or from any person:
(i) Known to the employee, if the employee is other than a special Government employee, to be a prohibited source within the meaning of § 2635.203(d); or
(ii) Known to the employee, if the employee is a special Government employee, to be a prohibited source within the meaning of § 2635.203(d)(4) that is a person whose interests may be substantially affected by performance or nonperformance of his official duties;
(2) Use or permit the use of his official title, position or any authority associated with his public office to further the fundraising effort, except that an employee who is ordinarily addressed using a general term of address, such “The Honorable,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank for such purposes; or
(3) Engage in any action that would otherwise violate this part.
§ 2635.809 Just financial obligations.
Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those such as Federal, State, or local taxes that are imposed by law. For purposes of this section, a just financial obligation includes any financial obligation acknowledged by the employee or reduced to judgment by a court. In good faith means an honest intention to fulfill any just financial obligation in a timely manner. In the event of a dispute between an employee and an alleged creditor, this section does not require an agency to determine the validity or amount of the disputed debt or to collect a debt on the alleged creditor’s behalf.
Subpart I—Related Statutory Authorities
§ 2635.901 General.
In addition to the standards of ethical conduct set forth in subparts A through H of this part, there are a number of statutes that establish standards to which an employee’s conduct must conform. The list set forth in § 2635.902 references some of the more significant of those statutes. It is not comprehensive and includes only references to statutes of general applicability. While it includes references to several of the basic conflict of interest statutes whose standards are explained in more detail throughout this part, it does not include references to statutes of more limited applicability, such as statutes that apply only to officers and employees of the Department of Defense.
§ 2635.902 Related statutes.
(a) The prohibition against solicitation or receipt of bribes (18 U.S.C. 201(b)).
(b) The prohibition against solicitation or receipt of illegal gratuities (18 U.S.C. 201(c)).
(c) The prohibition against seeking or receiving compensation for certain representational services before the Government (18 U.S.C. 203).
(d) The prohibition against assisting in the prosecution of claims against the Government or acting as agent or attorney before the Government (18 U.S.C. 205).
(e) The post-employment restrictions applicable to former employees (18 U.S.C. 207, with implementing regulations at parts 2637 and 2641 of this chapter).
(f) The prohibition on certain former agency officials’ acceptance of compensation from a contractor (41 U.S.C. 423(d)).
(g) The prohibition against participating in matters affecting an employee’s own financial interests or the financial interests of other specified persons or organizations (18 U.S.C. 208).
(h) The actions required of certain agency officials when they contact, or are contacted by, offerors or bidders regarding non-Federal employment (41 U.S.C. 423(c)).
(i) The prohibition against receiving salary or any contribution to or supplementation of salary as compensation for Government service from a source other than the United States (18 U.S.C. 209).
(j) The prohibition against gifts to superiors (5 U.S.C. 7351).
(k) The prohibition against solicitation or receipt of gifts from specified prohibited sources (5 U.S.C. 7353).
(l) The prohibition against fraudulent access and related activity in connection with computers (18 U.S.C. 1030).
(m) The provisions governing receipt and disposition of foreign gifts and decorations (5 U.S.C. 7342).
(n) [Reserved]
(o) The prohibitions against certain political activities (5 U.S.C. 7321 through 7326 and 18 U.S.C. 602, 603, 606 and 607).
(p) The prohibitions against disloyalty and striking (5 U.S.C. 7311 and 18 U.S.C. 1918).
(q) The general prohibition (18 U.S.C. 219) against acting as the agent of a foreign principal required to register under the Foreign Agents Registration Act (22 U.S.C. 611 through 621).
(r) The prohibition against employment of a person convicted of participating in or promoting a riot or civil disorder (5 U.S.C. 7313).
(s) The prohibition against employment of an individual who habitually uses intoxicating beverages to excess (5 U.S.C. 7352).
(t) The prohibition against misuse of a Government vehicle (31 U.S.C. 1344).
(u) The prohibition against misuse of the franking privilege (18 U.S.C. 1719).
(v) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).
(w) The prohibition against concealing, mutilating or destroying a public record (18 U.S.C. 2071).
(x) The prohibition against counterfeiting or forging transportation requests (18 U.S.C. 508).
(y) The restrictions on disclosure of certain sensitive Government information under the Freedom of Information Act and the Privacy Act (5 U.S.C. 552 and 552a).
(z) The prohibitions against disclosure of classified information (18 U.S.C. 798 and 50 U.S.C. 783(a)).
(aa) The prohibition against disclosure of proprietary information and certain other information of a confidential nature (18 U.S.C. 1905).
(bb) The prohibitions on disclosing and obtaining certain procurement information (41 U.S.C. 423(a) and (b)).
(cc) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
(dd) The prohibition against certain personnel practices (5 U.S.C. 2302).
(ee) The prohibition against interference with civil service examinations (18 U.S.C. 1917).
(ff) The restrictions on use of public funds for lobbying (18 U.S.C. 1913).
(gg) The prohibition against participation in the appointment or promotion of relatives (5 U.S.C. 3110).
(hh) The prohibition against solicitation or acceptance of anything of value to obtain public office for another (18 U.S.C. 211).
(ii) The prohibition against conspiracy to commit an offense against or to defraud the United States (18 U.S.C. 371).
(jj) The prohibition against embezzlement or conversion of Government money or property (18 U.S.C. 641).
(kk) The prohibition against failing to account for public money (18 U.S.C. 643).
(ll) The prohibition against embezzlement of the money or property of another person that is in the possession of an employee by reason of his employment (18 U.S.C. 654).
Subpart J—Legal Expense Funds
§ 2635.1001 Overview.
This subpart contains standards for an employee’s acceptance of payments for legal expenses through a legal expense fund and an employee’s acceptance of pro bono legal services. Legal expenses covered by this subpart are those for a matter arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team.
(a) Applicability. This subpart applies to an employee who seeks to accept payments for legal expenses from a legal expense fund or the provision of pro bono legal services. The legal expenses or the provision of pro bono legal services must be for a matter arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team.
(b) Not covered by this subpart. The following types of payments for legal expenses or pro bono legal services are not covered by this subpart:
(1) Personal matters. Payments for legal expenses or the provision of pro bono legal services related to matters that do not arise in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team, such as a matter that is primarily personal in nature, are not covered by this subpart. Personal matters include, but are not limited to, tax planning, personal injury litigation, protection of property rights, family law matters, and estate planning or probate matters.
Example 1 to paragraph (b)(1): A Department of Homeland Security employee wants to set up a legal expense fund in connection with the employee’s divorce and custody proceeding. This is a personal matter and the employee may not establish a legal expense fund under this subpart, but may use other gift exceptions and exclusions in accordance with subparts B and C of this part as appropriate.
(2) Gifts acceptable according to a gift exclusion or exception. Payments for legal expenses or the provision of pro bono legal services that otherwise qualify for a gift exclusion or exception other than § 2635.204(n) are not covered by this subpart.
Example 1 to paragraph (b)(2): A Central Intelligence Agency employee is facing administrative disciplinary action due to an issue with the employee’s security clearance and would like to seek financial assistance to pay for an attorney. Even though this matter arose in connection with their official position, if the employee’s parents offer to cover the legal expenses, that donation is not subject to this subpart, as it would be subject to the gift exception at § 2635.204(b).
(c) Related considerations—(1) Gifts between employees. Acceptance of legal expense payments or the provision of pro bono legal services from another employee must be analyzed under 18 U.S.C. 205 and subpart C of this part.
(2) Impartiality. (i) An employee beneficiary may not knowingly participate in a particular matter involving specific parties, consistent with the periods of disqualification detailed in paragraph (c)(2)(ii) of this section, if any person described below is a party or represents a party:
(A) The trustee;
(B) An individual, entity, or organization donating pro bono legal services pursuant to § 2635.1009 (pro bono legal services provider); or
(C) An individual or entity that made a donation of $250 or more in a calendar year to the legal expense fund.
(ii) The employee beneficiary’s period of disqualification from particular matters involving specific parties involving the trustee runs from the assumption of the trustee position until two years after the trustee’s resignation, if the trustee resigns, or two years after the termination of the trust. The employee’s period of disqualification from particular matters involving specific parties involving each pro bono legal services provider runs from the commencement of pro bono legal services until two years after the last date pro bono services were provided. The period of disqualification for each donor begins to run on the date the most recent legal expense fund donation is received from that donor until two years after the donation.
Example 1 to paragraph (c)(2): A donor contributed to a Social Security Administration (SSA) employee’s legal expense fund. Three months after this contribution was made, the donor submitted a disability claim. The employee may not participate in evaluating the disability claim because the claim falls within the two-year mandatory recusal period.
(3) Misuse of position. Legal expense fund payments must be solicited and accepted consistent with the provisions in subpart G of this part relating to the use of public office for private gain, use of nonpublic information, use of Government property, and use of Government time. The mere reference to the employee’s official position in a solicitation would generally not violate subpart G of this part.
Example 1 to paragraph (c)(3): A Transportation Security Administration (TSA) employee retains legal counsel due to an investigation into inappropriate behavior in their department, and the employee establishes a legal expense fund in accordance with this subpart. Neither the employee nor the legal expense fund’s trustee may use the TSA agency seal in materials or otherwise imply the Government endorses the legal expense fund, or use nonpublic details of the investigation to solicit contributions to the legal expense fund. Agency seals frequently are protected by law or require licensing for use. Further, the employee may not task subordinates with any work relating to administration of the legal expense fund. However, the employee may note in a solicitation that they are an employee of TSA, and that the matter arose in the course of their official duties.
(4) Financial disclosure. In addition to the legal expense fund reporting requirements outlined in § 2635.1007, an employee beneficiary who is a public or confidential filer, other than a confidential filer who is an anonymous whistleblower, under part 2634 of this chapter must report gifts of legal expense payments accepted from sources other than the United States Government, including gifts of pro bono services, on the employee’s financial disclosure report, subject to applicable thresholds and exclusions.
§ 2635.1003 Definitions.
For purposes of this subpart:
Anonymous whistleblower means an employee who makes or intends to make a disclosure or report, or who engages in an activity protected under 5 U.S.C. 2302(b)(8), 5 U.S.C. 2302(b)(9), 5 U.S.C. 416, 50 U.S.C. 3517, 50 U.S.C. 3033, or 28 CFR 27.1, and who seeks to remain anonymous.
Arising in connection with the employee’s past or current official position means the employee’s involvement in the legal matter would not have arisen had the employee not held the status, authority, or duties associated with the employee’s past or current Federal position.
Example 1 to the definition of “arising in connection with the employee’s past or current official position”: A Department of Transportation employee is being investigated by the Inspector General for potential misuse of Government resources while on official travel. The Internal Revenue Service (IRS) is separately investigating the employee for misreporting household income on the employee’s personal taxes. The employee may use this subpart to establish a legal expense fund concerning the Inspector General investigation because the legal matter arose in connection with their official position. However, this subpart would not apply to the unrelated IRS investigation because that legal matter did not arise in connection with the employee’s official position.
Example 2 to the definition of “arising in connection with the employee’s past or current official position”: A junior employee at the Environmental Protection Agency is challenging their proposed termination due to misuse of Government property. All of the employee’s alleged misconduct occurred outside official duty hours. Because the employee would not be subject to the Standards of Conduct had the employee not held their official position, the employee may establish a legal expense fund in accordance with this subpart.
Arising in connection with the employee’s prior position on a campaign means the employee’s involvement in the legal matter would not have arisen had the employee not held the status, authority, or duties associated with the employee’s prior position on a campaign of a candidate for President or Vice President.
Arising in connection with the employee’s prior position on a Presidential Transition Team means the employee’s involvement in the legal matter would not have arisen had the employee not held the status, authority, or duties associated with the employee’s prior position as a member of the staff of a Presidential Transition Team.
Employee beneficiary means an employee as defined by § 2635.102(h) for whose benefit a legal expense fund is established under this subpart.
Legal expense fund means a fund established to receive contributions and to make distributions of legal expense payments.
Legal expense payment or payment for legal expenses means anything of value received by an employee under circumstances that make it clear that the payment is intended to defray costs associated with representation in a legal, congressional, or administrative proceeding.
Pro bono legal services means legal services provided without charge or for less than market value as defined in § 2635.203(c) to an employee who seeks legal representation for a matter arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team.
§ 2635.1004 Establishment.
(a) Structure. A legal expense fund must be established as a trust that conforms to the requirements of this part and applicable state law. To the extent the requirements of this part and applicable state law are incompatible, the Director of the Office of Government Ethics may permit such deviations from this part as necessary to ensure compatibility with applicable state law.
(b) Grantor. The legal expense fund must be established by the employee beneficiary.
(c) Trustee. A legal expense fund must be administered by a trustee who is not:
(1) The employee beneficiary;
(2) A spouse, parent, or child of the employee beneficiary;
(3) Any other employee of the Federal executive, legislative, or judicial branches;
(4) An agent of a foreign government as defined in 5 U.S.C. 7342(a)(2);
(5) A foreign national;
(6) A lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a); or
(7) A person who has interests that may be substantially affected by the performance or nonperformance of the employee beneficiary’s official duties.
(d) Employee beneficiary. (1) Except as provided in paragraph (d)(2) of this section, a legal expense fund must be established for the benefit of a single, named employee beneficiary.
(2) A legal expense fund for the benefit of an anonymous whistleblower may be established without disclosing the identity of the anonymous whistleblower to anyone other than the trustee so long as the legal expense fund is created for the purpose of funding expenses in connection with the whistleblowing activity or the facts that underlie that activity.
(e) Filing and approval of legal expense fund trust document required. An employee beneficiary may not solicit or accept contributions or make distributions through a legal expense fund before:
(1) Filing the legal expense fund document in accordance with paragraph (f) of this section; and
(2) Receiving approval for the legal expense fund in accordance with paragraph (g)(1) or (g)(3) of this section.
(f) Filing of legal expense fund trust document. (1) The employee beneficiary, or the trustee or representative of the employee beneficiary, must file the legal expense fund trust document with the designated agency ethics official at the agency where the employee beneficiary is employed.
(2) An employee beneficiary who is an anonymous whistleblower may choose to file a legal expense fund trust document anonymously through the employee beneficiary’s trustee or representative with the Office of Government Ethics only. The Office of Government Ethics will not receive reports containing classified material; if needed, an OGE employee with a security clearance will review any classified documents in a secure agency space, consistent with the current practice for other ethics documents containing classified material.
(g) Approval of legal expense fund trust document. (1) Designated agency ethics official approval. The designated agency ethics official must determine, based on the submitted trust document and information regarding the trustee, whether to approve a legal expense fund trust document filed by an employee beneficiary, other than an anonymous whistleblower choosing to file with the Office of Government Ethics, within 30 calendar days of filing.
(i) Standard for approval. The designated agency ethics official must approve a legal expense fund that is, based on the submitted trust document and information regarding the trustee, in compliance with this subpart.
(ii) Transmission of trust documents to the Office of Government Ethics. Following approval, the signed legal expense fund trust document must be forwarded to the Office of Government Ethics within seven calendar days.
(iii) Exception for anonymous whistleblowers. The Office of Government Ethics will serve as the approving authority for anonymous whistleblowers who choose to file a legal expense fund trust document anonymously with the Office of Government Ethics only.
(2) Office of Government Ethics review. Following approval by the designated agency ethics official, the Office of Government Ethics will conduct a secondary review of the legal expense fund trust documents of the employee beneficiaries listed in paragraph (g)(2)(ii) of this section within 30 calendar days of receipt.
(i) Standard for review. The Office of Government Ethics will review the legal expense fund trust document to determine whether it conforms to the requirements established by this subpart. If defects are ascertained, the Office of Government Ethics will bring them to the attention of the approving agency and the employee beneficiary or the employee beneficiary’s trustee or representative, who will have 30 calendar days to take necessary corrective action.
(ii) Employee beneficiaries requiring secondary Office of Government Ethics review. The Office of Government Ethics will review the legal expense fund trust documents of the following employee beneficiaries:
(A) The Postmaster General;
(B) The Deputy Postmaster General;
(C) The Governors of the Board of Governors of the United States Postal Service;
(D) Employees of the White House Office and the Office of the Vice President; and
(E) Officers and employees in offices and positions which require confirmation by the Senate, other than members of the uniformed services and Foreign Service Officers below the rank of Ambassador.
(3) Review for designated agency ethics officials. When the employee beneficiary is a designated agency ethics official, the Office of Government Ethics will conduct the sole review and approval. The Office of Government Ethics will review the legal expense fund trust document to determine whether it conforms to the requirements established by this subpart.
(4) Right to Appeal. If the approval of a legal expense fund has been denied, or an employee’s legal expense fund request has not been acted upon within 30 days, the requester may appeal by mail or email to the Director of the U.S. Office of Government Ethics. Requests sent by mail should be addressed to the address for the Office of Government Ethics that can be found at www.oge.gov. The envelope containing the request and the letter itself should both clearly indicate that the subject is a legal expense fund appeal. Email requests should be sent to [email protected] and should indicate in the subject line that the message contains a legal expense fund appeal. Appeals should be submitted within 60 days of denial by the designated agency ethics official or 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon. In the case of legal expense funds for anonymous whistleblowers and designated agency ethics officials, OGE staff will conduct the initial review, and the Director will serve as the appeal authority.
(h) Amendments. The trust document may only be amended if the trustee and employee beneficiary file the amended legal expense fund trust document in accordance with paragraph (f) of this section and seek approval in accordance with paragraph (g) of this section.
(i) One legal expense fund. No employee beneficiary may establish or maintain more than one legal expense fund at any one time. An employee may not later establish a second legal expense fund for the same legal matter.
(j) Conforming existing legal expense funds. In order for an employee beneficiary who has an existing legal expense fund to receive legal expense payments from the existing legal expense fund, the employee beneficiary must comply with §§ 2635.1005(b), 2635.1006, and 2635.1007 by February 20, 2024.
(k) Public access. Approved legal expense fund trust documents will be made available by the Office of Government Ethics to the public on its website within 30 calendar days of receipt. The trust fund documents will be sortable by employee beneficiary’s name, agency, and position, as well as type of document and document date. Legal expense fund trust documents filed by anonymous whistleblowers will not be made available to the public. Legal expense fund trust documents that are made available to the public will not include any information that would identify individuals whose names or identities are otherwise protected from public disclosure by law. Only sensitive personal information such as fee schedules, personal addresses, and account numbers will be redacted.
§ 2635.1005 Administration.
(a) Trustee’s duties and powers. A trustee of a legal expense fund is responsible for:
(1) Operating the legal expense fund trust consistent with this part and applicable state law;
(2) Operating as a fiduciary for the employee beneficiary in relation to the legal expense fund property and the legal expense fund purpose;
(3) Providing information to the employee beneficiary as necessary to comply with the Ethics in Government Act, 5 U.S.C. 13104(a)(2), part 2634 of this chapter, and this part; and
(4) Notifying donors and payees whose contributions and distributions, respectively, are reportable that their names will be disclosed on the OGE website.
(b) Limitation on role of the employee beneficiary. An employee beneficiary may not exercise control over the legal expense fund property.
§ 2635.1006 Contributions and use of funds.
(a) Contributions. A legal expense fund may only accept contributions of payments for legal expenses from permissible donors listed in paragraph (b) of this section.
(b) Permissible donors. A permissible donor includes:
(1) An individual who is not:
(i) An agent of a foreign government as defined in 5 U.S.C. 7342(a)(2);
(ii) A foreign national;
(iii) A lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a);
(iv) Acting on behalf of, or at the direction of, another individual or entity in making a donation;
(v) Donating anonymously;
(vi) Seeking official action by the employee beneficiary’s agency;
(vii) Doing business or seeking to do business with the employee beneficiary’s agency;
(viii) Conducting activities regulated by the employee beneficiary’s agency other than regulations or actions affecting the interests of a large and diverse group of persons;
Example 1 to paragraph (b)(1)(viii): A donor contributed to a Department of State employee’s legal expense fund. The donor has recently applied to renew their United States Passport. Because the Department of State’s passport renewal office affects the interests of a large and diverse group of people, the donation is permissible under paragraph (b)(1)(viii) of this section.
(ix) Substantially affected by the performance or nonperformance of the employee beneficiary’s official duties; or
(x) An officer or director of an entity that is substantially affected by the performance or nonperformance of the employee beneficiary’s official duties.
(2) A national committee of a political party as defined by 52 U.S.C. 30101(14) and (16) or, for former members of a campaign of a candidate for President or Vice President, the campaign, provided that the donation is not otherwise prohibited by law and the entity is not substantially affected by the performance or nonperformance of an employee beneficiary’s official duties; or
(3) An organization, established for more than two years, that is:
(i) described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code, and
(ii) not substantially affected by the performance or nonperformance of an employee beneficiary’s official duties.
(c) Contribution limits. A legal expense fund may not accept more than $10,000 from any single permissible donor per calendar year.
(d) Use of funds. Legal expense fund payments must be used only for the following purposes:
(1) An employee beneficiary’s expenses related to those legal proceedings arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team;
(2) Expenses incurred in soliciting for and administering the fund; and
(3) Expenses for the discharge of Federal, state, and local tax liabilities that are incurred as a result of the creation, operation, or administration of the fund.
Example 1 to paragraph (d): An employee beneficiary’s attorney determines it is necessary to employ an expert witness related to a legal proceeding arising in connection with the employee beneficiary’s official position. Funds may be distributed from the legal expense fund to pay fees and expenses for the expert witness.
§ 2635.1007 Reporting requirements.
(a) Quarterly reports. An employee beneficiary must file quarterly reports that include the following information until the trust is terminated or an employment termination report is filed as set forth in paragraph (d) of this section.
(1) Contributions. For contributions of $250 or more during the quarterly reporting period, an employee beneficiary must report the donor’s name, city and state of residence, employer, date(s) of contribution, and contribution amount. For the report due January 30, an employee beneficiary must also disclose contributions from a single donor of $250 or more for the prior calendar year unless the contributions have been disclosed on a prior quarterly report.
(2) Distributions. For distributions of $250 or more during the quarterly reporting period, an employee beneficiary must report the payee’s name, date(s) of distribution, amount, and purpose of the distribution. For the report due January 30, an employee beneficiary must also disclose distributions to a single source of $250 or more for the prior calendar year unless the distributions have been disclosed on a prior quarterly report.
(b) Filing of reports. (1) The employee beneficiary must file all reports required in this section with the designated agency ethics official at the agency where the employee beneficiary is employed. The trustee or a representative of the employee beneficiary may file a report on behalf of the employee beneficiary.
(2) An employee beneficiary who is an anonymous whistleblower may choose to file reports anonymously through the employee beneficiary’s trustee or representative with the Office of Government Ethics. The Office of Government Ethics will not receive reports containing classified material; if needed, an OGE employee with a security clearance will review any classified documents in a secure agency space, consistent with the current practice for other ethics documents containing classified material.
(c) Reporting periods and due dates. Quarterly reports must cover the following reporting periods and comply with the following due dates:
(1) January 1 to March 31, with the report due on April 30.
(2) April 1 to June 30, with the report due on July 30.
(3) July 1 to September 30, with the report due on October 30.
(4) October 1 to December 31, with the report due on January 30 of the following year.
(5) If the scheduled due date falls on a Saturday, Sunday or Federal Holiday, the report will instead be due the next business day.
(d) Employment termination report. If the employee beneficiary is leaving executive branch employment, the employee beneficiary must file an employment termination report no later than their last day of employment. No contributions may be accepted for or distributions paid by the legal expense fund between the date of the filing and the employee beneficiary’s termination date. The report must include the following:
(1) A report of contributions received and distributions made as required by paragraph (a) of this section between the end of the last quarterly reporting period and the date of the report; and
(2) A statement as to whether the trust will be terminated or remain in force after the employee beneficiary terminates their executive branch employment.
(e) Extensions. For each quarterly report, a single extension of 30 calendar days may be granted by the employee beneficiary’s designated agency ethics official, or the Director of the Office of Government Ethics if filing with the Office of Government Ethics, for good cause upon written request by the employee beneficiary or the trustee.
(f) Review of reports. (1) Designated agency ethics official review. The designated agency ethics official must review reports within 30 calendar days of filing.
(i) Standard for review. The designated agency ethics official will review the report to determine that:
(A) The information required under paragraph (a) of this section is reported for each contribution and distribution; and
(B) Contributions to and distributions from the trust are in compliance with § 2635.1006.
(ii) Transmission of reports to the Office of Government Ethics. Following review, all reports must be forwarded in unclassified format to the Office of Government Ethics within seven calendar days.
(iii) Office of Government Ethics review for anonymous whistleblowers. The Office of Government Ethics will serve as the reviewing authority for anonymous whistleblowers who choose to file reports anonymously with the Office of Government Ethics only.
(2) Office of Government Ethics review. Following review by the designated agency ethics official, the Office of Government Ethics will conduct a secondary review of the reports of the employee beneficiaries listed in paragraph (f)(2)(ii) of this section within 30 calendar days of receipt.
(i) Standard for review. The Office of Government Ethics will review the report to determine whether it conforms to the requirements established by this subpart. If defects are ascertained, the Office of Government Ethics will bring them to the attention of the reviewing agency and the employee beneficiary or the employee beneficiary’s trustee or representative, who will have 30 calendar days to take necessary corrective action.
(ii) Employee beneficiaries requiring secondary Office of Government Ethics review. The Office of Government Ethics will review the reports of the following employee beneficiaries:
(A) The Postmaster General;
(B) The Deputy Postmaster General;
(C) The Governors of the Board of Governors of the United States Postal Service;
(D) Employees of the White House Office and the Office of the Vice President; and
(E) Officers and employees in offices and positions which require confirmation by the Senate, other than members of the uniformed services and Foreign Service Officers below the rank of Ambassador.
(3) Review for designated agency ethics official. When the employee beneficiary is a designated agency ethics official, the Office of Government Ethics will conduct the sole review. OGE will review the report to determine that:
(i) The information required under paragraph (a) of this section is reported for each contribution and distribution; and
(ii) Contributions to and distributions from the trust are in compliance with § 2635.1006.
(g) Public access. Quarterly and employment termination reports will be made available by the Office of Government Ethics to the public on its website within 30 calendar days of receipt. The reports will be sortable by employee beneficiary’s name, agency, and position, as well as type of document and document date. Quarterly and employment termination reports that are made available to the public by the Office of Government Ethics will not include any information that would identify individuals whose names or identities are otherwise protected from public disclosure by law. The reports filed by anonymous whistleblowers will not be made available to the public.
(h) Noncompliance. (1) Receipt of impermissible contributions. If the legal expense fund receives a contribution that is not permissible under § 2635.1006, the contribution must be returned to the donor as soon as practicable but no later than the next reporting due date as described in paragraph (c) of this section. If the donation cannot be returned to the donor due to the donor’s death or the trustee’s inability to locate the donor, then the contribution must be donated to a 501(c)(3) organization meeting the requirements in § 2635.1008(c).
(2) Late filing of required documents and reports. If a report or other required document is filed after the due date, the employee beneficiary forfeits the ability to accept contributions or make distributions through the trust until the report or other required document is filed.
Example 1 to paragraph (h)(2): A Department of Labor employee establishes a legal expense fund in accordance with this subpart. Because the employee filed the trust document on February 15, the first quarterly report is due on April 30. However, the employee did not submit the first quarterly report until May 15. The employee is prohibited from accepting contributions or making distributions through the trust from May 1 until May 15. Once the employee files the quarterly report, the employee may resume accepting contributions and making distributions.
(3) Continuing or other significant noncompliance. In addition to the remedies in paragraphs (h)(1) and (2) of this section, the Office of Government Ethics has the authority to determine that an employee beneficiary may not accept contributions and make distributions through the trust or terminate the trust if there is continuing or other significant noncompliance with this subpart.
§ 2635.1008 Termination of a legal expense fund.
(a) Voluntary termination. A legal expense fund may be voluntarily terminated only for the following reasons:
(1) The purpose of the trust is fulfilled or no longer exists; or
(2) At the direction of the employee beneficiary.
(b) Mandatory termination. An employee’s legal expense fund must be terminated within 90 days of the resolution of the legal matter for which the legal expense fund was created or within 90 days of the last expenditure made in relation to the legal matter for which it was created, whichever is later.
(c) Excess funds. Within 90 calendar days of termination of the legal expense fund, the trustee must distribute any excess funds to an organization or organizations described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code. Funds from the legal expense fund may not be donated to an organization that was established by the trustee or the employee beneficiary, an organization in which the trustee or the employee beneficiary, their spouse, or their child is an officer, director, or employee, or an organization with which the employee has a covered relationship within the meaning of § 2635.502(b)(1). The trustee has sole discretion to select the 501(c)(3) organization. If practicable, the trustee may return the excess funds to the donors on a pro-rata basis rather than donating the funds to a 501(c)(3) organization.
(d) Trust termination report. After the trust is terminated, the employee beneficiary must file a trust termination report that contains the information required by § 2635.1007(d)(1) for the period of the last quarter report through the trust termination date. The report also must indicate the organization to which the excess funds were donated or if the excess funds were returned to donors. The report is due 30 calendar days following the termination date of the trust. Trust termination reports should be filed in accordance with the procedures outlined in § 2635.1007(b).
(e) Exception for anonymous whistleblowers. An employee beneficiary who is an anonymous whistleblower may choose to file the trust termination report anonymously through the employee beneficiary’s trustee or representative with the Office of Government Ethics.
§ 2635.1009 Pro bono legal services.
(a) Acceptance of permissible pro bono legal services. An employee may solicit or accept the provision of pro bono legal services for legal matters arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team from:
(1) Any individual who:
(i) Is not an agent of a foreign government as defined in 5 U.S.C. 7342(a)(2);
(ii) Is not a foreign national;
(iii) Is not a lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a); and
(iv) Does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and
(2) An organization or entity that does not have interests that may be substantially affected by the performance or nonperformance of an employee’s official duties.
(b) Provision of outside legal services. An employee may solicit or accept payment for legal services for legal matters arising in connection with the employee’s past or current official position, the employee’s prior position on a campaign of a candidate for President or Vice President, or the employee’s prior position on a Presidential Transition Team from an organization, established for more than two years, that is described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code. The organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services must meet the requirements described in paragraph (a) of this section. The term “pro bono services” includes the provision of outside legal services as described in this section.
(c) Role of designated agency ethics official. The designated agency ethics official must determine whether the organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services meet the requirements described in paragraph (a) of this section.
Example 1 to paragraph (c): A Department of Justice employee is an eyewitness in an Inspector General investigation and is called to testify before Congress. A local law firm offers to represent the employee at no cost. The employee consults with an agency ethics official, who determines that the attorney who would represent the employee is neither an agent of a foreign government nor a lobbyist. However, the law firm is representing a party in a case to which the employee is assigned. The ethics official determines that the law firm is a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties. Accordingly, the employee may not accept the offer of pro bono legal services from the law firm.
Example 2 to paragraph (c): A Securities and Exchange Commission employee is harassed by a supervisor and files a complaint. A nonprofit legal aid organization focusing on harassment cases offers pro bono legal services to the employee at no cost. The employee consults with an agency ethics official, who determines that the attorney who would represent the employee is neither an agent of a foreign government nor a lobbyist, and neither the attorney nor the nonprofit legal aid organization has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties. Accordingly, the employee may accept the offer of pro bono legal services from the nonprofit legal aid organization.
Example 3 to paragraph (c): A registered 501(c)(3) organization whose mission focuses on assisting those experiencing workplace harassment offers to pay for legal services for the Securities and Exchange Commission employee from the preceding example. The legal services themselves are performed by attorneys outside the organization. The employee confers with an agency ethics official who determines that the 501(c)(3) organization has been in operation for more than two years, neither the organization nor the attorneys performing legal services have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties, and the attorneys performing the legal services are neither agents of foreign governments nor lobbyists. Accordingly, the employee may accept the legal services even though they are provided by attorneys outside of the 501(c)(3) organization.
Example 4 to paragraph (c): A Department of State employee is asked to testify in a legal proceeding relating to a prior position at the Department of Justice. An attorney at a large national law firm offers pro bono services to the employee. The employee confers with an agency ethics official who determines that although the attorney offering representation is neither an agent of a foreign government nor a lobbyist, the law firm is currently registered pursuant to 2 U.S.C. 1603(a), some members of the firm are registered lobbyists, and the firm has business before other parts of the Department of State. However, neither the attorney nor the law firm has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties. Accordingly, the employee may accept the offer of pro bono legal services.
(d) Appeal process. An employee may appeal to the Office of Government Ethics in matters when the agency is the party opponent in the legal action. An employee may appeal the designated agency ethics official’s determination that the pro bono legal services are prohibited; or a failure by the designated agency ethics official to provide a determination regarding whether the pro bono legal services are prohibited within 30 days. Appeals should be submitted within 60 days of denial by the designated agency ethics official, or within 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon.
PART 2636—LIMITATIONS ON OUTSIDE EARNED INCOME, EMPLOYMENT AND AFFILIATIONS FOR CERTAIN NONCAREER EMPLOYEES
Subpart A—General Provisions
§ 2636.101 Purpose.
This part is issued under authority of title VI of the Ethics Reform Act of 1989 (Pub. L. 101-194, as amended), to implement the 15 percent outside earned income limitation at 5 U.S.C. app. 501(a) and the limitations at 5 U.S.C. app. 502 on outside employment and affiliations, which are applicable to certain noncareer employees.
§ 2636.102 Definitions.
The definitions listed below are of general applicability to this part. Additional definitions of narrower applicability appear in the subparts or sections of subparts to which they apply. For purposes of this part:
(a) Agency ethics official refers to the designated agency ethics official and to any deputy ethics official described in § 2638.204 of this subchapter to whom authority to issue advisory opinions under § 2636.103 of this part has been delegated by the designated agency ethics official.
(b) Designated agency ethics official refers to the official described in § 2638.201 of this subchapter.
(c) Employee means any officer or employee of the executive branch, other than a special Government employee as defined in 18 U.S.C. 202. It includes officers but not enlisted members of the uniformed services as defined in 5 U.S.C. 2101(3). It does not include the President or Vice President.
(d) Executive branch includes each executive agency as defined in 5 U.S.C. 105 and any other entity or administrative unit in the executive branch. However, it does not include any agency that is defined by 5 U.S.C. app. 109(11) as within the legislative branch.
(e) The terms he, his, and him include “she,” “hers” and “her.”
§ 2636.103 Advisory opinions.
(a) Request for an advisory opinion. (1) An employee may request an advisory opinion from an agency ethics official as to whether specific conduct which has not yet occurred would violate any provision contained in this part.
(2) An advisory opinion may not be obtained for the purpose of establishing whether a noncareer employee who is subject to the restrictions in subpart C of this part may receive compensation for teaching. An advisory opinion issued under this section may not be substituted for the advance written approval required by § 2636.307 of this part.
(3) The employee’s request for an advisory opinion shall be submitted in writing, shall be dated and signed, and shall include all information reasonably available to the employee that is relevant to the inquiry. Where, in the opinion of the agency ethics official, complete information has not been provided, that official may request the employee to furnish additional information necessary to issue an opinion.
(b) Issuance of advisory opinion. As soon as practicable after receipt of all necessary information, the agency ethics official shall issue a written opinion as to whether the conduct in issue would violate any provision contained in this part. Where conduct which would not violate this part would violate another statute relating to conflicts of interest or applicable standards of conduct, the advisory opinion shall so state and shall caution the employee against engaging in the conduct.
(1) For the purpose of issuing an advisory opinion, the agency ethics official may request additional information from agency sources, including the requesting employee’s supervisor, and may rely upon the accuracy of information furnished by the requester or any agency source unless he has reason to believe that the information is fraudulent, misleading or otherwise incorrect.
(2) A copy of the request and advisory opinion shall be retained for a period of 6 years.
(c) Good faith reliance on an advisory opinion. An employee who engages in conduct in good faith reliance upon an advisory opinion issued to him under this section shall not be subject to civil or disciplinary action for having violated this part. Where an employee engages in conduct in good faith reliance upon an advisory opinion issued by an ethics official of his agency to another, neither the Office of Government Ethics nor the employing agency shall initiate civil or disciplinary action under this part for conduct that is indistinguishable in all material aspects from the conduct described in the advisory opinion. However, an advisory opinion issued under this section shall not insulate the employee from other civil or disciplinary action if his conduct violates any other laws, rule, regulation or lawful management policy or directive. Where an employee has actual knowledge or reason to believe that the opinion is based on fraudulent, misleading, or otherwise incorrect information, the employee’s reliance on the opinion will not be deemed to be in good faith.
(d) Revision of an ethics opinion. Nothing in this section prohibits an agency ethics official from revising an ethics opinion on a prospective basis where he determines that the ethics opinion previously issued is incorrect, either as a matter of law or because it is based on erroneous information.
§ 2636.104 Civil, disciplinary, and other action.
(a) Civil action. Except when the employee engages in conduct in good faith reliance upon an advisory opinion issued under § 2636.103, an employee who engages in any conduct in violation of the prohibitions, limitations, and restrictions contained in this part may be subject to civil action under 5 U.S.C. 13145(a), and a civil monetary penalty of not more than the amounts set in Table 1 to this this paragraph (a), as adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, or the amount of the compensation the individual received for the prohibited conduct, whichever is greater.
Table 1 to § 2636.104
| Date of violation | Penalty |
|---|---|
| Violation occurring between Sept. 29, 1999 and Nov. 2, 2015 | $11,000 |
| Violation occurring after Nov. 2, 2015 | 24,496 |
(b) Disciplinary and corrective action. An agency may initiate disciplinary or corrective action against an employee who violates any provision of this part, which may be in addition to any civil penalty prescribed by law. When an employee engages in conduct in good faith reliance upon an advisory opinion issued under § 2636.103 of this subpart, an agency may not initiate disciplinary or corrective action for violation of this part. Disciplinary action includes reprimand, suspension, demotion and removal. Corrective action includes any action necessary to remedy a past violation or prevent a continuing violation of this part, including but not limited to restitution or termination of an activity. It is the responsibility of the employing agency to initiate disciplinary or corrective action in appropriate cases. However, the Director of the Office of Government Ethics may order corrective action or recommend disciplinary action under the procedures at part 2638 of this subchapter. The imposition of disciplinary action is at the discretion of the employing agency.
Subpart B [Reserved]
Subpart C—Outside Earned Income Limitation and Employment and Affiliation Restrictions Applicable to Certain Noncareer Employees
§ 2636.301 General standards.
A covered noncareer employee shall not:
(a) Receive outside earned income in excess of the 15 percent limitation described in § 2636.304 of this subpart;
(b) Receive compensation or allow the use of his name in violation of the restrictions relating to professions involving a fiduciary relationship described in § 2636.305 of this subpart;
(c) Receive compensation for serving as an officer or board member in violation of the restriction described in § 2636.306 of this subpart; or
(d) Receive compensation for teaching without having first obtained advance authorization as required by § 2636.307 of this subpart.
§ 2636.302 Relationship to other laws and regulations.
The limitations and restrictions contained in this section are in addition to any limitations and restrictions imposed upon an employee by applicable standards of conduct or by reason of any statute or regulation relating to conflicts of interest. Even though conduct or the receipt of compensation is not prohibited by this subpart, an employee should accept compensation or engage in the activity for which compensation is offered only after determining that it is otherwise permissible. In particular, a covered noncareer employee should accept compensation only after determining that its receipt does not violate section 102 of Executive Order 12674, as amended, which prohibits a covered noncareer employee who is also a Presidential appointee to a full-time noncareer position from receiving any outside earned income for outside employment or for any other activity performed during that Presidential appointment.
§ 2636.303 Definitions.
For purposes of this section:
(a) Covered noncareer employee means an employee, other than a Special Government employee as defined in 18 U.S.C. 202, who occupies a position classified above GS-15 of the General Schedule or, in the case of positions not under the General Schedule, for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for GS-15 of the General Schedule, and who is:
(1) Appointed by the President to a position described in the Executive Schedule, 5 U.S.C. 5312 through 5317, or to a position that, by statute or as a matter of practice, is filled by Presidential appointment, other than:
(i) A position within the uniformed services; or
(ii) A position within the foreign service below the level of Assistant Secretary or Chief of Mission;
(2) A noncareer member of the Senior Executive Service or of another SES-type system, such as the Senior Foreign Service;
(3) Appointed to a Schedule C position or to a position under an agency-specific statute that establishes appointment criteria essentially the same as those set forth in § 213.3301 of this title for Schedule C positions; or
(4) Appointed to a noncareer executive assignment position or to a position under an agency-specific statute that establishes appointment criteria essentially the same as those for noncareer executive assignment positions.
(b) Outside earned income and compensation both mean wages, salaries, honoraria, commissions, professional fees and any other form of compensation for services other than salary, benefits and allowances paid by the United States Government. Neither term includes:
(1) Items that may be accepted under applicable standards of conduct gift regulations if they were offered by a prohibited source;
(2) Income attributable to service with the military reserves or national guard;
(3) Income from pensions and other continuing benefits attributable to previous employment or services;
(4) Income from investment activities where the individual’s services are not a material factor in the production of income;
(5) Copyright royalties, fees, and their functional equivalent, from the use or sale of copyright, patent and similar forms of intellectual property rights, when received from established users or purchasers of those rights;
(6) Actual and necessary expenses incurred by the employee in connection with an outside activity. Where such expenses are paid or reimbursed by another person, the amount of any such payment shall not be counted as compensation or outside earned income. Where such expenses are not paid or reimbursed, the amount of compensation or earned income shall be determined by subtracting the actual and necessary expenses incurred by the employee from any payment received for the activity; or
(7) Compensation for:
(i) Services rendered prior to January 1, 1991, or prior to becoming a covered noncareer employee;
(ii) Services rendered in satisfaction of a covered noncareer employee’s obligation under a contract entered into prior to January 1, 1991; or
(iii) Services which the covered noncareer employee first undertook to provide prior to January 1, 1991, where the standards of the applicable profession require the employee to complete the case or other undertaking.
(c) Receive means that the employee has the right to exercise dominion and control over the compensation or outside earned income and direct its subsequent use. Compensation or outside earned income is received by an employee if it is for his conduct and:
(1) If it is paid to any other person on the basis of designation, recommendation or other specification by the employee; or
(2) If, with the employee’s knowledge and acquiescence, it is paid to his parent, sibling, spouse, child or dependent relative.
§ 2636.304 The 15 percent limitation on outside earned income.
(a) Limitation applicable to individuals who are covered noncareer employees on January 1 of any calendar year. A covered noncareer employee may not, in any calendar year, receive outside earned income attributable to that calendar year which exceeds 15 percent of the annual rate of basic pay for level II of the Executive Schedule under 5 U.S.C. 5313, as in effect on January 1 of such calendar year. The effective date of a change in the rate for level II of the Executive Schedule shall be the date on which a new rate of basic pay for level II first becomes applicable to any level II position.
Notwithstanding the 15 percent limitation described in this section, a covered noncareer employee who is a Presidential appointee to a full-time noncareer position is prohibited by section 102 of Executive Order 12674, as amended, from receiving any outside earned income for outside employment or any other activity performed during that Presidential appointment.
(b) Limitation applicable to individuals who become covered noncareer employees after January 1 of any calendar year. The outside earned income limitation that applies to an individual who becomes a covered noncareer employee during a calendar year shall be determined on a pro rata basis. His outside earned income while so employed in that calendar year shall not exceed 15 percent of the annual rate of basic pay for level II of the Executive Schedule in effect on January 1 of the calendar year divided by 365 and multiplied by the number of days during that calendar year that he holds the covered noncareer position.
Step 1. The rate of basic pay for Executive Level II as in effect on January 1 of that year ($125,100) is divided by 365. That quotient is $342;
Step 2. The dollar amount determined by Step 1 ($342) is then multiplied by the 61 days the employee held the covered noncareer position. That product is $20,862;
Step 3. The dollar amount determined by Step 2 ($20,862) is multiplied by .15 or 15 percent. The product ($3,129) is the maximum outside earned income the employee may have in the particular year attributable to the period of his service in a covered noncareer position.
(c) Computation principle. For purposes of any computation required by this section, any amount of $.50 or more shall be rounded up to the next full dollar and any amount less than $.50 shall be rounded down to the next full dollar.
(d) Year to which outside earned income is attributable. Regardless of when it is paid, outside earned income is attributable to the calendar year in which the services for which it is paid were provided.
§ 2636.305 Compensation and other restrictions relating to professions involving a fiduciary relationship.
(a) Applicable restrictions. A covered noncareer employee shall not:
(1) Receive compensation for:
(i) Practicing a profession which involves a fiduciary relationship; or
(ii) Affiliating with or being employed to perform professional duties by a firm, partnership, association, corporation, or other entity which provides professional services involving a fiduciary relationship; or
(2) Permit his name to be used by any firm, partnership, association, corporation, or other entity which provides professional services involving a fiduciary relationship.
(b) Definitions. For purposes of this section:
(1) Profession means a calling requiring specalized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical or scholarly principles underlying such skills and methods. It is characteristic of a profession that those in the profession, through force of organization or concerted opinion, establish and maintain high standards of achievement and conduct, and commit its practitioners to continued study of the field. Consulting and advising with respect to subject matter that is generally regarded as the province of practitioners of a profession shall be considered a profession.
(2) Profession which involves a fiduciary relationship means a profession in which the nature of the services provided causes the recipient of those services to place a substantial degree of trust and confidence in the integrity, fidelity and specialized knowledge of the practitioner. Such professions are not limited to those whose practitioners are legally defined as fiduciaries and include practitioners in such areas as law, insurance, medicine, architecture, financial services and accounting. A covered noncareer employee who is uncertain whether a particular field of endeavor is a profession which involves a fiduciary relationship may request an advisory opinion under § 2636.103.
§ 2636.306 Compensation restriction applicable to service as an officer or member of a board.
(a) Applicable restriction. A covered noncareer employee shall not receive compensation for serving as an officer or member of the board of any association, corporation or other entity. Nothing in this section prohibits uncompensated service with any entity.
(b) Definition. For purposes of this section, the phrase “association, corporation or other entity” is not limited to for-profit entities, but includes nonprofit entities, such as charitable organizations and professional associations, as well as any unit of state or local government.
(a) Authorization requirement. A covered noncareer employee may receive compensation for teaching only when specifically authorized in advance by the designated agency ethics official.
(b) Definition. For purposes of this section “teaching” means any activity that involves oral presentation or personal interaction, the primary function of which is to instruct or otherwise impart knowledge or skill. It is not limited to teaching that occurs in a formal setting, such as a classroom, but extends to instruction on an individual basis or in an informal setting.
(c) Request for authorization. An employee may request authorization to engage in compensated teaching activities by forwarding a written request to the designated agency ethics official. The request shall describe the employee’s official duties, the subject matter of the teaching activity, the entity sponsoring the course, and the student, class or audience to be taught. In addition, it shall set forth the terms of the compensation arrangement and identify the source of the payment. The request shall be accompanied by any contract or employment agreement and any literature describing, publicizing or otherwise promoting the class, classes or course.
(d) Standard for authorization. Compensated teaching may be approved by the designated agency ethics official only when:
(1) The teaching will not interfere with the performance of the employee’s official duties or give rise to an appearance that the teaching opportunity was extended to the employee principally because of his official position;
(2) The employee’s receipt of compensation does not violate any of the limitations and prohibitions on honoraria, compensation or outside earned income contained in this part; and
(3) Neither the teaching activity nor the employee’s receipt of compensation therefor will violate applicable standards of conduct or any statute or regulation related to conflicts of interests.
(e) Determination and authorization. The determination by the designated agency ethics official to grant or deny authorization to engage in teaching for compensation shall be in writing and shall be final. The authority of the designated agency ethics official to authorize compensated teaching may not be delegated to any person other than the alternate designated agency ethics official described in § 2638.202(b).
PART 2638— EXECUTIVE BRANCH ETHICS PROGRAM
Subpart A—Mission and Responsibilities
§ 2638.101 Mission.
(a) Mission. The primary mission of the executive branch ethics program is to prevent conflicts of interest on the part of executive branch employees.
(b) Breadth. The executive branch ethics program works to ensure that public servants make impartial decisions based on the interests of the public when carrying out the governmental responsibilities entrusted to them, serve as good stewards of public resources, and loyally adhere to the Constitution and laws of the United States. In the broadest sense of the term, “conflicts of interest” stem from financial interests; business or personal relationships; misuses of official position, official time, or public resources; and the receipt of gifts. The mission is focused on both conflicts of interest and the appearance of conflicts of interest.
(c) Conflicts-based program. The executive branch ethics program is a conflicts-based program, rather than a solely disclosure-based program. While transparency is an invaluable tool for promoting and monitoring ethical conduct, the executive branch ethics program requires more than transparency. This program seeks to ensure the integrity of governmental decision making and to promote public confidence by preventing conflicts of interest. Taken together, the systems in place to identify and address conflicts of interest establish a foundation on which to build and sustain an ethical culture in the executive branch.
§ 2638.102 Government ethics responsibilities of employees.
Consistent with the fundamental principle that public service is a public trust, every employee in the executive branch plays a critical role in the executive branch ethics program. As provided in the Standards of Conduct at part 2635 of this chapter, employees must endeavor to act at all times in the public’s interest, avoid losing impartiality or appearing to lose impartiality in carrying out official duties, refrain from misusing their offices for private gain, serve as good stewards of public resources, and comply with the requirements of government ethics laws and regulations, including any applicable financial disclosure requirements. Employees must refrain from participating in particular matters in which they have financial interests and, pursuant to § 2635.402(f) of this chapter, should notify their supervisors or ethics officials when their official duties create the substantial likelihood of such conflicts of interest. Collectively, the charge of employees is to make ethical conduct the hallmark of government service.
§ 2638.103 Government ethics responsibilities of supervisors.
Every supervisor in the executive branch has a heightened personal responsibility for advancing government ethics. It is imperative that supervisors serve as models of ethical behavior for subordinates. Supervisors have a responsibility to help ensure that subordinates are aware of their ethical obligations under the Standards of Conduct and that subordinates know how to contact agency ethics officials. Supervisors are also responsible for working with agency ethics officials to help resolve conflicts of interest and enforce government ethics laws and regulations, including those requiring certain employees to file financial disclosure reports. In addition, supervisors are responsible, when requested, for assisting agency ethics officials in evaluating potential conflicts of interest and identifying positions subject to financial disclosure requirements.
§ 2638.104 Government ethics responsibilities of agency ethics officials.
(a) Appointment of a Designated Agency Ethics Official. Each agency head must appoint a Designated Agency Ethics Official (DAEO). The DAEO is the employee with primary responsibility for directing the daily activities of the agency’s ethics program and coordinating with the Office of Government Ethics.
(b) Qualifications necessary to serve as DAEO. The following are necessary qualifications of an agency’s DAEO:
(1) The DAEO must be an employee at an appropriate level in the organization, such that the DAEO is able to coordinate effectively with officials in relevant agency components and gain access to the agency head when necessary to discuss important matters related to the agency’s ethics program.
(2) The DAEO must be an employee who has demonstrated the knowledge, skills, and abilities necessary to manage a significant agency program, to understand and apply complex legal requirements, and to generate support for building and sustaining an ethical culture in the organization.
(3) On an ongoing basis, the DAEO must demonstrate the capacity to serve as an effective advocate for the executive branch ethics program, show support for the mission of the executive branch ethics program, prove responsive to the Director’s requests for documents and information related to the ethics program, and serve as an effective liaison with the Office of Government Ethics.
(4) In any agency with 1,000 or more employees, any DAEO appointed after the effective date of this regulation must be an employee at the senior executive level or higher, unless the agency has fewer than 10 positions at that level.
(c) Responsibilities of the DAEO. Acting directly or through other officials, the DAEO is responsible for taking actions authorized or required under this subchapter, including the following:
(1) Serving as an effective liaison to the Office of Government Ethics;
(2) Maintaining records of agency ethics program activities;
(3) Promptly and timely furnishing the Office of Government Ethics with all documents and information requested or required under subpart B of this part;
(4) Providing advice and counseling to prospective and current employees regarding government ethics laws and regulations, and providing former employees with advice and counseling regarding post-employment restrictions applicable to them;
(5) Carrying out an effective government ethics education program under subpart C of this part;
(6) Taking appropriate action to resolve conflicts of interest and the appearance of conflicts of interest, through recusals, directed divestitures, waivers, authorizations, reassignments, and other appropriate means;
(7) Consistent with § 2640.303 of this chapter, consulting with the Office of Government Ethics regarding the issuance of waivers pursuant to 18 U.S.C. 208(b);
(8) Carrying out an effective financial disclosure program, by:
(i) Establishing such written procedures as are appropriate relative to the size and complexity of the agency’s financial disclosure program for the filing, review, and, when applicable, public availability of financial disclosure reports;
(ii) Requiring public and confidential filers to comply with deadlines and requirements for financial disclosure reports under part 2634 of this chapter and, in the event of noncompliance, taking appropriate action to address such noncompliance;
(iii) Imposing late fees in appropriate cases involving untimely filing of public financial disclosure reports;
(iv) Making referrals to the Inspector General or the Department of Justice in appropriate cases involving knowing and willful falsification of financial disclosure reports or knowing and willful failure to file financial disclosure reports;
(v) Reviewing financial disclosure reports, with an emphasis on preventing conflicts of interest;
(vi) Consulting, when necessary, with financial disclosure filers and their supervisors to evaluate potential conflicts of interest;
(vii) Timely certifying financial disclosure reports and taking appropriate action with regard to financial disclosure reports that cannot be certified; and
(viii) Using the information disclosed in financial disclosure reports to prevent and resolve potential conflicts of interest.
(9) Assisting the agency in its enforcement of ethics laws and regulations when agency officials:
(i) Make appropriate referrals to the Inspector General or the Department of Justice;
(ii) Take disciplinary or corrective action; and
(iii) Employ other means available to them.
(10) Upon request of the Office of Inspector General, providing that office with ready and active assistance with regard to the interpretation and application of government ethics laws and regulations, as well as the procedural requirements of the ethics program;
(11) Ensuring that the agency has a process for notifying the Office of Government Ethics upon referral, made pursuant to 28 U.S.C. 535, to the Department of Justice regarding a potential violation of a conflict of interest law, unless such notification would be prohibited by law;
(12) Providing agency officials with advice on the applicability of government ethics laws and regulations to special Government employees;
(13) Requiring timely compliance with ethics agreements, pursuant to part 2634, subpart H of this chapter;
(14) Conducting ethics briefings for certain agency leaders, pursuant to § 2638.305;
(15) Prior to any Presidential election, preparing the agency’s ethics program for a potential Presidential transition; and
(16) Periodically evaluating the agency’s ethics program and making recommendations to the agency regarding the resources available to the ethics program.
(d) Appointment of an Alternate Designated Agency Ethics Official. Each agency head must appoint an Alternate Designated Agency Ethics Official (ADAEO). The ADAEO serves as the primary deputy to the DAEO in the administration of the agency’s ethics program. Together, the DAEO and the ADAEO direct the daily activities of an agency’s ethics program and coordinate with the Office of Government Ethics. The ADAEO must be an employee who has demonstrated the skills necessary to assist the DAEO in the administration of the agency’s ethics program.
(e) Program support by additional ethics officials and other individuals. Subject to approval by the DAEO or the agency head, an agency may designate additional ethics officials and other employees to assist the DAEO in carrying out the responsibilities of the ethics program, some of whom may be designated “deputy ethics officials” for purposes of parts 2635 and 2636 of this chapter. The agency is responsible for ensuring that these employees have the skills and expertise needed to perform their assigned duties related to the ethics program and must provide appropriate training to them for this purpose. Although the agency may appoint such officials as are necessary to assist in carrying out functions of the agency’s ethics program, they will be subject to the direction of the DAEO with respect to the functions of the agency’s ethics program described in this chapter. The DAEO retains authority to make final decisions regarding the agency’s ethics program and its functions, subject only to the authority of the agency head and the Office of Government Ethics.
(f) Ethics responsibilities that may be performed only by the DAEO or ADAEO. In addition to any items reserved for action by the DAEO or ADAEO in other parts of this chapter, only the DAEO or ADAEO may carry out the following responsibilities:
(1) Request approval of supplemental agency regulations, pursuant to § 2635.105 of this chapter;
(2) Recommend a separate component designation, pursuant to § 2641.302(e) of this chapter;
(3) Request approval of an alternative means for collecting certain public financial disclosure reports, pursuant to § 2638.204(c);
(4) Request determinations regarding public reporting requirements, pursuant to §§ 2634.202(c), 2634.203, 2634.205, and 2634.304(f) of this chapter;
(5) Make determinations, other than exceptions in individual cases, regarding the means the agency will use to collect public or confidential financial disclosure reports, pursuant to §§ 2638.204 and 2638.205;
(6) Request an alternative procedure for filing confidential financial disclosure reports, pursuant to § 2634.905(a) of this chapter;
(7) Request a formal advisory opinion on behalf of the agency or a prospective, current, or former employee of that agency, pursuant to § 2638.209(d); and
(8) Request a certificate of divestiture, pursuant to § 2634.1005(b) of this chapter.
§ 2638.105 Government ethics responsibilities of lead human resources officials.
(a) The lead human resources official, as defined in § 2638.603, acting directly or through delegees, is responsible for:
(1) Promptly notifying the DAEO of all appointments to positions that require incumbents to file public or confidential financial disclosure reports, with the notification occurring prior to appointment whenever practicable but in no case occurring more than 15 days after appointment; and
(2) Promptly notifying the DAEO of terminations of employees in positions that require incumbents to file public financial disclosure reports, with the notification occurring prior to termination whenever practicable but in no case occurring more than 15 days after termination.
(b) The lead human resources official may be assigned certain additional ethics responsibilities by the agency.
(1) If an agency elects to assign such responsibilities to human resources officials, the lead human resources official is responsible for coordinating, to the extent necessary and practicable, with the DAEO to support the agency’s ethics program;
(2) If the lead human resources official is responsible for conducting ethics training pursuant to subpart C of this part, that official must follow the DAEO’s directions regarding applicable requirements, procedures, and the qualifications of any presenters, consistent with the requirements of this chapter;
(3) If the lead human resources official is responsible for issuing the required government ethics notices in written offers of employment, pursuant to § 2638.303, or providing supervisory ethics notices, pursuant to § 2638.306, that official must comply with any substantive and procedural requirements established by the DAEO, consistent with the requirements of this chapter; and
(4) To the extent applicable, the lead human resources official is required to provide the DAEO with a written summary and confirmation regarding procedures for implementing certain requirements of subpart C of this part by January 15 each year, pursuant to § 2638.310.
(c) Nothing in this section prevents an agency head from delegating the duties described in paragraph (b) of this section to another agency official. In the event that an agency head delegates the duties described in paragraph (b) of this section to an agency official other than the lead human resources official, the requirements of paragraph (b) of this section will apply to that official.
§ 2638.106 Government ethics responsibilities of Inspectors General.
An agency’s Inspector General has authority to conduct investigations of suspected violations of conflict of interest laws and other government ethics laws and regulations. An Inspector General is responsible for giving due consideration to a request made pursuant to section 403 of the Ethics in Government Act of 1978 (the “Act”) by the Office of Government Ethics for investigation of a possible violation of a government ethics law or regulation. Inspectors General provide the Office of Government Ethics notification of certain referrals to the Department of Justice, pursuant to § 2638.206. Inspectors General may consult with the Director for legal guidance on the application of government ethics laws and regulations, except that the Director may not make any finding as to whether a provision of title 18, United States Code, or any criminal law of the United States outside of such title, has been or is being violated. Nothing in this section will be construed to limit or otherwise affect the authority of an Inspector General under section 6 of the Inspector General Act of 1978, as amended, including the authority under section 6(a)(2) to make such investigations and reports relating to the administration of the programs and operations of the applicable establishment as are, in the judgment of the Inspector General, necessary or desirable.
§ 2638.107 Government ethics responsibilities of agency heads.
The agency head is responsible for, and will exercise personal leadership in, establishing and maintaining an effective agency ethics program and fostering an ethical culture in the agency. The agency head is also responsible for:
(a) Designating employees to serve as the DAEO and ADAEO and notifying the Director in writing within 30 days of such designation;
(b) Providing the DAEO with sufficient resources, including staffing, to sustain an effective ethics program;
(c) Requiring agency officials to provide the DAEO with the information, support, and cooperation necessary for the accomplishment of the DAEO’s responsibilities;
(d) When action is warranted, enforcing government ethics laws and regulations through appropriate referrals to the Inspector General or the Department of Justice, investigations, and disciplinary or corrective action;
(e) Requiring that violations of government ethics laws and regulations, or interference with the functioning of the agency ethics program, be appropriately considered in evaluating the performance of senior executives;
(f) Requiring the Chief Information Officer and other appropriate agency officials to support the DAEO in using technology, to the extent practicable, to carry out ethics program functions such as delivering interactive training and tracking ethics program activities;
(g) Requiring appropriate agency officials to submit to the Office of Government Ethics, by May 31 each year, required reports of travel accepted by the agency under 31 U.S.C. 1353 during the period from October 1 through March 31;
(h) Requiring appropriate agency officials to submit to the Office of Government Ethics, by November 30 each year, required reports of travel accepted by the agency under 31 U.S.C. 1353 during the period from April 1 through September 30; and
(i) Prior to any Presidential election, supporting the agency’s ethics program in preparing for a Presidential transition.
§ 2638.108 Government ethics responsibilities of the Office of Government Ethics.
The Office of Government Ethics is the supervising ethics office for the executive branch, providing overall leadership and oversight of the executive branch ethics program designed to prevent and resolve conflicts of interest. The Office of Government Ethics has the authorities and functions established in the Act.
(a) Authorities and functions. Among other authorities and functions, the Office of Government Ethics has the authorities and functions described in this section.
(1) The Office of Government Ethics issues regulations regarding conflicts of interest, standards of conduct, financial disclosure, requirements for agency ethics programs, and executive branch-wide systems of records for government ethics records. In issuing any such regulations, the Office of Government Ethics will, to the full extent required under the Act and any Executive order, coordinate with the Department of Justice and the Office of Personnel Management. When practicable, the Office of Government Ethics will also consult with a diverse group of selected agency ethics officials that represents a cross section of executive branch agencies to ascertain representative views of the DAEO community when developing substantive revisions to this chapter.
(2) The Office of Government Ethics reviews and approves or disapproves agency supplemental ethics regulations.
(3) The Office of Government Ethics issues formal advisory opinions to interested parties, pursuant to § 2638.209. When developing a formal advisory opinion, the Office of Government Ethics will provide interested parties with an opportunity to comment.
(4) The Office of Government Ethics issues guidance and informal advisory opinions, pursuant to § 2638.208. When practicable, the Office of Government Ethics will consult with selected agency ethics officials to ascertain representative views of the DAEO community when developing guidance or informal advisory opinions that the Director determines to be of significant interest to a broad segment of the DAEO community.
(5) The Office of Government Ethics supports agency ethics officials through such training, advice, and counseling as the Director deems necessary.
(6) The Office of Government Ethics provides assistance in interpreting government ethics laws and regulations to executive branch Offices of Inspector General and other executive branch entities.
(7) When practicable, the Office of Government Ethics convenes quarterly executive branch-wide meetings of key agency ethics officials. When the Office of Government Ethics convenes a major executive branch-wide training event, the event normally serves in place of a quarterly meeting.
(8) Pursuant to sections 402(b)(10) and 403 of the Act, the Director requires agencies to furnish the Office of Government Ethics with all information, reports, and records which the Director determines to be necessary for the performance of the Director’s duties, except when such a release is prohibited by law.
(9) The Office of Government Ethics conducts reviews of agency ethics programs in order to ensure their compliance with program requirements and to ensure their effectiveness in advancing the mission of the executive branch-wide ethics program. The Office of Government Ethics also conducts single-issue reviews of individual agencies, groups of agencies, or the executive branch ethics program as a whole.
(10) The Office of Government Ethics reviews financial disclosure reports filed by employees, former employees, nominees, candidates for the Office of the President of the United States, and candidates for the Office of the Vice President of the United States who are required to file executive branch financial disclosure reports with the Office of Government Ethics pursuant to sections 101, 103(c), and 103(l) of the Act.
(11) By January 15 each year, the Office of Government Ethics issues year-end reports to agencies regarding their compliance with the obligations, pursuant to section 103(c) of the Act and part 2634 of this chapter:
(i) To timely transmit the annual public financial disclosure reports of certain high-level officials to the Office of Government Ethics; and
(ii) To promptly submit such additional information as is necessary to obtain the Director’s certification of the reports.
(12) The Office of Government Ethics oversees the development of ethics agreements between agencies and Presidential nominees for positions in the executive branch requiring Senate confirmation and tracks compliance with such agreements. The Office of Government Ethics also maintains a guide that provides sample language for ethics agreements of Presidential nominees requiring Senate confirmation.
(13) The Office of Government Ethics proactively assists Presidential Transition Teams in support of effective and efficient Presidential transitions and, to the extent practicable, may provide Presidential campaigns with advice and counsel on preparing for Presidential transitions.
(14) The Office of Government Ethics orders such corrective action on the part of an agency as the Director deems necessary, pursuant to subpart D of this part, and such corrective action on the part of individual executive branch employees as the Director deems necessary, pursuant to subpart E of this part.
(15) The Office of Government Ethics makes determinations regarding public financial disclosure requirements, pursuant to §§ 2634.202(c), 2634.203, 2634.205, and 2634.304(f) of this chapter.
(16) The Office of Government Ethics conducts outreach to inform the public of matters related to the executive branch ethics program.
(17) The Director and the Office of Government Ethics take such other actions as are necessary and appropriate to carry out their responsibilities under the Act.
(b) Other authorities and functions. Nothing in this subpart or this chapter limits the authority of the Director or the Office of Government Ethics under the Act.
Subpart B—Procedures of the Executive Branch Ethics Program
§ 2638.201 In general.
This subpart establishes certain procedures of the executive branch ethics program. The procedures set forth in this subpart are in addition to procedures established elsewhere in this chapter and in the program advisories and other issuances of the Office of Government Ethics.
§ 2638.202 Furnishing records and information generally.
Consistent with sections 402 and 403 of the Act, each agency must furnish to the Director all information and records in its possession which the Director deems necessary to the performance of the Director’s duties, except to the extent prohibited by law. All such information and records must be provided to the Office of Government Ethics in a complete and timely manner.
§ 2638.203 Collection of public financial disclosure reports required to be submitted to the Office of Government Ethics.
The public financial disclosure reports of individuals, other than candidates for elected office and elected officials, whose reports are required by section 103 of the Act to be transmitted to the Office of Government Ethics will be transmitted through the executive branch-wide electronic filing system of the Office of Government Ethics, except in cases in which the Director determines that using that system would be impracticable.
§ 2638.204 Collection of other public financial disclosure reports.
This section establishes the procedure that the executive branch ethics program will use to collect, pursuant to section 101 of the Act, public financial disclosure reports of individuals whose reports are not required by section 103 of the Act to be transmitted to the Office of Government Ethics.
(a) General. Subject to the exclusions and exceptions in paragraphs (b) through (d) of this section, the public financial disclosure reports required by part 2634 of this chapter will be collected through the executive branch-wide electronic filing system of the Office of Government Ethics.
(b) Exclusions. This section does not apply to persons whose financial disclosure reports are covered by section 105(a)(1) or (2) of the Act, persons whose reports are required by section 103 of the Act to be transmitted to the Office of Government Ethics, or such other persons as the Director may exclude from the coverage of this section in the interest of the executive branch ethics program.
(c) Authorization to collect public reports in paper format or through a legacy electronic filing system. Upon written request signed by the DAEO or ADAEO and by the Chief Information Officer, the Director of the Office of Government Ethics may authorize an agency in the interest of the executive branch ethics program to collect public financial disclosure reports in paper format or through a legacy electronic filing system other than the executive branch-wide electronic filing system of the Office of Government Ethics. The Director may rescind any such authorization based on a written determination that the rescission promotes the efficiency or effectiveness of the executive branch ethics program, but only after providing the agency with advance written notice and an opportunity to respond. The rescission will become effective on January 1 of a subsequent calendar year, but not less than 24 months after notice is provided.
(d) Exceptions in cases of extraordinary circumstances or temporary technical difficulties. Based on a determination that extraordinary circumstances or temporary technical difficulties make the use of an electronic filing system impractical, the DAEO or ADAEO may authorize an individual to file a public financial disclosure report using such alternate means of filing as are authorized in the program advisories of the Office of Government Ethics. To the extent practicable, agencies should limit the number of exceptions they grant under this paragraph each year. The Director may suspend an agency’s authority to grant exceptions under this paragraph when the Director is concerned that the agency may be granting exceptions unnecessarily or in a manner that is inconsistent with § 2638.601(c). Nothing in this paragraph limits the authority of the agency to excuse an employee from filing electronically to the extent necessary to provide reasonable accommodations under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, or other applicable legal authority.
§ 2638.205 Collection of confidential financial disclosure reports.
This section establishes the procedure that the executive branch will use to collect confidential financial disclosure reports from employees of the executive branch. To the extent not inconsistent with part 2634 of this chapter or with the approved forms, instructions, and other guidance of the Office of Government Ethics, the DAEO of each agency will determine the means by which the agency will collect confidential financial disclosure reports, including a determination as to whether the agency will collect such reports in either paper or electronic format. Nothing in this paragraph limits the authority of the agency to provide reasonable accommodations under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, or other applicable legal authority.
§ 2638.206 Notice to the Director of certain referrals to the Department of Justice.
This section establishes the requirement to provide the Director with notice of certain referrals.
(a) Upon any referral made pursuant to 28 U.S.C. 535 to the Department of Justice regarding a potential violation of a conflict of interest law, the referring office must notify the Director of the referral by filing a completed OGE Form 202 with the Director, unless prohibited by law.
(b) In order to ensure effective coordination of this section, the Office of Government Ethics will obtain the concurrence of the Chairperson of the Council of the Inspectors General on Integrity and Efficiency before implementing substantive changes to the OGE Form 202.
(c) If an agency’s procedures authorize an official outside the Office of Inspector General to make a referral covered by this section, that official must provide the Inspector General and the DAEO with copies of documents provided to the Director pursuant this section, unless prohibited by law.
§ 2638.207 Annual report on the agency’s ethics program.
(a) By February 1 of each year, an agency must file with the Office of Government Ethics, pursuant to section 402(e)(1) of the Act, a report containing such information about the agency’s ethics program as is requested by the Office of Government Ethics. The report must be filed electronically and in a manner consistent with the instructions of the Office of Government Ethics.
(b) In order to facilitate the collection of required information by agencies, the Office of Government Ethics will provide agencies with advance notice regarding the contents of the report prior to the beginning of the reporting period for information that would be expected to be tracked over the course of the reporting period. Otherwise, it will provide as much notice as practicable, taking into consideration the effort required to collect the information.
§ 2638.208 Written guidance on the executive branch ethics program.
This section describes several means by which the Office of Government Ethics provides agencies, employees, and the public with written guidance regarding its legal interpretations, program requirements, and educational offerings. Normally, written guidance is published on the official website of the Office of Government Ethics, www.oge.gov.
(a) Legal advisories. The Office of Government Ethics issues legal advisories, which are memoranda regarding the interpretation of government ethics laws and regulations. They are intended primarily to provide education and notice to executive branch ethics officials; prospective, current, and former executive branch employees; and individuals who interact with the executive branch.
(b) Program advisories. The Office of Government Ethics issues program advisories, which are memoranda regarding the requirements or procedures applicable to the executive branch ethics program and individual agency ethics programs. They are intended primarily to instruct agencies on uniform procedures for the executive branch ethics program.
(c) Informal advisory opinions. Upon request or upon its own initiative, the Office of Government Ethics issues informal advisory opinions. Informal advisory opinions address subjects that in the opinion of the Director do not meet the criteria for issuance of formal advisory opinions. They are intended primarily to provide guidance to individuals and illustrate the application of government ethics laws and regulations to specific circumstances.
§ 2638.209 Formal advisory opinions.
This section establishes the formal advisory opinion service of the Office of Government Ethics.
(a) General. The Office of Government Ethics renders formal advisory opinions pursuant to section 402(b)(8) of the Act. A formal advisory opinion will be issued when the Director determines that the criteria and requirements established in this section are met.
(b) Subjects of formal advisory opinions. Formal advisory opinions may be rendered on matters of general applicability or important matters of first impression concerning the application of the Act; Executive Order 12674 of April 12, 1989, as modified by Executive Order 12731 of October 17, 1990; 18 U.S.C. 202-209; and regulations interpreting or implementing these authorities. In determining whether to issue a formal advisory opinion, the Director will consider:
(1) The unique nature of the question and its precedential value;
(2) The potential number of employees throughout the government affected by the question;
(3) The frequency with which the question arises;
(4) The likelihood or presence of inconsistent interpretations on the same question by different agencies; and
(5) The interests of the executive branch ethics program.
(c) Role of the formal advisory opinion service. The formal advisory opinion service of the Office of Government Ethics is not intended to replace the government ethics advice and counseling programs maintained by executive branch agencies. Normally, formal advisory opinions will not be issued with regard to the types of questions appropriately directed to an agency’s DAEO. If a DAEO receives a request that the DAEO believes might appropriately be answered by the Office of Government Ethics through a formal advisory opinion, the DAEO will consult informally with the General Counsel of the Office of Government Ethics for instructions as to whether the matter should be referred to the Office of Government Ethics or retained by the agency for handling. Except in unusual circumstances, the Office of Government Ethics will not render formal advisory opinions with respect to hypothetical situations posed in requests for formal advisory opinions. At the discretion of the Director, however, the Office of Government Ethics may render formal advisory opinions on certain proposed activities or financial transactions.
(d) Eligible persons. Any person may request an opinion with respect to a situation in which that person is directly involved, and an authorized representative may request an opinion on behalf of that person. However, an employee will normally be required to seek an opinion from the agency’s DAEO before requesting a formal advisory opinion from the Office of Government Ethics. In addition, a DAEO may request a formal advisory opinion on behalf of the agency or a prospective, current, or former employee of that agency.
(e) Submitting a request for a formal advisory opinion. The request must be submitted either by electronic mail addressed to [email protected] or by mail, through either the United States Postal Service or a private shipment service, to the Director of the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917. Personal deliveries will not be accepted.
(f) Requirements for request. The request must include:
(1) An express statement indicating that the submission is a request for a formal advisory opinion;
(2) The name, street address, and telephone number of the person requesting the opinion;
(3) The name, street address, and telephone number of any representative of that person;
(4) All material facts necessary for the Director to render a complete and correct opinion;
(5) The date of the request and the signature of either the requester or the requester’s representative; and
(6) In the case of a request signed by a representative, a written designation of the representative that is dated and signed by the requester.
(g) Optional materials. At the election of the requester, the request may also include legal memoranda or other material relevant to the requested formal advisory opinion.
(h) Additional information. The Director may request such additional information or documentation as the Director deems necessary to the development of a formal advisory opinion, from either the requester or other sources. If the requester or the requester’s representative fails to cooperate with such a request, the Office of Government Ethics normally will close the matter without issuing a formal advisory opinion.
(i) Comments from interested parties. The Office of Government Ethics will, to the extent practicable, solicit written comments on a request by posting a prominent notice on its official Web site. Any such notice will summarize relevant information in the request, provide interested parties 30 days to submit written comments, and include instructions for submitting written comments. Written comments submitted after the deadline will be considered only at the discretion of the Director.
(j) Consultation with the Department of Justice. Whenever the Office of the Government Ethics is considering rendering a formal advisory opinion, the Director will consult with the Office of Legal Counsel of the Department of Justice sufficiently in advance to afford that office an opportunity to review the matter. In addition, whenever a request involves an actual or apparent violation of any provision of 18 U.S.C. 202-209, the Director will consult with the Criminal Division of the Department of Justice. If the Criminal Division determines that an investigation or prosecution will be undertaken, the Director will take no further action on the request, unless the Criminal Division makes a determination not to prosecute.
(k) Consultation with other executive branch officials. The Director will consult with such other executive branch officials as the Director deems necessary to ensure thorough consideration of issues and information relevant to the request by the Office of Government Ethics. In the case of a request submitted by a prospective or current employee, the Director will share a copy of the request with the DAEO of the employee’s agency.
(l) Publication. The Office of Government Ethics will publish each formal advisory opinion on its official Web site. Prior to publishing a formal advisory opinion on its Web site, the Office of Government Ethics will delete information that identifies individuals involved and that is unnecessary to a complete understanding of the opinion.
(m) Reliance on formal advisory opinions. (1) Any formal advisory opinion referred to in this section or any provisions or finding of a formal advisory opinion involving the application of the Act or the regulations promulgated pursuant to the Act or Executive order may be relied upon by:
(i) Any person directly involved in the specific transaction or activity with respect to which such advisory opinion has been rendered; and
(ii) Any person directly involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such formal advisory opinion was rendered.
(2) Any person who relies upon any provision or finding of any formal advisory opinion in accordance with this paragraph and who acts in good faith in accordance with the provisions and findings of such opinion will not, as a result of such act, be subject to prosecution under 18 U.S.C. 202-209 or, when the opinion is exculpatory, be subject to any disciplinary action or civil action based upon legal authority cited in that opinion.
§ 2638.210 Presidential transition planning.
Prior to any Presidential election, each agency has a responsibility to prepare its agency ethics program for a Presidential transition. Such preparations do not constitute support for a particular candidate and are not reflective of a belief regarding the likely outcome of the election; rather, they reflect an understanding that agencies are responsible for ensuring the continuity of governmental operations.
(a) Preparing the ethics program for a transition. The agency head or the DAEO must, not later than 12 months before any Presidential election, evaluate whether the agency’s ethics program has an adequate number of trained agency ethics officials to effectively support a Presidential transition.
(b) Support by the Office of Government Ethics. In connection with any Presidential election, the Office of Government Ethics will:
(1) Prior to the election, offer training opportunities for agency ethics officials on counseling departing noncareer appointees on post-employment restrictions, reviewing financial disclosure reports, drafting ethics agreements for Presidential nominees, and counseling new noncareer appointees on conflict of interest laws and the Standards of Conduct; and
(2) After the election, in the event of a Presidential transition, proactively assist the Presidential Transition Team in preparing for Presidential nominations, coordinate with agency ethics officials, and develop plans to implement new initiatives related to government ethics.
Subpart C—Government Ethics Education
§ 2638.301 In general.
Every agency must carry out a government ethics education program to teach employees how to identify government ethics issues and obtain assistance in complying with government ethics laws and regulations. An agency’s failure to comply with any of the education or notice requirements set forth in this subpart does not exempt an employee from applicable government ethics requirements.
§ 2638.302 Definitions.
The following definitions apply to the format of the various types of training required in this subpart. The agency may deviate from these prescribed formats to the extent necessary to provide reasonable accommodations to participants under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, or other applicable legal authority.
(a) Live. A training presentation is considered live if the presenter personally communicates a substantial portion of the material at the same time as the employees being trained are receiving the material, even if part of the training is prerecorded or automated. The training may be delivered in person or through video or audio technology. The presenter must respond to questions posed during the training and provide instructions for participants to submit questions after the training.
(b) Interactive. A training presentation is considered interactive if the employee being trained is required to take an action with regard to the subject of the training. The required action must involve the employee’s use of knowledge gained through the training and may not be limited to merely advancing from one section of the training to another section. Training that satisfies the requirements of paragraph (a) of this section will also satisfy the requirements of this paragraph.
§ 2638.303 Notice to prospective employees.
Written offers of employment for positions covered by the Standards of Conduct must include the information required in this section to provide prospective employees with notice of the ethical obligations associated with the positions.
(a) Content. The written offer must include, in either the body of the offer or an attachment:
(1) A statement regarding the agency’s commitment to government ethics;
(2) Notice that the individual will be subject to the Standards of Conduct and the criminal conflict of interest statutes as an employee;
(3) Contact information for an appropriate agency ethics office or an explanation of how to obtain additional information on applicable ethics requirements;
(4) Where applicable, notice of the time frame for completing initial ethics training; and
(5) Where applicable, a statement regarding financial disclosure requirements and an explanation that new entrant reports must be filed within 30 days of appointment.
(b) DAEO’s authority. At the election of the DAEO, the DAEO may specify the language that the agency will use in the notice required under paragraph (a) of this section or may approve, disapprove, or revise language drafted by other agency officials.
(c) Tracking. Each agency must establish written procedures, which the DAEO must review each year, for issuing the notice required in this section. In the case of an agency with 1,000 or more employees, the DAEO must review any submissions under § 2638.310 each year to confirm that the agency has implemented an appropriate process for meeting the requirements of this section.
§ 2638.304 Initial ethics training.
Each new employee of the agency subject to the Standards of Conduct must complete initial ethics training that meets the requirements of this section.
(a) Coverage. (1) This section applies to each employee appointed to a position in an agency who was not an employee of the agency immediately prior to that appointment. This section also permits Presidential nominees for Senate-confirmed positions to complete the initial ethics training prior to appointment.
(2) The DAEO may exclude a non-supervisory position at or below the GS-8 grade level, or the equivalent, from the requirement to complete the training presentation described in paragraph (e)(1) of this section, provided that:
(i) The DAEO signs a written determination that the duties of the position do not create a substantial likelihood that conflicts of interest will arise;
(ii) The position does not meet the criteria set forth at § 2634.904 of this chapter; and
(iii) The agency provides an employee described in paragraph (a)(1) of this section who is appointed to the position with the written materials required under paragraph (e)(2) of this section within 3 months of appointment.
(b) Deadline. Except as provided in this paragraph, each new employee must complete initial ethics training within 3 months of appointment.
(1) In the case of a Presidential nominee for a Senate-confirmed position, the nominee may complete the ethics training before or after appointment, but not later than 3 months after appointment.
(2) In the case of a special Government employee who is reasonably expected to serve for no more than 60 days in a calendar year on a board, commission, or committee, the agency may provide the initial ethics training at any time before, or at the beginning of, the employee’s first meeting of the board, commission, or committee.
(c) Duration. The duration of the training must be sufficient for the agency to communicate the basic ethical obligations of federal service and to present the content described in paragraph (e) of this section.
(d) Format. Employees covered by this section are required to complete interactive initial ethics training.
(e) Content. The following content requirements apply to initial ethics training.
(1) Training presentation. The training presentation must focus on government ethics laws and regulations that the DAEO deems appropriate for the employees participating in the training. The presentation must address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation, the agency must provide the employee with either the following written materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the Office of Government Ethics or an equivalent summary prepared by the agency;
(ii) Provisions of any supplemental agency regulations that the DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be included; and
(iv) Instructions for contacting the agency’s ethics office.
(f) Tracking. Each agency must establish written procedures, which the DAEO must review each year, for initial ethics training. In the case of an agency with 1,000 or more employees, the DAEO must review any submissions under § 2638.310 each year to confirm that the agency has implemented an appropriate process for meeting the requirements of this section.
§ 2638.305 Additional ethics briefing for certain agency leaders.
In addition to other applicable requirements, each individual covered by this section must complete an ethics briefing to discuss the individual’s immediate ethics obligations. Although the ethics briefing is separate from the initial ethics training, the agency may elect to combine the ethics briefing and the initial ethics training, provided that the requirements of both this section and § 2638.304 are met.
(a) Coverage. This section applies to Senate-confirmed Presidential nominees and appointees, except for those in positions identified in § 2634.201(c)(2) of this chapter.
(b) Deadline. The following deadlines apply to the ethics briefing.
(1) Except as provided in paragraph (b)(2) of this section, each individual covered by this section must complete the ethics briefing after confirmation but not later than 15 days after appointment. The DAEO may grant an extension of the deadline not to exceed 30 days after appointment.
(2)(i) In extraordinary circumstances, the DAEO may grant an additional extension to an individual by issuing a written determination that an extension is necessary. The determination must describe the extraordinary circumstances necessitating the extension, caution the individual to be vigilant for conflicts of interest created by any newly acquired financial interests, remind the individual to comply with any applicable ethics agreement, and be accompanied by a copy of the ethics agreement(s). The DAEO must send a copy of the determination to the individual before expiration of the time period established in paragraph (b)(1) of this section. The agency must conduct the briefing at the earliest practicable date thereafter. The written determination must be retained with the record of the individual’s briefing.
(ii) In the case of a special Government employee who is expected to serve for no more than 60 days in a calendar year on a board, commission, or committee, the agency must provide the ethics briefing before the first meeting of the board, commission, or committee.
(c) Qualifications of presenter. The employee conducting the briefing must have knowledge of government ethics laws and regulations and must be qualified, as the DAEO deems appropriate, to answer the types of basic and advanced questions that are likely to arise regarding the required content.
(d) Duration. The duration of the ethics briefing must be sufficient for the agency to communicate the required content.
(e) Format. The ethics briefing must be conducted live.
(f) Content. The ethics briefing must include the following activities.
(1) If the individual acquired new financial interests reportable under section 102 of the Act after filing the nominee financial disclosure report, the agency ethics official must appropriately address the potential for conflicts of interest arising from those financial interests.
(2) The agency ethics official must counsel the individual on the basic recusal obligation under 18 U.S.C. 208(a).
(3) The agency ethics official must explain the recusal obligations and other commitments addressed in the individual’s ethics agreement and ensure that the individual understands what is specifically required in order to comply with each of them, including any deadline for compliance. The ethics official and the individual must establish a process by which the recusals will be achieved, which may consist of a screening arrangement or, when the DAEO deems appropriate, vigilance on the part of the individual with regard to recusal obligations as they arise in particular matters.
(4) The agency ethics official must provide the individual with instructions and the deadline for completing initial ethics training, unless the individual completes the initial ethics training either before or during the ethics briefing.
(g) Tracking. The DAEO must maintain a record of the date of the ethics briefing for each current employee covered by this section.
§ 2638.306 Notice to new supervisors.
The agency must provide each employee upon initial appointment to a supervisory position with the written information required under this section.
(a) Coverage. This requirement applies to each civilian employee who is required to receive training pursuant to 5 CFR 412.202(b).
(b) Deadline. The agency must provide the written materials required by this section within 1 year of the employee’s initial appointment to the supervisory position.
(c) Written materials. The written materials must include contact information for the agency’s ethics office and the text of § 2638.103. In addition, a copy of, a hyperlink to, or the address of a Web site containing the Principles of Ethical Conduct must be included, as well as such other information as the DAEO deems necessary for new supervisors.
(d) Tracking. Each agency must establish written procedures, which the DAEO must review each year, for supervisory ethics notices. In the case of an agency with 1,000 or more employees, the DAEO must review any submissions under § 2638.310 each year to confirm that the agency has implemented an appropriate process for meeting the requirements of this section.
§ 2638.307 Annual ethics training for confidential filers and certain other employees.
Each calendar year, employees covered by this section must complete ethics training that meets the following requirements.
(a) Coverage. In any calendar year, this section applies to the following employees, unless they are public filers:
(1) Each employee who is required to file an annual confidential financial disclosure report pursuant to § 2634.904 of this chapter during that calendar year, except an employee who ceases to be a confidential filer before the end of the calendar year;
(2) Employees appointed by the President and employees of the Executive Office of the President;
(3) Contracting officers described in 41 U.S.C. 2101; and
(4) Other employees designated by the head of the agency.
(b) Deadline. The employee must complete required annual ethics training before the end of the calendar year.
(c) Duration. Agencies must provide employees with 1 hour of duty time to complete interactive training and review any written materials.
(d) Format. The following formatting requirements apply.
(1) Except as provided in paragraph (d)(2) of this section, employees covered by this section are required to complete interactive training.
(2) If the DAEO determines that it is impracticable to provide interactive training to a special Government employee covered by this section who is expected to work no more than 60 days in a calendar year, or to an employee who is an officer in the uniformed services serving on active duty for no more 30 consecutive days, only the requirement to provide the written materials required by this section will apply to that employee each year. The DAEO may make the determination as to individual employees or a group of employees.
(e) Content. The following content requirements apply to annual ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on government ethics laws and regulations that the DAEO deems appropriate for the employees participating in the training. The presentation must address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation, the agency must provide the employee with either the following written materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the Office of Government Ethics or an equivalent summary prepared by the agency;
(ii) Provisions of any supplemental agency regulations that the DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be included; and
(iv) Instructions for contacting the agency’s ethics office.
(f) Tracking. The following tracking requirements apply to training conducted pursuant to this section. An employee covered by this section must confirm in writing the completion of annual ethics training and must comply with any procedures established by the DAEO for such confirmation. If the DAEO or other presenter has knowledge that an employee completed required training, that individual may record the employee’s completion of the training, in lieu of requiring the employee to provide written confirmation. In the case of an automated system that delivers interactive training, the DAEO may deem the employee to have confirmed the completion of the training if the system tracks completion automatically.
§ 2638.308 Annual ethics training for public filers.
Each calendar year, public filers and other employees specified in this section must complete ethics training that meets the following requirements.
(a) Coverage. In any calendar year, this section applies to each employee who is required to file an annual public financial disclosure report pursuant to § 2634.201(a) of this chapter during that calendar year, except for an employee who ceases to be a public filer during that calendar year.
(b) Deadline. A public filer must complete required annual ethics training before the end of the calendar year.
(c) Qualifications of presenter. The employee conducting any live training presentation must have knowledge of government ethics laws and regulations and must be qualified, as the DAEO deems appropriate, to answer the types of basic and advanced questions that are likely to arise regarding the required content.
(d) Duration. The duration of training must be sufficient for the agency to communicate the required content, but at least 1 hour. Agencies must provide employees with 1 hour of duty time to complete interactive training and review any written materials.
(e) Format. The annual ethics training must meet the following formatting requirements.
(1) Employees whose pay is set at Level I or Level II of the Executive Schedule must complete 1 hour of live training each year, unless a matter of vital national interest makes it necessary for an employee to complete interactive training in lieu of live training in a particular year.
(2) Other civilian employees identified in section 103(c) of the Act who are stationed in the United States must complete live training once every 2 years and interactive training in alternate years. In extraordinary circumstances, the DAEO may grant written authorization for an employee who is required to complete live training in a particular year to complete interactive training.
(3) All other employees covered by this section must complete interactive training.
(f) Content. The following content requirements apply to annual ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on government ethics laws and regulations that the DAEO deems appropriate for the employees participating in the training. The presentation must address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation, the agency must provide the employee with either the following written materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the Office of Government Ethics or an equivalent summary prepared by the agency;
(ii) Provisions of any supplemental agency regulations that the DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be included; and
(iv) Instructions for contacting the agency’s ethics office.
(g) Tracking. The following tracking requirements apply to training conducted pursuant to this section. An employee covered by this section must confirm in writing the completion of annual ethics training and must comply with any procedures established by the DAEO for such confirmation. If the DAEO or other presenter has knowledge that an employee completed required training, that individual may record the employee’s completion of the training, in lieu of requiring the employee to provide written confirmation. In the case of an automated system that delivers interactive training, the DAEO may deem the employee to have confirmed the completion of the training if the system tracks completion automatically.
§ 2638.309 Agency-specific ethics education requirements.
The DAEO may establish additional requirements for the agency’s ethics education program, with or without a supplemental agency regulation under § 2635.105 of this chapter.
(a) Groups of employees. The DAEO may establish specific government ethics training requirements for groups of agency employees.
(b) Employees performing ethics duties. The DAEO has an obligation to ensure that employees performing assigned ethics duties have the necessary expertise with regard to government ethics laws and regulations. If the DAEO determines that employees engaged in any activities described in §§ 2638.104 and 2638.105 require training, the DAEO may establish specific training requirements for them either as a group or individually.
(c) Procedures. The DAEO may establish specific procedures for training that the DAEO requires under paragraph (a) or (b) of this section, including any certification procedures the DAEO deems necessary. Agency employees must comply with the requirements and procedures that the DAEO establishes under this section.
§ 2638.310 Coordinating the agency’s ethics education program.
In an agency with 1,000 or more employees, any office that is not under the supervision of the DAEO but has been delegated responsibility for issuing notices, pursuant to § 2638.303 or § 2638.306, or conducting training, pursuant to § 2638.304, must submit the following materials to the DAEO by January 15 each year:
(a) A written summary of procedures that office has established to ensure compliance with this subpart; and
(b) Written confirmation that there is a reasonable basis for concluding that the procedures have been implemented.
Subpart D—Correction of Executive Branch Agency Ethics Programs
§ 2638.401 In general.
The Office of Government Ethics has authority, pursuant to sections 402(b)(9) and 402(f)(1) of the Act, to take the action described in this subpart with respect to deficiencies in agency ethics programs. Agency ethics programs comprise the matters described in this subchapter for which agencies are responsible.
§ 2638.402 Informal action.
If the Director has information indicating that an agency ethics program is not compliant with the requirements set forth in applicable government ethics laws and regulations, the Director is authorized to take any or all of the measures described in this section. The Director may:
(a) Contact agency ethics officials informally to identify the relevant issues and resolve them expeditiously;
(b) Issue a notice of deficiency to make the agency aware of its possible noncompliance with an applicable government ethics law or regulation;
(c) Require the agency to respond in writing to the notice of deficiency;
(d) Require the agency to provide such additional information or documentation as the Director determines to be necessary;
(e) Issue an initial decision with findings as to the existence of a deficiency in the agency’s ethics program;
(f) Require the agency to correct or, at the Director’s discretion, satisfactorily mitigate any deficiency in its ethics program;
(g) Provide the agency with guidance on measures that would correct or satisfactorily mitigate any program deficiency;
(h) Monitor the agency’s efforts to correct or satisfactorily mitigate the deficiency and require the agency to submit progress reports; or
(i) Take other actions authorized under the Act to resolve the matter informally.
§ 2638.403 Formal action.
If the Director determines that informal action, pursuant to § 2638.402, has not produced an acceptable resolution, the Director may issue an order directing the agency to take specific corrective action.
(a) Before issuing such an order, the Director will:
(1) Advise the agency in writing of the deficiency in its ethics program;
(2) Describe the action that the Director is considering taking;
(3) Provide the agency with 30 days to respond in writing; and
(4) Consider any timely written response submitted by the agency.
(b) If the Director is satisfied with the agency’s response, no order will be issued.
(c) If the Director decides to issue an order, the order will describe the corrective action to be taken.
(d) If the agency does not comply with the order within a reasonable time, the Director will:
(1) Notify the head of the agency of intent to furnish a report of noncompliance to the President and the Congress;
(2) Provide the agency 14 calendar days within which to furnish written comments for submission with the report of noncompliance; and
(3) Report the agency’s noncompliance to the President and to the Congress.
Subpart E—Corrective Action Involving Individual Employees
§ 2638.501 In general.
This subpart addresses the Director’s limited authority, pursuant to sections 402(b)(9) and 402(f)(2) of the Act, to take certain actions with regard to individual employees if the Director suspects a violation of a noncriminal government ethics law or regulation. Section 402(f)(5) of the Act prohibits the Director from making any finding regarding a violation of a criminal law. Therefore, the Director will refer possible criminal violations to an Inspector General or the Department of Justice, pursuant to § 2638.502. If, however, the Director is concerned about a possible violation of a noncriminal government ethics law or regulation by an employee, the Director may notify the employee’s agency, pursuant to § 2638.503. In the rare circumstance that an agency does not address a matter after receiving this notice, the Director may use the procedures in § 2638.504 to issue a nonbinding recommendation of a disciplinary action or an order to terminate an ongoing violation. Nothing in this subpart relieves an agency of its primary responsibility to ensure compliance with government ethics laws and regulations.
Consistent with section 402(f) of the Act, nothing in this subpart authorizes the Director or any agency official to make a finding as to whether a provision of title 18, United States Code, or any other criminal law of the United States outside of such title, has been or is being violated. If the Director has information regarding the violation of a criminal law by an individual employee, the Director will notify an Inspector General or the Department of Justice.
§ 2638.503 Recommendations and advice to employees and agencies.
The Director may make such recommendations and provide such advice to employees or agencies as the Director deems necessary to ensure compliance with applicable government ethics laws and regulations. The Director’s authority under this section includes the authority to communicate with agency heads and other officials regarding government ethics and to recommend that the agency investigate a matter or consider taking disciplinary or corrective action against individual employees.
In the rare case that consultations made pursuant to § 2638.503 have not resolved the matter, the Director may use the procedures in this section if the Director has reason to believe that an employee is violating, or has violated, any noncriminal government ethics law or regulation. Any proceedings pursuant to this section will be conducted in accordance with applicable national security requirements.
(a) Agency investigation. The Director may recommend that the agency head or the Inspector General conduct an investigation. If the Director determines thereafter that an agency head has not conducted an investigation within a reasonable time, the Director will notify the President.
(b) Initiating further proceedings. Following an investigation pursuant to paragraph (a) of this section or a determination by the Director that an investigation has not been conducted within a reasonable time, the Director may either initiate further proceedings under this section or close the involvement of the Office of Government Ethics in the matter.
(1) If the Director initiates further proceedings, the Director will notify the employee in writing of the suspected violation, the right to respond orally and in writing, and the right to be represented. The notice will include instructions for submitting a written response and requesting an opportunity to present an oral response, copies of this section and sections 401-403 of the Act, and copies of the material relied upon by the Office of Government Ethics.
(2) If the Director is considering issuing an order directing the employee to take specific action to terminate an ongoing violation, the Director will also provide notice of the potential issuance of an order and the right to request a hearing, pursuant to paragraph (f) of this section.
(c) Employee’s response. The employee will be provided with a reasonable opportunity to present an oral response to the General Counsel of the Office of Government Ethics within 30 calendar days of the date of the employee’s receipt of the notice described in paragraph (b) of this section. If the employee fails to timely request an opportunity to present an oral response or fails to cooperate with reasonable efforts to schedule the oral response, only a timely submitted written response will be considered.
(d) General Counsel’s recommendation. After affording the employee 30 calendar days to respond, the General Counsel will provide the Director with a written recommendation as to the action warranted by the circumstances. However, if the employee has timely exercised an applicable right to request a hearing pursuant to paragraph (g) of this section, the provisions of paragraph (g) will apply instead of the provisions of this paragraph.
(1) If the employee has not had an opportunity to comment on any newly obtained material relied upon for the recommendation, the General Counsel will provide the employee with an opportunity to comment on that material before submitting the recommendation to the Director.
(2) The recommendation will include findings of fact and a conclusion as to whether it is more likely than not that a violation has occurred. The General Counsel will provide the Director with copies of the material relied upon for the recommendation, including any timely written response and a transcript of any oral response of the employee.
(3) In the case of an ongoing violation, the General Counsel may recommend an order directing the employee to take specific action to terminate the violation, provided that the employee has been afforded the notice required under paragraph (f) of this section and an opportunity for a hearing.
(e) Decisions and orders of the Director. After reviewing the recommendation of the General Counsel pursuant to paragraph (d) of this section or, in the event of a hearing, the recommendation of the administrative law judge pursuant to paragraph (g)(7) of this section, the Director may issue a decision and, if applicable, an order. The authority of the Director to issue decisions and orders under this paragraph may not be delegated to any other official. The Director’s decision will include written findings and conclusions with respect to all material issues and will be supported by substantial evidence of record.
(1) A copy of the decision and order will be furnished to the employee and, if applicable, the employee’s representative. Copies will also be provided to the DAEO and the head of the agency or, where the employee is the head of an agency, to the President. The Director’s decision and any order will be posted on the official Web site of the Office of Government Ethics, except to the extent prohibited by law.
(2) The Director’s decision may include a nonbinding recommendation that appropriate disciplinary or corrective action be taken against the employee. If the agency head does not take the action recommended within a reasonable period of time, the Director may notify the President.
(3) In the case of an ongoing violation, the Director may issue an order directing the employee to take specific action to terminate the violation, provided that the employee has been afforded the notice required under paragraph (f) of this section and an opportunity for a hearing.
(f) Notice of the right to request a hearing regarding an order to terminate a violation. Before an order to terminate an ongoing violation may be recommended or issued under this section, the employee must be provided with written notice of the potential issuance of an order, the right to request a hearing, and instructions for requesting a hearing.
(1) If the employee submits a written request for a hearing within 30 calendar days of the date of the employee’s receipt of the notice, the hearing will be conducted pursuant to paragraph (g) of this section;
(2) If the employee does not submit a written request for a hearing within 30 days of receipt of the notice, the General Counsel may issue a recommendation, pursuant to paragraph (d) of this section, in lieu of a hearing after first considering any timely response of the employee, pursuant to paragraph (c) of this section; and
(3) If the employee timely submits written requests for both a hearing, pursuant to paragraph (f) of this section, and an oral response, pursuant to paragraph (c) of this section, only a hearing will be conducted, pursuant to paragraph (g) of this section.
(g) Hearings. If, after receiving a notice required pursuant to paragraph (f) of this section, the employee submits a timely request for a hearing, an administrative law judge who has been appointed under 5 U.S.C. 3105 will serve as the hearing officer, and the following procedures will apply to the hearing. An employee of the Office of Government Ethics will be assigned to provide the administrative law judge with logistical support in connection with the hearing.
(1) The General Counsel of the Office of Government Ethics will designate attorneys to present evidence and argument at the hearing in support of a possible finding that the employee is engaging in an ongoing violation. The General Counsel will serve as Advisor to the Director and will not, in connection with the presentation of evidence and argument against the employee, direct or supervise these attorneys. Any attorney who presents evidence, argument, or testimony against the employee at the hearing will be recused from assisting the Director or the General Counsel in connection with the contemplated order.
(2) The administrative law judge will issue written instructions for the conduct of the hearing, including deadlines for submitting lists of proposed witnesses and exchanging copies of documentary evidence. The hearing will be conducted informally, and the administrative law judge may make such rulings as are necessary to ensure that the hearing is conducted equitably and expeditiously.
(3) The parties to the hearing will be the employee and the attorneys of the Office of Government Ethics designated to present evidence and arguments supporting a finding that a violation is ongoing, respectively. The parties will not engage in ex parte communications with the administrative law judge, unless the administrative law judge authorizes limited ex parte communications regarding scheduling and logistical matters.
(4) If either party requests assistance in securing the appearance of an approved witness who is an employee, the administrative law judge may, at his or her discretion, notify the General Counsel, who will assist the Director in requesting that the head of the employing agency produce the witness, pursuant to section 403(a)(1) of the Act. The Director will notify the President if an agency head fails to produce the approved witness.
(5) The hearing will be conducted on the record and witnesses will be placed under oath and subject to cross-examination. Following the hearing, the administrative law judge will provide each party with a copy of the hearing transcript.
(6) Hearings will generally be open to the public, but the administrative law judge may issue a written order closing, in whole or in part, the hearing in the best interests of national security, the employee, a witness, or an affected person. The order will set forth the reasons for closing the hearing and, along with any objection to the order by a party, will be made a part of the record. Unless specifically excluded by the administrative law judge, the DAEO of the employee’s agency will be permitted to attend a closed hearing. If the administrative law judge denies a request by a party or an affected person to close the hearing, in whole or in part, that denial will be immediately appealable by the requester. The requester must file a notice of appeal with the Director within 3 working days. In the event that such a notice is filed, the hearing will be held in abeyance pending resolution of the appeal. The notice of appeal, exclusive of attachments, may not exceed 10 pages of double-spaced type. The Director will afford the parties and, if not a party, the requester the opportunity to make an oral presentation in person or via telecommunications technology within 3 working days of the filing of the appeal. The oral presentation will be conducted on the record. If the appellant or either party is unavailable to participate in the oral presentation within the 3-working-day period, the Director will convene the oral presentation without that party or affected person. The Director will issue a decision on the appeal within 3 working days of the oral presentation. If the Director is unavailable during this time period, the Director may designate a senior executive of the Office of Government Ethics to hear the oral presentation and decide the appeal. The notice of appeal, the record of the oral presentation, the decision on the appeal, and any other document considered by the Director or the Director’s designee in connection with the appeal will be made a part of the record of the hearing.
(7) After closing the record, the administrative law judge will certify the entire record to the Director for decision. When so certifying the record, the administrative law judge will make a recommended decision, which will include his or her written findings of fact and conclusions of law with respect to material issues. After considering the certified record, the Director may issue a decision and an order, pursuant to paragraph (e) of this section.
(h) Dismissal. The Director may dismiss a proceeding under this section at any time, without a finding as to the alleged violation, upon a finding that:
(1) The employee or the agency has taken appropriate action to address the Director’s concerns;
(2) The employee has undertaken, or agreed in writing to undertake, measures the Director deems satisfactory; or
(3) A question has arisen involving the potential application of a criminal law.
(i) Notice procedure. The notices required by paragraphs (b)(1) and (f) of this section may be delivered by U.S. mail, electronic mail, or personal delivery. There will be a rebuttable presumption that notice sent by U.S. mail is received within 5 working days. If the agency does not promptly provide the Office of Government Ethics with an employee’s contact information upon request, the notice may be sent to the agency’s DAEO, who will bear responsibility for promptly delivering that notice to the employee and promptly notifying the Director after its delivery.
Subpart F—General Provisions
§ 2638.601 Authority and purpose.
(a) Authority. The regulations of this part are issued pursuant to the authority of titles I and IV of the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended) (“the Act”).
(b) Purpose. These executive branch regulations supplement and implement titles I, IV and V of the Act and set forth more specifically certain procedures provided in those titles, and furnish examples, where appropriate.
(c) Agency authority. Subject only to the authority of the Office of Government Ethics as the supervising ethics office for the executive branch, all authority conferred on agencies in this subchapter B of chapter XVI of title 5 of the Code of Federal Regulations is sole and exclusive authority.
§ 2638.602 Agency regulations.
Each agency may, subject to the prior approval of the Office of Government Ethics, issue regulations not inconsistent with this part and this subchapter, using the procedures set forth in § 2635.105 of this chapter.
§ 2638.603 Definitions.
For the purposes of this part:
Act means the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended).
ADAEO or Alternate Designated Agency Ethics Official means an officer or employee who is designated by the head of the agency as the primary deputy to the DAEO in coordinating and managing the agency’s ethics program in accordance with the provisions of § 2638.104.
Agency or agencies means any executive department, military department, Government corporation, independent establishment, board, commission, or agency, including the United States Postal Service and Postal Regulatory Commission, of the executive branch.
Agency head means the head of an agency. In the case of a department, it means the Secretary of the department. In the case of a board or commission, it means the Chair of the board or commission.
Confidential filer means an employee who is required to file a confidential financial disclosure report pursuant to § 2634.904 of this chapter.
Conflict of interest laws means 18 U.S.C. 202-209, and conflict of interest law means any provision of 18 U.S.C. 202-209.
Corrective action means any action necessary to remedy a past violation or prevent a continuing violation of this part, including but not limited to restitution, change of assignment, disqualification, divestiture, termination of an activity, waiver, the creation of a qualified diversified or blind trust, or counseling.
DAEO or Designated Agency Ethics Official means an officer or employee who is designated by the head of the agency to coordinate and manage the agency’s ethics program in accordance with the provisions of § 2638.104.
Department means a department of the executive branch.
Director means the Director of the Office of Government Ethics.
Disciplinary action means those disciplinary actions referred to in Office of Personnel Management regulations and instructions implementing provisions of title 5 of the United States Code or provided for in comparable provisions applicable to employees not subject to title 5.
Employee means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. It includes employees of a state or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. It does not include the President or Vice President. Status as an employee is unaffected by pay or leave status or, in the case of a special Government employee, by the fact that the individual does not perform official duties on a given day.
Executive branch includes each executive agency as defined in 5 U.S.C. 105 and any other entity or administrative unit in the executive branch. However, it does not include any agency, entity, office, or commission that is defined by or referred to in 5 U.S.C. app. sections 109(8)-(11) of the Act as within the judicial or legislative branch.
Government ethics laws and regulations include, among other applicable authorities, the provisions related to government ethics or financial disclosure of the following authorities:
(1) Chapter 11 of title 18 of the United States Code;
(2) The Ethics in Government Act of 1978 (Pub. L. 95-521, as amended);
(3) The Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act) (Pub. L. 112-105, as amended);
(4) Executive Order 12674 (Apr. 12, 1989) as amended by Executive Order 12731 (Oct. 17, 1990); and
(5) Subchapter B of this chapter.
Lead human resources official means the agency’s chief policy advisor on all human resources management issues who is charged with selecting, developing, training, and managing a high-quality, productive workforce. For agencies covered by the Chief Human Capital Officers Act of 2002 (Pub. L. 107-296), the Chief Human Capital Officer is the lead human resources official.
Person includes an individual, partnership, corporation, association, government agency, or public or private organization.
Principles of Ethical Conduct means the collection of general principles set forth in § 2635.101(b) of this chapter.
Public filer means an employee, former employee, or nominee who is required to file a public financial disclosure report, pursuant to § 2634.202 of this chapter.
Senior executive means a career or noncareer appointee in the Senior Executive Service or equivalent federal executive service. It also includes employees in Senior Level (SL) and Senior Technical (ST) positions. In addition, it includes equivalent positions in agencies that do not have a federal executive service.
Special Government employee means an employee who meets the definition at 18 U.S.C. 202(a). The term does not relate to a specific category of employee, and 18 U.S.C. 202(a) is not an appointment authority. The term describes individuals appointed to positions in the executive branch, the legislative branch, any independent agency of the United States, or the District of Columbia who are covered less expansively by conflict of interest laws at 18 U.S.C. 202-209. As a general matter, an individual appointed to a position in the legislative or executive branch who is expected to serve for 130 days or less during any period of 365 consecutive days is characterized as a special Government employee. The appointment of special Government employees is not administered or overseen by the Office of Government Ethics but is carried out under legal authorities administered by the Office of Personnel Management and other agencies.
Standards of Conduct means the Standards of Ethical Conduct for Employees of the Executive Branch set forth in part 2635 of this chapter.
§ 2638.604 Key program dates.
Except as amended by program advisories of the Office of Government Ethics, the following list summarizes key deadlines of the executive branch ethics program:
(a) January 15 is the deadline for:
(1) The Office of Government Ethics to issue its year-end status reports, pursuant to § 2638.108(a)(11); and
(2) In an agency with 1,000 or more employees, any office not under the supervision of the DAEO that provides notices or training required under subpart C of this part to provide a written summary and confirmation, pursuant to § 2638.310.
(b) February 1 is the deadline for the DAEO to submit the annual report on the agency’s ethics program, pursuant to § 2638.207.
(c) February 15 is the deadline for employees to file annual confidential financial disclosure reports, pursuant to § 2634.903(a) of this chapter.
(d) May 15 is the deadline for employees to file annual public financial disclosure reports, pursuant to § 2634.201(a) of this chapter.
(e) May 31 is the deadline for the agency to submit required travel reports to the Office of Government Ethics, pursuant to § 2638.107(g).
(f) July 1 is the deadline for the DAEO to submit a letter stating whether components currently designated should remain designated, pursuant to § 2641.302(e)(2) of this chapter.
(g) November 30 is the deadline for the agency to submit required travel reports to the Office of Government Ethics, pursuant to § 2638.107(h).
(h) December 31 is the deadline for completion of annual ethics training for employees covered by §§ 2638.307 and 2638.308.
(i) By the deadline specified in the request is the deadline, pursuant to § 2638.202, for submission of all documents and information requested by the Office of Government Ethics in connection with a review of the agency’s ethics program, except when the submission of the information or reports would be prohibited by law.
(j) Prior to appointment whenever practicable but in no case more than 15 days after appointment is the deadline, pursuant to § 2638.105(a)(1), for the lead human resources official to notify the DAEO that the agency has appointed a confidential or public financial disclosure filer.
(k) Prior to termination whenever practicable but in no case more than 15 days after termination is the deadline, pursuant to § 2638.105(a)(2), for the lead human resources official to notify the DAEO of the termination of a public financial disclosure filer.
(l) Within 15 days of appointment is the deadline for certain agency leaders to complete ethics briefings, pursuant to § 2638.305(b).
(m) Within 30 days of designation is the deadline for the agency head to notify the Director of the designation of any DAEO or ADAEO, pursuant to § 2638.107(a).
(n) Within 3 months of appointment is the deadline for new employees to complete initial ethics training, pursuant to § 2638.304(b).
(o) Within 1 year of appointment is the deadline for new supervisors to receive supervisory ethics notices, pursuant to § 2638.306(b).
(p) Not later than 12 months before any Presidential election is the deadline for the agency head or the DAEO to evaluate whether the agency’s ethics program has an adequate number of trained agency ethics officials to deliver effective support in the event of a Presidential transition, pursuant to § 2638.210(a).
PART 2640—INTERPRETATION, EXEMPTIONS AND WAIVER GUIDANCE CONCERNING 18 U.S.C. 208 (ACTS AFFECTING A PERSONAL FINANCIAL INTEREST)
Subpart A—General Provisions
§ 2640.101 Purpose.
18 U.S.C. 208(a) prohibits an officer or employee of the executive branch, of any independent agency of the United States, of the District of Columbia, or Federal Reserve bank director, officer, or employee, or any special Government employee from participating in an official capacity in particular matters in which he has a personal financial interest, or in which certain persons or organizations with which he is affiliated have a financial interest. The statute is intended to prevent an employee from allowing personal interests to affect his official actions, and to protect governmental processes from actual or apparent conflicts of interests. However, in certain cases, the nature and size of the financial interest and the nature of the matter in which the employee would act are unlikely to affect an employee’s official actions. Accordingly, the statute permits waivers of the disqualification provision in certain cases, either on an individual basis or pursuant to general regulation. Section 208(b)(2) provides that the Director of the Office of Government Ethics may, by regulation, exempt from the general prohibition, financial interests which are too remote or too inconsequential to affect the integrity of the services of the employees to which the prohibition applies. The regulations in this part describe those financial interests. This part also provides guidance to agencies on the factors to consider when issuing individual waivers under 18 U.S.C. 208 (b)(1) or (b)(3), and provides an interpretation of 18 U.S.C. 208(a).
§ 2640.102 Definitions.
For purposes of this part:
(a) Diversified means that the fund, trust or plan does not have a stated policy of concentrating its investments in any industry, business, single country other than the United States, or bonds of a single State within the United States and, in the case of an employee benefit plan, means that the plan’s trustee has a written policy of varying plan investments.
A mutual fund is diversified for purposes of this part if it does not have a policy of concentrating its investments in an industry, business, country other than the United States, or single State within the United States. Whether a mutual fund meets this standard may be determined by checking the fund’s prospectus or by calling a broker or the manager of the fund. An employee benefit plan is diversified if the plan manager has a written policy of varying assets. This policy might be found in materials describing the plan or may be obtained in a written statement from the plan manager. It is important to note that a mutual fund or employee benefit plan that is diversified for purposes of this part may not necessarily be an excepted investment fund (EIF) for purposes of reporting financial interests pursuant to 5 CFR 2634.310(c) and 2634.907(i)(3). In some cases, an employee may have to report the underlying assets of a fund or plan on his financial disclosure statement even though an exemption set forth in this part would permit the employee to participate in a matter affecting the underlying assets of the fund or plan. Conversely, there may be situations in which no exemption in this part is applicable to the assets of a fund or plan which is properly reported as an EIF on the employee’s financial disclosure statement.
(b) Employee means an officer or employee of the executive branch of the United States, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, an officer or employee of the District of Columbia, or any other individual subject to requirements of 18 U.S.C. 208.
The term also includes a special Government employee as defined in 18 U.S.C. 202.
(c) Employee benefit plan means a plan as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3), and that has more than one participant. An employee benefit plan is any plan, fund or program established or maintained by an employer or an employee organization, or both, to provide its participants medical, disability, death, unemployment, or vacation benefits, training programs, day care centers, scholarship funds, prepaid legal services, deferred income, or retirement income.
(d) He, his, and him include she, hers, and her.
(e) Holdings means portfolio of investments.
(f) Independent trustee means a trustee who is independent of the sponsor and the participants in a plan, or is a registered investment advisor.
(g) Institution of higher education means an educational institution as defined in 20 U.S.C. 1141(a).
(h) Issuer means a person who issues or proposes to issue any security, or has any outstanding security which it has issued.
(i) Long-term Federal Government security means a bond or note, except for a U.S. Savings bond, with a maturity of more than one year issued by the United States Treasury pursuant to 31 U.S.C. chapter 31.
(j) Municipal security means direct obligation of, or obligation guaranteed as to principal or interest by, a State (or any of its political subdivisions, or any municipal corporate instrumentality of one or more States), or the District of Columbia, Puerto Rico, the Virgin Islands, or any other possession of the United States.
(k) Mutual fund means an entity which is registered as a management company under the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.). For purposes of this part, the term mutual fund includes open-end and closed-end mutual funds and registered money market funds.
(l) Particular matter involving specific parties includes any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties. The term typically involves a specific proceeding affecting the legal rights of the parties, or an isolatable transaction or related set of transactions between identified parties.
(m) Particular matter of general applicability means a particular matter that is focused on the interests of a discrete and identifiable class of persons, but does not involve specific parties.
(n) Pension plan means any plan, fund or program maintained by an employer or an employee organization, or both, to provide retirement income to employees, or which results in deferral of income for periods extending to, or beyond, termination of employment.
(o) Person means an individual, corporation, company, association, firm, partnership, society or any other organization or institution.
(p) Publicly traded security means a security as defined in paragraph (r) of this section and which is:
(1) Registered with the Securities and Exchange Commission pursuant to section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) and listed on a national or regional securities exchange or traded through NASDAQ;
(2) Issued by an investment company registered pursuant to section 8 of the Investment Company Act of 1940, as amended (15 U.S.C. 80a-8); or
(3) A corporate bond registered as an offering with the Securities and Exchange Commission under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) and issued by an entity whose stock is a publicly traded security.
National securities exchanges include the American Stock Exchange and the New York Stock Exchange. Regional exchanges include Boston, Cincinnati, Intermountain (Salt Lake City), Midwest (Chicago), Pacific (Los Angeles and San Francisco), Philadelphia (Philadelphia and Miami), and Spokane stock exchanges.
(q) Sector mutual fund or sector unit investment trust means a mutual fund or unit investment trust that concentrates its investments in an industry, business, single country other than the United States, or bonds of a single State within the United States.
(r) Security means common stock, preferred stock, corporate bond, municipal security, long-term Federal Government security, and limited partnership interest. The term also includes “mutual fund” for purposes of § 2640.202(e) and (f) and § 2640.203(a).
(s) Short-term Federal Government security means a bill with a maturity of one year or less issued by the United States Treasury pursuant to 31 U.S.C. chapter 31.
(t) Special Government employee means those executive branch officers or employees specified in 18 U.S.C. 202(a). A special Government employee is retained, designated, appointed or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any consecutive 365-day period.
(u) Unit investment trust means an investment company as defined in 15 U.S.C. 80a-4(2) that is a regulated investment company under 26 U.S.C. 851.
(v) United States Savings bond means a savings bond issued by the United States Treasury pursuant to 31 U.S.C. 3105.
§ 2640.103 Prohibition.
(a) Statutory prohibition. Unless permitted by 18 U.S.C. 208(b) (1)-(4), an employee is prohibited by 18 U.S.C. 208(a) from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any other person specified in the statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest. The restrictions of 18 U.S.C. 208 are described more fully in 5 CFR 2635.401 and 2635.402.
(1) Particular matter. The term “particular matter” includes only matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. The term may include matters which do not involve formal parties and may extend to legislation or policy making that is narrowly focused on the interests of a discrete and identifiable class of persons. It does not, however, cover consideration or adoption of broad policy options directed to the interests of a large and diverse group of persons. The particular matters covered by this part include a judicial or other proceeding, application or request for a ruling or other determination, contract, claim, controversy, charge, accusation or arrest.
(2) Personal and substantial participation. To participate “personally” means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the matter. To participate “substantially” means that the employee’s involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to the matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. Personal and substantial participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation or the rendering of advice in a particular matter.
(3) Direct and predictable effect. (i) A particular matter will have a “direct” effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A particular matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effects on the general economy does not have a direct effect within the meaning of this part.
(ii) A particular matter will have a “predictable” effect if there is a real, as opposed to a speculative, possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.
(b) Disqualifying financial interests. For purposes of 18 U.S.C. 208(a) and this part, the term financial interest means the potential for gain or loss to the employee, or other person specified in section 208, as a result of governmental action on the particular matter. The disqualifying financial interest might arise from ownership of certain financial instruments or investments such as stock, bonds, mutual funds, or real estate. Additionally, a disqualifying financial interest might derive from a salary, indebtedness, job offer, or any similar interest that may be affected by the matter.
(c) Interests of others. The financial interests of the following persons will serve to disqualify an employee to the same extent as the employee’s own interests:
(1) The employee’s spouse;
(2) The employee’s minor child;
(3) The employee’s general partner;
(4) An organization or entity which the employee serves as officer, director, trustee, general partner, or employee; and
(5) A person with whom the employee is negotiating for, or has an arrangement concerning, prospective employment.
(d) Disqualification. Unless the employee is authorized to participate in the particular matter by virtue of an exemption or waiver described in subpart B or subpart C of this part, or the interest has been divested in accordance with paragraph (e) of this section, an employee shall disqualify himself from participating in a particular matter in which, to his knowledge, he or any other person specified in the statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest. Disqualification is accomplished by not participating in the particular matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignments should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee’s disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter from which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics, is asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement, or is required to do so by agency supplemental regulation issued pursuant to 5 CFR 2635.105. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
(e) Divestiture of a disqualifying financial interest. Upon sale or other divestiture of the asset or other interest that causes his disqualification from participation in a particular matter, an employee is no longer prohibited from acting in the particular matter.
(1) Voluntary divestiture. An employee who would otherwise be disqualified from participation in a particular matter may voluntarily sell or otherwise divest himself of the interest that causes the disqualification.
(2) Directed divestiture. An employee may be required to sell or otherwise divest himself of the disqualifying financial interest if his continued holding of that interest is prohibited by statute or by agency supplemental regulation issued in accordance with § 2635.403(a) of this chapter, or if the agency determines in accordance with § 2635.403(b) of this chapter that a substantial conflict exists between the financial interest and the employee’s duties or accomplishment of the agency’s mission.
(3) Eligibility for special tax treatment. An employee who is directed to divest an interest may be eligible to defer the tax consequences of divestiture under subpart J of part 2634 of this chapter. An employee who divests before obtaining a certificate of divestiture will not be eligible for this special tax treatment.
(f) Official duties that give rise to potential conflicts. Where an employee’s official duties create a substantial likelihood that the employee may be assigned to a particular matter from which he is disqualified, the employee should advise his supervisor or other person responsible for his assignments of that potential so that conflicting assignments can be avoided, consistent with the agency’s needs.
Subpart B—Exemptions Pursuant to 18 U.S.C. 208(b)(2)
§ 2640.201 Exemptions for interests in mutual funds, unit investment trusts, and employee benefit plans.
(a) Diversified mutual funds and unit investment trusts. An employee may participate in any particular matter affecting one or more holdings of a diversified mutual fund or a diversified unit investment trust where the disqualifying financial interest in the matter arises because of the ownership of an interest in the fund or trust.
(b) Sector mutual funds. (1) An employee may participate in any particular matter affecting one or more holdings of a sector mutual fund or a sector unit investment trust where the affected holding is not invested in the sector in which the fund or trust concentrates, and where the disqualifying financial interest in the matter arises because of ownership of an interest in the fund or unit investment trust.
(2)(i) An employee may participate in a particular matter affecting one or more holdings of a sector mutual fund or a sector unit investment trust where the disqualifying financial interest in the matter arises because of ownership of an interest in the fund or the unit investment trust and the aggregate market value of interests in any sector fund or funds and any sector unit investment trust or trusts does not exceed $50,000.
(ii) For purposes of calculating the $50,000 de minimis amount in paragraph (b)(2)(i) of this section, an employee must aggregate the market value of all sector mutual funds and sector unit investment trusts in which he has a disqualifying financial interest and that concentrate in the same sector and have one or more holdings that may be affected by the particular matter.
(c) Employee benefit plans. An employee may participate in:
(1) Any particular matter affecting one or more holdings of an employee benefit plan, where the disqualifying financial interest in the matter arises from membership in:
(i) The Thrift Savings Plan for Federal employees described in 5 U.S.C. 8437;
(ii) A pension plan established or maintained by a State government or any political subdivision of a State government for its employees; or
(iii) A diversified employee benefit plan, provided:
(A) The investments of the plan are administered by an independent trustee, and the employee, or other person specified in section 208(a) does not participate in the selection of the plan’s investments or designate specific plan investments (except for directing that contributions be divided among several different categories of investments, such as stocks, bonds or mutual funds, which are available to plan participants); and
(B) The plan is not a profit-sharing or stock bonus plan.
Employee benefit plans that are tax deferred under 26 U.S.C. 401(k) are not considered profit-sharing plans for purposes of this section. However, for the exemption to apply, 401(k) plans must meet the requirements of paragraph (c)(1)(iii)(A) of this section.
(2) Particular matters of general applicability, such as rulemaking, affecting the State or local government sponsor of a State or local government pension plan described in paragraph (c)(1)(ii) of this section where the disqualifying financial interest in the matter arises because of participation in the plan.
(d) Matters affecting mutual funds and unit investment trusts. In addition to participation in the particular matters affecting the holdings of mutual funds and unit investment trusts as permitted under paragraphs (a) and (b) of this section, an employee may participate in any particular matter of general applicability affecting a mutual fund or unit investment trust where the disqualifying financial interest arises because of the ownership of an interest in the mutual fund or unit investment trust.
§ 2640.202 Exemptions for interests in securities.
(a) De minimis exemption for matters involving parties. An employee may participate in any particular matter involving specific parties in which the disqualifying financial interest arises from the ownership by the employee, his spouse or minor children of securities issued by one or more entities affected by the matter, if:
(1) The securities are publicly traded, or are long-term Federal Government, or are municipal securities; and
(2) The aggregate market value of the holdings of the employee, his spouse, and his minor children in the securities of all entities does not exceed $15,000.
(b) De minimis exemption for matters affecting nonparties. An employee may participate in any particular matter involving specific parties in which the disqualifying financial interest arises from the ownership by the employee, his spouse, or minor children of securities issued by one or more entities that are not parties to the matter but that are affected by the matter, if:
(1) The securities are publicly traded, or are long-term Federal Government or municipal securities; and
(2) The aggregate market value of the holdings of the employee, his spouse and minor children in the securities of all affected entities (including securities exempted under paragraph (a) of this section) does not exceed $25,000.
(c) De minimis exemption for matters of general applicability. (1) An employee may participate in any particular matter of general applicability, such as rulemaking, in which the disqualifying financial interest arises from the ownership by the employee, his spouse or minor children of securities issued by one or more entities affected by the matter, if:
(i) The securities are publicly traded, or are municipal securities, the market value of which does not exceed:
(A) $25,000 in any one such entity; and
(B) $50,000 in all affected entities; or
(ii) The securities are long-term Federal Government securities, the market value of which does not exceed $50,000.
(2) For purposes of this paragraph (b), the value of securities owned by the employee, his spouse, and minor children must be aggregated in applying the exemption.
(d) Exemption for certain Federal Government securities. An employee may participate in any particular matter in which the disqualifying financial interest arises from the ownership of short-term Federal Government securities or from U.S. Savings bonds.
(e) Exemption for interests of tax-exempt organizations. An employee may participate in any particular matter in which the disqualifying financial interest arises from the ownership of publicly traded or municipal securities, or long-term Federal Government securities by an organization which is tax-exempt pursuant to 26 U.S.C. 501(c) (3) or (4), and of which the employee is an unpaid officer, director, or trustee, or an employee, if:
(1) The matter affects only the organization’s investments, not the organization directly;
(2) The employee plays no role in making investment decisions for the organization, except for participating in the decision to invest in several different categories of investments such as stocks, bonds, or mutual funds; and
(3) The organization’s only relationship to the issuer, other than that which arises from routine commercial transactions, is that of investor.
(f) Exemption for certain interests of general partners. An employee may participate in any particular matter in which the disqualifying financial interest arises from:
(1) The ownership of publicly traded securities, long-term Federal Government securities, or municipal securities by the employee’s general partner, provided:
(i) Ownership of the securities is not related to the partnership between the employee and his general partner, and
(ii) The value of the securities does not exceed $200,000; or
(2) Any interest of the employee’s general partner if the employee’s relationship to the general partner is as a limited partner in a partnership that has at least 100 limited partners.
§ 2640.203 Miscellaneous exemptions.
(a) Hiring decisions. An employee may participate in a hiring decision involving an applicant who is currently employed by a corporation that issues publicly traded securities, if the disqualifying financial interest arises from:
(1) Ownership of publicly traded securities issued by the corporation; or
(2) Participation in a pension plan sponsored by the corporation.
(b) Employees on leave from institutions of higher education. An employee on a leave of absence from an institution of higher education may participate in any particular matter of general applicability affecting the financial interests of the institution from which he is on leave, provided that the matter will not have a special or distinct effect on that institution other than as part of a class.
(c) Multi-campus institutions of higher education. An employee may participate in any particular matter affecting one campus of a State multi-campus institution of higher education, if the employee’s disqualifying financial interest is employment in a position with no multi-campus responsibilities at a separate campus of the same multi-campus institution.
(d) Exemptions for financial interests arising from Federal Government employment or from Social Security or veterans’ benefits. An employee may participate in any particular matter where the disqualifying financial interest arises from Federal Government or Federal Reserve Bank salary or benefits, or from Social Security or veterans’ benefits, except an employee may not:
(1) Make determinations that individually or specially affect his own salary and benefits; or
(2) Make determinations, requests, or recommendations that individually or specially relate to, or affect, the salary or benefits of any other person specified in section 208.
This exemption does not permit an employee to take any action in violation of any other statutory or regulatory requirement, such as the prohibition on the employment of relatives at 5 U.S.C. 3110.
(e) Commercial discount and incentive programs. An employee may participate in any particular matter affecting the sponsor of a discount, incentive, or other similar benefit program if the disqualifying financial interest arises because of participation in the program, provided:
(1) The program is open to the general public; and
(2) Participation in the program involves no other financial interest in the sponsor, such as stockholding.
(f) Mutual insurance companies. An employee may participate in any particular matter affecting a mutual insurance company if the disqualifying financial interest arises because of an interest as a policyholder, unless the matter would affect the company’s ability to pay claims required under the terms of the policy or to pay the cash value of the policy.
(g) Exemption for employment interests of special Government employees serving on advisory committees. A special Government employee serving on an advisory committee within the meaning of the Federal Advisory Committee Act (5 U.S.C. app.) may participate in any particular matter of general applicability where the disqualifying financial interest arises from his non-Federal employment or non-Federal prospective employment, provided that the matter will not have a special or distinct effect on the employee or employer other than as part of a class. For purposes of this paragraph, “disqualifying financial interest” arising from non-Federal employment does not include the interests of a special Government employee arising from the ownership of stock in his employer or prospective employer.
(h) Directors of Federal Reserve Banks. A Director of a Federal Reserve Bank or a branch of a Federal Reserve Bank may participate in the following matters, even though they may be particular matters in which he, or any other person specified in section 208(a), has a disqualifying financial interest:
(1) Establishment of rates to be charged for all advances and discounts by Federal Reserve Banks;
(2) Consideration of monetary policy matters, regulations, statutes and proposed or pending legislation, and other matters of broad applicability intended to have uniform application to banks within the Reserve Bank district;
(3) Approval or ratification of extensions of credit, advances or discounts to a depository institution that has not been determined to be in a hazardous financial condition by the President of the Reserve Bank; or
(4) Approval or ratification of extensions of credit, advances or discounts to a depository institution that has been determined to be in a hazardous financial condition by the President of the Reserve Bank, provided that the disqualifying financial interest arises from the ownership of stock in, or service as an officer, director, trustee, general partner or employee, of an entity other than the depository institution, or its parent holding company or subsidiary of such holding company.
(i) Medical products. A special Government employee serving on an advisory committee within the meaning of the Federal Advisory Committee Act (5 U.S.C. app.) may participate in Federal advisory committee matters concerning medical products if the disqualifying financial interest arises from:
(1) Employment with a hospital or other similar medical facility whose only interest in the medical product or device is purchase of it for use by, or sale to, its patients; or
(2) The use or prescription of medical products for patients.
(j) Nonvoting members of standing technical advisory committees established by the Food and Drug Administration. A special Government employee serving as a nonvoting representative member of an advisory committee established by the Food and Drug Administration pursuant to the requirements of the Federal Advisory Committee Act (5 U.S.C. app.) and appointed under a statutory authority requiring the appointment of representative members, may participate in any particular matter affecting a disqualifying financial interest in the class which the employee represents. Nonvoting representative members of Food and Drug Administration advisory committees are described in 21 CFR 14.80(b)(2), 14.84, 14.86, and 14.95(a).
(k) Employees of the Tennessee Valley Authority. An employee of the Tennessee Valley Authority (TVA) may participate in developing or approving rate schedules or similar matters affecting the general cost of electric power sold by TVA, if the disqualifying financial interest arises from use of such power by the employee or by any other person specified in section 208(a).
(l) Exemption for financial interests of non-Federal government employers in the decennial census. An employee of the Bureau of the Census at the United States Department of Commerce, who is also an employee of a State, local, or tribal government, may participate in the decennial census notwithstanding the disqualifying financial interests of the employee’s non-Federal government employer in the census provided that the employee:
(1) Does not serve in a State, local, or tribal government position which is filled through public election;
(2) Was hired for a temporary position under authority of 13 U.S.C. 23; and
(3) Is serving in a Local Census Office or an Accuracy and Coverage Evaluation function position as an enumerator, crew leader, or field operations supervisor.
(m) Official participation in nonprofit organizations. An employee may participate in any particular matter where the disqualifying financial interest is that of a nonprofit organization in which the employee serves (or is seeking or has an arrangement to serve), solely in an official capacity, as an officer, director or trustee.
Nothing in this paragraph shall be deemed independent authority for an agency to assign an employee to serve in an official capacity with a particular nonprofit organization. Agencies will make such determinations based on an evaluation of their own statutory authorities and missions. Individual agency decisions to permit (or not permit) an employee to serve in an official capacity necessarily involve a range of legal, policy, and managerial considerations, and nothing in this paragraph is intended to interfere with an agency’s discretion to assign official duties and limit such assignments as the agency deems appropriate.
§ 2640.204 Prohibited financial interests.
None of the exemptions set forth in §§ 2640.201, 2640.202, or 2640.203 apply to any financial interest held or acquired by an employee, his spouse, or minor child in violation of a statute or agency supplemental regulation issued in accordance with 5 CFR 2635.105, or that is otherwise prohibited under 5 CFR 2635.403(b).
§ 2640.205 Employee responsibility.
Prior to taking official action in a matter which an employee knows would affect his financial interest or the interest of another person specified in 18 U.S.C. 208(a), an employee must determine whether one of the exemptions in §§ 2640.201, 2640.202, or 2640.203 would permit his action notwithstanding the existence of the disqualifying interest. An employee who is unsure whether an exemption is applicable in a particular case, should consult an agency ethics official prior to taking action in a particular matter.
§ 2640.206 Existing agency exemptions.
An employee who, prior to January 17, 1997, acted in an official capacity in a particular matter in which he had a financial interest, will be deemed to have acted in accordance with applicable regulations if he acted in reliance on an exemption issued by his employing Government agency pursuant to 18 U.S.C. 208(b)(2), as in effect prior to November 30, 1989.
Subpart C—Individual Waivers
§ 2640.301 Waivers issued pursuant to 18 U.S.C. 208(b)(1).
(a) Requirements for issuing an individual waiver under 18 U.S.C. 208(b)(1). Pursuant to 18 U.S.C. 208(b)(1), an agency may determine in an individual case that a disqualifying financial interest in a particular matter or matters is not so substantial as to be deemed likely to affect the integrity of the employee’s services to the Government. Upon making that determination, the agency may then waive the employee’s disqualification notwithstanding the financial interest, and permit the employee to participate in the particular matter. Waivers issued pursuant to section 208(b)(1) should comply with the following requirements:
(1) The disqualifying financial interest, and the nature and circumstances of the particular matter or matters, must be fully disclosed to the Government official responsible for appointing the employee to his position (or other Government official to whom authority to issue such a waiver for the employee has been delegated);
(2) The waiver must be issued in writing by the Government official responsible for appointing the employee to his position (or other Government official to whom the authority to issue such a waiver for the employee has been delegated);
(3) The waiver should describe the disqualifying financial interest, the particular matter or matters to which it applies, the employee’s role in the matter or matters, and any limitations on the employee’s ability to act in such matters;
(4) The waiver shall be based on a determination that the disqualifying financial interest is not so substantial as to be deemed likely to affect the integrity of the employee’s services to the Government. Statements concerning the employee’s good character are not material to, nor a basis for making, such a decision;
(5) The waiver must be issued prior to the employee taking any action in the matter or matters; and
(6) The waiver may apply to both present and future financial interests, provided the interests are described with sufficient specificity.
The disqualifying financial interest, the particular matter or matters to which the waiver applies, and the employee’s role in such matters do not need to be described with any particular degree of specificity. For example, if a waiver were to apply to all matters which an employee would undertake as part of his official duties, the waiver document would not have to enumerate those duties. The information contained in the waiver, however, should provide a clear understanding of the nature and identity of the disqualifying financial interest, the matters to which the waiver will apply, and the employee’s role in such matters.
(b) Agency determination concerning substantiality of the disqualifying financial interest. In determining whether a disqualifying financial interest is sufficiently substantial to be deemed likely to affect the integrity of the employee’s services to the Government, the responsible official may consider the following factors:
(1) The type of interest that is creating the disqualification (e.g. stock, bonds, real estate, other securities, cash payment, job offer, or enhancement of a spouse’s employment);
(2) The identity of the person whose financial interest is involved, and if the interest is not the employee’s, the relationship of that person to the employee;
(3) The dollar value of the disqualifying financial interest, if it is known or can be estimated (e.g. the amount of cash payment which may be gained or lost, the salary of the job which will be gained or lost, the predictable change in either the market value of the stock or the actual or potential profit or loss or cost of the matter to the company issuing the stock, the change in the value of real estate or other securities);
(4) The value of the financial instrument or holding from which the disqualifying financial interest arises (e.g. the face value of the stock, bond, other security or real estate) and its value in relationship to the individual’s assets. If the disqualifying financial interest is that of a general partner or organization specified in section 208, this information must be provided only to the extent that it is known by the employee; and
(5) The nature and importance of the employee’s role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter.
(6) Other factors which may be taken into consideration include:
(i) The sensitivity of the matter;
(ii) The need for the employee’s services in the particular matter; and
(iii) Adjustments that may be made in the employee’s duties that would reduce or eliminate the likelihood that the integrity of the employee’s services would be questioned by a reasonable person.
§ 2640.302 Waivers issued pursuant to 18 U.S.C. 208(b)(3).
(a) Requirements for issuing an individual waiver under 18 U.S.C. 208(b)(3). Pursuant to 18 U.S.C. 208(b)(3), an agency may determine in an individual case that the prohibition of 18 U.S.C. 208(a) should not apply to a special Government employee serving on, or an individual being considered for, appointment to an advisory committee established under the Federal Advisory Committee Act, notwithstanding the fact that the individual has one or more financial interests that would be affected by the activities of the advisory committee. The agency’s determination must be based on a certification that the need for the employee’s services outweighs the potential for a conflict of interest created by the financial interest involved. Waivers issued pursuant to 18 U.S.C. 208(b)(3) should comply with the following requirements:
(1) The advisory committee upon which the individual is serving, or will serve, is an advisory committee within the meaning of the Federal Advisory Committee Act, 5 U.S.C. app.;
(2) The waiver must be issued in writing by the Government official responsible for the individual’s appointment (or other Government official to which authority to issue such waivers has been delegated) after the official reviews the financial disclosure report filed by the individual pursuant to the Ethics in Government Act of 1978;
(3) The waiver must include a certification that the need for the individual’s services on the advisory committee outweighs the potential for a conflict of interest;
(4) The facts upon which the certification is based should be fully described in the waiver, including the nature of the financial interest, and the particular matter or matters to which the waiver applies;
(5) The waiver should describe any limitations on the individual’s ability to act in the matter or matters;
(6) The waiver must be issued prior to the individual taking any action in the matter or matters; and
(7) The waiver may apply to both present and future financial interests of the individual, provided the interests are described with sufficient specificity.
(b) Agency certification concerning need for individual’s services. In determining whether the need for an individual’s services on an advisory committee outweighs the potential for a conflict of interest created by the disqualifying financial interest, the responsible official may consider the following factors:
(1) The type of interest that is creating the disqualification (e.g. stock, bonds, real estate, other securities, cash payment, job offer, or enhancement of a spouse’s employment);
(2) The identity of the person whose financial interest is involved, and if the interest is not the individual’s, the relationship of that person to the individual;
(3) The uniqueness of the individual’s qualifications;
(4) The difficulty of locating a similarly qualified individual without a disqualifying financial interest to serve on the committee;
(5) The dollar value of the disqualifying financial interest, if it is known or can be estimated (e.g. the amount of cash payment which may be gained or lost, the salary of the job which will be gained or lost, the predictable change in either the market value of the stock or the actual or potential profit or loss or cost of the matter to the company issuing the stock, the change in the value of real estate or other securities);
(6) The value of the financial instrument or holding from which the disqualifying financial interest arises (e.g. the face value of the stock, bond, other security or real estate) and its value in relationship to the individual’s assets. If the disqualifying financial interest is that of a general partner or organization specified in section 208, this information must be provided only to the extent that it is known by the employee; and
(7) The extent to which the disqualifying financial interest will be affected individually or particularly by the actions of the advisory committee.
§ 2640.303 Consultation and notification regarding waivers.
When practicable, an official is required to consult formally or informally with the Office of Government Ethics prior to granting a waiver referred to in §§ 2640.301 and 2640.302. A copy of each such waiver is to be forwarded to the Director of the Office of Government Ethics.
§ 2640.304 Public availability of agency waivers.
(a) Availability. A copy of an agency waiver issued pursuant to 18 U.S.C. 208 (b)(1) or (b)(3) shall be made available upon request to the public by the issuing agency. Public release of waivers shall be in accordance with the procedures set forth in section 105 of the Ethics in Government Act of 1978, as amended. Those procedures are described in 5 CFR 2634.603.
(b) Limitations on availability. In making a waiver issued pursuant to 18 U.S.C. 208 (b)(1) or (b)(3) publicly available, an agency:
(1) May withhold from public disclosure any information contained in the waiver that would be exempt from disclosure pursuant to 5 U.S.C. 552; and
(2) Shall withhold from public disclosure information in a waiver issued pursuant to 18 U.S.C. 208(b)(3) concerning an individual’s financial interestwhich is more extensive than that required to be disclosed by the individual in his financial disclosure report under the Ethics in Government Act of 1978, as amended, or which is otherwise subject to a prohibition on public disclosure under law.
PART 2641—POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS
Subpart A—General Provisions
§ 2641.101 Purpose.
18 U.S.C. 207 prohibits certain acts by former employees (including current employees who formerly served in “senior” or “very senior” employee positions) which involve, or may appear to involve, the unfair use of prior Government employment. None of the restrictions of section 207 prohibits any former employee, regardless of Government rank or position, from accepting employment with any particular private or public employer. Rather, section 207 prohibits a former employee from providing certain services to or on behalf of non-Federal employers or other persons, whether or not done for compensation. These restrictions are personal to the employee and are not imputed to others. (See, however, the note following § 2641.103 concerning 18 U.S.C. 2.)
(a) This part 2641 explains the scope and content of 18 U.S.C. 207 as it applies to former employees of the executive branch or of certain independent agencies (including current employees who formerly served in “senior” or “very senior” employee positions). Although certain restrictions in section 207 apply to former employees of the District of Columbia, Members and elected officials of the Congress and certain legislative staff, and employees of independent agencies in the legislative and judicial branches, this part is not intended to provide guidance to those individuals.
(b) Part 2641 does not address post-employment restrictions that may be contained in laws or authorities other than 18 U.S.C. 207. These restrictions include those in 18 U.S.C. 203 and 41 U.S.C. 423(d).
§ 2641.102 Applicability.
Since its enactment in 1962, 18 U.S.C. 207 has been amended several times. As a consequence of these amendments, former executive branch employees are subject to varying post-employment restrictions depending upon the date they terminated Government service (or service in a “senior” or “very senior” employee position).
(a) Employees terminating on or after January 1, 1991. Former employees who terminated or employees terminating Government service (or service in a “senior” or “very senior” employee position) on or after January 1, 1991, are subject to the provisions of 18 U.S.C. 207 as amended by the Ethics Reform Act of 1989, title I, Public Law 101-194, 103 Stat. 1716 (with amendments enacted by Act of May 4, 1990, Pub. L. 101-280, 104 Stat. 149) and by subsequent amendments. This part 2641 provides guidance concerning section 207 to these former employees.
(b) Employees terminating between July 1, 1979 and December 31, 1990. Former employees who terminated service between July 1, 1979, and December 31, 1990, are subject to the provisions of section 207 as amended by the Ethics in Government Act of 1978, title V, Public Law 95-521, 92 Stat. 1864 (with amendments enacted by Act of June 22, 1979, Pub. L. 96-28, 93 Stat. 76). Regulations providing guidance concerning 18 U.S.C. 207 to these employees were last published in the 2008 edition of title 5 of the Code of Federal Regulations, revised as of January 1, 2008.
(c) Employees terminating prior to July 1, 1979. Former employees who terminated service prior to July 1, 1979, are subject to the provisions of 18 U.S.C. 207 as enacted in 1962 by the Act of October 23, 1962, Public Law 87-849, 76 Stat. 1123.
The provisions of this part 2641 reflect amendments to 18 U.S.C. 207 enacted subsequent to the Ethics Reform Act of 1989 and before July 25, 2008. An employee who terminated Government service (or service in a “senior” or “very senior” employee position) between January 1, 1991, and July 25, 2008 may have become subject, upon termination, to a version of the statute that existed prior to the effective date of one or more of those amendments. Those amendments concerned: (1) changes, effective in 1990, 1996, and 2004 concerning the rate of basic pay triggering “senior employee” status for purposes of section 207(c); (2) the reinstatement and subsequent amendment of the Presidential waiver authority in section 207(k); (3) the length of the restriction set forth in section 207(f) as applied to a former United States Trade Representative or Deputy United States Trade Representative; (4) the addition of section 207(j)(7), an exception to section 207(c) and (d); (5) a change to section 207(j)(2)(B), an exception to section 207(c) and (d); (6) the addition of assignees under the Information Technology Exchange Program to the categories of “senior employee” for purposes of section 207(c); (7) the addition of section 207(l), applicable to former private sector assignees under the Information Technology Exchange Program; (8) a change to the length of the restriction set forth in section 207(d); and (9) the addition of a cross-reference in section 207(j)(1)(B) to a revised exception in the Indian Self-Determination and Education Assistance Act.
§ 2641.103 Enforcement and penalties.
(a) Enforcement. Criminal and civil enforcement of the provisions of 18 U.S.C. 207 is the responsibility of the Department of Justice. An agency is required to report to the Attorney General any information, complaints or allegations of possible criminal conduct in violation of title 18 of the United States Code, including possible violations of section 207 by former officers and employees. See 28 U.S.C. 535. When a possible violation of section 207 is referred to the Attorney General, the referring agency shall concurrently notify the Director of the Office of Government Ethics of the referral in accordance with 5 CFR 2638.603.
(b) Penalties and injunctions. 18 U.S.C. 216 provides for the imposition of one or more of the following penalties and injunctions for a violation of section 207:
(1) Criminal penalties. 18 U.S.C. 216(a) sets forth the maximum imprisonment terms for felony and misdemeanor violations of section 207. Section 216(a) also provides for the imposition of criminal fines for violations of section 207. For the amount of the criminal fines that may be imposed, see 18 U.S.C. 3571.
(2) Civil penalties. 18 U.S.C. 216(b) authorizes the Attorney General to take civil actions to impose civil penalties for violations of section 207 and sets forth the amounts of the civil fines.
(3) Injunctive relief. 18 U.S.C. 216(c) authorizes the Attorney General to seek an order from a United States District Court to prohibit a person from engaging in conduct which violates section 207.
(c) Other relief. In addition to any other remedies provided by law, the United States may, pursuant to 18 U.S.C. 218, void or rescind contracts, transactions, and other obligations of the United States in the event of a final conviction pursuant to section 207, and recover the amount expended or the thing transferred or its reasonable value.
A person or entity who aids, abets, counsels, commands, induces, or procures commission of a violation of section 207 is punishable as a principal under 18 U.S.C. 2.
§ 2641.104 Definitions.
For purposes of this part:
Agency means any department, independent establishment, commission, administration, authority, board or bureau of the United States or Government corporation. The term includes any independent agency not in the legislative or judicial branches.
Agency ethics official means the designated agency ethics official (DAEO) or the alternate DAEO, appointed in accordance with 5 CFR 2638.202(b), and any deputy ethics official described in 5 CFR 2638.204.
Department means one of the executive departments listed in 5 U.S.C. 101.
Designated agency ethics official (DAEO) means the official designated under 5 CFR 2638.201 to coordinate and manage an agency’s ethics program.
Employee means, for purposes of determining the individuals subject to 18 U.S.C. 207, any officer or employee of the executive branch or any independent agency that is not a part of the legislative or judicial branches. The term does not include the President or the Vice President, an enlisted member of the Armed Forces, or an officer or employee of the District of Columbia. The term includes an individual appointed as an employee or detailed to the Federal Government under the Intergovernmental Personnel Act (5 U.S.C. 3371-3376) or specifically subject to section 207 under the terms of another statute. It encompasses senior employees, very senior employees, special Government employees, and employees serving without compensation. (This term is redefined elsewhere in this part, as necessary, when the term is used for other purposes.)
Executive branch includes an executive department as defined in 5 U.S.C. 101, a Government corporation, an independent establishment (other than the Government Accountability Office), the Postal Service, the Postal Regulatory Commission, and also includes any other entity or administrative unit in the executive branch.
Former employee means an individual who has completed a period of service as an employee. Unless otherwise indicated, the term encompasses a former senior employee and a former very senior employee. An individual becomes a former employee at the termination of Government service, whereas an individual becomes a former senior employee or a former very senior employee at the termination of service in a senior or very senior employee position.
Former senior employee is an individual who terminates service in a senior employee position (without successive Government service in another senior position).
Former very senior employee is an individual who terminates service in a very senior employee position (without successive Government service in another very senior employee position).
Government corporation means, for purposes of determining the individuals subject to 18 U.S.C. 207, a corporation that is owned or controlled by the Government of the United States. For purposes of identifying or determining individuals with whom post-employment contact is restricted, matters to which the United States is a party or has a direct and substantial interest, decisions which a former senior or very senior employee cannot seek to influence on behalf of a foreign entity, and whether a former employee is acting on behalf of the United States, it means a corporation in which the United States has a proprietary interest as distinguished from a custodial or incidental interest as shown by the functions, financing, control, and management of the corporation.
Government service means a period of time during which an individual is employed by the Federal Government without a break in service. As applied to a special Government employee (SGE), Government service refers to the period of time covered by the individual’s appointment or appointments (or other act evidencing employment with the Government), regardless of any interval or intervals between days actually served. See example 4 to the definition of former employee in this section. In the case of Reserve officers of the Armed Forces or officers of the National Guard of the United States who are not otherwise employees of the United States, Government service shall be considered to end upon the termination of a period of active duty or active duty for training during which they served as SGEs. See example 5 to the definition of former employee in this section.
He, his, and him include she, hers, and her, and vice versa.
Judicial branch means the Supreme Court of the United States; the United States courts of appeals; the United States district courts; the Court of International Trade; the United States bankruptcy courts; any court created pursuant to Article I of the United States Constitution, including the United States Court of Appeals for the Armed Forces, the United States Claims Court, and the United States Tax Court, but not including a court of a territory or possession of the United States; the Federal Judicial Center; and any other agency, office, or entity in the judicial branch.
Legislative branch means the Congress; it also means the Office of the Architect of the Capitol, the United States Botanic Garden, the Government Accountability Office, the Government Printing Office, the Library of Congress, the Office of Technology Assessment, the Congressional Budget Office, the United States Capitol Police, and any other agency, entity, office, or commission established in the legislative branch.
Person includes an individual, corporation, company, association, firm, partnership, society, joint stock company, or any other organization, institution, or entity, including any officer, employee, or agent of such person or entity. Unless otherwise indicated, the term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State and local governments. The term includes the “United States” as that term is defined in § 2641.301(a)(1).
Senior employee means an employee, other than a very senior employee, who is:
(1) Employed in a position for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule);
(2) Employed in a position for which the employee is paid at a rate of basic pay which is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule; or, for a period of two years following November 24, 2003, was employed on November 23, 2003 in a position for which the rate of basic pay was equal to or greater than the rate of basic pay payable for level 5 of the Senior Executive Service; for purposes of this paragraph, “rate of basic pay” does not include locality-based adjustments or additional pay such as bonuses, awards and various allowances;
(3) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(B);
(4) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(B);
(5) An active duty commissioned officer of the uniformed services serving in a position for which the pay grade (as specified in 37 U.S.C. 201) is pay grade O-7 or above; or
(6) Assigned from a private sector organization under chapter 37 of 5 U.S.C. (Information Technology Exchange Program).
Special Government employee means an officer or employee of the executive branch or an independent agency, as specified in 18 U.S.C. 202(a). A special Government employee is retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days.
State means one of the fifty States of the United States and the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
Very senior employee means an employee who is:
(1) Employed in a position which is either listed in 5 U.S.C. 5312 or for which the rate of pay is equal to the rate of pay payable for level I of the Executive Schedule;
(2) Employed in a position in the Executive Office of the President which is either listed in 5 U.S.C. 5313 or for which the rate of pay is equal to the rate of pay payable for level II of the Executive Schedule;
(3) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(A); or
(4) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(A).
§ 2641.105 Advice.
(a) Agency ethics officials. Current or former employees or others who have questions about 18 U.S.C. 207 or about this part 2641 should seek advice from a designated agency ethics official or another agency ethics official. The agency in which an individual formerly served has the primary responsibility to provide oral or written advice concerning a former employee’s post-employment activities. An agency ethics official, in turn, may consult with other agencies, such as those before whom a post-employment communication or appearance is contemplated, and with the Office of Government Ethics.
(b) Office of Government Ethics. The Office of Government Ethics (OGE) will provide advice to agency ethics officials and others concerning 18 U.S.C. 207 and this part 2641. OGE may provide advice orally or through issuance of a written advisory opinion and shall, as appropriate, consult with the agency or agencies concerned and with the Department of Justice.
(c) Effect of advice. Reliance on the oral or written advice of an agency ethics official or the OGE cannot ensure that a former employee will not be prosecuted for a violation of 18 U.S.C. 207. However, good faith reliance on such advice is a factor that may be taken into account by the Department of Justice (DOJ) in the selection of cases for prosecution. In the case in which OGE issues a formal advisory opinion in accordance with subpart C of 5 CFR part 2638, the DOJ will not prosecute an individual who acted in good faith in accordance with that opinion. See 5 CFR 2638.309.
(d) Contacts to seek advice. A former employee will not be deemed to act on behalf of any other person in violation of 18 U.S.C. 207 when he contacts an agency ethics official or other employee of the United States for the purpose of seeking guidance concerning the applicability or meaning of section 207 as applied to his own activities.
(e) No personal attorney-client privilege. A current or former employee who discloses information to an agency ethics official, to a Government attorney, or to an employee of the Office of Government Ethics does not personally enjoy an attorney-client privilege with respect to such communications.
§ 2641.106 Applicability of certain provisions to Vice President.
Subsections 207(d) (relating to restrictions on very senior personnel) and 207(f) (restrictions with regard to foreign entities) of title 18, United States Code, apply to a Vice President, to the same extent as they apply to employees and former employees covered by those provisions. See §§ 2641.205 and 2641.206. There are no other restrictions in 18 U.S.C. 207 applicable to a Vice President.
Subpart B—Prohibitions
§ 2641.201 Permanent restriction on any former employee’s representations to United States concerning particular matter in which the employee participated personally and substantially.
(a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee shall knowingly, with the intent to influence, make any communication to or appearance before an employee of the United States on behalf of any other person in connection with a particular matter involving a specific party or parties, in which he participated personally and substantially as an employee, and in which the United States is a party or has a direct and substantial interest.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(1) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(e).
(4) Testifying under oath. See § 2641.301(f). (Note that this exception from § 2641.201 is generally not available for expert testimony. See § 2641.301(f)(2).)
(5) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(6) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(a)(1) is a permanent restriction that commences upon an employee’s termination from Government service. The restriction lasts for the life of the particular matter involving specific parties in which the employee participated personally and substantially.
(d) Communication or appearance—(1) Communication. A former employee makes a communication when he imparts or transmits information of any kind, including facts, opinions, ideas, questions or direction, to an employee of the United States, whether orally, in written correspondence, by electronic media, or by any other means. This includes only those communications with respect to which the former employee intends that the information conveyed will be attributed to himself, although it is not necessary that any employee of the United States actually recognize the former employee as the source of the information.
(2) Appearance. A former employee makes an appearance when he is physically present before an employee of the United States, in either a formal or informal setting. Although an appearance also may be accompanied by certain communications, an appearance need not involve any communication by the former employee.
(3) Behind-the-scenes assistance. Nothing in this section prohibits a former employee from providing assistance to another person, provided that the assistance does not involve a communication to or an appearance before an employee of the United States.
(e) With the intent to influence—(1) Basic concept. The prohibition applies only to communications or appearances made by a former Government employee with the intent to influence the United States. A communication or appearance is made with the intent to influence when made for the purpose of:
(i) Seeking a Government ruling, benefit, approval, or other discretionary Government action; or
(ii) Affecting Government action in connection with an issue or aspect of a matter which involves an appreciable element of actual or potential dispute or controversy.
(2) Intent to influence not present. Certain communications to and appearances before employees of the United States are not made with the intent to influence, within the meaning of paragraph (e)(1) of this section, including, but not limited to, communications and appearances made solely for the purpose of:
(i) Making a routine request not involving a potential controversy, such as a request for publicly available documents or an inquiry as to the status of a matter;
(ii) Making factual statements or asking factual questions in a context that involves neither an appreciable element of dispute nor an effort to seek discretionary Government action, such as conveying factual information regarding matters that are not potentially controversial during the regular course of performing a contract;
(iii) Signing and filing the tax return of another person as preparer;
(iv) Signing an assurance that one will be responsible as principal investigator for the direction and conduct of research under a Federal grant (see example 4 to paragraph (d) of this section);
(v) Filing a Securities and Exchange Commission (SEC) Form 10-K or similar disclosure forms required by the SEC;
(vi) Making a communication, at the initiation of the Government, concerning work performed or to be performed under a Government contract or grant, during a routine Government site visit to premises owned or occupied by a person other than the United States where the work is performed or would be performed, in the ordinary course of evaluation, administration, or performance of an actual or proposed contract or grant; or
(vii) Purely social contacts (see example 4 to paragraph (f) of this section).
(3) Change in circumstances. If, at any time during the course of a communication or appearance otherwise permissible under paragraph (e)(2) of this section, it becomes apparent that circumstances have changed which would indicate that any further communication or appearance would be made with the intent to influence, the former employee must refrain from such further communication or appearance.
(4) Mere physical presence intended to influence. Under some circumstances, a former employee’s mere physical presence, without any communication by the employee concerning any material issue or otherwise, may constitute an appearance with the intent to influence an employee of the United States. Relevant considerations include such factors as whether:
(i) The former employee has been given actual or apparent authority to make any decisions, commitments, or substantive arguments in the course of the appearance;
(ii) The Government employee before whom the appearance is made has substantive responsibility for the matter and does not simply perform ministerial functions, such as the acceptance of paperwork;
(iii) The former employee’s presence is relatively prominent;
(iv) The former employee is paid for making the appearance;
(v) It is anticipated that others present at the meeting will make reference to the views or past or present work of the former employee;
(vi) Circumstances do not indicate that the former employee is present merely for informational purposes, for example, merely to listen and record information for later use;
(vii) The former employee has entered a formal appearance in connection with a legal proceeding at which he is present; and
(viii) The appearance is before former subordinates or others in the same chain of command as the former employee.
(f) To or before an employee of the United States—(1) Employee of the United States. For purposes of this paragraph, an “employee of the United States” means the President, the Vice President, and any current Federal employee (including an individual appointed as an employee or detailed to the Federal Government under the Intergovernmental Personnel Act (5 U.S.C. 3371-3376)) who is detailed to or employed by any:
(i) Agency (including a Government corporation);
(ii) Independent agency in the executive, legislative, or judicial branch;
(iii) Federal court; or
(iv) Court-martial.
(2) To or before. Except as provided in paragraph (f)(3) of this section, a communication “to” or appearance “before” an employee of the United States is one:
(i) Directed to and received by an entity specified in paragraphs (f)(1)(i) through (f)(1)(iv) of this section even though not addressed to a particular employee, e.g., as when a former employee mails correspondence to an agency but not to any named employee; or
(ii) Directed to and received by an employee in his capacity as an employee of an entity specified in paragraphs (f)(1)(i) through (f)(1)(iv) of this section, e.g., as when a former employee directs remarks to an employee representing the United States as a party or intervenor in a Federal or non-Federal judicial proceeding. A former employee does not direct his communication or appearance to a bystander who merely happens to overhear the communication or witness the appearance.
(3) Public commentary. (i) A former employee who addresses a public gathering or a conference, seminar, or similar forum as a speaker or panel participant will not be considered to be making a prohibited communication or appearance if the forum:
(A) Is not sponsored or co-sponsored by an entity specified in paragraphs (f)(1)(i) through (f)(1)(iv) of this section;
(B) Is attended by a large number of people; and
(C) A significant proportion of those attending are not employees of the United States.
(ii) In the circumstances described in paragraph (f)(3)(i) of this section, a former employee may engage in exchanges with any other speaker or with any member of the audience.
(iii) A former employee also may permit the broadcast or publication of a commentary provided that it is broadcast or appears in a newspaper, periodical, or similar widely available publication.
(g) On behalf of any other person—(1) On behalf of. (i) A former employee makes a communication or appearance on behalf of another person if the former employee is acting as the other person’s agent or attorney or if:
(A) The former employee is acting with the consent of the other person, whether express or implied; and
(B) The former employee is acting subject to some degree of control or direction by the other person in relation to the communication or appearance.
(ii) A former employee does not act on behalf of another merely because his communication or appearance is consistent with the interests of the other person, is in support of the other person, or may cause the other person to derive a benefit as a consequence of the former employee’s activity.
(2) Any other person. The term “person” is defined in § 2641.104. For purposes of this paragraph, the term excludes the former employee himself or any sole proprietorship owned by the former employee.
(h) Particular matter involving a specific party or parties—(1) Basic concept. The prohibition applies only to communications or appearances made in connection with a “particular matter involving a specific party or parties.” Although the statute defines “particular matter” broadly to include “any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding,” 18 U.S.C. 207(i)(3), only those particular matters that involve a specific party or parties fall within the prohibition of section 207(a)(1). Such a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identified parties, such as a specific contract, grant, license, product approval application, enforcement action, administrative adjudication, or court case.
(2) Matters of general applicability not covered. Legislation or rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties. International agreements, such as treaties and trade agreements, must be evaluated in light of all relevant circumstances to determine whether they should be considered particular matters involving specific parties; relevant considerations include such factors as whether the agreement focuses on a specific property or territory, a specific claim, or addresses a large number of diverse issues or economic interests.
(3) Specific parties at all relevant times. The particular matter must involve specific parties both at the time the individual participated as a Government employee and at the time the former employee makes the communication or appearance, although the parties need not be identical at both times.
(4) Preliminary or informal stages in a matter. When a particular matter involving specific parties begins depends on the facts. A particular matter may involve specific parties prior to any formal action or filings by the agency or other parties. Much of the work with respect to a particular matter is accomplished before the matter reaches its final stage, and preliminary or informal action is covered by the prohibition, provided that specific parties to the matter actually have been identified. With matters such as grants, contracts, and other agreements, ordinarily specific parties are first identified when initial proposals or indications of interest, such as responses to requests for proposals (RFP) or earlier expressions of interest, are received by the Government; in unusual circumstances, however, such as a sole source procurement or when there are sufficient indicia that the Government has explicitly identified a specific party in an otherwise ordinary prospective grant, contract, or agreement, specific parties may be identified even prior to the receipt of a proposal or expression of interest.
(5) Same particular matter—(i) General. The prohibition applies only to communications or appearances in connection with the same particular matter involving specific parties in which the former employee participated as a Government employee. The same particular matter may continue in another form or in part. In determining whether two particular matters involving specific parties are the same, all relevant factors should be considered, including the extent to which the matters involve the same basic facts, the same or related parties, related issues, the same confidential information, and the amount of time elapsed.
(ii) Considerations in the case of contracts, grants, and other agreements. With respect to matters such as contracts, grants or other agreements:
(A) A new matter typically does not arise simply because there are amendments, modifications, or extensions of a contract (or other agreement), unless there are fundamental changes in objectives or the nature of the matter;
(B) Generally, successive or otherwise separate contracts (or other agreements) will be viewed as different matters from each other, absent some indication that one contract (or other agreement) contemplated the other or that both are in support of the same specific proceeding;
(C) A contract is almost always a single particular matter involving specific parties. However, under compelling circumstances, distinct aspects or phases of certain large umbrella-type contracts, involving separate task orders or delivery orders, may be considered separate individual particular matters involving specific parties, if an agency determines that articulated lines of division exist. In making this determination, an agency should consider the relevant factors as described above. No single factor should be determinative, and any divisions must be based on the contract’s characteristics, which may include, among other things, performance at different geographical locations, separate and distinct subject matters, the separate negotiation or competition of individual task or delivery orders, and the involvement of different program offices or even different agencies.
(i) Participated personally and substantially—(1) Participate. To “participate” means to take an action as an employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action, or to purposefully forbear in order to affect the outcome of a matter. An employee can participate in particular matters that are pending other than in his own agency. An employee does not participate in a matter merely because he had knowledge of its existence or because it was pending under his official responsibility. An employee does not participate in a matter within the meaning of this section unless he does so in his official capacity.
(2) Personally. To participate “personally” means to participate:
(i) Directly, either individually or in combination with other persons; or
(ii) Through direct and active supervision of the participation of any person he supervises, including a subordinate.
(3) Substantially. To participate “substantially” means that the employee’s involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. Provided that an employee participates in the substantive merits of a matter, his participation may be substantial even though his role in the matter, or the aspect of the matter in which he is participating, may be minor in relation to the matter as a whole. Participation in peripheral aspects of a matter or in aspects not directly involving the substantive merits of a matter (such as reviewing budgetary procedures or scheduling meetings) is not substantial.
(j) United States is a party or has a direct and substantial interest—(1) United States. For purposes of this paragraph, the “United States” means:
(i) The executive branch (including a Government corporation);
(ii) The legislative branch; or
(iii) The judicial branch.
(2) Party or direct and substantial interest. The United States may be a party to or have a direct and substantial interest in a particular matter even though it is pending in a non-Federal forum, such as a State court. The United States is neither a party to nor does it have a direct and substantial interest in a particular matter merely because a Federal statute is at issue or a Federal court is serving as the forum for resolution of the matter. When it is not clear whether the United States is a party to or has a direct and substantial interest in a particular matter, this determination shall be made in accordance with the following procedure:
(i) Coordination by designated agency ethics official. The designated agency ethics official (DAEO) for the former employee’s agency shall have the primary responsibility for coordinating this determination. When it appears likely that a component of the United States Government other than the former employee’s former agency may be a party to or have a direct and substantial interest in the particular matter, the DAEO shall coordinate with agency ethics officials serving in those components.
(ii) Agency determination. A component of the United States Government shall determine if it is a party to or has a direct and substantial interest in a matter in accordance with its own internal procedures. It shall consider all relevant factors, including whether:
(A) The component has a financial interest in the matter;
(B) The matter is likely to have an effect on the policies, programs, or operations of the component;
(C) The component is involved in any proceeding associated with the matter, e.g., as by having provided witnesses or documentary evidence; and
(D) The component has more than an academic interest in the outcome of the matter.
§ 2641.202 Two-year restriction on any former employee’s representations to United States concerning particular matter for which the employee had official responsibility.
(a) Basic prohibition of 18 U.S.C. 207(a)(2). For two years after his Government service terminates, no former employee shall knowingly, with the intent to influence, make any communication to or appearance before an employee of the United States on behalf of any other person in connection with a particular matter involving a specific party or parties, in which the United States is a party or has a direct and substantial interest, and which such person knows or reasonably should know was actually pending under his official responsibility within the one-year period prior to the termination of his Government service.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(2) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(e).
(4) Testifying under oath. See § 2641.301(f).
(5) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(6) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(a)(2) is a two-year restriction that commences upon an employee’s termination from Government service. See example 9 to paragraph (j) of this section.
(d) Communication or appearance. See § 2641.201(d).
(e) With the intent to influence. See § 2641.201(e).
(f) To or before an employee of the United States See § 2641.201(f).
(g) On behalf of any other person. See § 2641.201(g).
(h) Particular matter involving a specific party or parties. See § 2641.201(h).
(i) United States is a party or has a direct and substantial interest. See § 2641.201(j).
(j) Official responsibility—(1) Definition. “Official responsibility” means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action. Ordinarily, the scope of an employee’s official responsibility is determined by those functions assigned by statute, regulation, Executive order, job description, or delegation of authority. All particular matters under consideration in an agency are under the official responsibility of the agency head and each is under that of any intermediate supervisor who supervises a person, including a subordinate, who actually participates in the matter or who has been assigned to participate in the matter within the scope of his official duties. A nonsupervisory employee does not have official responsibility for his own assignments within the meaning of section 207(a)(2). Authority to direct Government action concerning only ancillary or nonsubstantive aspects of a matter, such as budgeting, equal employment, scheduling, or format requirements does not, ordinarily, constitute official responsibility for the matter as a whole.
(2) Actually pending. A matter is actually pending under an employee’s official responsibility if it has been referred to the employee for assignment or has been referred to or is under consideration by any person he supervises, including a subordinate. A matter remains pending even when it is not under “active” consideration. There is no requirement that the matter must have been pending under the employee’s official responsibility for a certain length of time.
(3) Temporary duties. An employee ordinarily acquires official responsibility for all matters within the scope of his position immediately upon assuming the position. However, under certain circumstances, an employee who is on detail (or other temporary assignment) to a position or who is serving in an “acting” status might not be deemed to have official responsibility for any matter by virtue of such temporary duties. Specifically, an employee performing such temporary duties will not thereby acquire official responsibility for matters within the scope of the position where he functions only in a limited “caretaker” capacity, as evidenced by such factors as:
(i) Whether the employee serves in the position for no more than 60 consecutive calendar days;
(ii) Whether there is actually another incumbent for the position, who is temporarily absent, for example, on travel or leave;
(iii) Whether there has been no event triggering the provisions of 5 U.S.C. 3345(a); and
(iv) Whether there are any other circumstances indicating that, given the temporary nature of the detail or acting status, there was no reasonable expectation of the full authority of the position.
(4) Effect of leave status. The scope of an employee’s official responsibility is not affected by annual leave, terminal leave, sick leave, excused absence, leave without pay, or similar absence from assigned duties.
(5) Effect of disqualification. Official responsibility for a matter is not eliminated through self-disqualification or avoidance of personal participation in a matter, as when an employee is disqualified from participating in a matter in accordance with subparts D, E, or F of 5 CFR part 2635 or part 2640. Official responsibility for a matter can be terminated by a formal modification of an employee’s responsibilities, such as by a change in the employee’s position description.
(6) One-year period before termination. 18 U.S.C. 207(a)(2) applies only with respect to a particular matter that was actually pending under the former employee’s official responsibility:
(i) At some time when the matter involved a specific party or parties; and
(ii) Within his last year of Government service.
(7) Knowledge of official responsibility. A communication or appearance is not prohibited unless, at the time of the proposed post-employment communication or appearance, the former employee knows or reasonably should know that the matter was actually pending under his official responsibility within the one-year period prior to his termination from Government service. It is not necessary that a former employee have known during his Government service that the matter was actually pending under his official responsibility.
18 U.S.C. 207(a)(2) requires only that the former employee “reasonably should know” that the matter was pending under his official responsibility. Consequently, when the facts suggest that a particular matter involving specific parties could have been actually pending under his official responsibility, a former employee should seek information from an agency ethics official or other Government official to clarify his role in the matter. See § 2641.105 concerning advice.
§ 2641.203 One-year restriction on any former employee’s representations, aid, or advice concerning ongoing trade or treaty negotiation.
(a) Basic prohibition of 18 U.S.C. 207(b). For one year after his Government service terminates, no former employee shall, on the basis of “covered information,” knowingly represent, aid, or advise any other person concerning an ongoing trade or treaty negotiation in which, during his last year of Government service, he participated personally and substantially as an employee. “Covered information” refers to agency records which were accessible to the employee which he knew or should have known were designated as exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552).
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(b) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Testifying under oath. See § 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee at a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(b) commences upon an employee’s termination from Government service. The restriction lasts for one year or until the termination of the negotiation, whichever occurs first.
(d) Represent, aid, or advise. [Reserved]
(e) Any other person. [Reserved]
(f) On the basis of. [Reserved]
(g) Covered information. [Reserved]
(h) Ongoing trade or treaty negotiation. [Reserved]
(i) Participated personally and substantially. [Reserved]
§ 2641.204 One-year restriction on any former senior employee’s representations to former agency concerning any matter, regardless of prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(c). For one year after his service in a senior position terminates, no former senior employee may knowingly, with the intent to influence, make any communication to or appearance before an employee of an agency in which he served in any capacity within the one-year period prior to his termination from a senior position, if that communication or appearance is made on behalf of any other person in connection with any matter on which the former senior employee seeks official action by any employee of such agency. An individual who served in a “very senior employee” position is subject to the broader two-year restriction set forth in 18 U.S.C. 207(d) in lieu of that set forth in section 207(c). See § 2641.205.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(c) does not apply to a former senior employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Acting on behalf of specified entities. See § 2641.301(c).
(4) Making uncompensated statements based on special knowledge. See § 2641.301(d).
(5) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(e).
(6) Testifying under oath. See § 2641.301(f).
(7) Acting on behalf of a candidate or political party. See § 2641.301(g).
(8) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(9) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(10) Subject to a waiver issued for certain positions. See § 2641.301(j).
(c) Applicability to special Government employees and Intergovernmental Personnel Act appointees or detailees—(1) Special Government employees. (i) 18 U.S.C. 207(c) applies to an individual as a result of service as a special Government employee (SGE) who:
(A) Served in a senior employee position while serving as an SGE; and
(B) Served 60 or more days as an SGE during the one-year period before terminating service as a senior employee.
(ii) Any day on which work is performed shall count toward the 60-day threshold without regard to the number of hours worked that day or whether the day falls on a weekend or holiday. For purposes of determining whether an SGE’s rate of basic pay is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule, within the meaning of the definition of senior employee in § 2641.104, the employee’s hourly rate of pay (or daily rate divided by eight) shall be multiplied by 2087, the number of Federal working hours in one year. (In the case of a Reserve officer of the Armed Forces or an officer of the National Guard who is an SGE serving in a senior employee position, 18 U.S.C. 207(c) applies if the officer served 60 or more days as an SGE within the one-year period prior to his termination from a period of active duty or active duty for training.)
(2) Intergovernmental Personnel Act appointees or detailees. 18 U.S.C. 207(c) applies to an individual serving as a senior employee pursuant to an appointment or detail under the Intergovernmental Personnel Act, 5 U.S.C. 3371-3376. An individual is a senior employee if he received total pay from Federal or non-Federal sources equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule (exclusive of any reimbursement for a non-Federal employer’s share of benefits not paid to the employee as salary), and:
(i) The individual served in a Federal position ordinarily compensated at a rate equal to or greater than 86.5 percent of level II of the Executive Schedule, regardless of what portion of the pay is derived from Federal expenditures or expenditures by the individual’s non-Federal employer;
(ii) The individual received a direct Federal payment, pursuant to 5 U.S.C. 3374(c)(1), that supplemented the salary that he received from his non-Federal employer; or
(iii) The individual’s non-Federal employer received Federal reimbursement equal to or greater than 86.5 percent of level II of the Executive Schedule.
(d) Commencement and length of restriction. 18 U.S.C. 207(c) is a one-year restriction. The one-year period is measured from the date when the employee ceases to serve in a senior employee position, not from the termination of Government service, unless the two events occur simultaneously. (In the case of a Reserve officer of the Armed Forces or an officer of the National Guard who is a special Government employee serving in a senior employee position, section 207(c) is measured from the date when the officer terminates a period of active duty or active duty for training.)
(e) Communication or appearance. See § 2641.201(d).
(f) With the intent to influence. See § 2641.201(e).
(g) To or before employee of former agency—(1) Employee. For purposes of this paragraph, a former senior employee may not contact:
(i) Any current Federal employee of the former senior employee’s “former agency” as defined in paragraph (g)(2) of this section;
(ii) An individual detailed under the Intergovernmental Personnel Act (5 U.S.C. 3371-3376) to the former senior employee’s former agency;
(iii) An individual detailed to the former senior employee’s former agency from another department, agency or other entity, including agencies and entities within the legislative or judicial branches;
(iv) An individual serving with the former senior employee’s former agency as a collateral duty pursuant to statute or Executive order; and
(v) In the case of a communication or appearance made by a former senior employee who is barred by 18 U.S.C. 207(c) from communicating to or appearing before the Executive Office of the President, the President and Vice President.
(2) Former agency. The term “agency” is defined in § 2641.104. Unless eligible to benefit from the designation of distinct and separate agency components as described in § 2641.302, a former senior employee’s former agency will ordinarily be considered to be the whole of any larger agency of which his former agency was a part on the date he terminated senior service.
(i) One-year period before termination. 18 U.S.C. 207(c) applies with respect to agencies in which the former senior employee served within the one-year period prior to his termination from a senior employee position.
(ii) Served in any capacity. Once the restriction commences, 18 U.S.C. 207(c) applies with respect to any agency in which the former senior employee served in any capacity during the one-year period, regardless of his position, rate of basic pay, or pay grade.
(iii) Multiple assignments. An employee can simultaneously serve in more than one agency. A former senior employee will be considered to have served in his own employing entity and in any entity to which he was detailed for any length of time or with which he was required to serve as a collateral duty pursuant to statute or Executive order.
(iv) Effect of organizational changes. If a former senior employee’s former agency has been significantly altered by organizational changes after his termination from senior service, it may be necessary to determine whether a successor entity is the same agency as the former senior employee’s former agency. The appropriate designated agency ethics official, in consultation with the Office of Government Ethics, shall identify the entity that is the individual’s former agency. Whether a successor entity is the same as the former agency depends upon whether it has substantially the same organizational mission, the extent of the termination or dispersion of the agency’s functions, and other factors as may be appropriate.
(A) Agency abolished or substantially changed. If a successor entity is not identifiable as substantially the same agency from which the former senior employee terminated, the 18 U.S.C. 207(c) prohibition will not bar communications or appearances by the former senior employee to that successor entity.
(B) Agency substantially the same. If a successor entity remains identifiable as substantially the same entity from which the former senior employee terminated, the 18 U.S.C. 207(c) bar will extend to the whole of the successor entity.
(C) Employing entity is made separate. If an employing entity is made separate from an agency of which it was a part, but it remains identifiable as substantially the same entity from which the former senior employee terminated senior service before the entity was made separate, the 18 U.S.C. 207(c) bar will apply to a former senior employee of that entity only with respect to the new separate entity.
(D) Component designations. If a former senior employee’s former agency was a designated “component” within the meaning of § 2641.302 on the date of his termination as senior employee, see § 2641.302(g).
(3) To or before. Except as provided in paragraph (g)(4) of this section, a communication “to” or appearance “before” an employee of a former senior employee’s former agency is one:
(i) Directed to and received by the former senior employee’s former agency, even though not addressed to a particular employee; or
(ii) Directed to and received by an employee of a former senior employee’s former agency in his official capacity, including in his capacity as an employee serving in the agency on detail or, if pursuant to statute or Executive order, as a collateral duty. A former senior employee does not direct his communication or appearance to a bystander who merely happens to overhear the communication or witness the appearance.
(4) Public commentary. (i) A former senior employee who addresses a public gathering or a conference, seminar, or similar forum as a speaker or panel participant will not be considered to make a prohibited communication or appearance if the forum:
(A) Is not sponsored or co-sponsored by the former senior employee’s former agency;
(B) Is attended by a large number of people; and
(C) A significant proportion of those attending are not employees of the former senior employee’s former agency.
(ii) In the circumstances described in paragraph (g)(4)(i) of this section, a former senior employee may engage in exchanges with any other speaker or with any member of the audience.
(iii) A former senior employee also may permit the broadcast or publication of a commentary provided that it is broadcast or appears in a newspaper, periodical, or similar widely-available publication.
(h) On behalf of any other person. See § 2641.201(g).
(i) Matter on which former senior employee seeks official action—(1) Seeks official action. A former senior employee seeks official action when the circumstances establish that he is making his communication or appearance for the purpose of inducing a current employee, as defined in paragraph (g) of this section, to make a decision or to otherwise act in his official capacity.
(2) Matter. The prohibition on seeking official action applies with respect to any matter, including:
(i) Any “particular matter involving a specific party or parties” as defined in § 2641.201(h);
(ii) The consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons;
(iii) A new matter that was not previously pending at or of interest to the former senior employee’s former agency; and
(iv) A matter pending at any other agency in the executive branch, an independent agency, the legislative branch, or the judicial branch.
§ 2641.205 Two-year restriction on any former very senior employee’s representations to former agency or certain officials concerning any matter, regardless of prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(d). For two years after his service in a very senior employee position terminates, no former very senior employee shall knowingly, with the intent to influence, make any communication to or appearance before any official appointed to an Executive Schedule position listed in 5 U.S.C. 5312-5316 or before any employee of an agency in which he served as a very senior employee within the one-year period prior to his termination from a very senior employee position, if that communication or appearance is made on behalf of any other person in connection with any matter on which the former very senior employee seeks official action by any official or employee.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(d) does not apply to a former very senior employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Acting on behalf of specified entities. See § 2641.301(c).
(4) Making uncompensated statements based on special knowledge. See § 2641.301(d).
(5) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(e).
(6) Testifying under oath. See § 2641.301(f).
(7) Acting on behalf of a candidate or political party. See § 2641.301(g).
(8) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(9) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(d) is a two-year restriction. The two-year period is measured from the date when the employee ceases to serve in a very senior employee position, not from the termination of Government service, unless the two events occur simultaneously. See examples 1 and 2 to paragraph (d) of § 2641.204.
(d) Communication or appearance. See§ 2641.201(d).
(e) With the intent to influence. See§ 2641.201(e).
(f) To or before employee of former agency. See § 2641.204(g), except that this section covers only former very senior employees and applies only with respect to the agency or agencies in which a former very senior employee served as a very senior employee, and very senior employees do not benefit from the designation of distinct and separate agency components as referenced in § 2641.204(g)(2).
(g) To or before an official appointed to an Executive Schedule position. See § 2641.204(g)(3) for “to or before,” except that this section covers only former very senior employees and also extends to a communication or appearance before any official currently appointed to a position that is listed in sections 5 U.S.C. 5312-5316.
A communication made to an official described in 5 U.S.C. 5312-5316 can include a communication to a subordinate of such official with the intent that the information be conveyed directly to the official and attributed to the former very senior employee.
(h) On behalf of any other person. See § 2641.201(g).
(i) Matter on which former very senior employee seeks official action. See § 2641.204(i), except that this section only covers former very senior employees.
§ 2641.206 One-year restriction on any former senior or very senior employee’s representations on behalf of, or aid or advice to, a foreign entity.
(a) Basic prohibition of 18 U.S.C. 207(f). For one year after service in a senior or very senior employee position terminates, no former senior employee or former very senior employee shall knowingly represent a foreign government or foreign political party before an officer or employee of an agency or department of the United States, or aid or advise such a foreign entity, with the intent to influence a decision of such officer or employee. For purposes of describing persons who may not be contacted with the intent to influence, under 18 U.S.C. 207(f) and this section, the phrase “officer or employee” includes the President, the Vice President, and Members of Congress, and the term “department” includes the legislative branch of government.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(f) does not apply to a former senior or former very senior employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a). (Note, however, the limitation in § 2641.301(a)(2)(ii).)
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Testifying under oath. See § 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(6) Subject to a waiver issued for certain positions. See § 2641.301(j).
(c) Commencement and length of restriction—(1)Generally. Except as provided in paragraph (c)(2) of this section, 18 U.S.C. 207(f) is a one-year restriction. The one-year period is measured from the date when an employee ceases to be a senior or very senior employee, not from the termination of Government service, unless the two occur simultaneously. See examples 1 and 2 to paragraph (d) of § 2641.204.
(2) U.S. Trade Representative or Deputy U.S. Trade Representative.18 U.S.C. 207(f) is a permanent restriction as applied to a former U.S. Trade Representative or Deputy U.S. Trade Representative.
(d) Represent, aid, or advise. [Reserved]
(e) With the intent to influence. [Reserved]
(f) Decision of employee of an agency. [Reserved]
(g) Foreign entity. [Reserved]
§ 2641.207 One-year restriction on any former private sector assignee under the Information Technology Exchange Program representing, aiding, counseling or assisting in representing in connection with any contract with former agency.
(a) Basic prohibition of 18 U.S.C. 207(l). For one year after the termination of his assignment from a private sector organization to an agency under the Information Technology Exchange Program, 5 U.S.C. chapter 37, no former assignee shall knowingly represent, or aid, counsel or assist in representing any other person in connection with any contract with that agency.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(l) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Testifying under oath. See § 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(c) Commencement and length of restriction.18 U.S.C. 207(l) is a one-year restriction. The one-year period is measured from the date when the individual’s assignment under the Information Technology Exchange Program terminates.
(d) Represent, aid, counsel, or assist in representing. [Reserved]
(e) In connection with any contract with the former agency. [Reserved]
Subpart C—Exceptions, Waivers and Separate Components
§ 2641.301 Statutory exceptions and waivers.
(a) Exception for acting on behalf of United States. A former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from engaging in any activity on behalf of the United States.
(1) United States. For purposes of this paragraph, the term “United States” means:
(i) The executive branch (including a Government corporation);
(ii) The legislative branch; or
(iii) The judicial branch.
(2) On behalf of the United States. A former employee will be deemed to engage in the activity on behalf of the United States if he acts in accordance with paragraph (a)(2)(i) or (a)(2)(ii) of this section.
(i) As employee of the United States. A former employee engages in an activity on behalf of the United States when he carries out official duties as a current employee of the United States.
(ii) As other than employee of the United States. (A) Provided that he does not represent, aid, or advise a foreign entity in violation of 18 U.S.C. 207(f), a former employee engages in an activity on behalf of the United States when he serves:
(1) As a representative of the United States pursuant to a specific agreement with the United States to provide representational services to the United States; or
(2) As a witness called by the United States (including a Congressional committee or subcommittee) to testify at a Congressional hearing (even if applicable procedural rules do not require him to declare by oath or affirmation that he will testify truthfully).
(B) A former employee will not be deemed to engage in an activity on behalf of the United States merely because he is performing work funded by the Government, because he is engaging in the activity in response to a contact initiated by the Government, because the Government will derive some benefit from the activity, or because he or the person on whose behalf he is acting may share the same objective as the Government.
See also § 2641.301(f) concerning the permissibility of testimony under oath, including testimony as an expert witness, when a former employee is called as a witness by the United States.
See also example 9 to paragraph (j) of § 2641.202 and example 1 to paragraph (d) of § 2641.204.
(b) Exception for acting on behalf of State or local government as elected official. A former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from engaging in any post-employment activity on behalf of one or more State or local governments, provided the activity is undertaken in carrying out official duties as an elected official of a State or local government.
(c) Exception for acting on behalf of specified entities. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a communication or appearance on behalf of one or more entities specified in paragraph (c)(1) of this section, provided the communication or appearance is made in carrying out official duties as an employee of a specified entity.
(1) Specified entities. For purposes of this paragraph, a specified entity is:
(i) An agency or instrumentality of a State or local government;
(ii) A hospital or medical research organization, if exempted from taxation under 26 U.S.C. 501(c)(3); or
(iii) An accredited, degree-granting institution of higher education, as defined in 20 U.S.C. 1001.
(2) Employee. For purposes of this paragraph, the term “employee” of a specified entity means a person who has an employee-employer relationship with an entity specified in paragraph (c)(1) of this section. It includes a person who is employed to work part-time for a specified entity. The term excludes an individual performing services for a specified entity as a consultant or independent contractor.
(d) Exception for uncompensated statements based on special knowledge. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a statement based on his own special knowledge in the particular area that is the subject of the statement, provided that he receives no compensation for making the statement.
(1) Special knowledge. A former employee has special knowledge concerning a subject area if he is familiar with the subject area as a result of education, interaction with experts, or other unique or particularized experience.
(2) Statement. A statement for purposes of this paragraph is a communication of facts observed by the former employee.
(3) Compensation. Compensation includes any form of remuneration or income that is given in consideration, in whole or in part, for the statement. It does not include the payment of actual and necessary expenses incurred in connection with making the statement.
(e) Exception for furnishing scientific or technological information. A former employee is not prohibited by 18 U.S.C. 207(a), (c), or (d), or §§ 2641.201, 2641.202, 2641.204, or 2641.205, from making communications, including appearances, solely for the purpose of furnishing scientific or technological information, provided the communications are made either in accordance with procedures adopted by the agency or agencies to which the communications are directed or the head of such agency or agencies, in consultation with the Director of the Office of Government Ethics, makes a certification published in the
(1) Purpose of information. A communication made solely for the purpose of furnishing scientific or technological information may be:
(i) Made in connection with a matter that involves an appreciable element of actual or potential dispute;
(ii) Made in connection with an effort to seek a discretionary Government ruling, benefit, approval, or other action; or
(iii) Inherently influential in relation to the matter in dispute or the Government action sought.
(2) Scientific or technological information. The former employee must convey information of a scientific or technological character, such as technical or engineering information relating to the natural sciences. The exception does not extend to information associated with a nontechnical discipline such as law, economics, or political science.
(3) Incidental references or remarks. Provided the former employee’s communication primarily conveys information of a scientific or technological character, the entirety of the communication will be deemed made solely for the purpose of furnishing such information notwithstanding an incidental reference or remark:
(i) Unrelated to the matter to which the post-employment restriction applies;
(ii) Concerning feasibility, risk, cost, speed of implementation, or other considerations when necessary to appreciate the practical significance of the basic scientific or technological information provided; or
(iii) Intended to facilitate the furnishing of scientific or technological information, such as those references or remarks necessary to determine the kind and form of information required or the adequacy of information already supplied.
(4) Communications made under procedures acceptable to the agency. (i) An agency may adopt such procedures as are acceptable to it, specifying conditions under which former Government employees may make communications solely for the purpose of furnishing scientific or technological information, in light of the agency’s particular programs and needs. In promulgating such procedures, an agency may consider, for example, one or more of the following:
(A) Requiring that the former employee specifically invoke the exception prior to making a communication (or series of communications);
(B) Requiring that the designated agency ethics official for the agency to which the communication is directed (or other agency designee) be informed when the exception is used;
(C) Limiting communications to certain formats which are least conducive to the use of personal influence;
(D) Segregating, to the extent possible, meetings and presentations involving technical substance from those involving other aspects of the matter; or
(E) Employing more restrictive practices in relation to communications concerning specified categories of matters or specified aspects of a matter, such as in relation to the pre-award as distinguished from the post-award phase of a procurement.
(ii) The Director of the Office of Government Ethics may review any agency implementation of this exception in connection with OGE’s executive branch ethics program oversight responsibilities. See 5 CFR part 2638.
(5) Certification for expertise in technical discipline. A certification issued in accordance with this section shall be effective on the date it is executed (unless a later date is specified), provided that it is transmitted to the
(i) Criteria for issuance. A certification issued in accordance with this section may not broaden the scope of the exception and may be issued only when:
(A) The former employee has outstanding qualifications in a scientific, technological, or other technical discipline (involving engineering or other natural sciences as distinguished from a nontechnical discipline such as law, economics, or political science);
(B) The matter requires the use of such qualifications; and
(C) The national interest would be served by the former employee’s participation.
(ii) Submission of requests. The individual wishing to make the communication shall forward a written request to the head of the agency to which the communications would be directed. Any such request shall address the criteria set forth in paragraph (e)(5)(i) of this section.
(iii) Issuance. The head of the agency to which the communications would be directed may, upon finding that the criteria specified in paragraph (e)(5)(i) of this section are satisfied, approve the request by executing a certification, which shall be published in the
(A) The name of the former employee;
(B) The Government position or positions held by the former employee during his most recent period of Government service;
(C) The identity of the employer or other person on behalf of which the former employee will be acting;
(D) The restriction or restrictions to which the certification shall apply;
(E) Any limitations imposed by the agency head with respect to the scope of the certification; and
(F) The basis for finding that the criteria specified in paragraph (e)(5)(i) of this section are satisfied, specifically including a description of the matter and the communications that will be permissible or, if relevant, a statement that such information is protected from disclosure by statute.
(iv) Copy to Office of Government Ethics. Once published, the agency shall provide the Director of the Office of Government Ethics with a copy of the certification as published in the
(v) Revocation. The agency head may revoke a certification and shall forward a written notice of the revocation to the former employee and to the OGE Director. Revocation of a certification shall be effective on the date specified in the notice revoking the certification.
(f) Exception for giving testimony under oath or making statements required to be made under penalty of perjury. Subject to the limitation described in paragraph (f)(2) of this section concerning expert witness testimony, a former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from giving testimony under oath or making a statement required to be made under penalty of perjury.
(1) Testimony under oath. Testimony under oath is evidence delivered by a witness either orally or in writing, including deposition testimony and written affidavits, in connection with a judicial, quasi-judicial, administrative, or other legally recognized proceeding in which applicable procedural rules require a witness to declare by oath or affirmation that he will testify truthfully.
(2) Limitation on exception for service as an expert witness. The exception described in paragraph (f)(1) of this section does not negate the bar of 18 U.S.C. 207(a)(1), or § 2641.201, to a former employee serving as an expert witness; where the bar of section 207(a)(1) applies, a former employee may not serve as an expert witness except:
(i) If he is called as a witness by the United States; or
(ii) By court order. For this purpose, a subpoena is not a court order, nor is an order merely qualifying an individual to testify as an expert witness.
(3) Statements made under penalty of perjury. A former employee may make any statement required to be made under penalty of perjury, except that he may not:
(i) Submit a pleading, application, or other document as an attorney or other representative; or
(ii) Serve as an expert witness where the bar of 18 U.S.C. 207(a)(1) applies, except as provided in paragraph (f)(2) of this section.
Whether compensation of a witness is appropriate is not addressed by 18 U.S.C. 207. However, 18 U.S.C. 201 may prohibit individuals from receiving compensation for testifying under oath in certain forums except as authorized by 18 U.S.C. 201(d). Note also that there may be statutory or other bars on the disclosure by a current or former employee of information from the agency’s files or acquired in connection with the individual’s employment with the Government; a former employee’s agency may have promulgated procedures to be followed with respect to the production or disclosure of such information.
(g) Exception for representing certain candidates or political organizations. Except as provided in paragraph (g)(2) of this section, a former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a communication or appearance on behalf of a candidate in his capacity as a candidate or an entity specified in paragraphs (g)(1)(ii) through (g)(1)(vi) of this section.
(1) Specified persons or entities. For purposes of this paragraph (g), the specified persons or entities are:
(i) A candidate. A candidate means any person who seeks nomination for election, or election to, Federal or State office or who has authorized others to explore on his own behalf the possibility of seeking nomination for election, or election to, Federal or State office;
(ii) An authorized committee. An authorized committee means any political committee designated in writing by a candidate as authorized to receive contributions or make expenditures to promote the nomination or election of the candidate or to explore the possibility of seeking the nomination or election of the candidate. The term does not include a committee that receives contributions or makes expenditures to promote more than one candidate;
(iii) A national committee. A national committee means the organization which, under the bylaws of a political party, is responsible for the day-to-day operation of the political party at the national level;
(iv) A national Federal campaign committee. A national Federal campaign committee means an organization which, under the bylaws of a political party, is established primarily to provide assistance at the national level to candidates nominated by the party for election to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress;
(v) A State committee. A State committee means the organization which, under the bylaws of a political party, is responsible for the day-to-day operation of the political party at the State level; or
(vi) A political party. A political party means an association, committee, or organization that nominates a candidate for election to any Federal or State elected office whose name appears on the election ballot as the candidate of the association, committee, or organization.
(2) Limitations. The exception in this paragraph (g) shall not apply if the communication or appearance:
(i) Is made at a time the former senior or very senior employee is employed by any person or entity other than:
(A) A person or entity specified in paragraph (g)(1) of this section; or
(B) A person or entity who exclusively represents, aids, or advises persons or entities described in paragraph (g)(1) of this section;
(ii) Is made other than solely on behalf of one or more persons or entities specified in paragraph (g)(1) or (g)(2)(i)(B) of this section; or
(iii) Is made to or before the Federal Election Commission by a former senior or very senior employee of the Federal Election Commission.
(h) Waiver for acting on behalf of international organization. The Secretary of State may grant an individual waiver of one or more of the restrictions in 18 U.S.C. 207 where the former employee would appear or communicate on behalf of, or provide aid or advice to, an international organization in which the United States participates. The Secretary of State must certify in advance that the proposed activity is in the interest of the United States.
An employee who is detailed under 5 U.S.C. 3343 to an international organization remains an employee of his agency. In contrast, an employee who transfers under 5 U.S.C. 3581-3584 to an international organization is a former employee of his agency.
(i) Waiver for re-employment by Government-owned, contractor-operated entity. The President may grant a waiver of one or more of the restrictions in 18 U.S.C. 207 to eligible employees upon the determination and certification in writing that the waiver is in the public interest and the services of the individual are critically needed for the benefit of the Federal Government. Upon the issuance of a waiver pursuant to this paragraph, the restriction or restrictions waived will not apply to a former employee acting as an employee of the same Government-owned, contractor-operated entity with which he was employed immediately before the period of Government service during which the waiver was granted. If the individual was employed by the Lawrence Livermore National Laboratory, the Los Alamos National Laboratory, or the Sandia National Laboratory immediately before the person’s Federal Government employment began, the restriction or restrictions waived shall not apply to a former employee acting as an employee of any one of those three national laboratories after the former employee’s Government service has terminated.
(1) Eligible employees. Any current civilian employee of the executive branch, other than an employee serving in the Executive Office of the President, who served as an officer or employee at a Government-owned, contractor-operated entity immediately before he became a Government employee. A total of no more than 25 current employees shall hold waivers at any one time.
(2) Issuance. The President may not delegate the authority to issue waivers under this paragraph. If the President issues a waiver, a certification shall be published in the
(i) The employee covered by the waiver by name and position; and
(ii) The reasons for granting the waiver.
(3) Copy to Office of Government Ethics. A copy of the certification shall be provided to the Director of the Office of Government Ethics (OGE).
(4) Effective date. A waiver issued under this section shall be effective on the date the certification is published in the
(5) Reports. Each former employee holding a waiver must submit semiannual reports, for a period of two years after terminating Government service, to the President and the OGE Director.
(i) Submission. The reports shall be submitted:
(A) Not later than six months and 60 days after the date of the former employee’s termination from the period of Government service during which the waiver was granted; and
(B) Not later than 60 days after the end of any successive six-month period.
(ii) Content. Each report shall describe all activities undertaken by the former employee during the six-month period that would have been prohibited by 18 U.S.C. 207 but for the waiver.
(iii) Public availability. All reports filed with the OGE Director under this paragraph shall be made available for public inspection and copying.
18 U.S.C. 207(k)(5)(D) specifies that an individual who is granted a waiver as described in this paragraph is ineligible for appointment in the civil service unless all reports required by that section have been filed.
(6) Revocation. A waiver shall be revoked when the recipient of the waiver fails to file a report required by paragraph (i)(4) of this section, and the recipient of the waiver shall be notified of such revocation. The revocation shall take effect upon the person’s receipt of the notification and shall remain in effect until the report is filed.
(j) Waiver of restrictions of 18 U.S.C. 207(c) and (f) for certain positions. The Director of the Office of Government Ethics may waive application of the restriction of section 18 U.S.C. 207(c) and § 2641.204, with respect to certain positions or categories of positions. When the restriction of 18 U.S.C. 207(c) has been waived by the Director pursuant to this paragraph, the one-year restriction of 18 U.S.C. 207(f) and § 2641.206 also will not be triggered upon an employee’s termination from the position.
(1) Eligible senior employee positions. A position which could be occupied by a senior employee is eligible for a waiver of the 18 U.S.C. 207(c) restriction except:
(i) The following positions are ineligible:
(A) Positions for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule);
(B) Positions for which occupants are appointed by the President pursuant to 3 U.S.C. 105(a)(2)(B); or
(C) Positions for which occupants are appointed by the Vice President pursuant to 3 U.S.C. 106(a)(1)(B).
(ii) Regardless of the position occupied, private sector assignees under the Information Technology Exchange Program, within the meaning of paragraph (6) of the definition of senior employee in section 2641.104, are not eligible to benefit from a waiver.
(2) Criteria for waiver. A waiver of restrictions for a position or category of positions shall be based on findings that:
(i) The agency has experienced or is experiencing undue hardship in obtaining qualified personnel to fill such position or positions as shown by relevant factors which may include, but are not limited to:
(A) Vacancy rates;
(B) The payment of a special rate of pay to the incumbent of the position pursuant to specific statutory authority; or
(C) The requirement that the incumbent of the position have outstanding qualifications in a scientific, technological, technical, or other specialized discipline;
(ii) Waiver of the restriction with respect to the position or positions is expected to ameliorate the recruiting difficulties; and
(iii) The granting of the waiver would not create the potential for the use of undue influence or unfair advantage based on past Government service, including the potential for use of such influence or advantage for the benefit of a foreign entity.
(3) Procedures. A waiver shall be granted in accordance with the following procedures:
(i) Agency recommendation. An agency’s designated agency ethics official (DAEO) may, at any time, recommend the waiver of the 18 U.S.C. 207(c) (and section 207(f)) restriction for a position or category of positions by forwarding a written request to the Director addressing the criteria set forth in paragraph (j)(2) of this section. A DAEO may, at any time, request that a current waiver be revoked.
(ii) Action by Office of Government Ethics. The Director of the Office of Government Ethics shall promptly provide to the designated agency ethics official a written response to each request for waiver or revocation. The Director shall maintain a listing of positions or categories of positions in appendix A to this part for which the 18 U.S.C. 207(c) restriction has been waived. The Director shall publish notice in the
(4) Effective dates. A waiver shall be effective on the date of the written response to the designated agency ethics official indicating that the request for waiver has been granted. A waiver shall inure to the benefit of the individual who holds the position when the waiver takes effect, as well as to his successors, but shall not benefit individuals who terminated senior service prior to the effective date of the waiver. Revocation of a waiver shall be effective 90 days after the date that the OGE Director publishes notice of the revocation in the
(k) Miscellaneous statutory exceptions. Several statutory authorities specifically modify the scope of 18 U.S.C. 207 as it would otherwise apply to a former employee or class of former employees. These authorities include:
(1) 22 U.S.C. 3310(c), permitting employees of the American Institute in Taiwan to represent the Institute notwithstanding 18 U.S.C. 207;
(2) 22 U.S.C. 3613(d), permitting the individual who was Administrator of the Panama Canal Commission on the date of its termination to act in carrying out official duties as Administrator of the Panama Canal Authority notwithstanding 18 U.S.C. 207;
(3) 22 U.S.C. 3622(e), permitting an individual who was an employee of the Panama Canal Commission on the date of its termination to act in carrying out official duties on behalf of the Panama Canal Authority;
(4) 25 U.S.C. 450i(j), permitting a former employee who is carrying out official duties as an employee or elected or appointed official of a tribal organization or inter-tribal consortium to act on behalf of the organization or consortium in connection with any matter related to a tribal governmental activity or Federal Indian program or service, if the former employee submits notice of any personal and substantial involvement in the matter during Government service;
(5) 38 U.S.C. 5902(d), permitting a former employee who is a retired officer, warrant officer, or enlisted member of the Armed Forces, while not on active duty, to act on behalf of certain claimants notwithstanding 18 U.S.C. 207 if the claim arises under laws administered by the Secretary of Veterans Affairs;
(6) 50 U.S.C. 405(b), permitting a former part-time member of an advisory committee appointed by the Federal Emergency Management Agency, the Director of National Intelligence, or the National Security Council to engage in conduct notwithstanding 18 U.S.C. 207 except with respect to any particular matter directly involving an agency the former member advised or in which such agency is directly interested;
(7) 50 U.S.C. app. 463, permitting former employees appointed to certain positions under 50 U.S.C. app. 451 et seq. (Military Selective Service Act) to engage in conduct notwithstanding 18 U.S.C. 207; and
(8) Public Law 97-241, title I, section 120, August 24, 1982 (18 U.S.C. 203 note), providing that 18 U.S.C. 207 shall not apply under certain circumstances to private sector representatives on United States delegations to international telecommunications meetings and conferences.
Exceptions from 18 U.S.C. 207 may be included in legislation mandating privatization of Governmental entities. See, for example, 42 U.S.C. 2297h-3(c), concerning the privatization of the United States Enrichment Corporation.
(l) Guide to available exceptions and waivers to the prohibitions of 18 U.S.C. 207. This chart lists the exceptions and waivers set forth in 18 U.S.C. 207 and for each exception and waiver identifies the prohibitions of section 207 excepted or subject to waiver. Detailed guidance on the applicability of the exceptions and waivers is contained in the cross-referenced paragraphs of this section.
| Exception/waiver | Section 207 Prohibitions affected | ||||||
|---|---|---|---|---|---|---|---|
| (a)(1) | (a)(2) | (b) | (c) | (d) | (f) | (l) | |
| (1) Acting for the United States, | • | • | • | • | • | • | • |
| (2) Elected State or local government official, | • | • | • | • | • | • | • |
| (3) Acting for specified entities, | • | • | |||||
| (4) Special knowledge, | • | • | |||||
| (5) Scientific or technological information, | • | • | • | • | |||
| (6) Testimony, | • | • | • | • | • | • | • |
| (7) Acting for a candidate or political party, | • | • | |||||
| (8) Acting for an international organization, | • | • | • | • | • | • | • |
| (9) Employee of a Government-owned, contractor-operated entity, | • | • | • | • | • | • | • |
| (10) Waiver for certain positions, | • | • | |||||
§ 2641.302 Separate agency components.
(a) Designation. For purposes of 18 U.S.C. 207(c) only, and § 2641.204, the Director of the Office of Government Ethics may designate agency “components” that are distinct and separate from the “parent” agency and from each other. Absent such designation, the representational bar of section 207(c) extends to the whole of the agency in which the former senior employee served. An eligible former senior employee who served in the parent agency is not barred by section 207(c) from making communications to or appearances before any employee of any designated component of the parent, but is barred as to any employee of the parent or of any agency or bureau of the parent that has not been designated. An eligible former senior employee who served in a designated component of the parent agency is barred from communicating to or making an appearance before any employee of that designated component, but is not barred as to any employee of the parent, of another designated component, or of any other agency or bureau of the parent that has not been designated.
(b) Eligible former senior employees. All former senior employees are eligible to benefit from this procedure except those who were senior employees by virtue of having been:
(1) Employed in a position for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule) (see example 1 to paragraph (j)(1) of § 2641.301);
(2) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(B); or
(3) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(B).
(c) Criteria for designation. A component designation must be based on findings that:
(1) The component is an agency or bureau, within a parent agency, that exercises functions which are distinct and separate from the functions of the parent agency and from the functions of other components of that parent as shown by relevant factors which may include, but are not limited to:
(i) The component’s creation by statute or a statutory reference indicating that it exercises functions which are distinct and separate;
(ii) The component’s exercise of distinct and separate subject matter or geographical jurisdiction;
(iii) The degree of supervision exercised by the parent over the component;
(iv) Whether the component exercises responsibilities that cut across organizational lines within the parent;
(v) The size of the component in absolute terms; and
(vi) The size of the component in relation to other agencies or bureaus within the parent.
(2) There exists no potential for the use of undue influence or unfair advantage based on past Government service.
(d) Subdivision of components. The Director will not ordinarily designate agencies that are encompassed by or otherwise supervised by an existing designated component.
(e) Procedures. Distinct and separate components shall be designated in accordance with the following procedure:
(1) Agency recommendation. A designated agency ethics official may, at any time, recommend the designation of an additional component or the revocation of a current designation by forwarding a written request to the Director of the Office of Government Ethics addressing the criteria set forth in paragraph (c) of this section.
(2) Agency update. Designated agency ethics officials shall, by July 1 of each year, forward to the OGE Director a letter stating whether components currently designated should remain designated in light of the criteria set forth in paragraph (c) of this section.
(3) Action by the Office of Government Ethics. The Director of the Office of Government Ethics shall, by rule, make or revoke a component designation after considering the recommendation of the designated agency ethics official. The Director shall maintain a listing of all designated agency components in appendix B to this part.
(f) Effective dates. A component designation shall be effective on the date the rule creating the designation is published in the
(g) Effect of organizational changes. (1) If a former senior employee served in an agency with component designations and the agency or a designated component that employed the former senior employee has been significantly altered by organizational changes, the appropriate designated agency ethics official shall determine whether any successor entity is substantially the same as the agency or a designated component that employed the former senior employee. Section 2641.204(g)(2)(iv)(A) through (g)(2)(iv)(C) should be used for guidance in determining how the 18 U.S.C. 207(c) bar applies when an agency or a designated component has been significantly altered.
(2) Consultation with Office of Government Ethics. When counseling individuals concerning the applicability of 18 U.S.C. 207(c) subsequent to significant organizational changes, the appropriate designated agency ethics official (DAEO) shall consult with the Office of Government Ethics. When it is determined that appendix B to this part no longer reflects the current organization of a parent agency, the DAEO shall promptly forward recommendations for designations or revocations in accordance with paragraph (e) of this section.
(h) Unauthorized designations. No agency or bureau within the Executive Office of the President may be designated as a separate agency component.
Appendix A to Part 2641—Positions Waived From 18 U.S.C. 207(c ) and (f )
Pursuant to the provisions of 18 U.S.C. 207(c)(2)(C) and 5 CFR 2641.301(j), each of the following positions is waived from the provisions of 18 U.S.C. 207(c) and 5 CFR 2641.204, as well as the provisions of 18 U.S.C. 207(f) and 5 CFR 2641.206. All waivers are effective as of the date indicated.
Appendix B to Part 2641—Agency Components for Purposes of 18 U.S.C. 207(c)
Pursuant to the provisions of 18 U.S.C. 207(h), each of the following agencies is determined, for purposes of 18 U.S.C. 207(c), and 5 CFR 2641.204, to have within it distinct and separate components as set forth below. Except as otherwise indicated, all designations are effective as of January 1, 1991.
PARTS 2642-2699 [RESERVED]
CHAPTER XXI—DEPARTMENT OF THE TREASURY
PART 3100 [RESERVED]
PART 3101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF THE TREASURY
§ 3101.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of the Treasury and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. Employees are required to comply with 5 CFR part 2635, this part, and bureau guidance and procedures established pursuant to this section. Department employees are also subject to any additional rules of conduct that the Department or their employing bureaus are authorized to issue. See 31 CFR part 0, Department of the Treasury Employee Rules of Conduct.
(b) Bureau instructions. With the concurrence of the Designated Agency Ethics Official (DAEO), bureaus of the Department of the Treasury are authorized to issue instructions or manual issuances providing explanatory guidance and establishing procedures necessary to implement this part and part 2635 of this title. See 5 CFR 2635.105(c).
(c) Definition of “agency designee”. As used in this part and in part 2635 of this title, the term “agency designee” refers to any employee who has been delegated authority by an instruction or manual issuance issued by a bureau under paragraph (b) of this section to make a determination, give an approval, or take other action required or permitted by this part or part 2635 of this title with respect to another employee. See 5 CFR 2635.102(b).
§ 3101.102 Designation of separate agency components.
Pursuant to 5 CFR 2635.203(a), each of the following components of the Department of the Treasury is designated as a separate agency for purposes of the regulations contained in subpart B of 5 CFR part 2635 governing gifts from outside sources and 5 CFR 2635.807 governing teaching, speaking or writing:
(a) Alcohol and Tobacco Tax and Trade Bureau (TTB);
(b) Bureau of Engraving and Printing;
(c) Bureau of the Fiscal Service (BFS);
(d) Financial Crimes Enforcement Network (FinCEN);
(e) Internal Revenue Service (IRS);
(f) Office of the Comptroller of the Currency (OCC);
(g) Office of the Inspector General;
(h) Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP);
(i) Office of the Treasury Inspector General for Tax Administration (TIGTA); and
(j) United States Mint.
As a result of the designations contained in this section, employees of the remaining parts of the Department of the Treasury (e.g., employees in Departmental Offices) will also be treated as employees of an agency that is separate from all of the above listed bureaus and offices for purposes of determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d) and for identifying an employee’s “agency” under 5 CFR 2635.807 governing teaching, speaking and writing. For purposes of this section, employees in the Legal Division shall be considered to be part of the bureaus or offices in which they serve.
§ 3101.103 Prohibition on purchase of certain assets.
(a) General prohibition. Except as provided in paragraph (b) of this section, no employee of the Department of the Treasury shall purchase, directly or indirectly, property:
(1) Owned by the Government and under the control of the employee’s bureau (or a bureau over which the employee exercises supervision); or
(2) Sold under the direction or incident to the functions of the employee’s bureau.
(b) Exceptions. The prohibition in paragraph (a) of this section does not apply to the purchase of Government securities or items sold generally to the public at fixed prices, such as numismatic items produced by the United States Mint or foreign gifts deposited with the Department pursuant to 5 U.S.C. 7342 that an employee may purchase pursuant to 41 CFR part 101-49.
(c) Waiver. An employee may make a purchase otherwise prohibited by this section where a written waiver of the prohibition has been given to the employee by an agency designee with the advice and legal clearance of the DAEO, or the appropriate Office of Chief or Legal Counsel. Such a waiver may be granted only on a determination that the waiver is not otherwise prohibited by law and that, in the mind of a reasonable person with knowledge of the particular circumstances, the purchase of the asset will not raise a question as to whether the employee has used his or her official position or inside information to obtain an advantageous purchase or create an appearance of loss of impartiality in the performance of the employee’s duties.
Employees of the OCC are subject to additional limitations on the purchase of assets that are set out in the OCC-specific rules contained in § 3101.108.
§ 3101.104 Outside employment.
(a) General requirement for prior approval. All Department of the Treasury employees shall obtain prior written approval before engaging in any outside employment or business activities, with or without compensation, except to the extent that the employing bureau issues an instruction or manual issuance pursuant to paragraph (b) of this section exempting an activity or class of activities from this requirement. Approval shall be granted only on a determination that the employment or activity is not expected to involve conduct prohibited by statute, part 2635 of this title, or any provision of this part.
Employees of the IRS, Legal Division, and OCC are subject to additional limitations on outside employment and activities that are set out in bureau-specific rules contained in this part.
(b) Bureau responsibilities. Each bureau, which for the purposes of this section includes the Departmental Offices and the Office of the Inspector General, shall issue instructions or manual issuances governing the submission of requests for approval of outside employment or business activities and designating appropriate officials to act on such requests. The instructions or manual issuances may exempt categories of employment or activities from the prior approval requirement based on a determination that employment or activities within those categories would generally be approved and are not likely to involve conduct prohibited by statute, part 2635 of this title or any provision of this part. Bureaus may include in their instructions or issuances examples of outside employment or activities that are permissible or impermissible consistent with this part and part 2635 of this title. Bureaus shall retain in employees’ Official Personnel Folders (temporary side) all requests for approval whether granted or denied.
§ 3101.105 Additional rules for Alcohol and Tobacco Tax and Trade Bureau employees.
The following rules apply to the employees of the Alcohol and Tobacco Tax and Trade Bureau and are in addition to §§ 3101.101 through 3101.104.
(a) Prohibited financial interests. Except as provided in this section, no employee of TTB, or spouse or minor child of a TTB employee, shall have, directly or indirectly, any financial interest, including compensated employment, in the alcohol, tobacco, firearms or explosives industries. The term financial interest is defined in § 2635.403(c) of this title.
(b) Waiver. An agency designee, with the advice and legal clearance of the DAEO or Office of the Chief Counsel, may grant a written waiver of the prohibition in paragraph (a) of this section on a determination that the financial interest is not prohibited by 26 U.S.C. 7214(b) and that, in the mind of a reasonable person with knowledge of the particular circumstances, the financial interest will not create an appearance of misuse of position or loss of impartiality, or call into question the impartiality and objectivity with which TTB’s programs are administered. A waiver under this paragraph may require appropriate conditions, such as execution of a written disqualification.
§ 3101.106 Additional rules for Internal Revenue Service and Treasury Inspector General for Tax Administration employees.
The following rules apply to the employees of the Internal Revenue Service and the Treasury Inspector General for Tax Administration and are in addition to §§ 3101.101 through 3101.104.
(a) Prohibited recommendations. Employees of the IRS or TIGTA shall not recommend, refer or suggest, specifically or by implication, any attorney, accountant, or firm of attorneys or accountants to any person in connection with any official business which involves or may involve the IRS.
(b) Prohibited outside employment. Involvement by an employee of the IRS or TIGTA in the following types of outside employment or business activities is prohibited and shall constitute a conflict with the employee’s official duties pursuant to 5 CFR 2635.802:
(1) Performance of legal services involving Federal, State or local tax matters;
(2) Appearing on behalf of any taxpayer as a representative before any Federal, State, or local government agency, in an action involving a tax matter except on written authorization of the Commissioner of Internal Revenue or the Treasury Inspector General for Tax Administration;
(3) Engaging in accounting, or the use, analysis, and interpretation of financial records when such activity involves tax matters;
(4) Engaging in bookkeeping, the recording of transactions, or the record-making phase of accounting, when such activity is directly related to a tax determination; and
(5) Engaging in the preparation of tax returns for compensation, gift, or favor.
(c) Seasonal employees. Seasonal employees of the IRS while in non-duty status may engage in outside employment or activities other than those prohibited by paragraph (b) of this section without obtaining prior written permission.
§ 3101.107 Additional rules for Legal Division employees.
The following rules apply to the employees of the Legal Division and are in addition to §§ 3101.101 through 3101.104:
(a) Application of rules of other bureaus. In addition to the rule contained in paragraph (b) of this section, employees in the Legal Division shall be covered by the rules contained in this part that are applicable to employees of the bureaus or offices in which the Legal Division employees serve, subject to any instructions which the General Counsel or appropriate Chief or Legal Counsel may issue in accordance with § 3101.101(b).
(b) Prohibited outside employment. Pursuant to 5 CFR 2635.802, it is prohibited and shall constitute a conflict with the employee’s official duties for an attorney employed in the Legal Division to engage in the outside practice of law that might require the attorney to:
(1) Take a position that is or appears to be in conflict with the interests of the Department of the Treasury which is the client to whom the attorney owes a professional responsibility; or
(2) Interpret any statute, regulation or rule administered or issued by the Department.
§ 3101.108 Additional rules for Office of the Comptroller of the Currency employees.
The following rules apply to the employees of the Office of the Comptroller of the Currency and are in addition to §§ 3101.101-3101.104:
(a) Prohibited financial interests—
(1) Prohibition. Except as provided in paragraphs (a)(3) and (g) of this section, no OCC employee, or spouse or minor child of an OCC employee, shall own, directly or indirectly, securities of any commercial bank (including both national and state-chartered banks), Federal savings association, state savings association, or of any affiliate of these institutions (including bank holding companies, savings and loan holding companies, and non-bank subsidiaries of either type of holding company), or of any foreign bank.
(2) Definition of “securities”. For purposes of paragraphs (a)(1) and (a)(3) of this section, the term “securities” includes all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles with respect thereto.
(3) Exceptions. Nothing in this section prohibits an OCC employee, or spouse or minor child of an OCC employee, from:
(i) Owning an interest in a publicly traded or publicly available mutual fund, other collective investment fund or pooled investment product, or a widely-held pension or other similar fund if the fund does not have a stated policy of concentration in the financial services industry and neither the employee nor the employee’s spouse exercises or has the ability to exercise control over the financial interests held by the fund or the selection of fund holdings;
(ii) Owning securities in a publicly traded company owning banks or savings associations if—
(A) By virtue of the limited activities of the banks or savings associations, the ownership of banks or savings associations does not cause their parent holding company to become a bank holding company under the Bank Holding Company Act of 1956, 12 U.S.C. 1841 et seq, (for example, a bank engaged only in credit card activities);
(B) For savings and loan holding companies, the ownership or operation of savings associations is not a significant activity (generally less than 15% of the assets) of the holding company;
(C) The company is identified as meeting the requirements of (A) or (B) above on a list maintained by the OCC Ethics Counsel; and
(D) The employee owning or seeking to purchase the securities does not participate in the regulation or supervision of any bank or savings association owned or operated by the company;
(iii) Owning the securities of a foreign bank that does not own a commercial bank or savings association in the United States provided that the employee owning the securities does not participate in the regulation or supervision of any Federal branch or agency operated by the foreign bank;
(iv) Using a commercial bank, a savings association or an affiliate of a commercial bank or savings association as custodian or trustee of accounts containing tax-deferred retirement funds; or
(v) Owning any security pursuant to a waiver granted under paragraph (g) of this section.
(b) Prohibited borrowing—
(1) Prohibition on employee borrowing. Except as provided in this section, no covered OCC employee shall seek or obtain credit from any national bank or Federal savings association or from any officer, director, employee or subsidiary of a national bank or Federal savings association.
(2) Prohibition on borrowing by a spouse or minor child. The prohibition in paragraph (b)(1) of this section shall apply to the spouse or minor child of a covered OCC employee unless the loan or extension of credit:
(i) Is supported only by the income or independent means of the spouse or minor child;
(ii) Is obtained on terms and conditions no more favorable than those offered to the general public; and
(iii) The covered OCC employee does not participate in the negotiation for the loan or serve as co-maker, endorser, or guarantor of the loan.
(3) Covered OCC employee. For purposes of the prohibitions on borrowing contained in paragraphs (b)(1) and (b)(2) of this section, “covered OCC employee” means:
(i) An OCC examiner; and
(ii) Any other OCC employee specified in an OCC instruction or manual issuance whose duties and responsibilities, as determined by the Comptroller of the Currency or his or her designee, require application of the prohibition on borrowing contained in this section to ensure public confidence that the OCC’s programs are conducted impartially and objectively.
(4) Exceptions—(i) Credit cards. A covered OCC employee or the spouse or minor child of such a covered OCC employee may seek, obtain or hold a credit card from a national bank, a Federal savings association or a subsidiary of a national bank or Federal savings association if—
(A) The applicant satisfies all financial requirements set by the lender that are generally applicable to all applicants for the same type of credit card account;
(B) The terms and conditions applicable with respect to the credit card account and any credit extended under the account are no more favorable generally to the applicant than the terms and conditions that are generally applicable to credit card accounts offered by the same lender to other cardholders in comparable circumstances;
(C) An employee who holds a credit card (or whose spouse or minor child holds a credit card) must submit a written recusal notice to his or her supervisor and ethics official if the cardholder becomes involved in an adversarial dispute with the issuer of the credit card account. A cardholder is involved in an adversarial dispute if he or she is delinquent in payments on the credit card account; the issuer and the cardholder are negotiating to restructure the credit card debt; the cardholder disputes the terms and conditions of the account; or the cardholder becomes involved in any disagreement with the issuer that may cast doubt on the employee’s ability to remain impartial with respect to the issuer.
(ii) Loans secured by principal residence. A covered OCC employee or the spouse or minor child of a covered OCC employee may seek and obtain a loan from a national bank, a Federal savings association or a subsidiary of a national bank or Federal savings association subject to the following conditions:
(A) The loan is secured by residential real property that is the applicant’s principal residence;
(B) The applicant must satisfy all financial requirements set by the lender for the residential real property loan that are generally applicable to borrowers for the same type of residential real property loan; and
(C) The terms and conditions applicable with respect to the residential real property loan and any credit extended under the loan must be no more favorable generally to the applicant than the terms and conditions that are generally applicable to residential real property loans offered by the same lender to other borrowers in comparable circumstances.
(iii) A covered employee who seeks or obtains a real property loan from a national bank, Federal savings association or a subsidiary of a national bank or Federal savings association or whose spouse or minor child obtains a real property loan under the requirements of paragraph (b)(4)(ii) above must observe from the time of the initial application any recusal established under OCC ethics policy.
(5) Pre-existing credit. (i) This section does not prohibit a covered OCC employee, or spouse or minor child of a covered OCC employee from retaining a loan or extension of credit from a national bank or Federal savings association on its original terms, and subject to any recusal established under OCC ethics policy, if the loan or extension of credit:
(A) Was incurred prior to employment by the OCC;
(B) Was obtained from a lender that was not supervised by the OCC at the time it was obtained; or
(C) Is held by a national bank or Federal savings association or subsidiary thereof as the result of the sale or transfer of a loan to the national bank or Federal savings association or the conversion or merger of the lender into a national bank or Federal savings association.
(ii) Any renewal or renegotiation of a pre-existing loan or extension of credit will be treated as a new loan subject to the prohibitions in paragraph (b)(1) of this section.
(c) Restrictions arising from third party relationships. If any of the entities listed in paragraphs (c)(1) through (c)(7) of this section have securities that an OCC employee would be prohibited from having by paragraph (a) of this section, or loans or extensions of credit that a covered OCC employee would be prohibited from obtaining under paragraph (b) of this section, the employee shall promptly report such interests to the Chief Counsel or designee. The Chief Counsel or designee may require the employee to terminate the third party relationship, undertake an appropriate disqualification, or take other appropriate action necessary, under the particular circumstances, to avoid a statutory violation or a violation of part 2635 of this title, or this part, including an appearance of misuse of position or loss of impartiality. This paragraph applies to any:
(1) Partnership in which the employee, or spouse or minor child of the employee, is a general partner;
(2) Partnership in which the employee, or spouse or minor child of the employee, individually or jointly holds more than a 10 percent limited partnership interest;
(3) Closely held corporation in which the employee, or spouse or minor child of the employee, individually or jointly holds more than a 10 percent equity interest;
(4) Trust in which the employee, or spouse or minor child of the employee, has a legal or beneficial interest;
(5) Investment club or similar informal investment arrangement between the employee, or spouse or minor child of the employee, and others;
(6) Qualified profit sharing, retirement or similar plan in which the employee, or spouse or minor child of the employee, has an interest; or
(7) Other entity if the employee, or spouse or minor child of the employee, individually or jointly holds more than a 25 percent equity interest.
(d) Prohibited recommendations. Employees of the OCC shall not make recommendations or suggestions, directly or indirectly, concerning the acquisition or sale or other divestiture of securities of any commercial bank (including both national and state-chartered banks), Federal savings association, state savings association, affiliate of these institutions (including bank holding companies, savings and loan holding companies, and any non-bank subsidiaries of either type of holding company), or foreign bank that owns a commercial bank or savings association in the United States.
(e) Prohibited purchase of assets. No employee of the OCC, or spouse or minor child of an OCC employee, shall purchase, directly or indirectly, an asset (i.e., real property, automobiles, furniture, or similar items) from a national bank or Federal savings association or an affiliate of a national bank or a Federal savings association, including a bank or savings and loan holding company, unless it is sold at a public auction or by other means which ensure that the selling price is the asset’s fair market value.
(f) Outside employment—(1) Prohibition on outside employment. No covered OCC employee shall perform services for compensation for any bank, savings association or a bank or savings association affiliate, or for any officer, director or employee of, or for any person connected in any capacity with a bank, savings association or bank or savings association affiliate.
(2) Covered OCC employee. For purposes of the prohibitions on outside employment contained in paragraph (f)(1) of this section, “covered OCC employee” means:
(i) An OCC examiner; and
(ii) Any other OCC employee specified in an OCC instruction or manual issuance whose duties and responsibilities, as determined by the Comptroller of the Currency or his or her designee, require application of the prohibition on outside employment contained in this section to ensure public confidence that the OCC’s programs are conducted impartially and objectively.
(g) Waivers. An agency designee may grant a written waiver from any provision of this section based on a determination made with the advice and legal clearance of the DAEO or Office of the Chief Counsel that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
PARTS 3102-3199 [RESERVED]
CHAPTER XXII—FEDERAL DEPOSIT INSURANCE CORPORATION
PART 3200 [RESERVED]
PART 3201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL DEPOSIT INSURANCE CORPORATION
§ 3201.101 General.
(a) Purpose. The regulations in this part apply to employees of the Federal Deposit Insurance Corporation (Corporation) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. Where specified, these regulations also apply to the Comptroller of the Currency and the Director of the Office of Thrift Supervision in connection with their activities as members of the Corporation’s Board of Directors.
(b) Corporation ethics officials. The Executive Secretary of the Corporation shall act as the Corporation’s Ethics Counselor and as its Designated Agency Ethics Official under 5 CFR part 2638. The Ethics Program Manager shall act as the Corporation’s Alternate Ethics Counselor and as the Alternate Agency Ethics Official.
(1) The Ethics Counselor or Alternate Ethics Counselor may delegate authority to one or more employees to serve as Deputy Ethics Counselors.
(2) The delegation to a Deputy Ethics Counselor shall be in writing and cannot be redelegated.
(c) Agency designees. The Ethics Counselor and Alternate Ethics Counselor shall serve as the agency designees for purposes of making the determinations, granting the approvals, and taking other actions required by an agency designee under part 2635 and this part. The Ethics Counselor or Alternate Ethics Counselor may delegate authority to Deputy Ethics Counselors or to other employees to serve as agency designees for specified purposes. The delegation to any agency designee shall be in writing and cannot be redelegated.
(d) Definitions. For purposes of this part, the following definitions apply:
(1) Affiliate, as defined in 12 U.S.C. 1841(k), means any company that controls, is controlled by, or is under common control with another company.
(2) Appropriate director means the head of a Washington office or division or the highest ranking official assigned to a regional office in each division or the Ethics Counselor.
(3) Covered employee means:
(i) Members of the FDIC Board of Directors and any employee required to file a public or confidential financial disclosure under 5 CFR part 2634 who holds a position immediately subordinate to such Board member;
(ii) The director of any Washington division or office and the director of any regional office, and any employee required to file a public or confidential financial disclosure report under 5 CFR part 2634 who holds a position immediately subordinate to such director;
(iii) An FDIC examiner;
(iv) Any other FDIC employee whose duties and responsibilities include the examination of or the participation in the examination of any financial institution;
(v) Any other FDIC employee whose duties and responsibilities, as determined by the Chairman or Ethics Counselor after notice to the employee, require application of the prohibition on borrowing contained in § 3201.102 to ensure public confidence that the FDIC’s programs are conducted impartially and objectively.
(4) Employee means an officer or employee, other than a special Government employee, of the Corporation, including a member of the Board of Directors appointed under the authority of 12 U.S.C. 1812(a)(1)(C). For purposes of 5 CFR part 2635 and §§ 3201.103 and 3201.104, employee includes any individual who, pursuant to a contract or any other arrangement, performs functions or activities of the Corporation, under the direct supervision of an officer or employee of the Corporation.
(5) Ethics Counselor means an officer or employee who is designated by the head of the agency to coordinate and manage the agency’s ethics program, and includes the Corporation’s Alternate Ethics Counselor.
(6) Security includes an interest in debt or equity instruments. The term includes, without limitation, a secured or unsecured bond, debenture, note, securitized assets, commercial paper, and all types of preferred and common stock. The term includes an interest or right in a security, whether current or contingent, a beneficial or legal interest derived from a trust, the right to acquire or dispose of any long or short position, an interest convertible into a security, and an option, right, warrant, put, or call with respect to a security. The term security does not include a deposit account.
(7) State nonmember bank means any State bank as defined in 12 U.S.C. 1813(e) that is not a member of the Federal Reserve System.
(8) Subsidiary, as defined in 12 U.S.C. 1813(w), means any company that is owned or controlled directly or indirectly by another company.
§ 3201.102 Extensions of credit and loans from FDIC-insured institutions.
(a) Credit subject to this section. The prohibition, disqualification, and retention provisions of this section apply to a current or contingent financial obligation of the employee. For purposes of this section, a current or contingent financial obligation of an employee’s spouse or minor child is considered to be an obligation of the employee.
(b) Disqualification applicable to FDIC employees generally. Except as provided in this section:
(1) No FDIC employee may participate in an examination, audit, visitation, review, or investigation, or any other particular matter involving an FDIC-insured institution, subsidiary or other person with whom the employee has an outstanding extension of credit.
(2) For employees, other than covered employees as defined in § 3201.101(d)(3), disqualification is not required if the credit was extended through the use of a credit card on the same terms and conditions as are offered to the general public.
(3) The Comptroller of the Currency and the Director of the Office of Thrift Supervision shall be disqualified from any matter pending before the FDIC Board of Directors to the same extent as an FDIC employee subject to paragraph (c) of this section.
(c) Prohibited borrowing by covered employees—(1) Prohibition on covered employee borrowing. Except as provided below, no covered employee shall, directly or indirectly, accept or become obligated on a loan or extension of credit, whether current or contingent, from any FDIC-insured State nonmember bank or its subsidiary or from an officer, director, or employee, of any FDIC-insured State nonmember bank or its subsidiary.
(2) Exceptions: (i) Credit cards. A covered employee (or spouse or minor child of a covered employee) may obtain and hold a credit card account established under an open end consumer credit plan and issued by an FDIC-insured State nonmember bank or its subsidiary subject to the following conditions:
(A) The cardholder must satisfy all financial requirements for the credit card account that are generally applicable to all applicants for the same type of credit card account; and
(B) The terms and conditions applicable with respect to the account and any credit extended to the cardholder under the account are no more favorable generally to the cardholder than the terms and conditions that are generally applicable to credit card accounts offered by the same bank (or the same subsidiary) to other cardholders in comparable circumstances under open end consumer credit plans.
(ii) Loans secured primarily by principal residence. A covered employee (or a spouse or minor child of a covered employee) may obtain and hold a loan from an FDIC-insured State nonmember bank or its subsidiary subject to the following conditions:
(A) The loan is secured by residential real property that is the principal residence of the borrower. The borrower may retain the loan if the residential real property ceases to be the principal residence. However, any subsequent renewal or renegotiation of the original terms of such a loan must meet the requirements of this paragraph;
(B) The borrower may not apply for the loan while the covered employee participates in any examination, the review of any application, or any other supervisory or regulatory or other particular matter directly affecting the State nonmember bank or its subsidiaries;
(C) The borrower must satisfy all financial requirements for the loan that are generally applicable to all applicants for the same type of residential real property loan; and
(D) The terms and conditions applicable with respect to the loan and any credit extended to the borrower under the loan are no more favorable generally to the borrower than the terms and conditions that are generally applicable to residential real property loans offered by the same State nonmember bank or the same subsidiary to other borrowers in comparable circumstances for residential real property loans.
(3) Disqualification of covered employees. A covered employee shall not participate in an examination, audit, visitation, review, or investigation, or other particular matter involving an FDIC-insured depository institution or other person with whom the covered employee has an outstanding extension of credit, or with whom the covered employee is negotiating an extension of credit.
(i) Payment dispute, delinquency, or other significant matter concerning credit card debt. Disqualification is not required if the credit is extended through the use of a credit card. However, disqualification will be required when a covered employee is delinquent on payments, has a billing dispute, is negotiating with the institution, or has any other significant issue regarding the credit card debt. The covered employee must notify his or her supervisor and deputy ethics counselor of a dispute in writing.
(ii) Primary residence mortgage loan. Disqualification will be required if the covered employee is negotiating for, has an application pending for, or enters into a primary residence mortgage loan. This disqualification will cease when the loan is sold, even if the loan originator retains the loan servicing.
(4) Other limitations on covered employees. (i) A covered employee shall not accept or become obligated on an otherwise permissible loan if the disqualification arising from the credit relationship would materially impair the covered employee’s ability to participate in matters that are central to the performance of the covered employee’s official duties, or if the covered employee has been advised of an assignment to handle a matter involving that institution.
(ii) Covered employees to whom the prohibitions in this section apply may not apply for a credit card or primary residence mortgage loan from a State nonmember bank or subsidiary that the covered employee is assigned to examine or participate in a matter involving that institution, or if such an assignment is imminent.
(5) Pre-existing credit. (i) This section does not prohibit a covered employee, or any FDIC employee who becomes a covered employee as a result of any reassignment of duties or position, from retaining a loan or extension of credit from a State nonmember bank or its subsidiary on its original terms if the loan or extension of credit was incurred prior to employment by the FDIC or as a result of the sale or transfer of a loan or credit to a State nonmember bank or its subsidiary or the conversion or merger of the lender into a State nonmember bank or its subsidiary. Any renewal or renegotiation of a pre-existing loan or extension of credit will be treated as a new loan or extension of credit subject to the prohibitions at paragraphs (c)(3) and (c)(4) of this section.
(ii) A covered employee may request that an exception be made to the prohibitions to permit renegotiation of a pre-existing loan or extension of credit. If a covered employee would experience financial or other hardship unless allowed to renegotiate a pre-existing loan or extension of credit, the covered employee may submit a written request to his or her supervisor and to the Ethics Counselor, describing the reasons for renegotiation, the original and the proposed terms and conditions, including whether the financial institution makes such terms generally available to the public, and any attempts by the covered employee to move the loan to a non-prohibited source. After consideration of the request, the covered employee’s supervisor and the Ethics Counselor jointly may grant the waiver upon a finding that renegotiation is not prohibited by law, and that the waiver does not result in a loss of impartiality or objectivity or in misuse of the employee’s position. To be effective, the waiver must be in writing.
(d) Two-year prohibition on acceptance of credit from an FDIC-insured depository institution. An FDIC employee shall not, directly or indirectly, accept or become obligated on any extension of credit from an FDIC-insured depository institution or its subsidiary for a period of two years from the date of the employee’s last personal and substantial participation in an audit, resolution, liquidation, assistance transactions, supervisory proceeding, or internal agency deliberation affecting that particular institution, its predecessor or successor, or any subsidiary of such institution. This prohibition does not apply to credit obtained through the use of a credit card or a residential real property loan secured by the principal residence of the employee, subject to the same conditions, limitations, disqualification, and waiver procedures applicable to covered employees under paragraphs (c) and (e) of this section.
(e) Waiver. The Ethics Counselor may grant a written waiver from any provision of this section based on a determination made with the advice and legal clearance of the Legal Division that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which the FDIC’s programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
§ 3201.103 Prohibition on acquisition, ownership, or control of securities of FDIC-insured depository institutions and certain holding companies.
(a) Prohibition on acquisition, ownership, or control. Except as provided in paragraph (b) of this section, no employee, spouse of an employee, or minor child of an employee may acquire, own, or control, directly or indirectly, a security of any of the following:
(1) A bank or savings association that is insured by the Federal Deposit Insurance Corporation (FDIC);
(2) A bank holding company that is subject to supervision by the Federal Reserve Board (FRB);
(3) A savings and loan holding company that is subject to supervision by the Office of Thrift Supervision (OTS);
(4) A financial holding company that is subject to FRB supervision; or
(5) A company that:
(i) Owns or controls an FDIC-insured bank or savings association;
(ii) Is neither an FRB-supervised bank holding company, an OTS-supervised savings and loan holding company, nor an FRB-supervised financial holding company; and
(iii) Is either primarily engaged in banking or not publicly traded on a U.S. securities exchange.
(b) Exceptions. Notwithstanding the prohibitions of paragraph (a) of this section, but subject to the limitations of paragraph (c) of this section, an employee, or the spouse or minor child of an employee, may do any or all of the following:
(1) Acquire, own, or control the securities of a unitary thrift holding company (i.e., a savings and loan holding company that is subject to OTS supervision but whose principal business is neither banking nor activities closely related to banking);
(2) Own or control a security of an entity described in paragraph (a) of this section if the security was permitted to be retained by the employee under 12 CFR part 336 prior to May 25, 1995, was obtained prior to commencement of employment with the Corporation, or was acquired by a spouse prior to marriage to the employee;
(3) Own, or control a security of an entity described in paragraph (a) of this section if:
(i) The security was acquired by inheritance, gift, stock-split, involuntary stock dividend, merger, acquisition, or other change in corporate ownership, exercise of preemptive right, or otherwise without specific intent to acquire the security, or, by an employee’s spouse or minor child as part of a compensation package in connection with his or her employment;
(ii) The employee makes full, written disclosure on FDIC form 2410/07 to the Ethics Counselor within 30 days of the commencement of employment or the acquisition of the interest; and
(iii) The employee is disqualified in accordance with 5 CFR part 2635, subpart D, from participating in any particular matter that affects his or her financial interests, or that of his or her spouse or minor child;
(4) Acquire, own, or control an interest in a publicly traded or publicly available investment fund provided that, upon initial or subsequent investment by the employee (excluding ordinary dividend reinvestment), the fund does not have invested, or indicate in its prospectus the intent to invest, more than 30 percent of its assets in the securities of one or more entities described in paragraph (a) of this section and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund; and
(5) Use an FDIC-insured depository institution or an affiliate of an FDIC-insured depository institution as custodian or trustee of accounts containing tax-deferred retirement funds.
(c) Divestiture. Based upon a determination of substantial conflict under 5 CFR 2635.403(b), the Ethics Counselor may require an employee, or the spouse or minor child of an employee, to divest a security he or she is otherwise authorized to acquire, own, control, or use under paragraph (b) of this section.
(d) Waiver. The Ethics Counselor may grant a written waiver from any provision of this section based on a determination made with the advice and legal clearance of the Legal Division that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which the FDIC’s programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
§ 3201.104 Restrictions concerning the purchase of property held by the Corporation or the RTC as conservator, receiver, or liquidator of the assets of an insured depository institution, or by a bridge bank organized by the Corporation.
(a) Prohibition on purchase of property. An employee, and an employee’s spouse or minor child shall not, directly or indirectly, purchase or acquire any property held or managed by the Corporation or the Resolution Trust Corporation (RTC) as conservator, receiver, or liquidator of the assets of an insured depository institution, or by a bridge bank organized by the Corporation, regardless of the method of disposition of the property.
(b) Disqualification. An employee who is involved in the disposition of assets held by the Corporation or the RTC as conservator, receiver, or liquidator of the assets of an insured depository institution, or by a bridge bank organized by the Corporation shall not participate in the disposition of assets held in such capacities when the employee knows that any party with whom the employee has a covered relationship, as defined in 5 CFR 2635.502(b)(1), is or will be attempting to acquire such assets. The employee shall provide written notification of the disqualification to his or her immediate supervisor and the agency designee.
§ 3201.105 Prohibition on dealings with former employers, associates, and clients.
(a) An employee is prohibited for one year from the date of entry on duty with the Corporation from participating in a particular matter when an employer, or the successor to the employer, for whom the employee worked at any time during the one year preceding the employee’s entrance on duty is a party or represents a party to the matter.
(b) For purposes of this section, the term employer means a person with whom the employee served as officer, director, trustee, general partner, agent, attorney, accountant, consultant, contractor, or employee.
(c) The one-year prohibition imposed by paragraph (a) of this section, and the one-year period preceding the employee’s entrance on duty specified in paragraph (a) of this section, may each be extended in an individual case based on a written determination by the agency designee that, under the particular circumstances, the employee’s participation in the particular matter would cause a reasonable person with knowledge of the facts to question his or her impartiality.
§ 3201.106 Employment of family members outside the Corporation.
(a) Disqualification of employees. An employee shall not participate in an examination, audit, investigation, application, contract, or other particular matter if the employer of the employee’s spouse, child, parent, brother, sister, or a member of the employee’s household is a party or represents a party to the matter, unless an agency designee authorizes the employee to participate using the standard in 5 CFR 2635.502(d).
(b) Reporting certain relationships. A covered employee shall make a written report to an agency designee within 30 days of the employment of the employee’s spouse, child, parent, brother, sister, or a member of the employee’s household by:
(1) An FDIC-insured depository institution or its affiliate;
(2) A firm or business with which, to the employee’s knowledge, the Corporation has a contractual or other business or financial relationship; or
(3) A firm or business which, to the employee’s knowledge, is seeking a business or contractual relationship with the Corporation.
§ 3201.107 Outside employment and other activities.
(a) Prohibition on employment with FDIC-insured depository institutions. An employee shall not provide service for compensation, in any capacity, to an FDIC-insured depository institution or an employee or person employed by or connected with such institution.
(b) Use of professional licenses. A covered employee who holds a license related to real estate, appraisals, securities, or insurance and whose official duties with the Corporation require personal and substantial involvement in matters related to, respectively, real estate, appraisal, securities, or insurance is prohibited from using such license, other than in the performance of his or her official duties, for the production of income. The appropriate director, in consultation with an agency designee, may grant exceptions to this prohibition based on a finding that the specific transactions which require use of the license will not create an appearance of loss of impartiality or use of public office for private gain.
(c) Responsibility to consult with agency designee. An employee who engages in, or intends to engage in, any outside employment or other activity that may require disqualification from the employee’s official duties shall consult with an agency designee prior to engaging in or continuing to engage in the activity.
(a) 18 U.S.C. 213, which prohibits an examiner from accepting a loan or gratuity from an FDIC-insured depository institution examined by him or her or from any person connected with such institution.
(b) 18 U.S.C. 1906, which prohibits disclosure of information from a bank examination report except as authorized by law.
(c) 17 CFR 240.10b-5 which prohibits the use of manipulative or deceptive devices in connection with the purchase or sale of any security.
(d) 18 U.S.C. 1909, which prohibits examiners from providing any service for compensation for any bank or person connected therewith.
§ 3201.109 Provisions of 5 CFR part 2635 not applicable to Corporation employees.
The following provisions of 5 CFR part 2635 are not applicable to employees of the Corporation:
(a) Because of the restrictions imposed by 18 U.S.C. 213 on examiners accepting loans or gratuities, an examiner in the Division of Supervision and Consumer Protection may not use any of the gift exceptions at 5 CFR 2635.204 to accept a gift from an FDIC-insured depository institution examined by him or her or from any person connected with such institution.
(b) Provisions of 41 U.S.C. 423 (Procurement integrity) and the implementing regulations at 48 CFR 3.104 (of the Federal Acquisition Regulation) applicable to procurement officials referred to in:
(1) 5 CFR 2635.202(c)(4)(iii);
(2) The note following 5 CFR 2635.203(b)(7);
(3) Example 5 following 5 CFR 2635.204(a);
(4) Examples 2 and 3 following 5 CFR 2635.703(b)(3);
(5) 5 CFR 2635.902(f), (h), (l), and (bb);
(c) Provisions of 31 U.S.C. 1353 (Acceptance of travel and related expenses from non-Federal sources) and the implementing regulations at 41 CFR part 304-1 (Acceptance of payment from a non-Federal source for travel expenses) referred to in 5 CFR 2635.203(b)(8)(i).
(d) Provisions of 41 CFR Chapter 101 (Federal Property Management Regulations) referred to in 5 CFR 2635.205(a)(4).
(e) Provisions of 41 CFR Chapter 201 (Federal Information Resources Management Regulation) referred to in Example 1 following 5 CFR 2635.704(b)(2).
PARTS 3202-3299 [RESERVED]
CHAPTER XXIII—DEPARTMENT OF ENERGY
PART 3300 [RESERVED]
PART 3301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF ENERGY
§ 3301.101 General.
(a) Purpose. The regulations in this part apply to employees of the Department of Energy (DOE), excluding employees of the Federal Energy Regulatory Commission, and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. DOE employees are also subject to the regulations on financial disclosure contained in 5 CFR part 2634, and to additional regulations on responsibilities and conduct at 5 CFR part 735, and DOE specific provisions contained in 10 CFR part 1010.
(b) Definitions. Unless a term is otherwise defined in this part, the definitions set forth in 5 CFR part 2635 apply to terms used in this part. In addition, for purposes of this part:
Agency designee, as used also in 5 CFR part 2635, means the employee’s immediate supervisor and, for purposes of the approval required by § 3301.103(a), includes the Counselor.
Counselor means the DOE’s designated agency ethics official or his delegates.
§ 3301.102 Procedure for accomplishing disqualification.
(a) Disqualifying financial interests. A DOE employee who is required, in accordance with 5 CFR 2635.402(c), to disqualify himself from participation in a particular matter to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.402(c)(1) and (2), provide written notice of disqualification to his supervisor and counselor upon determining that he will not participate in the matter.
(b) Disqualification to ensure impartiality. A DOE employee who is required, in accordance with 5 CFR 2635.502(e), to disqualify himself from participation in a particular matter involving specific parties to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.502(e)(1) and (2), provide written notice of disqualification to his supervisor and counselor upon determining that he will not participate in the matter.
(c) Disqualification from matter effecting prospective employers. A DOE employee who is required, in accordance with 5 CFR 2635.604(a), to disqualify himself from participation in a particular matter to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.604(b) and (c), provide written notice of disqualification to his supervisor and counselor upon determining that he will not participate in the matter.
(d) Withdrawal of notification. A DOE employee may withdraw written notice under paragraphs (a), (b), or (c) of this section upon deciding that disqualification from participation in the matter is no longer required. A withdrawal of notification shall be in writing and provided to the employee’s supervisor and counselor.
§ 3301.103 Prior approval for outside employment.
(a) Prior approval requirement. Before engaging in any outside employment, whether or not for compensation, an employee, other than a special Government employee, must obtain written approval of his immediate supervisor and the Counselor. Requests for approval shall include the name of the person, group or organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted unless there is a determination that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, employee, advisor, or teacher. It does not include participating in the activities of a nonprofit, charitable, religious, public service or civic organization, unless such activities involve the provision of professional services or are for compensation.
PARTS 3302-3399 [RESERVED]
CHAPTER XXIV—FEDERAL ENERGY REGULATORY COMMISSION
PART 3400 [RESERVED]
PART 3401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL ENERGY REGULATORY COMMISSION
§ 3401.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Federal Energy Regulatory Commission (Commission) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634, additional regulations on responsibilities and conduct at 5 CFR part 735, and Commission specific provisions contained in 18 CFR part 3c.
§ 3401.102 Prohibited financial interests.
(a) General prohibition. No employee, and no spouse or minor child of an employee, shall acquire or hold any securities issued by an entity on the prohibited securities list described in paragraph (b) of this section. The list shall include, but not be limited to the following:
(1) Natural gas companies;
(2) Interstate oil pipelines;
(3) Hydroelectric licensees or exemptees;
(4) Public utilities;
(5) Transmitting utilities or electric utilities engaged in the wholesale sale or transmission of electricity or having obtained an interconnection or wheeling order under part II of the Federal Power Act;
(6) Liquefied natural gas terminals as defined by section 3 of the Natural Gas Act; or
(7) Parent companies of an entity identified in paragraphs (a)(1) through (a)(6) of this section.
(b) Prohibited securities list. A prohibited securities list shall be maintained, published, and distributed by the Office of the General Counsel’s General and Administrative Law section, updated annually or on a more frequent basis to include entities that meet the criteria in paragraph (a) or are otherwise subject to the Commission’s jurisdiction and to remove entities that do not raise impartiality concerns after considering the above criteria.
(c) Exception. Nothing in this section prohibits an employee, or the spouse or minor child of an employee, from acquiring or holding an interest in a publicly traded or publicly available mutual fund or other collective investment fund, or in a widely held pension or mutual fund, provided: (1) That the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund; or (2) that the fund’s prospectus or practice does not indicate the stated objective of concentrating its investments in entities identified in paragraphs (a)(1) through (a)(7) of this section.
(d) Reporting and divestiture—(1) Reporting of prohibited securities. An employee must promptly report in writing to the DAEO any acquired interest prohibited under paragraphs (a) and (b) of this section. New employees must report in writing to the DAEO prohibited financial interests within 30 days of commencement of employment. Prohibited financial interests acquired after employment commences and without specific intent, such as through gift, inheritance, or marriage, must be reported in writing to the DAEO within 30 days of acquisition of such interest.
(2) Divestiture of prohibited securities. A prohibited financial interest must be divested within 90 days from the date divestiture is ordered by the DAEO unless the employee obtains a written waiver from the DAEO in accordance with this section.
(3) Disqualification pending divestiture. Pending divestiture of prohibited securities, an employee must disqualify himself or herself, in accordance with 5 CFR 2635.402 and 3401.103, from participating in particular matters which, as a result of continued ownership of prohibited securities, could affect the financial interests of the employee or those of the spouse or minor child of the employee. Disqualification is not required where a waiver described in § 2635.402(d) applies.
(4) Tax treatment of gain on divested securities. Where divestiture is required by this section, the employee or the spouse or minor child of an employee may be eligible to defer the tax consequences of divestiture by obtaining a Certificate of Divestiture from the Director of the Office of Government Ethics before selling the securities in accordance with subpart J of 5 CFR part 2634.
(e) Waiver. The DAEO may grant a written waiver from this section based on a determination that the waiver is not inconsistent with 5 CFR part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of an employee’s misuse of position or loss of impartiality, or to otherwise ensure confidence in the impartiality and objectivity with which the Commission’s programs are administered, or in the case of a special Government employee, divestiture would result in substantial financial hardship. A waiver under this paragraph must be in writing and may impose appropriate conditions, such as requiring execution of a written disqualification.
(f) Definitions. For the purposes of this section:
(1) The term securities includes an interest in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets, and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles with respect thereto.
(2) The term parent means a company that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of an entity identified in paragraphs (a)(1) through (a)(6) of this section.
§ 3401.103 Procedures for accomplishing disqualification.
(a) An employee, other than a member of the Commission, who is required, in accordance with 5 CFR 2635.402(c), 2635.502(e), or 2635.604(a), to disqualify himself from participation in a particular matter before the Commission shall provide written notice of disqualification to his supervisor and to the DAEO when he becomes aware of the need to disqualify himself from participation in the matter. This procedure is required notwithstanding the guidance in 5 CFR 2635.402(c)(2), 2635.502(e)(2), and 2635.604(c).
(b) An employee may withdraw written notice under paragraph (a) of this section upon determining that disqualification from participation in the matter is no longer required. A withdrawal of disqualification shall be in writing and shall be provided to the employee’s supervisor and to the DAEO.
§ 3401.104 Prior approval for outside employment.
(a) Prior approval requirement. An employee, other than a special Government employee, must obtain written approval from the DAEO through normal supervisory channels before engaging in outside employment with any person who is a “prohibited source” as that term is defined at 5 CFR 2635.203(d).
(b) Approval of requests. Approval under this section shall be denied only upon a determination by the DAEO that the outside activity is expected to involve conduct prohibited by statute or Federal regulations, including 5 CFR part 2635.
(c) Definitions. For purposes of this section, “employment” means any form of non-Federal employment or business relationship or activity involving the provision of personal services by the employee for compensation other than reimbursement of actual and necessary expenses. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee.
PARTS 3402-3499 [RESERVED]
CHAPTER XXV—DEPARTMENT OF THE INTERIOR
PART 3500 [RESERVED]
PART 3501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR
§ 3501.101 General.
(a) In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of the Interior and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, employees of the Department are subject to the employee responsibilities and conduct regulations at 5 CFR part 735; the executive branch financial disclosure regulations at 5 CFR part 2634; and the Department’s employee responsibilities and conduct regulations at 43 CFR part 20.
(b) Definitions. As used in this part:
(1) Department means the U.S. Department of the Interior and any of its components.
(2) Bureau means each major program operating component of the Department, the Office of the Secretary, the Office of the Solicitor, and the Office of the Inspector General.
(3) Ethics Counselor means the head of each bureau, except that the Deputy Assistant Secretary for Policy is the Ethics Counselor for employees within the Office of the Secretary.
(4) Deputy Ethics Counselor means the bureau personnel officer or other qualified headquarters employee who has been delegated responsibility for the operational duties of the Ethics Counselor for the bureau.
(c) Bureau instructions. With the concurrence of the Designated Agency Ethics Official, each Ethics Counselor is authorized, consistent with 5 CFR 2635.105(c), to issue explanatory guidance and establish procedures necessary to implement this part and part 2635 of this title for his or her bureau.
§ 3501.102 Designation of separate agency components.
(a) Each of the following eleven components of the Department is designated as an agency separate from each of the other ten listed components and, for employees of that component, as an agency distinct from the remainder of the Department, for purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources, 5 CFR 2635.807 governing teaching, speaking and writing, and § 3501.105 requiring prior approval of outside employment. However, the following eleven components are not deemed to be separate agencies for purposes of applying any provision of 5 CFR part 2635 or this part to employees of the remainder of the Department:
(1) Bureau of Indian Affairs, including the Office of Indian Education Programs;
(2) Bureau of Land Management;
(3) Bureau of Reclamation;
(4) Bureau of Ocean Energy Management;
(5) Bureau of Safety and Environmental Enforcement;
(6) National Indian Gaming Commission;
(7) National Park Service;
(8) Office of Surface Mining Reclamation and Enforcement;
(9) Office of the Special Trustee for American Indians;
(10) U.S. Fish and Wildlife Service; and
(11) U.S. Geological Survey.
(b) Employees in components not listed in paragraph (a) of this section (including employees within the immediate office of each Assistant Secretary) are employees of the remainder of the Department, which for those employees shall include the components designated in this section as well as those parts of the Department not designated in this section.
§ 3501.103 Prohibited interests in Federal lands.
(a) Cross-references to statutory prohibitions—(1) Prohibited purchases of public land by Bureau of Land Management employees. As set forth in 43 CFR 20.401, the officers, clerks, and employees in the Bureau of Land Management are prohibited by 43 U.S.C. 11 from directly or indirectly purchasing or becoming interested in the purchase of any of the public lands.
(2) Prohibited interests in the lands or mineral wealth of the region under survey for U.S. Geological Survey employees. As set forth in 43 CFR 20.401, the Director and members of the U.S. Geological Survey are prohibited by 43 U.S.C. 31(a) from having any personal or private interests in the lands or mineral wealth of the region under survey.
(b) Prohibited financial interests in Federal lands for employees of the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement, and the Office of Natural Resources Revenue and for the Secretary and employees of the Office of the Secretary and other Departmental offices reporting directly to a Secretarial officer who are in positions classified at GS-15 and above. (1) Except as provided in paragraph (b)(2) of this section, the following employees may not acquire or hold any direct or indirect financial interest in Federal lands or resources administered or controlled by the Department:
(i) All employees of the Bureau of Ocean Energy Management, Bureau of Safety and Environmental Enforcement, and Office of Natural Resources Revenue; and
(ii) The Secretary and employees of the Office of the Secretary and other Departmental offices reporting directly to a Secretarial officer who are in positions classified at GS-15 and above. As used in this section, “Office of the Secretary and other Departmental Offices reporting directly to a Secretarial officer” means the Immediate Office of the Secretary; Office of the Solicitor; Office of the Inspector General; Office of Communications; Office of Congressional and Legislative Affairs; all Assistant Secretaries, their immediate Office staff and heads of bureaus which are subordinate to an Assistant Secretary. This includes the following offices under the Office of the Assistant Secretary—Policy, Management and Budget: Office of Budget, Office of Hearings and Appeals, Office of Acquisition & Property Management, Office of Environmental Policy and Compliance, Office of Policy Analysis, Office of Financial Management, and Office of Information Resources Management.
(2) Exceptions. The prohibition in paragraph (b)(1) of this section does not apply to:
(i) An individual employed on an intermittent or seasonal basis for a period not exceeding 180 working days in each calendar year; or
(ii) A special Government employee engaged in field work relating to land, range, forest, and mineral conservation and management activities.
(c) Prohibition as to Department-granted rights in Federal lands. (1) Except as provided in paragraph (c)(2) of this section, employees and their spouses and their minor children are prohibited from acquiring or retaining any claim, permit, lease, small tract entries, or other rights that are granted by the Department in Federal lands.
(2) Exceptions. (i) Nothing in paragraph (c)(1) of this section prohibits the recreational or other personal and noncommercial use of Federal lands by an employee, or the employee’s spouse or minor child, on the same terms as use of Federal lands is available to the general public.
(ii) Unless otherwise prohibited by law, employees in the Office of the Assistant Secretary—Indian Affairs, or in the Bureau of Indian Affairs, and the spouses and minor children of such employees, are not prohibited by paragraph (c)(1) of this section from acquiring or retaining rights in Federal lands controlled by the Department for the benefit of Indians or Alaska Natives.
(d) Divestiture. The Designated Agency Ethics Official may require an employee to divest an interest the employee is otherwise authorized to retain under an exception listed in this section, based on a determination of substantial conflict under § 2635.403(b) of this title.
(e) Waivers. The Designated Agency Ethics Official may grant a written waiver from the prohibitions contained in paragraphs (b) and (c) of this section, based on a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartially, or otherwise to ensure confidence in the impartiality and objectivity with which Department programs are administered. A waiver under this paragraph may be accompanied by appropriate conditions, such as acquiring execution of a written statement of disqualification. Notwithstanding the grant of any waiver, an employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.
(f) Pre-existing interests. An employee may retain a financial interest otherwise prohibited by paragraph (b) or (c) of this section which was approved in writing under criteria and procedures in effect before November 2, 1996, unless the approval is withdrawn by the Designated Agency Ethics Official, subject to the standards for waivers in paragraph (e) of this section.
§ 3501.104 Prohibited interests in mining.
(a) Cross-reference to statutory prohibition. As set forth in 30 CFR part 706 and 43 CFR 20.402, employees of the Office of Surface Mining Reclamation and Enforcement and other employees who perform functions or duties under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq., are prohibited by 30 U.S.C. 1211(f) from having a direct or indirect financial interest in underground or surface coal mining operations.
(b) Prohibited interests in private mining activities in the United States for U.S. Geological Survey employees, their spouses, and minor children. (1) Except as provided in this section, no employee of the U.S. Geological Survey (USGS), or spouse or minor child of a USGS employee, shall have a direct or indirect financial interest in private mining activities in the United States.
(2) Definitions. For purposes of applying the prohibition in paragraph (b)(1) of this section:
(i) Financial interest has the meaning set forth in 5 CFR 2635.403(c), and includes an employee’s legal or beneficial interest in a trust.
(ii) Private mining activities means exploration, development, and production of oil, gas, and other minerals on land in the United States that is not owned by the Federal government or by a State or local government.
(3) Exceptions. The prohibition set forth in paragraph (b)(1) of this section does not apply to:
(i)(A) Financial interests worth $5000 or less, for employees (or their spouses and minor children) of the Office of the Director and the Geologic Division, or
(B) A single financial interest worth $5000 or less or an aggregate of financial interests worth $15,000 or less, for employees (or their spouses and minor children) of all other USGS organizational elements;
(ii) Mineral royalties and overriding royalty interests of $600 per year or less;
(iii) A publicly traded or publicly available investment fund (e.g., a mutual fund) which, in its prospectus, does not indicate the objective or practice of concentrating its investments in entities engaged in private mining activities in the United States, if the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund;
(iv) A legal or beneficial interest in a qualified profit sharing, retirement, or similar plan, provided that the plan does not invest more than 25 percent of its funds in debt or equity instruments of entities engaged in private mining activities in the United States, and the employee neither exercise control nor has the ability to exercise control over the financial interests held in the plan; or
(v) The ownership of a financial interest by an employee’s spouse or minor child where the spouse or minor child obtained the interest through:
(A) A gift from someone other than the employee or a member of the employee’s household;
(B) Inheritance;
(C) Acquisition prior to the employee’s becoming a USGS employee;
(D) Acquisition prior to marriage to a USGS employee; or
(E) A compensation package in connection with the employment of the spouse or minor child.
(4) Divestiture. The Director of the U.S. Geological Survey may require an employee to divest an interest the employee is otherwise authorized to retain under an exception listed in paragraph (b)(3) of this section, based on a determination of substantial conflict under § 2635.403(b) of this title.
(5) Waivers. The Director of the U.S. Geological Survey may grant a written waiver from the prohibition contained in paragraph (b)(1) of this section, based on a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which Department programs are administered. A waiver under this paragraph may be accompanied by appropriate conditions, such as requiring execution of a written statement of disqualification. Notwithstanding the granting of any waiver, an employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.
(6) Pre-existing interests. A spouse or minor child of an employee may retain a financial interest otherwise prohibited by paragraph (b)(1) of this section which was permitted under criteria and procedures in effect before November 2, 1996, unless the Director of the U.S. Geological Survey determines in writing that such retention is inconsistent with the standards for waivers in paragraph (b)(5) of this section.
§ 3501.105 Outside employment and activities.
(a) Prohibited outside employment and activities. (1) Under 43 U.S.C. 31(a), employees of the U.S. Geological Survey shall execute no surveys or examinations for private parties or corporations.
(2) Employees in the Bureau of Land Management may not engage in outside employment as real estate agents and realty specialists. Such employees are not required to cancel a real estate license, but may maintain the license on an inactive basis.
(3) Employees in the Office of the Assistant Secretary—Indian Affairs, or in the Bureau of Indian Affairs (BIA), may not hold a position on a tribal election board or on a tribal school board which oversees BIA schools.
Except for membership on a tribal election board and a tribal school board which oversees BIA schools, an eligible person employed in the Office of the Assistant Secretary—Indian Affairs or in the BIA may become a candidate for office in his local tribe or may be appointed as a representative of his local tribe if prior approval is obtained from the Deputy Assistant Secretary—Indian Affairs pursuant to paragraph (b) of this section.
(b) Prior approval of outside employment—(1) Prior approval requirement. (i) An employee of the Department, other than an employee of the U.S. Geological Survey or a special Government employee, shall obtain written approval from his ethics counselor or other agency designee before engaging in outside employment with a prohibited source.
(ii)(A) An employee of the U.S. Geological Survey (USGS), other than a special Government employee, shall obtain written approval from the USGS deputy ethics counselor before engaging in any outside employment.
(B) The USGS may issue instructions exempting categories of employment from the prior approval requirement in paragraph (b)(1)(ii)(A) of this section, based on a determination that the employment within those categories would generally be approved and are not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(2) Form of request for approval. (i) A request for prior approval of outside employment shall include, at a minimum, the following:
(A) The employee’s name, occupational title, office address, and office telephone number;
(B) A brief description of the employee’s official duties;
(C) The nature of the outside employment, including a full description of the specific duties or services to be performed;
(D) The name and address of the prospective outside employer; and
(E) A statement that the employee currently has no official duties involving a matter that affects the outside employer and will disqualify himself from future participation in matters that could directly affect the outside employer.
(ii) Upon a significant change in the nature of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval.
(3) Standard for approval. Approval shall be granted unless a determination is made that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(4) Definitions. As used in this section:
(i) Employment means any form of non-Federal business relationship involving the provision of personal services by the employee, with or without compensation. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves the provision of professional services or advice for compensation other than reimbursement for actual expenses.
(ii) Prohibited source has the meaning in 5 CFR 2635.203(d), as supplemented by § 3501.102, and includes any person who:
(A) Is seeking official action by the Department or, in the case of an employee of one of the separate agency components designated in § 3501.102(a), by that component;
(B) Does business or seeks to do business with the Department, or in the case of an employee of one of the separate agency components designated in § 3501.102(a), with that component;
(C) Conducts activities regulated by the Department or, in the case of an employee of one of the separate agency components designated in § 3501.102(a), by that component;
(D) Has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; or
(E) Is an organization a majority of whose members are described in paragraphs (b)(4)(ii) (A) through (D) of this section.
PARTS 3502-3599 [RESERVED]
CHAPTER XXVI—DEPARTMENT OF DEFENSE
PART 3600 [RESERVED]
PART 3601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF DEFENSE
§ 3601.101 Purpose.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Defense (DoD) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. DoD employees are required to comply with part 2635, this part, and implementing guidance and procedures.
§ 3601.102 Designation of DoD components as separate agencies for purposes of gifts from outside sources, and teaching, speaking, and writing.
(a) Pursuant to 5 CFR 2635.203(a), each of the following DoD components is designated as a separate agency for purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources and 5 CFR 2635.807 governing teaching, speaking, and writing:
(1) Armed Services Board of Contract Appeals;
(2) Department of the Army;
(3) Department of the Navy;
(4) Department of the Air Force;
(5) Defense Commissary Agency;
(6) Defense Contract Audit Agency;
(7) Defense Finance and Accounting Service;
(8) Defense Information Systems Agency;
(9) Defense Intelligence Agency;
(10) Defense Logistics Agency;
(11) Defense Counterintelligence and Security Agency;
(12) Defense Threat Reduction Agency;
(13) National Geospatial-Intelligence Agency;
(14) National Security Agency;
(15) Office of Inspector General;
(16) Uniformed Services University of the Health Sciences;
(17) National Reconnaissance Office; and
(18) Office of the Secretary of Defense remainder agency.
Example 1 to paragraph (a). For paragraph (a)(1) of this section [Teaching, Speaking, or Writing]: An Armed Services Board of Contract Appeals (ASBCA) employee is asked to give a compensated speech on prisoners of war, a topic on which he has a personal interest. While the Department of Defense has ongoing policies, programs, or operations related to this topic, the ASBCA does not. The employee may give the speech in a personal capacity and receive compensation because the ASBCA is a designated separate agency, the speech is not related to an ongoing program or operation of the ASBCA, and the speech is not otherwise related to the employee’s official duties.
Example 2 to paragraph (a). For paragraphs (a)(2) and (18) of this section [Separate component—gift]: An employee of the Department of the Army (Army) and an employee of the Office of the Joint Chiefs of Staff (JCS) are each offered a ticket to a football game by a company that contracts with OSD. As long as the contractor is not a prohibited source for the Army and the gift is not offered because of the employee’s official position, the Army employee may accept the ticket because the Army is designated as a separate agency under paragraph (a)(2). The JCS employee may not accept the ticket because JCS is not designated as a separate agency and, therefore, is part of the “OSD remainder agency.” The OSD contractor is therefore a prohibited source for the JCS employee or for any employee of any of the other organizations that are part of the OSD remainder agency.
Example 3 to paragraph (a). For paragraph (a)(11) of this section [Agency designation]: An employee of the Department of the Air Force is offered a gift by a company that only does business with the Defense Counterintelligence and Security Agency, which is designated as a separate agency. The company would be a prohibited source of gifts for employees of the Defense Counterintelligence and Security Agency but not for employees of the Department of the Air Force or for any other component which has been designated as a separate agency.
(b) Employees of DoD components not designated as separate agencies, including employees of the Office of the Secretary of Defense, will be treated as employees of the “Office of the Secretary of Defense (OSD) remainder agency.” The OSD remainder agency shall itself be treated as a separate DoD agency for purposes of determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d) and for identifying the employee’s agency under 5 CFR 2635.807 governing teaching, speaking, and writing.
(1) The use of the term “agency” in this part does not carry with it the designation and responsibilities of a “defense agency” as set forth in 10 U.S.C. 191-197 (2019).
(2) For purposes of this part, “prohibited source” is defined at 5 CFR 2635.203(d), except that “agency” shall mean the employee’s component.
All DoD organizations not individually listed in paragraph (a) of this section are part of the OSD remainder agency.
Prohibited sources for each component for purposes of gifts and teaching, speaking, and writing are exclusive to that component and are not imputed to OSD.
An employee who is detailed to another component will use the prohibited source list of the component to which they are detailed for purposes of gifts, teaching, speaking, and writing.
(c) The designations in this section shall only apply for purposes of gifts under 5 CFR 2635.203(a) and teaching, speaking, and writing under 5 CFR 2635.807, and are distinct from the designations approved by the Office of Government Ethics for purposes of the post-Government employment restrictions in 18 U.S.C. 207(c). See 5 CFR 2641.302 and appendix B to part 2641.
§ 3601.103 Additional exceptions for gifts from outside sources.
In addition to the gift exceptions in 5 CFR 2635.204, which authorize acceptance of certain gifts from outside sources, and subject to all provisions of 5 CFR part 2635, subpart B, an employee may accept unsolicited gifts from outside sources otherwise prohibited by 5 CFR 2635.202 as detailed in this section. For purposes of this section, the term “agency” is defined in § 3601.102, and the term “free attendance” is defined in 5 CFR 2635.203(g).
(a) Community relations events. (1) An employee may accept an unsolicited gift of free attendance for himself or herself and a guest at a community relations event sponsored by a State or local government, or by a civic organization exempt from taxation under 26 U.S.C. 501(c)(4), when:
(i) The cost of free attendance is provided by the sponsor of the event; and
(ii) The employee’s agency designee determines that the community relations interests of the agency will be served by the employee’s attendance in his or her personal capacity, and the employee’s attendance outweighs any concern that acceptance would cause a reasonable person with knowledge of the relevant facts to question the employee’s integrity or impartiality.
(2) Refer to 5 CFR 2635.204(g)(5) in determining whether the cost of attendance may be considered to be provided by the sponsor of the event.
Example 1 to paragraph (a) [Community relations interest]: The City of Jacksonville, Florida, hosts a Military Appreciation Day event. Members of the general public are charged an admission fee to attend. Department of the Navy employees who have recently returned from deployment are invited and offered free admission for themselves and a guest. These Navy employees may personally accept the gift of free attendance for themselves and a guest, if their agency designee determines that their attendance at the event will serve a community relations interest and that employees’ attendance outweighs concerns that acceptance would call into question their integrity or impartiality.
Example 2 to paragraph (a) [No community relations interest]: A foundation that provides grants to non-profit organizations focusing on environmental initiatives is sponsoring a fundraising golf tournament. The foundation is offering to waive the entry fee for military personnel at the local installation. Military personnel may not accept the offer by the sponsor to waive the entry fee under paragraph (a) of this section, because participation in this event does not further local community relations interests for the DoD installation. While the community relations exception may not be used to accept the gift, nothing in this section precludes an employee from accepting the gift if another gift exclusion, exception, or authority would apply.
(b) Scholarships and grants. An employee and his or her dependents may accept an educational scholarship or grant from an entity that does not have interests that may be substantially affected by the performance or non-performance of the employee’s official duties, or from an association or similar entity that does not have a majority of members with such interests, if the Designated Agency Ethics Official (DAEO) or the DAEO’s designee makes a written determination that the scholarship or grant is made pursuant to an established program of recognition, including those established for the benefit of employees, or the dependents of employees. A scholarship or grant is made pursuant to an established program of recognition if:
(1) Scholarships or grants have been made on a regular basis or, if the program is new, there is a reasonable basis for concluding that scholarships or grants will be made on a regular basis based on funding or funding commitments; and
(2) Selection of recipients is made pursuant to written standards.
§ 3601.104 Additional limitations on gifts between employees.
The following limitations apply to gifts from groups of employees that include a subordinate and to voluntary contributions to gifts for superiors permitted under 5 CFR 2635.304(c)(1):
(a) Gifts from a group that includes a subordinate. Regardless of the number of employees contributing to a gift on a special, infrequent occasion as permitted by 5 CFR 2635.304(c)(1), an employee may not accept a gift or gifts, including indirectly within the meaning of 5 CFR 2635.203(f), from a donating group if the aggregate market value exceeds the minimal value, as established by 5 U.S.C. 7342(a)(5), and if the employee knows or has reason to know that any member of the donating group is a subordinate.
(1) The cost of items excluded from the definition of a gift by 5 CFR 2635.203(b) and the cost of food, refreshments, and entertainment provided to mark the occasion for which the gift is given shall not be included in determining whether the value of a gift or gifts exceeds the aggregate minimal value limit.
(2) The value of a gift or gifts from two or more donating groups will be aggregated and will be considered to be from a single donating group if the employee who is offered the gift knows or has reason to know that an individual who is his or her subordinate is a member of more than one of the donating groups.
(b) Voluntary contribution. For purposes of 5 CFR 2635.304(c)(1), the nominal amount of a voluntary contribution that an employee may solicit from another employee for a group gift to the contributory employee’s superior for any special, infrequent occasion will not exceed $10. A voluntary contribution of a nominal amount for food, refreshments, and entertainment at an event to mark the occasion for which a group gift is given may be solicited as a separate, voluntary contribution not subject to the $10 limit.
An employee who uses or permits the use of his or her military rank or who includes or permits the inclusion of his or her title or position as one of several biographical details given to identify himself or herself in connection with teaching, speaking, or writing, in accordance with 5 CFR 2635.807(b), must make a disclaimer if the subject of the teaching, speaking, or writing deals in significant part with any ongoing or announced policy, program, or operation of the employee’s agency, as defined in § 3601.102, and the employee has not been authorized by appropriate agency authority to present that material as the agency’s position. The disclaimer must be made as follows:
(a) The required disclaimer must expressly state that the views presented are those of the speaker or author and do not necessarily represent the views of DoD or its components.
(b) When a disclaimer is required for an article, book, or other writing, the disclaimer will be printed in a reasonably prominent position in the writing itself.
(c) When a disclaimer is required for a speech or other oral presentation, the disclaimer may be given orally provided it is given at the beginning of the oral presentation.
Example 1 to § 3601.105 [Disclaimer Required]: An employee is asked to provide unpaid personal remarks at a local university on a DoD matter she handled in the past year. As part of her introduction, the university facilitator identifies the employee by her official title. Since the subject matter of her speech is related to her official duties, and her official title is used, she must provide a reasonably prominent disclaimer at the beginning of her remarks.
Example 2 to § 3601.105 [Disclaimer Not Required]: An employee is invited in his personal capacity to speak at his alma mater on Career Day about his personal experiences as a Government employee, but will not discuss the ongoing or announced policy, program, or operation of his agency. The introduction to his talk only mentions that he is a graduate of the school and currently a “DoD employee,” but does not use his official title, rank, or position. No disclaimer would be necessary because the introduction to the employee’s speech did not include his official title or position and the subject of the speech does not deal in significant part with any ongoing or announced policy, program or operation of the relevant DoD agency.
Ethics review of whether a disclaimer is necessary or prudent is not a substitute for compliance with other DoD requirements such as obtaining a security review of the content of the teaching, speaking, or writing.
§ 3601.106 Prior approval for outside employment and business activities.
(a) A DoD employee, other than a special Government employee, who is required to file a financial disclosure report (OGE Forms 450 or 278e) shall obtain approval from the agency designee before engaging in a business activity or compensated outside employment with a prohibited source, unless general approval has been given in accordance with paragraph (b) of this section. Approval shall be granted unless a determination is made that the business activity or compensated outside employment is expected to involve conduct prohibited by statute or regulation. Approval of the DoD employee’s business activity or compensated outside employment with a prohibited source will be annotated on the employee’s annual financial disclosure report. Nothing in this part precludes a supervisor from providing the employee with written approval. For purposes of this section, the following definitions apply:
(1) Business activity. Any business, contractual, or other financial relationship not involving the provision of personal services by the DoD employee. It does not include a routine commercial transaction or the purchase of an asset or interest, such as common stock, that is available to the general public.
(2) Employment. Any form of non-Federal employment or business relationship involving the provision of personal services by the DoD employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee.
(3) Prohibited source. See 5 CFR 2635.203(d) (modified by the separate DoD component agency designations in § 3601.102).
(b) The DoD component DAEO or designee may, by a written notice, exempt categories of business activities or employment from the requirement of paragraph (a) of this section based on a determination that business activities or employment within those categories would generally be approved and are not likely to involve conduct prohibited by statute or regulation.
§ 3601.107 Waiver.
(a) The DoD General Counsel may waive any provision of this part based upon a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that waiver of the provision will not undermine public confidence in the integrity of Government programs or operations. The waiver must be:
(1) In writing;
(2) Supported by a detailed statement of facts and findings; and
(3) Narrow in scope and limited in duration.
(b) The DoD General Counsel may withdraw the waiver, in writing, if it is determined to no longer be necessary.
(c) The authority for granting and withdrawing a waiver cannot be delegated below the DoD Alternate DAEO.
PARTS 3602-3699 [RESERVED]
CHAPTER XXVIII—DEPARTMENT OF JUSTICE
PART 3800 [RESERVED]
PART 3801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF JUSTICE
§ 3801.101 General.
In accordance with § 2635.105 of this title, the regulations in this part apply to employees of the Department of Justice and supplement the Standards of Ethical Conduct for Employees of the Executive Branch in part 2635 of this title. In addition to the regulations contained in part 2635 of this title and in this part, employees are subject to the conduct regulations contained in part 735 of this title and 28 CFR part 45.
§ 3801.102 Detailed or assigned special agents of certain Departmental components.
Notwithstanding a detail or assignment to another entity, any special agent of the Federal Bureau of Investigation or Drug Enforcement Administration who is subject to the regulations or standards of ethical conduct of that entity pursuant to § 2635.104 of this title shall also remain subject to the regulations in this part.
§ 3801.103 Designation of separate Departmental components.
(a) Pursuant to § 2635.203(a) of this title, each of the following components is designated as a separate agency for purposes of the regulations contained in subpart B of part 2635 of this title governing gifts from outside sources, and, accordingly, § 2635.807 of this title governing teaching, speaking, and writing:
(b) Employees serving in positions within the Department but outside of the components designated in paragraph (a) of this section must continue to treat the entire Department of Justice as their employing agency for purposes of the gift rules of subpart B of part 2635 of this title and the application of the teaching, speaking and writing provisions found in § 2635.807 of this title.
§ 3801.104 Purchase or use of certain forfeited and other property.
(a) In the absence of prior approval by the agency designee, no employee shall purchase, directly or indirectly, from the Department of Justice or its agents property forfeited to the United States and no employee shall use property forfeited to the United States which has been purchased, directly or indirectly, from the Department of Justice or its agents by his spouse or minor child. Approval may be granted only on the basis of a written determination by the agency designee that in the mind of a reasonable person with knowledge of the circumstances, purchase or use by the employee of the asset will not raise a question as to whether the employee has used his official position or nonpublic information to obtain or assist in an advantageous purchase or create an appearance of loss of impartiality in the performance of the employee’s duties. A copy of the written determination shall be filed with the Deputy Attorney General.
(b) No employee of the United States Marshals Service, Federal Bureau of Investigation, or Drug Enforcement Administration shall purchase, directly or indirectly, from his component, the General Services Administration, or the agent of either, property formerly used by that component and no such employee shall use property formerly used by his component which has been purchased, directly or indirectly, by his spouse or minor child from his component, the General Services Administration, or to the agent of either.
§ 3801.105 Personal use of Government property.
Employees are prohibited by part 2635 of this title from using Government property for other than authorized purposes. The Department rule authorizing limited personal use of Department of Justice office and library equipment and facilities by its employees is at 28 CFR 45.4.
§ 3801.106 Outside employment.
(a) Definition. For purposes of this section, outside employment means any form of employment, business relationship or activity, involving the provision of personal services whether or not for compensation, other than in the discharge of official duties. It includes, but is not limited to, services as a lawyer, officer, director, trustee, employee, agent, consultant, contractor, or general partner. Speaking, writing and serving as a fact witness are excluded from this definition, so long as they are not combined with the provision of other services that do fall within this definition, such as the practice of law. Employees who wish to engage in compensated speaking and writing should review § 2635.807 of this title.
(b) Prohibited outside employment. (1) No employee may engage in outside employment that involves:
(i) The practice of law, unless it is uncompensated and in the nature of community service, or unless it is on behalf of himself, his parents, spouse, or children;
(ii) Any criminal or habeas corpus matter, be it Federal, State, or local; or
(iii) Litigation, investigations, grants or other matters in which the Department of Justice is or represents a party, witness, litigant, investigator or grant-maker.
(2) Where application of the restrictions of paragraph (b)(1) of this section will cause undue personal or family hardship; unduly prohibit an employee from completing a professional obligation entered into prior to Government service; or unduly restrict the Department from securing necessary and uniquely specialized services, the restrictions may be waived in writing based upon a determination that the activities covered by the waiver are not expected to involve conduct prohibited by statute or Federal regulation. Employees should refer to DOJ Order 1735.1 on obtaining waivers. The Order is available from the agency designee which, for purposes of this rule, shall be the Deputy Designated Agency Ethics Official for the component.
(c) Prior approval for outside employment. (1) An employee must obtain written approval before engaging in outside employment, not otherwise prohibited by paragraph (b) of this section that involves:
(i) The practice of law; or
(ii) A subject matter, policy,or program that is in his component’s area of responsibility.
(2) Employees should refer to DOJ Order 1735.1 for procedures on obtaining prior approval. A waiver granted pursuant to paragraph (b)(2) of this section will be sufficient to satisfy this prior approval requirement.
(3) Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct that is prohibited by statute or Federal regulation.
§ 3801.107 Additional rules for Bureau of Alcohol, Tobacco, Firearms, and Explosives employees.
The following rules apply to the employees of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and are in addition to §§ 3801.101 through 3801.106:
(a) Prohibited financial interests. Except as provided in this section, no employee of ATF, or spouse or minor child of an ATF employee, shall have, directly or indirectly, any financial interest, including compensated employment, in the alcohol, tobacco, firearms or explosives industries. The term financial interest is defined in § 2635.403(c) of this title.
(b) Waiver. An agency designee, with the advice and legal clearance of the Deputy Designated Agency Ethics Official, may grant a written waiver of the prohibition in paragraph (a) of this section on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, in the mind of a reasonable person with knowledge of the particular circumstances, the financial interest will not create an appearance of misuse of position or loss of impartiality, or call into question the impartiality and objectivity with which ATF’s programs are administered. A waiver under this paragraph (b) may require appropriate conditions, such as execution of a written disqualification.
PARTS 3802-3899 [RESERVED]
CHAPTER XXIX—FEDERAL COMMUNICATIONS COMMISSION
PART 3900 [RESERVED]
PART 3901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION
§ 3901.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Federal Communications Commission (FCC) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, employees are subject to the Executive Branch Financial Disclosure Regulations contained in 5 CFR part 2634, the FCC’s regulations at 5 CFR part 3902 supplementing 5 CFR part 2634, and to FCC regulations regarding their responsibilities and conduct in 47 CFR part 19.
§ 3901.102 Prior approval for practice of a profession.
(a) Prior approval requirement. A professional employee of the FCC shall obtain approval before engaging in the outside practice of the same profession as that of the employee’s official position, whether or not for compensation. As used in this section, “profession” has the meaning set forth in § 2636.305(b)(1) of this title, and “professional employee” means an employee whose official FCC position is in a profession as defined in § 2636.305(b)(1) of this title.
(b) Procedures for requesting approval. (1) A request for approval shall be in writing and shall be submitted, through the following Commission officials, to the Designated Agency Ethics Official or his designee:
(i) For Heads of Bureaus and Offices, through the Chairman;
(ii) For employees in the immediate Office of a Commissioner, through the Commissioner; or
(iii) For all other employees, through the Head of the Bureau or Office to which the employee is assigned.
(2) A request for approval shall include, at a minimum:
(i) A full description of the services to be performed in practicing the profession;
(ii) The name and address of the person or organization for which services are to be provided; and
(iii) The estimated total time that will be devoted to practicing the profession.
(3) Upon a significant change in the nature or scope of the employee’s FCC position or the services to be provided in practicing the profession, the employee shall submit a revised request for approval.
(c) Standard for approval. Approval shall be granted only upon a determination that the proposed outside practice of the employee’s profession is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR 2635.
PART 3902—SUPPLEMENTAL FINANCIAL DISCLOSURE REQUIREMENTS FOR EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION
§ 3902.101 General.
The regulations in this part apply to employees of the Federal Communications Commission (FCC) and supplement the Executive Branch Financial Disclosure Regulations contained in 5 CFR part 2634.
§ 3902.102 Employees required to submit FCC Form A54A, “Confidential Supplemental Statement of Employment and Financial Interests.”
All employees, including special Government employees, who are required to file a Standard Form (SF) 278, “Public Financial Disclosure Report,” or a SF/OGE Form 450, “Confidential Financial Disclosure Report,” are also required to file FCC Form A54A, “Confidential Supplemental Statement of Employment and Financial Interests.” The purpose of FCC Form A54A is to require disclosure of income and interest in property and assets valued below the minimum reporting limits for the SF 278 and SF/OGE Form 450 in order to meet the separate requirements of section 4(b) of the Communications Act of 1934, at 47 U.S.C. 154(b).
§ 3902.103 Submission and review of employees’ statements.
(a) An employee required to submit a statement of employment and financial interests will be notified individually of his or her obligation to file.
(b) An employee required to submit an FCC Form A54A, “Confidential Supplemental Statement of Employment and Financial Interests” pursuant to § 3902.102 shall submit such statement to the Designated Agency Ethics Official, on the prescribed form, not later than 30 days after his or her entrance on duty, and annually thereafter at the time the employee submits his or her SF 278 or SF/OGE Form 450.
(c) Financial statements submitted under this subpart shall be reviewed by the Designated Agency Ethics Official.
(d) When a statement submitted under this subpart or information from other sources indicates a potential violation of applicable laws and regulations, such as a conflict between the interests of an employee or special Government employee and the performance of his or her services for the Government, the employee concerned shall be provided an opportunity to explain and resolve the potential violation.
(e) When, after explanation by the employee involved, the potential violation of law or regulation is not resolved, the information concerning the potential violation shall be reported to the Chairman by the Designated Agency Ethics Official for appropriate action.
§ 3902.104 Confidentiality of employees’ statements.
Each supplemental statement of employment and financial interests shall be held in confidence and shall be retained in the Office of the Designated Agency Ethics Official. Each employee charged with reviewing a statement is responsible for maintaining the statements in confidence and shall not allow access to or allow information to be disclosed from a statement except to carry out the purpose of this part or as otherwise required by law. Information from these statements shall not be disclosed except as the Chairman may determine in accordance with law or regulation.
PARTS 3903-3999 [RESERVED]
CHAPTER XXX—FARM CREDIT SYSTEM INSURANCE CORPORATION
PART 4000 [RESERVED]
PART 4001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FARM CREDIT SYSTEM INSURANCE CORPORATION
§ 4001.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to Farm Credit System Insurance Corporation (Corporation) employees and supplement the Standards of Ethical Conduct for Employees of the executive branch contained in 5 CFR part 2635. Employees are required to comply with 5 CFR part 2635, this part, and Corporation guidance and procedures established pursuant to 5 CFR 2635.105.
§ 4001.102 Definitions.
For purposes of this part:
(a) Covered employee means:
(1) All examiners who perform work for the Corporation; and
(2) Any other employee specified by Corporation directive whose duties and responsibilities require application of these supplemental regulations to ensure public confidence that the Corporation’s programs are conducted impartially and objectively. The Corporation Designated Agency Ethics Official (DAEO) or his or her designee, in consultation with the Chief Operating Officer, will determine which employees are covered for the purpose of this part.
(b) Related entity means:
(1) Affiliates defined in section 8.5(e) of the Farm Credit Act of 1971, as amended (Act), 12 U.S.C. 2001 et seq., 12 U.S.C. 2279aa-5;
(2) Affiliates defined in section 8.11(e) of the Act, 12 U.S.C. 2279aa-11;
(3) Service organizations authorized by section 4.25 of the Act, 12 U.S.C. 2211; and
(4) Any other entity owned or controlled by one or more Farm Credit System (System) institution that is not chartered by the Farm Credit Administration (FCA).
(c) System institution refers to:
(1) All institutions chartered and regulated by the FCA as described in section 1.2 of the Act, 12 U.S.C. 2002;
(2) The Federal Farm Credit Banks Funding Corporation, established pursuant to section 4.9 of the Act, 12 U.S.C. 2160; and
(3) The Federal Agricultural Mortgage Corporation, established pursuant to section 8.1 of the Act, 12 U.S.C. 2279aa-1.
§ 4001.103 Prohibited financial interests.
(a) Prohibition. Except as provided in paragraph (c) of this section and § 4001.109, no covered employee, or spouse or minor child of a covered employee, shall own, directly or indirectly, securities issued by a System institution or related entity.
(b) Definition of securities. For purposes of this section, the term “securities” includes all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long and short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles relating to such securities.
(c) Exceptions. Nothing in this section prohibits a covered employee, or spouse or minor child of a covered employee, from:
(1) Investing in a publicly traded or publicly available investment fund which, in its prospectus, does not indicate the objective or practice of concentrating its investments in the securities of System institutions or related entities, if the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the fund;
(2) Having a legal or beneficial interest in a qualified profit sharing, retirement, or similar plan, provided that the plan does not invest more than 25 percent of its funds in securities of System institutions or related entities, and the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the plan;
(3) Owning securities of System institutions held as a result of pre-existing credit, as specified in § 4001.104(b); or
(4) Owning any security pursuant to a waiver granted under § 4001.109.
§ 4001.104 Prohibited borrowing.
(a) Prohibition on employee borrowing. Except as provided in paragraph (b) of this section, no covered employee, or spouse or minor child of a covered employee, shall seek or obtain any loan or extension of credit from a System institution or from an officer, director, employee, or related entity of a System institution.
(b) Exception. This section does not prohibit a covered employee, or spouse or minor child of a covered employee, from retaining a loan from a System institution on its original terms if the loan was obtained prior to appointment to a covered employee position. For loans retained pursuant to this paragraph, a covered employee shall submit to his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO, a written disqualification from examining, auditing, visiting, reviewing, investigating, or otherwise participating in the regulation or supervision of the System institution that is providing the retained credit. Written disqualification shall be made within 30 days of appointment to a covered employee position on a form prescribed by the DAEO. Any renewal or renegotiation of a pre-existing loan or extension of credit will be treated as a new loan subject to the prohibition in paragraph (a) of this section.
§ 4001.105 Purchase of System institution assets.
(a) Prohibition on purchasing assets owned by a System institution. No employee, or spouse or minor child of an employee, shall purchase, directly or indirectly, an asset (such as real property, vehicles, furniture, or similar items) from a System institution or related entity, regardless of how the asset is sold.
(b) Assets held or managed by the Corporation or a receiver or conservator—(1) Prohibition on purchase. No employee, or spouse or minor child of an employee, shall purchase, directly or indirectly, an asset (such as real property, vehicles, furniture, or similar items) that is held or managed by a receiver or conservator for a System institution or that is held by the Corporation as a result of its provision of open bank assistance to troubled System banks, regardless of how the asset is sold.
(2) Disqualification. An employee who is involved in the disposition of receivership or conservatorship assets, or assets acquired by the Corporation as a result of its provision of open bank assistance to troubled System banks, shall disqualify himself or herself from participation in the disposition of such assets when the employee becomes aware that anyone with whom the employee has a covered relationship, as defined in § 2635.502(b)(1) of the Executive Branch-wide Standards, is or will be attempting to acquire such assets. The employee shall provide written notification of the disqualification to his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO.
§ 4001.106 Restrictions arising from the employment of relatives.
When the spouse of a covered employee, or other relative who is dependent on or resides with a covered employee, is employed in a position that the employee would be prohibited from occupying by § 4001.108(a), the employee shall file a report of family member employment with his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO on a form prescribed by the DAEO. Notice shall be made as soon as possible after learning about employment already in existence or in advance of known prospective employment. The employee shall be disqualified from participation in any matter involving the employee’s spouse or relative, or the employing entity, unless the DAEO authorizes the employee to participate in the matter using the standard in § 2635.502(d) of the Executive Branch-wide Standards.
§ 4001.107 Involvement in System institution board member elections.
No covered employee who is able to participate in a System institution board election because of System securities owned by virtue of retaining a pre-existing loan or extension of credit from a System institution in accordance with § 4001.104(b) shall take any part, directly or indirectly, in the nomination or election of a board member of a System institution, other than by exercising the right to vote. In addition, a covered employee shall not make any oral or written statement that may be reasonably construed as intending to influence any vote in such nominations or elections.
§ 4001.108 Outside employment and business activity.
(a) Prohibition. No covered employee shall perform services, either on a paid or unpaid basis, for any System institution or related entity, or any officer, director, employee, or person connected with a System institution or related entity. Nothing in this section would prohibit covered employees from providing any service that is a part of their official duties.
(b) General requirement for prior approval. All employees shall obtain prior written approval before engaging in any outside employment or business activity, with or without compensation, unless the outside activity is exempt from the definition of “employment” as set forth in paragraph (c) of this section. An employee proposing to engage in outside employment and business activities is required, prior to commencement, to send a written notice of the proposed employment or activity to the DAEO on a form prescribed by the DAEO. Approval shall be granted only upon a determination that the employment or activity is not expected to involve conduct prohibited by statute, part 2635 of this title, or paragraph (a) of this section.
(c) Definition. For purposes of this section, “employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization for which no compensation is received other than reimbursement for necessary expenses.
§ 4001.109 Waivers.
The DAEO may grant a written waiver from any provision of this part based on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the provision is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which Corporation programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
PARTS 4002-4099 [RESERVED]
CHAPTER XXXI—FARM CREDIT ADMINISTRATION
PART 4100 [RESERVED]
PART 4101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FARM CREDIT ADMINISTRATION
§ 4101.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to Farm Credit Administration (FCA) employees and supplement the Standards of Ethical Conduct for Employees of the executive branch contained in 5 CFR part 2635. Employees are required to comply with 5 CFR part 2635, this part, and Agency guidance and procedures established pursuant to 5 CFR 2635.105.
§ 4101.102 Definitions.
For purposes of this part:
(a) Covered employee means:
(1) Examiners; and
(2) Any other employee specified by FCA directive whose duties and responsibilities require application of these supplemental regulations to ensure public confidence that the FCA’s programs are conducted impartially and objectively. The FCA Designated Agency Ethics Official (DAEO) or his or her designee, in consultation with the Office Directors, will determine which employees are covered for the purpose of this part.
(b) Related entity means:
(1) Affiliates defined in section 8.5(e) of the Farm Credit Act of 1971, as amended (Act), 12 U.S.C. 2001 et seq., 12 U.S.C. 2279aa-5;
(2) Affiliates defined in section 8.11(e) of the Act, 12 U.S.C. 2279aa-11;
(3) Service organizations authorized by section 4.25 of the Act, 12 U.S.C. 2211; and
(4) Any other entity owned or controlled by one or more Farm Credit System (System) institution that is not chartered by the FCA.
(c) System institution refers to:
(1) All institutions chartered and regulated by the FCA as described in section 1.2 of the Act, 12 U.S.C. 2002;
(2) The Federal Farm Credit Banks Funding Corporation, established pursuant to section 4.9 of the Act, 12 U.S.C. 2160; and
(3) The Federal Agricultural Mortgage Corporation, established pursuant to section 8.1 of the Act, 12 U.S.C. 2279aa-1.
§ 4101.103 Prohibited financial interests.
(a) Prohibition. Except as provided in paragraph (c) of this section and § 4101.109, no covered employee, or spouse or minor child of a covered employee, shall own, directly or indirectly, securities issued by a System institution or related entity.
(b) Definition of securities. For purposes of this section, the term “securities” includes all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long and short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles relating to such securities.
(c) Exceptions. Nothing in this section prohibits a covered employee, or spouse or minor child of a covered employee, from:
(1) Investing in a publicly traded or publicly available investment fund which, in its prospectus, does not indicate the objective or practice of concentrating its investments in the securities of System institutions or related entities, and the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the fund;
(2) Having a legal or beneficial interest in a qualified profit sharing, retirement, or similar plan, provided that the plan does not invest more than 25 percent of its funds in securities of System institutions or related entities, and the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the plan;
(3) Owning securities of System institutions held as a result of pre-existing credit, as specified in § 4101.104(b); or
(4) Owning any security pursuant to a waiver granted under § 4101.109.
§ 4101.104 Prohibited borrowing.
(a) Prohibition on employee borrowing. Except as provided in paragraph (b) of this section, no covered employee, or spouse or minor child of a covered employee, shall seek or obtain any loan or extension of credit from a System institution or from an officer, director, employee, or related entity of a System institution.
(b) Exception. This section does not prohibit a covered employee, or spouse or minor child of a covered employee, from retaining a loan from a System institution on its original terms if the loan was obtained prior to appointment to a covered employee position. For loans retained pursuant to this paragraph, a covered employee shall submit to his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO, a written disqualification from examining, auditing, visiting, reviewing, investigating, or otherwise participating in the supervision of the System institution that is providing the retained credit. Written disqualification shall be made within 30 days of appointment to a covered employee position on a form prescribed by the DAEO. Any renewal or renegotiation of a pre-existing loan or extension of credit will be treated as a new loan subject to the prohibition in paragraph (a) of this section.
§ 4101.105 Purchase of System institution assets.
(a) Prohibition on purchasing assets owned by a System institution. No covered employee, or spouse or minor child of a covered employee, shall purchase, directly or indirectly, an asset (such as real property, vehicles, furniture, or similar items) from a System institution or related entity, unless it is sold at a public auction or by other means which assure that the selling price is the asset’s fair market value. A covered employee shall obtain concurrence from the DAEO about whether a proposed purchase of a System institution asset is proper.
(b) Assets held or managed by the Farm Credit System Insurance Corporation or a receiver or conservator—(1) Prohibition on purchase. No covered employee, or spouse or minor child of a covered employee, shall purchase, directly or indirectly, an asset (such as real property, vehicles, furniture, or similar items) that is held or managed by a receiver or conservator for a System institution or that is held by the Farm Credit System Insurance Corporation (Corporation) as a result of its provision of open bank assistance to troubled System banks regardless of how the asset is sold.
(2) Disqualification. A covered employee who is involved in the disposition of receivership or conservatorship assets, or assets acquired by the Corporation as a result of its provision of open bank assistance to troubled System banks, shall disqualify himself or herself from participation in the disposition of such assets when the employee becomes aware that anyone with whom the employee has a covered relationship, as defined in § 2635.502(b)(1) of the Executive Branch-wide Standards, is or will be attempting to acquire such assets. The employee shall provide written notification of the disqualification to his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO.
§ 4101.106 Restrictions arising from the employment of relatives.
When the spouse of a covered employee, or other relative who is dependent on or resides with a covered employee, is employed in a position that the employee would be prohibited from occupying by § 4101.108(a), the employee shall file a report of family member employment with his or her immediate supervisor, the ethics liaison in his or her office, and the DAEO on a form prescribed by the DAEO. Notice shall be made as soon as possible after learning about employment already in existence or in advance of known prospective employment. The employee shall be disqualified from participation in any matter involving the employee’s spouse or relative, or the employing entity, unless the DAEO authorizes the employee to participate in the matter using the standard in § 2635.502(d) of the Executive Branch-wide Standards.
§ 4101.107 Involvement in System institution board member elections.
No covered employee who is able to participate in a System institution board election because of System securities owned by virtue of retaining a pre-existing loan or extension of credit from a System institution in accordance with § 4101.104(b) shall take any part, directly or indirectly, in the nomination or election of a board member of a System institution, other than by exercising the right to vote. In addition, a covered employee shall not make any oral or written statement that may be reasonably construed as intending to influence any vote in such nominations or elections.
§ 4101.108 Outside employment and business activity.
(a) Prohibition. No covered employee shall perform services, either on a paid or unpaid basis, for any System institution or related entity, or any officer, director, employee, or person connected with a System institution or related entity. Nothing in this section would prohibit covered employees from providing any service that is a part of their official duties.
(b) General requirement for prior approval. All employees shall obtain prior written approval before engaging in any outside employment or business activity, with or without compensation, unless the outside activity is exempt from the definition of “employment” as set forth in paragraph (c) of this section. An employee proposing to engage in outside employment and business activities is required, prior to commencement, to send a written notice of the proposed employment or activity to the DAEO on a form prescribed by the DAEO. Approval shall be granted only upon a determination that the employment or activity is not expected to involve conduct prohibited by statute, part 2635 of this title, or paragraph (a) of this section.
(c) Definition. For purposes of this section, “employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization for which no compensation is received other than reimbursement for necessary expenses.
§ 4101.109 Waivers.
The DAEO may grant a written waiver from any provision of this part based on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the provision is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which Agency programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
PARTS 4102-4199 [RESERVED]
CHAPTER XXXIII—US INTERNATIONAL DEVELOPMENT FINANCE CORPORATION
PART 4300 [RESERVED]
PART 4301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE US INTERNATIONAL DEVELOPMENT FINANCE CORPORATION
§ 4301.101 Prior approval for outside employment.
Any employee of the US International Development Finance Corporation (DFC) who is interested in engaging in outside employment must first obtain approval from the Designated Agency Ethics Official before engaging in such employment activity. For this purpose, employment has the meaning set forth in § 2635.603(a) of this title.
PARTS 4302-4399 [RESERVED]
CHAPTER XXXIV—SECURITIES AND EXCHANGE COMMISSION
PART 4400 [RESERVED]
PART 4401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR MEMBERS AND EMPLOYEES OF THE SECURITIES AND EXCHANGE COMMISSION
§ 4401.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to members and employees of the Securities and Exchange Commission (“Commission”) and supplement the Standards of ethical conduct for employees of the executive branch contained in 5 CFR part 2635. Members and employees of the Commission are required to comply with 5 CFR part 2635 and this part. In addition, they are subject to the Executive branch financial disclosure regulations, 5 CFR part 2634; the Office of Personnel Management Employee responsibilities and conduct regulations at 5 CFR part 735; and the Commission’s Canons of ethics and Regulation concerning conduct of members and employees and former members and employees, 17 CFR part 200, subparts C and M.
§ 4401.102 Prohibited and restricted financial interests and transactions.
(a) Applicability. The requirements of this section apply to all securities holdings or transactions effected, directly or indirectly, by or on behalf of a member or employee, the member’s or employee’s spouse, the member’s or employee’s unemancipated minor child, or any person for whom the member or employee serves as legal guardian. A member or employee is deemed to have sufficient interest in the securities holdings and transactions of his or her spouse, unemancipated minor child, or person for whom the member or employee serves as legal guardian that such holdings or transactions are subject to all the terms of this part.
(b) In general. (1) Members and employees are prohibited from purchasing or selling any security while in possession of material nonpublic information regarding that security. Nonpublic information has the meaning as provided in 5 CFR 2635.703(b).
(2) Members and employees are prohibited from recommending or suggesting to any person the purchase or sale of any security:
(i) Based on material nonpublic information regarding that security; or
(ii) That the member or employee could not purchase or sell because of the restrictions contained in this section.
(c) Prohibited and restricted holdings and transactions. Members and employees are prohibited from:
(1) Knowingly purchasing or holding a security or other financial interest in an entity directly regulated by the Commission, including a registered investment company, common investment trust of a bank, company exempt in part or in total from registration under the Investment Company Act of 1940, or other pooled investment vehicle that has a stated policy of concentrating investments in entities directly regulated by the Commission.
(2) Purchasing a security in an initial public offering (“IPO”) or direct listing prior to seven calendar days after the IPO or direct listing effective date;
(3) Purchasing or otherwise carrying securities on margin;
(4) Selling securities short as defined in 17 CFR 242.200(a);
(5) Accepting a loan from, or entering into any other financial relationship with, an entity, institution or other person directly regulated by the Commission if the loan or financial relationship is governed by terms more favorable than would be available in like circumstances to members of the public, except as otherwise permitted by 5 CFR part 2635, subpart B (Gifts from outside sources);
(6) Engaging in transactions involving financial instruments that are derivatives of securities (that is, the value of the security depends on or is derived from, in whole or in part, the value of another security, or a group, or an index of securities); and
(7) Purchasing or selling any security issued by an entity that is:
(i) Under investigation by the Commission;
(ii) A party to a proceeding before the Commission; or
(iii) A party to a proceeding to which the Commission is a party.
(d) Prior clearance of transactions in securities or related financial interests. (1) Except as set forth in paragraph (g) of this section, members and employees must confirm before entering into any security or other related financial transaction that the security or related financial transaction is not prohibited or restricted as to them by clearing the transaction in the manner required by the Designated Agency Ethics Official (“DAEO”). A member or employee will have five (5) business days after clearance to effect a transaction.
(2) Documentation of the clearance of any transaction pursuant to paragraph (d) of this section shall be prima facie evidence that the member or employee has not knowingly purchased, sold, or held such financial interest in violation of the provisions of paragraph (c)(1), (2), (6), or (7) of this section.
(3) The DAEO shall be responsible for administering the Commission’s clearance systems. The DAEO shall maintain a record of securities that members and employees may not purchase or sell, or otherwise hold, because such securities are the subject of the various prohibitions and restrictions contained in this section.
(e) Holding periods for securities and related financial interests—(1) General rule. Except as set forth in paragraphs (e) and (g) of this section, members and employees must hold a security purchased after commencement of employment with the Commission for a minimum of six (6) months from the trade date.
(2) General exceptions. This holding period does not apply to:
(i) Securities sold for ninety percent (90%) or less of the original purchase price; and
(ii) Securities with an initial term of less than six (6) months that are held to term.
(3) Exception for shares in sector funds. Members and employees must hold shares in sector mutual funds and sector unit investment trusts as those terms are defined at 5 CFR 2640.102(q), that are not otherwise prohibited under paragraph (c)(1) of this section for a minimum of thirty (30) days from the purchase date.
(f) Reporting requirements. (1) Except as set forth in paragraph (g) of this section, members and employees must:
(i) Report and certify all securities holdings according to the schedule and in the manner required by the DAEO; and
(ii) Submit duplicate account statements for every account containing reportable securities to the DAEO according to such procedures required by the DAEO.
(2) Members and employees must report all purchases, sales, acquisitions, or dispositions of securities within five (5) business days after receipt of confirmation of the transaction, or if the member or employee complies with the reporting requirements of this section as authorized in paragraph (f)(4) of this section, in the manner and according to the schedule required by the DAEO.
(3) Any person who receives a conditional offer of employment from the Commission must report all securities holdings after acceptance of that offer and before commencement of employment with the Commission on the form prescribed by the Commission.
(4) A member or employee may comply with the reporting requirements set forth in paragraphs (f)(1) and (2) of this section by authorizing the transmission of account statements, holdings, and transaction information from an employee’s brokerage or financial institution(s) to the DAEO through a Commission-approved, automated internal or third-party compliance system.
(g) Exceptions. (1) The following holdings and transactions are exempt from the requirements of paragraphs (c), (d), (e), and (f) of this section:
(i) Securities transactions effected by a member’s or employee’s spouse on behalf of an entity or person other than the member or employee, the member’s or employee’s spouse, the member’s or employee’s unemancipated minor child, or any person for whom the member or employee serves as legal guardian;
(ii) Securities holdings and transactions of a member’s or employee’s legally separated spouse living apart from the member or employee (including those effected for the benefit of the member’s or employee’s unemancipated minor child), provided that the member or employee has no control, and does not, in fact, control, advise with respect to, or have knowledge of those holdings and transactions;
(iii) Securities issued by the United States Government or one of its agencies;
(iv) Investments in funds administered by the Thrift Savings Plan or by any retirement plan administered by a Federal Government agency;
(v) Certificates of deposit or other comparable instruments issued by depository institutions subject to Federal regulation and Federal deposit insurance; and
(vi)(A)(1) Mutual funds and unit investment trusts, as those terms are defined in 5 CFR 2640.102(k) and (u), that are diversified as that term is defined in 5 CFR 2640.102(a);
(2) Money market funds as defined in 17 CFR 270.2a-7 (Investment Company Act Rule under rule 2a-7);
(3) 529 plans as defined in the Internal Revenue Code, 26 U.S.C. 529.
(4) Diversified pooled investment funds held in an employee benefit plan as defined at 5 CFR 2640.102(c) or pension plan as defined in 5 CFR 2640.102(n).
(B) The exemption in this paragraph (g)(1)(vi) does not apply to other investments in pooled investment funds that are exempt from registration under the Investment Company Act of 1940, including hedge funds, private equity funds, venture capital funds, or similar non-registered investment funds.
(2) The following holdings and transactions are exempt from the requirements of paragraphs (c), (d), and (e) of this section, but these interests must be reported in accordance with paragraph (f) of this section:
(i) The holdings of a trust in which the member or employee (or the member’s or employee’s spouse, the member’s or employee’s unemancipated minor child, or person for whom the member or employee serves as legal guardian) is:
(A) Solely a vested beneficiary of an irrevocable trust; or
(B) Solely a vested beneficiary of a revocable trust where the trust instrument expressly directs the trustee to make present, mandatory distributions of trust income or principal; provided, the member or employee did not create the trust, has no power to control, and does not, in fact, control or advise with respect to the holdings and transactions of the trust;
(ii) Acceptance or reinvestment of stock dividends on securities already owned;
(iii) Exercise of a right to convert securities; and
(iv) The acquisition of stock or the acquisition or the exercise of employee stock options, or other comparable instruments, received as compensation from an issuer that is:
(A) The member’s or employee’s former employer; or
(B) The present or former employer of the member’s or employee’s spouse.
(h) Waivers. (1) Members may request from the Commission a waiver of the prohibitions, restrictions, or requirements that would otherwise apply to a securities holding or transaction on the grounds that application of the rule would cause an undue hardship. A member requests a waiver by submitting a confidential written application to the Commission’s Office of the Ethics Counsel. The DAEO will review the request and provide to the Commission a recommendation for resolution of the waiver request. In developing a recommendation, the DAEO may consult, on a confidential basis, other Commission personnel as the DAEO in his or her discretion considers necessary.
(2) Employees may request from the DAEO a waiver of the prohibitions, restrictions, or requirements that would otherwise apply to a securities holding or transaction on the grounds that application of the rule would cause an undue hardship. An employee requests a waiver by submitting a confidential written application to the Commission’s Office of the Ethics Counsel in the manner prescribed by the DAEO. In considering a waiver request, the DAEO, or his or her designee, may consult with the employee’s supervisors and other Commission personnel as the DAEO in his or her discretion considers necessary.
(3) The Commission or the DAEO, as applicable, will provide written notice of its determination of the waiver request to the requesting member or employee.
(4) The Commission or the DAEO, as applicable, may condition the grant of a waiver under this provision upon the agreement to certain undertakings (such as execution of a written statement of disqualification) to avoid the appearance of misuse of position or loss of impartiality, and to ensure confidence in the impartiality and objectivity of the Commission. The Commission or DAEO, as applicable, shall note the existence of conditions on the waiver and describe them in reasonable detail in the text of the waiver-request determination.
(5) The grant of a waiver requested pursuant to this section must reflect the judgment that the waiver:
(i) Is necessary to avoid an undue hardship and, under the particular circumstances, application of the prohibition, restriction, or requirement is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise necessary to ensure confidence in the impartiality and objectivity of the Commission;
(ii) Is consistent with 18 U.S.C. 208 (Acts affecting a personal financial interest), 5 CFR part 2635 (Standards of ethical conduct for employees of the executive branch), and 5 CFR part 2640 (Interpretation, exemptions and waiver guidance concerning 18 U.S.C. 208); and
(iii) Is not otherwise prohibited by law.
(6) The determination of the Commission with respect to a member’s request for a waiver is final and binding on the member.
(7) The determination of the DAEO with respect to an employee’s request for a waiver may be appealed to the Commission, in accordance with the requirements of 17 CFR 201.430 and 201.431 (Rules 430 and 431 of the Commission’s Rule of Practice). The determination of the DAEO or, if appealed, the Commission, is final and binding on the employee.
(8) Notwithstanding the grant of a waiver, a member or employee remains subject to the disqualification requirements of 5 CFR 2635.402 (Disqualifying financial interests) and 5 CFR 2635.502 (Personal and business relationships) with respect to transactions or holdings subject to the waiver.
(i) Required disposition of securities. The DAEO is authorized to require disposition of securities acquired as a result of a violation of the provisions of this section, whether unintentional or not. The DAEO shall report repeated violations to the Commission for appropriate action.
§ 4401.103 Outside employment and activities.
(a) Definitions. As used in this section:
(1) Employee is defined in 5 CFR 2635.102(h) and includes employees and special government employees of the Commission.
(2) Employment is defined broadly, as any form of non-Federal employment or business relationship, involving the provision of personal services by the employee. It includes services as an officer, director, employee, agent, attorney, accountant, consultant, contractor, general partner, trustee, teacher, writer, or speaker, but does not include participation in the activities of a nonprofit charitable, religious, professional, civic, or public service organization, unless such activities:
(i) Involve serving as an officer or director of the organization;
(ii) Involve providing professional services or advice to the organization;
(iii) Are for compensation, other than reimbursement of expenses; or
(iv) Involve serving as an active participant (as defined in 5 CFR 2635.502(b)(1)(v)) in a professional organization whose interests may be substantially affected by the Commission.
(3) Professional services means practicing a profession as the term “profession” is defined in 5 CFR 2636.305(b)(1).
(4) DAEO is the Designated Agency Ethics Official.
(b) Pro bono and community service. Subject to the prohibitions, restrictions and requirements contained in law and Federal regulations, including 18 U.S.C. 203 (Compensation to members of Congress, officers, and others in matters affecting the Government), 205 (Activities of officers and employees in claims against and other matters affecting the Government), and 208 (Acts affecting a personal financial interest), 5 CFR part 2634 (Executive branch financial disclosure), 5 CFR part 2635 (Standards of ethical conduct for employees of the executive branch), and paragraph (c) of this section, employees are encouraged to participate in matters involving improvement to their communities, and, when qualified, to provide professional pro bono services.
(c) Prohibitions and restrictions on outside employment and activities—(1) Prohibitions and restrictions on employees other than members.
(i) No employee may engage in any outside employment or activities that conflict with employment with the Commission.
(ii) [Reserved]
(iii) No employee shall undertake the following types of employment or activities:
(A) Employment with any entity regulated by the Commission;
(B) Employment or any activity directly or indirectly related to the issuance, purchase, sale, investment or trading of securities or futures on securities or a group of securities, except this prohibition does not apply to securities holdings or transactions permitted by § 4401.102;
(C) Employment otherwise involved with the securities industry; or
(D) Employment otherwise in violation of any applicable law, rule or regulation.
(2) Prohibitions and restrictions on members. (i) Members of the Commission may engage in outside employment only to the extent permitted by Section 4(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78d(a). This provision does not preclude members from engaging in permitted securities transactions.
(ii) Notwithstanding the absence of a statutory prohibition, a member may not engage in any outside employment or activity, if such outside employment or activity would materially impair the member’s ability to perform properly the member’s duties. Such outside employment or activity includes such fiduciary relationships such as serving as a trustee, executor or corporate director.
(d) Employees are required to submit proposed publications or prepared speeches relating to the Commission, or the statutes or rules it administers, to the Commission’s Office of the General Counsel’s Ethics Office for review, pursuant to the Commission’s Regulation Concerning Conduct of Members and Employees and Former Members and Employees of the Commission, 17 CFR 200.735-4 (Outside Employment and Activities). Any such publication or speech must include the disclaimer prescribed in 17 CFR 200.735-4(c). Employees who wish to engage in teaching, writing or speaking for compensation should review the provisions of 5 CFR 2635.807 (Teaching, Speaking, and Writing).
PARTS 4402-4499 [RESERVED]
CHAPTER XXXV—OFFICE OF PERSONNEL MANAGEMENT
PART 4500 [RESERVED]
PART 4501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OFFICE OF PERSONNEL MANAGEMENT
§ 4501.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Office of Personnel Management (OPM) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, OPM employees are subject to the responsibilities and conduct regulations contained in 5 CFR parts 735 and 1001, the executive branch-wide financial disclosure regulations contained in 5 CFR part 2634, and the executive branch regulations regarding outside employment at 5 CFR part 2636.
§ 4501.102 Examination information.
(a) An employee of OPM who takes part in the construction of written tests or any other assessment device, has access to such material, or is involved in the examination rating process, shall notify his supervisor, in writing, when he intends to file for a competitive examination, an internal competitive examination, or an Armed Services entrance examination. The employee also must give such notice if he knows that his spouse, minor child, or business general partner intends to take any of these examinations.
(b) The employee’s supervisor or other appropriate authority will arrange the employee’s duty assignments to prevent his contact with materials related to the examination or examinations that will be taken. If the test material involved in the forthcoming examination has already been exposed to the employee, arrangements will be made for the employee or other person concerned to be given an alternate test.
(c) The employee’s supervisor is responsible for seeing that notifications given by employees under this section are transmitted promptly to the Test Security Officer in OPM’s Employment Service.
§ 4501.103 Prior approval for certain outside activities.
(a) Prior approval requirement. An employee, other than a special Government employee, shall obtain written approval before engaging—with or without compensation—in the following outside activities:
(1) Providing professional services involving the application of the same specialized skills or the same educational background as performance of the employee’s official duties;
(2) Teaching, speaking, or writing that relates to the employee’s official duties;
(3) Serving as an officer, director, trustee, general partner, employee, agent, attorney, consultant, contractor, or active participant for a prohibited source, except that prior approval is not required by this paragraph (a)(3) to provide such service without compensation (other than reimbursement of expenses) for a prohibited source that is a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless prior approval for the activity is required by paragraph (a)(1), (a)(2), or (a)(4) of this section, or unless the organization receives or seeks to receive fundraising support through the Combined Federal Campaign (CFC) under 5 CFR part 950 and the employee’s official duties involve the administration of the CFC program; or
(4)(i) Except as provided in paragraph (a)(4)(ii) of this section, providing services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter:
(A) In which the United States is a party;
(B) In which the United States has a direct and substantial interest; or
(C) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.
(ii) Prior approval is not required by paragraph (a)(4)(i) of this section for OPM employees acting on behalf of the labor organization that is the exclusive representative of the OPM employees in the unit it represents to provide services as an agent or attorney for, or otherwise to represent, such an OPM employee who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings.
(b) Submission of requests for approval. (1) Requests for approval shall be submitted in writing to the agency designee, through normal supervisory channels. Such requests shall include, at a minimum, the following:
(i) The employee’s name and position title;
(ii) The name and address of the person or organization for whom the outside activity is to be performed;
(iii) A description of the proposed outside activity, including the duties and services to be performed while engaged in the activity; and
(iv) The proposed hours that the employee will engage in the outside activity, and the approximate dates of the activity.
(2) Together with his request for approval, the employee shall provide a certification that:
(i) The outside activity will not depend in any way on nonpublic information;
(ii) No official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside activity; and
(iii) The employee has read subpart H (“Outside Activities”) of 5 CFR part 2635.
(3) Upon a significant change in the nature or scope of the outside activity or in the employee’s official position, the employee shall submit a revised request for approval.
(c) Approval of requests. Approval shall be granted only upon a determination by the agency designee, in consultation with an agency ethics official when such consultation is deemed necessary by the agency designee, that the outside activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(d) Definitions. For purposes of this section:
(1) Active participant has the meaning set forth in 5 CFR 2635.502(b)(1)(v).
(2) Nonpublic information has the meaning set forth in 5 CFR 2635.703(b).
(3) Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1).
(4) Prohibited source has the meaning set forth in 5 CFR 2635.203(d).
(5) Relates to the employee’s official duties has the meaning set forth in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E).
PARTS 4502-4599 [RESERVED]
CHAPTER XXXVI—DEPARTMENT OF HOMELAND SECURITY
PART 4600 [RESERVED]
PART 4601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HOMELAND SECURITY
§ 4601.101 General.
(a) Applicability. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Homeland Security (DHS) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) in 5 CFR part 2635.
(b) Cross-references to other ethics regulations and guidance. In addition to the OGE Standards in 5 CFR part 2635 and this part, DHS employees are subject to the Executive branch financial disclosure regulations contained in 5 CFR parts 2634, the Executive branch financial interests regulations contained in 5 CFR part 2640, the Executive branch employee responsibilities and conduct regulations contained in 5 CFR part 735, and DHS guidance and procedures on employee conduct, including those issued under paragraph (c) of this section.
(c) DHS agency instructions. Prior to issuance, the DHS Designated Agency Ethics Official (DAEO) must approve any internal instructions or manuals that DHS agencies, as designated in § 4601.102 of this part, issue to provide explanatory ethics-related guidance and to establish procedures necessary to implement 5 CFR part 2635 and this part.
(d) Definitions—(1) Agency designee as used in this part and in 5 CFR part 2635 means an employee who has been identified in an instruction or manual issued by an agency under paragraph (c) of this section to make a determination, give an approval, or take other action required or permitted by this part or 5 CFR part 2635 with respect to another employee.
(2) Outside employment or activity as used in this part means any form of non-Federal employment, business activity, business relationship, or other covered activity as identified in this section, involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, advisor, consultant, contractor, general partner, trustee, or teacher. There are several exclusions and limitations to the definition as described immediately below.
(i) Speaking and writing activities. Outside employment generally does not include speaking and writing activities so long as they are not combined with the provision of other services that do fall within this definition, such as the practice of law and other outside employment or activities covered by paragraph (d)(2)(ii)(A) through (D) of this section. Employees who wish to engage in compensated speaking or writing in a personal capacity are subject to the provisions of 5 CFR 2635.807 and are encouraged to seek additional guidance from an agency ethics official.
(ii) Nonprofit and other organizations. Outside employment does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves:
(A) Acting in a fiduciary capacity,
(B) Providing professional services for compensation,
(C) Rendering advice for compensation other than the reimbursement of expenses, or
(D) An activity relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(A) through (E), to include activities relating to any ongoing or announced policy, program, or operation of the employee’s agency as it is defined at 5 CFR 4601.102.
(iii) The Hatch Act. Outside employment does not include activities otherwise permissible by the Hatch Act and related regulations relating to partisan political activities.
(iv) Military service. Outside employment does not include state or Federal military service protected by the Uniformed Services Employment and Reemployment Rights Act.
(v) Additional restrictions for certain employees. Employees of the Federal Emergency Management Agency, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement should also refer to the agency-specific provisions in this part relating to outside employment.
(3) Chief Deputy Ethics Official as used in this part means the persons delegated authority by the DHS DAEO to manage and coordinate the ethics programs within the DHS components pursuant to the DAEO’s authority in 5 CFR 2638.204.
(4) “Special Government Employee” as used in this part has the same meaning as in 18 U.S.C. 202(a).
§ 4601.102 Designation of DHS components as separate agencies.
(a) Pursuant to 5 CFR 2635.203(a), DHS designates each of the following components as a separate agency for purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources, including determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d); for purposes of the regulations in § 4601.103(c) of this part governing the establishment of procedures for obtaining prior approval for outside employment; for purposes of the regulations in § 4601.103(c) of this part governing the designation of officials; and for the purposes of the regulations in 5 CFR 2635.807 governing teaching, speaking, and writing:
(1) Federal Emergency Management Agency (FEMA);
(2) Federal Law Enforcement Training Center;
(3) Transportation Security Administration;
(4) U.S. Citizenship and Immigration Services;
(5) U.S. Coast Guard;
(6) U.S. Customs and Border Protection (CBP);
(7) U.S. Immigration and Customs Enforcement (ICE); and
(8) U.S. Secret Service.
(b)(1) DHS will treat employees of DHS components not designated as separate agencies in paragraph (a) of this section, including employees of the Office of the Secretary, as employees of the remainder of DHS. For purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources, including determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d); for purposes of the regulations in § 4601.103(c) of this part governing the establishment of procedures for obtaining prior approval for outside employment; for purposes of the regulations in § 4601.103(c) of this part governing the designation of officials; and for purposes of the regulations in 5 CFR 2635.807 governing teaching, speaking, and writing, DHS will treat the remainder of DHS as a single agency that is separate from the components designated as separate agencies in paragraph (a) of this section.
(2) For the limited purposes of establishing procedures for obtaining prior approval for outside employment and designating officials pursuant to § 4601.103(c) of this part, DHS will treat the DHS Office of Inspector General as a separate agency.
(c) An employee on detail from his or her employing agency to another agency for a period in excess of 30 calendar days is subject to the supplemental regulations and instructions of the agency to which he is detailed rather than his or her employing agency.
§ 4601.103 Prior approval for outside employment and activities.
(a) General requirement for approval. A DHS employee, other than a Special Government Employee, shall obtain prior written approval before engaging in any outside employment or activity (as defined by § 4601.101 of this part), with or without compensation, unless the employee’s agency has exempted the outside employment or activity (or category or class of outside employment or activity) from this requirement by an instruction or manual issued pursuant to paragraph (c) of this section.
(b) Standard for approval. Approval shall be granted unless it has been determined that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(c) Agency responsibilities. (1) With the approval of the DHS DAEO, each agency as set forth in § 4601.102 of this part shall issue internal instructions or a manual governing the submission of requests for approval of outside employment and activities and designating appropriate officials to act on such requests not later than May 5, 2016.
(2) The instructions or manual may exempt particular outside employment or activities (or categories or classes of outside employment or activities) from the prior approval requirement of this section if such outside employment or activities would generally be approved and are not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part. Agencies may include in their instructions or manual examples of outside employment or activities that are permissible or prohibited consistent with 5 CFR part 2635 and this part.
(3) In the absence of a manual or instruction identifying a person designated to act upon a request for approval for outside employment, the Chief Deputy Ethics Official at each agency shall act upon a request.
§ 4601.104 Additional rules for U.S. Customs and Border Protection (CBP) employees.
The following rules apply to employees of CBP, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and §§ 4601.107 and 4601.108 of this part:
(a) Prohibitions on outside employment and activities. (1) No CBP employee shall be employed by or engage in activities in support of or on behalf of a customs broker; international carrier; bonded warehouse; foreign trade zone as defined in 15 CFR 400.2; cartman; law firm engaged in the practice of customs, immigration, or agriculture law; entity engaged in the enforcement of customs, immigration, or agriculture law; importation or exportation department of a business; or business or other entity which engages in services related to agriculture matters where such agriculture matters relate to CBP’s mission.
(2) No CBP employee shall, in any private capacity, engage in employment or a business activity related to the importation or exportation of merchandise or agricultural products requiring inspection (other than a personal, routine consumer transaction unrelated to the operation of a business), or the entry of persons into or departure of persons from the United States.
(3) No CBP employee shall engage in outside employment or activities for a non-profit or other organization that involve assisting persons with matters related to the entry of persons or merchandise into or the departure of persons or merchandise from the United States, or matters related to obtaining temporary or permanent residency, citizenship, adjustment of status, or other immigration-related benefits.
(b) Restrictions arising from employment of the spouse, relatives, members of the employee’s household, or financial dependents. (1) A CBP employee shall notify in writing his or her agency designee when any of the following circumstances exist:
(i) The spouse of the CBP employee is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section;
(ii) A relative (as defined in 5 CFR 2634.105(o)), who is financially dependent on or who is a member of the household of the CBP employee, is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section; or
(iii) Any person, other than the spouse or relative of the CBP employee, who is financially dependent on or who is a member of the household of the CBP employee, is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section.
(2) The CBP employee shall be disqualified from participating in an official capacity in any particular matter involving the individuals identified in paragraph (b)(1) of this section, or the employer thereof, unless the agency designee, with the advice and clearance of the CBP Chief Deputy Ethics Official, authorizes the CBP employee to participate in the matter using the standard in 5 CFR 2635.502(d), or the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.
§ 4601.105 Additional rules for Federal Emergency Management Agency (FEMA) employees.
The following rules apply to employees of FEMA, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and 4601.107 and 4601.108 of this part:
(a) Prohibited outside employment (intermittent employees). Except as provided in paragraph (c) of this section, no intermittent FEMA employees hired under the authority of 42 U.S.C. 5149, which includes all Disaster Assistance Employees or Stafford Act Employees and Cadre of On-Call Response Employees, shall be employed by a current FEMA contractor while a FEMA employee, whether or not they are on activated status.
(b) Prohibited outside employment (non-intermittent employees). Except as provided in paragraph (c) of this section, no non-intermittent FEMA employee shall be employed by a current FEMA contractor.
(c) Waivers. The FEMA Chief Deputy Ethics Official or his or her agency designee may grant a written waiver of any prohibition in paragraphs (a) and (b) of this section with the DAEO’s concurrence. To grant the waiver, the FEMA Chief Deputy Ethics Official or his or her agency designee must determine that the waiver is consistent with 5 CFR part 2635 and not otherwise prohibited by law; that the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality; and that the waiver will not undermine the public’s confidence in the employee’s impartiality and objectivity in administering FEMA programs. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification statement.
§ 4601.106 Additional rules for U.S. Immigration and Customs Enforcement (ICE) employees.
The following rules apply to employees of ICE, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and 4601.107 and 4601.108 of this part:
(a) Prohibitions on outside employment and activities. (1) No ICE employee shall be employed by or engage in activities in support of or on behalf of a customs broker; international carrier; bonded warehouse; foreign trade zone as defined in 15 CFR 400.2; cartman; law firm engaged in the practice of customs, immigration or agriculture law; entity engaged in the enforcement of customs, immigration or agriculture law; importation department of a business; or business or other entity which engages in agriculture matters where such agriculture matters relate to ICE’s mission.
(2) No ICE employee shall, in any private capacity, engage in employment or a business activity related to the importation or exportation of merchandise or agricultural products requiring inspection (other than a personal, routine consumer transaction unrelated to the operation of a business), or the entry of persons into or the departure of persons from the United States.
(3) No ICE employee shall engage in outside employment or activities for a non-profit or other organization that involve assisting persons with matters related to the entry of persons or merchandise into or the departure of persons or merchandise from the United States, or matters related to obtaining temporary or permanent residency, citizenship, adjustment of status, or other immigration-related benefits.
(b) Restrictions arising from employment of spouse, relatives, members of the employee’s household, or financial dependents. (1) An ICE employee shall notify in writing his or her agency designee when any of the following circumstances exist:
(i) The spouse of the ICE employee is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section;
(ii) A relative (as defined in 5 CFR 2634.105(o)) who is financially dependent on or who is a member of the household of the ICE employee is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section; or
(iii) Any person, other than the spouse or relative of the ICE employee, who is financially dependent on or who is a member of the household of the ICE employee, is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section.
(2) The ICE employee shall be disqualified from participating in an official capacity in any particular matter involving the individuals described in paragraph (b)(1) of this section or the employer thereof, unless the agency designee, with the advice and clearance of the ICE Chief Deputy Ethics Official, authorizes the ICE employee to participate in the matter using the standard in 5 CFR 2635.502(d), or the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.
§ 4601.107 Prohibited purchases of property.
(a) General prohibition. Except as provided in paragraph (c) of this section, no DHS employee may purchase, directly or indirectly, property that is:
(1) Owned by the Federal Government and under the control of the employee’s agency, unless the sale of the property is being conducted by the General Services Administration; or
(2) Seized or forfeited under the direction or incident to the functions of the employee’s agency.
(b) Designated separate components. For purposes of this section, the employee’s agency is the relevant separate agency component as set forth in § 4601.102 of this part.
(c) Waiver. Employees may make a purchase prohibited by paragraph (a) of this section where a written waiver of the prohibition is issued in advance by the agency designee with the clearance of the DAEO or his or her designee. A waiver may only be granted if it is not otherwise prohibited by law or regulation and the purchase of the property will not cause a reasonable person with knowledge of the particular circumstances to question the employee’s impartiality, or create the appearance that the employee has used his or her official position or nonpublic information for his or her personal gain.
§ 4601.108 Reporting waste, fraud, abuse, and corruption.
Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities, such as the DHS Office of Inspector General.
PARTS 4602-4699 [RESERVED]
CHAPTER XXXVII—FEDERAL ELECTION COMMISSION
PART 4700 [RESERVED]
PART 4701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL ELECTION COMMISSION
§ 4701.101 Scope.
(a) In accordance with 5 CFR 2635.105, the regulations in this part set forth standards of conduct that apply to members and other employees of the Federal Election Commission (“Commission”).
(b) In addition, members and other employees of the Commission are subject to the following regulations:
(1) 5 CFR part 735 (Employee Responsibilities and Conduct);
(2) 5 CFR part 2634 (Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture);
(3) 5 CFR part 2635 (Standards of Ethical Conduct for Employees of the Executive Branch); and
(4) 11 CFR part 7 (Standards of Conduct for Members and Employees of the Federal Election Commission).
§ 4701.102 Prior approval for certain outside employment.
(a) Definitions. For purposes of this section:
(1) Active participant has the meaning set forth in 5 CFR 2635.502(b)(1)(v).
(2) Employee has the meaning set forth in 5 CFR 2635.102(h).
(3) Definition of outside employment. For purposes of this section, outside employment means any form of non-Federal employment, business relationship or activity involving the provision of personal services, whether or not for compensation. It includes, but is not limited to, services as an officer, director, agent, advisor, attorney, consultant, contractor, general partner, trustee, teacher, speaker, writer, or any other services provided by an individual. It includes writing when done under an arrangement with another person for production or publication of the written product. The definition does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless:
(i) The activity provides compensation other than reimbursement of expenses;
(ii) The activities of the non-Federal organization are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer or director of the non-Federal organization; or
(iii) The activities will involve the provision of consultative or professional services. Consultative services means the provision of personal services, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility. Professional services means the provision of personal services, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2).
(4) Related to the employee’s official duties means that the outside employment meets one or more of the tests described in 5 CFR 2635.807(a)(2)(i)(B) through (E). Outside employment related to the employee’s official duties includes:
(i) Outside employment that an employee has been invited to participate in because of his or her official position rather than his or her expertise in the subject matter;
(ii) Outside employment in which an employee has been asked to participate by a person that has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties;
(iii) Outside employment that conveys information derived from nonpublic information gained during the course of government employment; and
(iv) Outside employment that deals in significant part with any matter to which the employee is or has been officially assigned in the last year, or any ongoing or announced Commission policy, program, or operation.
(b) Prior approval requirement. An employee of the Commission, including a member of a Commissioner’s staff, but not a member of the Commission or a special Government employee, shall obtain written approval from the Designated Agency Ethics Official before engaging in outside employment where the services provided:
(1) Are related to the employee’s official duties; or
(2) Involve the application of the same specialized skills or the same educational background as used in the performance of the employee’s official duties.
(c) Submission of requests for approval. (1) The request for approval shall be sent through all of the employee’s supervisors and shall state the name of the person, group, or organization for whom the outside employment is to be performed; the type of outside employment to be performed; and the proposed hours of, and approximate dates of, the outside employment.
(2) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval.
(d) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
PARTS 4702-4799 [RESERVED]
CHAPTER XL—INTERSTATE COMMERCE COMMISSION
PART 5000 [RESERVED]
PART 5001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION
§ 5001.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to members and other employees of the Interstate Commerce Commission and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, members and other employee are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2635 and to additional regulations regarding their conduct contained in 49 CFR part 1019.
§ 5001.102 Prohibited financial interests in for-hire transportation companies.
(a) General prohibition. Except as provided in paragraph (c) of this section, no member or other employee of the Interstate Commerce Commission shall, directly or indirectly:
(1) Be employed by or hold any other official relationship with any for-hire transportation company whether or not subject to the Interstate Commerce Act; or
(2) Own securities of or be in any manner pecuniarily interested in any for-hire transportation company whether or not subject to the Interstate Commerce Act.
(b) Indirect relationships and interests. (1) For the purposes of paragraph (a) of this section, an indirect relationship with or interest in a for-hire transportation company includes, but is not limited to, an interest in:
(i) Any company that owns or controls and has more than two percent of its assets directly invested in or dervices more than two percent of its income directly from a for-hire transportation company whether or not subject to the Interstate Commerce Act; or
(ii) Any company, mutual fund or other enterprise which has an interest of more than ten percent of its assets directly invested in or derives more than ten percent of its income directly from for-hire transportation companies whether or not subject to the Interstate Commerce Act.
(2) For the purposes of determining the applicability of this paragraph, an employee may rely on the most recent financial statement issued to its security holders by the company, fund or other enterprise.
(c) Exceptions. (1) Where a previously proper holding of a member or other employee becomes prohibited because of the enterprise’s acquisition of an interest in a for-hire transportation company, the employee shall have nine months within which to dispose of the interest.
(2) In cases of financial hardship where the relationship or interest is not prohibited by 49 U.S.C. 10301(d) or 10306(e), the Designated Agency Ethics Official may grant a written waiver of the prohibition in paragraph (a) of this section based on a determination that application of the prohibition is not necessary to ensure public confidence in the impartiality and objectivity with which the Commission’s programs are administered or to avoid a violation of part 2635 of this title.
§ 5001.103 Impartiality determinations for members of the Interstate Commerce Commission.
A member is an “agency designee” for the purposes of making an impartiality disqualification determination under 5 CFR 2635.502(d) with respect to the member’s own participation in a Commission proceeding. This determination must be made in consultation with the Designated Agency Ethics Official.
§ 5001.104 Prior approval for outside employment.
(a) Before engaging in any outside employment, whether or not for compensation, an employee of the Interstate Commerce Commission, other than a Commissioner, must obtain the written approval of his or her supervisor and the Designated Agency Ethics Official (DAEO). Requests for approval shall be forwarded through normal supervisory channels to the DAEO and shall include, at a minimum, the following:
(1) A statement of the name of the person, group, or other organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment;
(2) The employee’s certification that the outside employment will not depend in any way on information obtained as a result of the employee’s official Government position;
(3) The employee’s certification that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment;
(4) The employee’s certification that he or she has read, is familiar with, and will abide by the restrictions contained in all applicable Federal laws and regulations, including those found in 18 U.S.C. chapter 11 and those found or referenced in subpart H (“Outside Activities”) of 5 CFR part 2635 (Standards of Ethical Conduct for Employees of the Executive Branch); and
(5) The written approval of the employee’s immediate supervisor.
(b) Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation.
(c) For purposes of this section, “employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. Prior approval is not required, however, to participate in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement for expenses.
PARTS 5002-5099 [RESERVED]
CHAPTER XLI—COMMODITY FUTURES TRADING COMMISSION
PART 5100 [RESERVED]
PART 5101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE COMMODITY FUTURES TRADING COMMISSION
§ 5101.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to members and other employees of the Commodity Futures Trading Commission and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. Members and other employees are required to comply with 5 CFR part 2635 and this part. Commission members and other employees are also subject to the Regulation Concerning Conduct of Members and Employees and Former Members and Employees of the Commission at 17 CFR part 140.
§ 5101.102 Prohibited financial interests and transactions.
In accordance with 5 CFR 2635.403(a), no Commission member or other employee shall engage in business or financial transactions, or hold business or financial interests, prohibited by the Commodity Exchange Act, as set forth in 17 CFR 140.735-2.
§ 5101.103 Outside employment and activities.
(a) Subject to the restrictions and requirements contained in 5 CFR part 2635 and this part, Commission members and other employees are encouraged to engage in teaching, speaking, and writing activities and, when qualified, to participate without compensation in programs to provide legal assistance and representation to indigents.
(b) Prohibitions. A Commission member or other employee shall not engage in non-Federal employment or any other outside activity that:
(1) Involves the rendering of advice concerning any legal, accounting or economic matter, or any agricultural, mining, foreign currency market or other commodity-related matter, in which the Commission may be significantly interested, except that this prohibition shall not apply to a special Government employee unless the special Government employee:
(i) Has participated personally and substantially as an employee or special Government employee in the same matter; or
(ii) Has served with the Commission 60 days or more during the immediately preceding period of 365 consecutive days.
(2) Involves an appearance in court or on a brief in a representative capacity in relation to any matter which relates to any policy, program or operation of the Commission; or
(3) Is prohibited by section 2(a)(7) of the Commodity Exchange Act, as incorporated in 17 CFR 140.735-2 and 140.735-3. That statute provides that no Commission member or employee shall accept employment or compensation from any person, exchange or clearinghouse subject to regulation by the Commission, or participate, directly or indirectly, in any contract market operations or transactions of a character subject to regulation by the Commission.
(c) Prior approval for outside employment. (1) Before engaging in any outside employment, with or without compensation, an employee of the Commission, other than a special Government employee, must obtain written approval from his or her division or office head and the Executive Director, who may seek the concurrence of the General Counsel.
(2) In addition to the approval under paragraph (c)(1) of this section, an employee, including a special Government employee, must obtain written approval from the Commission to appear in court or on a brief in a representative capacity.
(3) Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(4) The approval required by paragraph (c)(1) or (c)(2) of this section shall be requested in writing in advance of engaging in outside employment. The request shall be submitted to the employee’s division or office head, through the employee’s immediate supervisor, and shall set forth all pertinent facts regarding the anticipated employment, including the name of the employer, the nature of the work to be performed, its estimated duration and the amount of compensation to be received. If approved by the division or office head, the request shall be forwarded by the division or office head to the Executive Director. In granting or denying approval, the Executive Director may seek the concurrence of the General Counsel. If approved by the Executive Director, a request for permission to appear in court or on a brief in a representational capacity shall be forwarded to the Commission for final decision.
(5) For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
PARTS 5102-5199 [RESERVED]
CHAPTER XLII—DEPARTMENT OF LABOR
PART 5200 [RESERVED]
PART 5201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF LABOR
§ 5201.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Labor (Department) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
§ 5201.102 Designation of separate agency components.
(a) Separate agency components of the Department of Labor. Pursuant to 5 CFR 2635.203(a), each of the ten components of the Department listed below is designated as an agency separate from each of the other nine listed components and, for employees of that component, as an agency distinct from the remainder of the Department. However, the components listed below are not deemed to be separate agencies for purposes of applying any provision of 5 CFR part 2635 or this part to employees of the remainder of the Department:
(1) Benefits Review Board;
(2) Employees Compensation Appeals Board;
(3) Mine Safety and Health Administration (MSHA);
(4) Veterans’ Employment and Training Service;
(5) Occupational Safety and Health Administration (OSHA);
(6) Employee Benefits Security Administration (EBSA);
(7) Bureau of International Labor Affairs;
(8) Bureau of Labor Statistics;
(9) Employment and Training Administration (ETA); and
(10) Employment Standards Administration (ESA).
(b) Separate agency subcomponents of ESA. Pursuant to 5 CFR 2635.203(a), each of the four subcomponents of the Employment Standards Administration (ESA) listed in this paragraph is designated as an agency separate from each of the other three listed components and, for employees of that subcomponent, as an agency distinct from the remainder of ESA. However, the components listed in this paragraph are not deemed to be separate agencies for purposes of applying any provision of 5 CFR part 2635 or this part to employees of the remainder of ESA:
(1) Wage and Hour Division;
(2) Office of Federal Contract Compliance Programs;
(3) Office of Workers Compensation Programs; and
(4) Office of Labor-Management Standards.
(c) Definitions—(1) Remainder of the Department means employees in the Office of the Secretary and any other employee of the Department not in one of the 10 components designated as separate agencies in paragraph (a) of this section.
(2) Remainder of ESA means employees in the Office of the Assistant Secretary for Employment Standards and any other ESA employee not in one of the four subcomponents designated as separate agencies in paragraph (b) of this section.
(d) Applicability of separate agency designations. The designations in paragraphs (a) and (b) of this section identify an employee’s “agency” for purposes of:
(1) Determining when a person is a prohibited source within the meaning of 5 CFR 2635.203(d) for purposes of applying the regulations at subpart B of 5 CFR part 2635 governing gifts from outside sources;
(2) Determining whether teaching, speaking or writing relates to the employee’s official duties within the meaning of 5 CFR 2635.807(a)(2)(i); and
(3) Determining when a person is a prohibited source for purposes of applying the regulations at 5 CFR 2635.808(c) governing fundraising in a personal capacity.
§ 5201.103 Fundraising activities.
Notwithstanding 5 CFR 2635.808(c)(1)(i), an employee of any separate agency component listed in this section may, in a personal capacity, personally solicit funds from a person who is a prohibited source if person is a prohibited source for employees of the component only under 5 CFR 2635.203(d)(3) because the person conducts activities regulated by the component:
(a) The Wage and Hour Division;
(b) The Office of Federal Contract Compliance Programs;
(c) The Remainder of the Employment Standards Administration, as defined in § 5201.102(c);
(d) Occupational Safety and Health Administration;
(e) Employee Benefits Security Administration;
(f) Veterans’ Employment and Training Service; and
(g) The Remainder of the Department of Labor, as defined in § 5201.102(c).
§ 5201.104 Additional rules for Office of the Inspector General employees.
The rules in this section apply to employees of the Office of the Inspector General (OIG) and are in addition to §§ 5201.101, 5201.102, and 5201.103.
(a) Prior approval for outside employment. (1) Before engaging in any outside employment, an OIG employee must obtain the written approval of the Inspector General or the Inspector General’s designee.
(2) Submission of requests for approval. (i) Requests for approval shall be submitted in writing to the Inspector General or the Inspector General’s designee. Such requests shall include, at a minimum, the following:
(A) The employee’s name and position title;
(B) The name and address of the person, group, or organization for whom the employee proposes to engage in outside employment; and
(C) A description of the proposed outside employment, including the duties and services to be performed while engaged in the outside employment, and the approximate dates of the outside employment.
(ii) Together with the employee’s request for approval, the employee shall provide a certification that:
(A) The outside employment will not depend in any way on nonpublic information, as defined at 5 CFR 2635.703(b);
(B) No official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment; and
(C) The employee has read and is familiar with the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), including subpart H. (“Outside Activities”), and the Department’s supplemental standards of ethical conduct set forth in this part.
(iii) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval.
(3) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(4) Definitions. For purposes of this section, “employment” means any form of non-Federal employment or any business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee.
§ 5201.105 Additional rules for Mine Safety and Health Administration employees.
The rules in this section apply to employees of the Mine Safety and Health Administration (MSHA) and are in addition to §§ 5201.101, 5201.102, and 5201.103.
(a) Prohibited financial interests. Employees in the MSHA and their spouses and minor children are prohibited from having any financial interests (including compensated employment) in any company or other person engaged in mining activities subject to the Federal Mine Safety and Health Act of 1977 (Mine Safety and Health Act), 30 U.S.C. 801 et seq. A company or other person shall be deemed to be engaged in such mining activities if it owns 50 percent or more of the voting securities of another company or other person engaged in such mining activities. A company or other person shall not be deemed to be engaged in such mining activities solely because it is controlled by a company or other person which does engage in such activities.
(b) Exceptions. (1) Nothing in this section prohibits an employee or the spouse or minor child of an employee from acquiring, owning or controlling an interest in a publicly traded or publicly available investment fund provided that, upon initial or subsequent investment by the employee (excluding ordinary dividend reinvestment), the fund does not have invested, or does not indicate in its prospectus the intent to invest, more than 30 percent of its assets in the securities of a company or other person engaged in mining activities subject to the Mine Safety and Health Act, and the employee, spouse, or minor child neither exercises control nor has the ability to exercise control over the financial interests held in the fund.
(2) Nothing in this section prohibits an employee or the spouse or minor child of an employee from having a financial interest in a pension administered by, or which invests in, a company or other person engaged in mining activities subject to the Mine Safety and Health Act.
(c) Waiver. (1) The Assistant Secretary of labor for Mine Safety and Health or the Assistant Secretary’s designee may grant an employee a written waiver from the prohibitions contained in paragraph (a) of this section, based on a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or to ensure confidence in the impartiality and objectivity with which Mine Safety and Health Administration programs are administered.
(2) The Assistant Secretary or the designee shall grant a waiver from the prohibitions in paragraph (a) of this section regarding spouses and minor children unless the Assistant Secretary or the designee determines that the covered relationship or interest is likely to be inconsistent with 5 CFR part 2635 or is otherwise prohibited by law.
(3) A waiver under this section may be accompanied by appropriate conditions, such as requiring execution of a written statement of disqualification. A waiver may be withdrawn if it is later determined that such waiver does not meet the requirements for the granting of waivers under this paragraph. Notwithstanding the grant of any waiver, a covered employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.
(4) Factors which may be considered in connection with the granting or denial of waivers include the nature and extent of the financial interest, and the official position and duties of the employee.
(d) Pre-existing interests. Notwithstanding paragraph (a) of this section, an employee of the Mine Safety and Health Administration, and a spouse or minor child of such an employee, may retain financial interests otherwise prohibited by paragraph (a) of this section which were approved in writing under procedures in effect before the effective date of this section, unless the approval is withdrawn, subject to the standards applicable to the withdrawal of waivers under paragraph (c) of this section.
PARTS 5202-5299 [RESERVED]
CHAPTER XLIII—NATIONAL SCIENCE FOUNDATION
PART 5300 [RESERVED]
PART 5301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL SCIENCE FOUNDATION
§ 5301.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the National Science Foundation (NSF), including Members of the National Science Board. They supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
(b) Definitions. For purposes of this part, unless a provision plainly indicates otherwise:
(1) Award means any grant, contract, cooperative agreement, loan, or other arrangement made by the Government.
(2) Employee has the meaning set forth in 5 CFR 2635.102(h), except that, for purposes of this part, it shall not include a special Government employee.
(3) Institution means any university, college, business firm, research institute, professional society, or other organization. It includes all parts of a university or college, including all institutions in a multi-institution State or city system. It includes any university consortium or joint corporation, but not the individual universities that belong to such a consortium. Those universities shall be considered separate institutions for purposes of this part.
(4) Proposal means an application for an award and includes a bid.
§ 5301.102 Participation in proposals and awards.
(a) Participation in proposals and awards. (1) For the purpose of determining whether an employee or a special Government employee, other than a Member of the National Science Board, should participate as part of his official duties in a proposal or award, the affiliations and relationships listed in paragraph (a)(3) of this section shall be considered additional “covered relationships” for purposes of applying 5 CFR 2635.502. Except as provided in paragraph (a)(2) of this section, they shall be treated as disqualifying to the same extent as the covered relationships listed in 5 CFR 2635.502(b)(1).
(2) Where an affiliation or relationship is listed in paragraph (a)(3) of this section as “automatically disqualifying,” an employee shall not participate in a proposal or award in which the institution or other person with whom the employee has a covered relationship is or represents a party unless participation is authorized in accordance with 5 CFR 2635.502(d) by the agency designee, with the concurrence of an ethics counselor in the Office of the General Counsel.
(3) An employee has a covered relationship, within the meaning of 5 CFR 2635.502(b)(1), with:
(i) An institution with which the employee is affiliated through:
(A) Membership on a visiting committee or similar body at the institution. The relationship is automatically disqualifying where the particular department, school, or faculty that the visiting committee or similar body advises originated the proposal or where a proposal from the department, school, or faculty formed the basis for the award;
(B) Current enrollment of the employee or a member of the employee’s household as a student;
(C) Receipt and retention of an honorarium or other form of compensation, award, or off-duty travel payment from the institution within the last twelve months. The relationship is automatically disqualifying, unless the payment or award was received before beginning Government service; and
(ii) A person who is an investigator or project director on or who otherwise is identified in a proposal as a party to the proposal or award and with whom the employee has:
(A) A family relationship as sibling, parent, spouse, or child. Any such relationship is automatically disqualifying;
(B) Associated, in the past or currently, as thesis advisor or thesis student;
(C) Collaborated on a project, book, article, report, or paper within the last 48 months; or
(D) Co-edited a journal, compendium, or conference proceedings within the last 24 months.
(b) Reporting involvement of prospective, current, or recent employees. (1) When an employee who is participating in a proposal or award becomes aware that a prospective, current, or recent NSF employee or current National Science Board member is or is likely to become a member of the research group or project staff under that proposal or award, the employee shall bring that circumstance to the attention of an agency designee. For purposes of this paragraph:
(i) A “recent NSF employee” is any former NSF employee who left the NSF within the year before submission of the proposal at issue or on which the award was based.
(ii) A “prospective NSF employee” is any person being recruited by an NSF official for a specific opening and from whom the official has received an indication of mutual interest. Such a person is a “prospective NSF employee” even though those recruiting have not extended an offer and even though the person might not accept an offer if it were extended.
(2) The agency designee shall review the circumstances to determine what action, if any, should be taken to assure that the proposal or award is administered impartially and otherwise in compliance with applicable laws and regulations, including this part, 5 CFR part 2635, 18 U.S.C. 207 and 208, and 45 CFR part 680.
§ 5301.103 Outside employment and activities.
(a) Prohibited outside employment and activities. (1) An NSF employee may not receive, directly or indirectly, any salary, consulting fee, honorarium, or other form of compensation for services, or reimbursement of expenses, from an NSF award.
(2) An NSF employee may not serve as principal investigator or project director under an NSF award.
(3) An NSF employee may not receive, directly or indirectly, any honorarium or any other form of compensation, or reimbursement of expenses from anyone, other than the United States, for participating in an event supported by NSF funds.
(b) Prior approval of outside employment and activities. (1) An employee shall obtain written approval from an agency designee before:
(i) Engaging in compensated outside employment with any person or institution (including any for-profit, non-profit, or governmental organization) which does business or may reasonably be expected to do business with the NSF. For these purposes, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement for publication of the written product; or
(ii) Serving, with or without compensation, on a visiting committee with any institution that does business or may reasonably be expected to do business with NSF.
(2) In addition to any prior approval required in paragraph (b)(1) of this section, an employee shall obtain prior written approval:
(i) From an ethics counselor in the Office of the General Counsel before participating, with or without compensation, as a policymaking officer of any research or educational institution or any scientific society or professional association; and
(ii) From his Assistant Director or Office head before serving in a personal capacity as an organizer, director, proceedings editor, or session chairperson for a conference, workshop, or similar event supported by NSF funds, or before presenting a paper at such an event.
(3) The approvals required by paragraphs (b)(1) and (b)(2) of this section shall be granted only upon a determination by the appropriate NSF official that the outside employment or activity is not expected to involve conduct prohibited by statute or Federal regulations, including 5 CFR part 2635 and this part.
§ 5301.104 Participation in NSF-supported conferences.
An NSF employee may participate in conferences, workshops, and similar events supported by NSF funds provided that:
(a) Where the employee’s participation is undertaken in a personal capacity, his participation does not violate the restrictions on outside employment and activities of § 5301.103(a), and the approval requirements of § 5301.103(b) have been met.
(b) Where the employee’s participation is undertaken as part of his official duties as an NSF employee:
(1) The employee shall obtain prior written approval from his Assistant Director or Office head before serving as an organizer, director, proceedings editor, or session chairperson for a conference, workshop, or similar event sponsored by NSF funds, or before presenting a paper at such an event. However, prior approval is not required where the primary purpose of the event is to plan, assess, or publicize NSF programs or needs, or where the subject of the paper or session to be presented focuses on NSF programs or needs.
(2) The approval required by paragraph (b)(1) of this section shall be granted only upon a determination that the importance of the employee’s participation outweighs any appearance of use of official position to enhance his personal credentials.
§ 5301.105 Restrictions applicable to Members of the National Science Board.
(a) Participation in proposals and awards. (1) For the purpose of determining whether a Member of the National Science Board (Board) should participate as part of his official duties in a proposal or award coming before the Board or any of its committees, the affiliations and relationships listed in paragraph (a)(3) of this section shall be considered “covered relationships” for purposes of applying 5 CFR 2635.502. Except as provided in paragraph (a)(2) of this section, they shall be treated as disqualifying to the same extent as the covered relationships listed in 5 CFR 2635.502(b)(1).
(2) Where an affiliation or relationship is listed in paragraph (a)(3) of this section as “automatically disqualifying,” a Member of the National Science Board shall not participate in a proposal or award in which the institution or other person with whom the Member has a covered relationship is or represents a party, unless participation is authorized in accordance with 5 CFR 2635.502(d) by the Chairman of the National Science Board or by the Designated Agency Ethics Official.
(3) A Member of the National Science Board has a covered relationship, within the meaning of 5 CFR 2635.502(b)(1), with:
(i) An institution or other person with which the Member is affiliated through:
(A) Membership on a visiting committee or similar body at the institution. The relationship is automatically disqualifying where the particular department, school, or faculty that the visiting committee or similar body advises originated the proposal or where a proposal from the department, school, or faculty formed the basis for the award; or
(B) Current enrollment of the Member or a member of his household as a student; and
(ii) A person who is an investigator or project director or who is otherwise identified in a proposal as a party to the proposal or award and with whom the Member has a family relationship as sibling, parent, spouse, or child. Any such relationship is automatically disqualifying.
(b) Outside employment and activities. (1) A Member of the National Science Board shall not represent himself, herself, or any other person in negotiations or other dealings with an NSF official on any proposal, award, or other particular matter, as defined in 5 CFR 2635.402(b)(3).
(2) A Member of the National Science Board may not receive compensation from any award made while serving on the Board. However, unless prohibited by law, an award may be charged, and a Member may be reimbursed, for actual expenses incurred by the Member in doing work supported by the award. If a Member was an investigator or consultant under an award before appointment to the Board, the award may be charged and the Member may continue to receive compensation to the extent established before the Member’s nomination.
PARTS 5302-5399 [RESERVED]
CHAPTER XLV—DEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 5500 [RESERVED]
PART 5501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
§ 5501.101 General.
(a) Purpose. The regulations in this part apply to employees of the Department of Health and Human Services (HHS) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to 5 CFR part 2635 and this part, employees are required to comply with implementing guidance and procedures issued by HHS components in accordance with 5 CFR 2635.105(c). Employees are also subject to the executive branch-wide financial disclosure regulations at 5 CFR part 2634, the Employee Responsibilities and Conduct regulations at 5 CFR part 735, and the HHS regulations regarding conduct at 45 CFR part 73.
(b) Applicability. The regulations in this part apply to individuals who are “employees” within the meaning of 5 CFR 2635.102(h). The regulations thus apply to special Government employees, except to the extent they are specifically excluded from certain provisions, and to uniformed service officers in the Public Health Service Commissioned Corps on active duty.
(c) Definitions. Unless a term is otherwise defined in this part, the definitions set forth in 5 CFR parts 2635 and 2640 apply to terms in this part. In addition, for purposes of this part:
(1) Federally recognized Indian tribe or Alaska Native village or regional or village corporation means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
(2) Significantly regulated organization means an organization for which the sales of products regulated by the Food and Drug Administration (FDA) constitute ten percent or more of annual gross sales in the organization’s previous fiscal year; where an organization does not have a record of sales of FDA-regulated products, it will be deemed to be significantly regulated if its operations are predominately in fields regulated by FDA, or if its research, development, or other business activities are reasonably expected to result in the development of products that are regulated by FDA.
§ 5501.102 Designation of HHS components as separate agencies.
(a) Separate agency components of HHS. Pursuant to 5 CFR 2635.203(a), each of the twelve components of HHS listed below is designated as an agency separate from each of the other eleven listed components and, for employees of that component, as an agency distinct from the remainder of HHS. However, the components listed below are not deemed to be separate agencies for purposes of applying any provision of 5 CFR part 2635 or this part to employees of the remainder of HHS:
(1) Administration on Aging;
(2) Administration for Children and Families:
(3) Agency for Healthcare Research and Quality;
(4) Agency for Toxic Substances and Disease Registry;
(5) Centers for Disease Control and Prevention;
(6) Centers for Medicare and Medicaid Services;
(7) Food and Drug Administration;
(8) Health Resources and Services Administration;
(9) Indian Health Service;
(10) National Institutes of Health;
(11) Program Support Center; and
(12) Substance Abuse and Mental Health Services Administration.
(b) Definitions—(1) Employee of a component includes, in addition to employees actually within a component, an employee of the Office of the General Counsel whose regularly assigned duties and responsibilities principally involve the provision of legal services to the relevant component with respect to substantive programmatic issues.
(2) Remainder of HHS means employees in the Office of the Secretary and Staff Divisions, employees of the Office of the General Counsel with Department-wide responsibility, and any HHS employee not in one of the 12 components designated as separate agencies in paragraph (a) of this section.
(c) Applicability of separate agency designations. The designations in paragraph (a) of this section identify an employee’s “agency” for purposes of:
(1) Determining when a person is a prohibited source within the meaning of 5 CFR 2635.203(d) for purposes of applying:
(i) The regulations at subpart B of 5 CFR part 2635 governing gifts from outside sources; and
(ii) The regulations at § 5501.106 requiring prior approval of outside employment and other outside activities; and
(iii) The regulations at § 5501.111 governing the receipt of awards by employees of the National Institutes of Health; and
(2) Determining whether teaching, speaking or writing relates to the employee’s official duties within the meaning of 5 CFR 2635.807(a)(2)(i).
§ 5501.103 Gifts from federally recognized Indian tribes or Alaska Native villages or regional or village corporations.
(a) Tribal or Alaska Native gifts. In addition to the gifts which come within the exceptions set forth in 5 CFR 2635.204, and subject to all provisions of 5 CFR 2635.201 through 2635.205, an employee may accept unsolicited gifts of native artwork, crafts, or other items representative of traditional native culture from federally recognized Indian tribes or Alaska Native villages or regional or village corporations, provided that the aggregate market value of individual gifts received from any one tribe or village under the authority of this paragraph shall not exceed $200 in a calendar year.
(b) Limitations on use of exception. If the donor is a tribe or village that has interests that may be substantially affected by the performance or nonperformance of an employee’s official duties, the employee may accept the gifts authorized by paragraph (a) of this section only where there is a written finding by the agency designee that acceptance of the gift is in the agency’s interest and will not violate any of the limitations on the use of exceptions contained in 5 CFR 2635.202(c).
§ 5501.104 Prohibited financial interests applicable to employees of the Food and Drug Administration.
(a) General prohibition. Except as permitted by paragraph (b) of this section, no employee or spouse or minor child of an employee, other than a special Government employee or the spouse or minor child of a special Government employee, of the Food and Drug Administration shall have a financial interest in a significantly regulated organization.
(b) Exceptions. Notwithstanding the prohibition in paragraph (a) of this section:
(1) An employee or spouse or minor child of an employee may have a financial interest, such as a pension or other employee benefit, arising from employment with a significantly regulated organization.
FDA employees who file public or confidential financial disclosure reports pursuant to 5 CFR part 2634, as opposed to spouses and minor children of such employees, are generally prohibited under § 5501.106(c)(3) from engaging in current employment with a significantly regulated organization.
(2) An employee who is not required to file a public or confidential financial disclosure report pursuant to 5 CFR part 2634, or the spouse or minor child of such employee, may hold a financial interest in a significantly regulated organization if:
(i) The total cost or value, measured at the time of acquisition, of the combined interests of the employee and the employee’s spouse and minor children in the regulated organization is equal to or less than the de minimis exemption limit for matters involving parties established by 5 CFR 2640.202(a) or $15,000, whichever is greater (the phrase “time of acquisition” shall mean the date on which the employee actually acquired the financial interest—or on which the financial interest became imputed to the employee under 18 U.S.C. 208—whether by purchase, gift, bequest, marriage, or otherwise, except that with respect to a financial interest that was acquired prior to the employee’s entrance on duty as an employee of the Food and Drug Administration, the “time of acquisition” shall be deemed to be the date on which the employee entered on duty);
(ii) The holding, if it represents an equity interest, constitutes less than 1 percent of the total outstanding equity of the organization; and
(iii) The total holdings in significantly regulated organizations account for less than 50 percent of the total value of the combined investment portfolios of the employee and the employee’s spouse and minor children.
(3) An employee or spouse or minor child of an employee may have an interest in a significantly regulated organization that constitutes any interest in a publicly traded or publicly available investment fund (e.g., a mutual fund), or a widely held pension or similar fund, which, in the literature it distributes to prospective and current investors or participants, does not indicate the objective or practice of concentrating its investments in significantly regulated organizations, if the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund.
(4) In cases involving exceptional circumstances, the Commissioner or the Commissioner’s designee may grant a written exception to permit an employee, or the spouse or minor child of an employee, to hold a financial interest in a significantly regulated organization based upon a determination that the application of the prohibition in paragraph (a) of this section is not necessary to ensure public confidence in the impartiality or objectivity with which HHS programs are administered or to avoid a violation of part 2635 of this title.
With respect to any excepted financial interest, employees are reminded of their obligations under 5 CFR part 2635, and specifically their obligation under subpart D of part 5501 to disqualify themselves from participating in any particular matter in which they, their spouses or minor children have a financial interest arising from publicly traded securities that exceeds the de minimis thresholds specified in the regulatory exemption at 5 CFR 2640.202 or from non-publicly traded securities that are not covered by the regulatory exemption. Furthermore, the agency may prohibit or restrict an individual employee from acquiring or holding any financial interest or a class of financial interests based on the agency’s determination that the interest creates a substantial conflict with the employee’s duties, within the meaning of 5 CFR 2635.403.
(c) Reporting and divestiture. For purposes of determining the divestiture period specified in 5 CFR 2635.403(d), as applied to financial interests prohibited under paragraph (a) of this section, the “date divestiture is first directed” means the date on which the new entrant public or confidential financial disclosure report required by part 2634 of this title or any report required by § 5502.106(c) of this chapter is due.
§ 5501.105 Exemption for otherwise disqualifying financial interests derived from Indian or Alaska Native birthrights.
(a) Under 18 U.S.C. 208(b)(4), an employee who otherwise would be disqualified may participate in a particular matter where the otherwise disqualifying financial interest that would be affected results solely from the interest of the employee, or the employee’s spouse or minor child, in birthrights:
(1) In an Indian tribe, band, nation, or other organized group or community, including any Alaska Native village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;
(2) In an Indian allotment the title to which is held in trust by the United States or which is inalienable by the allottee without the consent of the United States; or
(3) In an Indian claims fund held in trust or administered by the United States.
(b) The exemption described in paragraph (a) of this section applies only if the particular matter does not involve the Indian allotment or claims fund or the Indian tribe, band, nation, organized group or community, or Alaska Native village corporation as a specific party or parties.
§ 5501.106 Outside employment and other outside activities.
(a) Applicability. This section does not apply to special Government employees.
(b) Definitions. For purposes of this section:
(1) Compensation has the meaning set forth in 5 CFR 2635.807(a)(2)(iii).
(2) Consultative services means the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialize instruction and study in an institution of higher education, hospital, or other similar facility.
(3) Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves the skills of a profession as defined in 5 CFR 2636.305(b)(1).
(c) Prohibited outside employment and activities—(1) Prohibited assistance in the preparation of grant applications or contract proposals. An employee shall not provide consultative or professional services, for compensation, to or on behalf of any other person to prepare, or assist in the preparation of, any grant application, contract proposal, program report, or other document intended for submission to HHS.
(2) Prohibited employment in HHS-funded activities. An employee shall not, for compensation, engage in employment, as defined in 5 CFR 2635.603(a), with respect to a particular activity funded by an HHS grant, contract, cooperative agreement, cooperative research and development agreement, or other funding mechanism authorized by statute.
(3) Prohibited outside activities applicable to employees of the Food and Drug Administration. An employee of the Food and Drug Administration who is required to file a public or confidential financial disclosure report pursuant to 5 CFR part 2634 shall not:
(i) Engage in any self-employed business activity for which the sale or promotion of FDA-regulated products is expected to constitute ten percent or more of annual gross sales or revenues; or
(ii) Engage in employment, as defined in 5 CFR 2635.603(a), whether or not for compensation, with a significantly regulated organization, as defined in § 5501.101(c)(2), unless the employment meets either of the following exceptions:
(A) The employment consists of the practice of medicine, dentistry, veterinary medicine, pharmacy, nursing, or similar practices, provided that the employment does not involve substantial unrelated non-professional duties, such as personnel management, contracting and purchasing responsibilities (other than normal “out-of-stock” requisitioning), and does not involve employment by a medical product manufacturer in the conduct of biomedical research; or
(B) The employment primarily involves manual or unskilled labor or utilizes talents, skills, or interests in areas unrelated to the substantive programmatic activities of the FDA, such as clerical work, retail sales, service industry jobs, building trades, maintenance, or similar services.
(4) Prohibited outside practice of law applicable to attorneys in the Office of the General Counsel. (i) An employee who serves as an attorney in or under the supervision of the Office of the General Counsel or the Office of Counsel to the Inspector General shall not engage in any outside practice of law that might require the attorney to:
(A) Assert a legal position that is or appears to be in conflict with the interests of the Department of Health and Human Services, the client to which the attorney owes a professional responsibility; or
(B) Interpret any statute, regulation or rule administered or issued by the Department.
(ii) Exceptions. Nothing in this section prevents an employee from:
(A) Acting, with or without compensation, as an agent or attorney for, or otherwise representing, the employee’s parents, spouse, child, or any person for whom, or for any estate for which, the employee is serving as guardian, executor, administrator, trustee, or other personal fiduciary to the extent permitted by 18 U.S.C. 203 and 205, or from providing advice or counsel to such persons or estate; or
(B) Acting, without compensation, as an agent or attorney for, or otherwise representing, any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings to the extent permitted by 18 U.S.C. 205, or from providing uncompensated advice or counsel to such person; or
(C) Giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.
(iii) Specific approval procedures. (A) The exceptions to 18 U.S.C. 203 and 205 described in paragraph (c)(4)(ii)(A) of this section do not apply unless the employee obtained the approval of the Government official responsible for the appointment of the employee to a Federal position.
(B) The exception to 18 U.S.C. 205 described in paragraph (c)(4)(ii)(B) of this section does not apply unless the employee has obtained the approval of a supervisory official who has authority to determine whether the employee’s proposed representation of another person in a personnel administration matter is consistent with the faithful performance of the employee’s duties.
(d) Prior approval for outside employment and other outside activities—(1) General approval requirement. Except as provided in paragraph (d)(3) of this section, an employee shall obtain written approval prior to engaging, with or without compensation, in outside employment, including self-employed business activities, or other outside activities in which the employee seeks to:
(i) Provide consultative or professional services, including service as an expert witness;
(ii) Engage in teaching, speaking, writing, or editing that:
(A) Relates to the employee’s official duties within the meaning of 5 CFR 2635.807(a)(2)(i)(B) through (E); or
(B) Would be undertaken as a result of an invitation to engage in the activity that was extended to the employee by a person or organization that is a prohibited source within the meaning of 5 CFR 2635.203(d), as modified by the separate HHS component agency designations in § 5501.102; or
(iii) Provide services to a non-Federal entity as an officer, director, or board member, or as a member of a group, such as a planning commission, advisory council, editorial board, or scientific or technical advisory board or panel, which requires the provision of advice, counsel, or consultation.
(2) Additional approval requirement for employees of the Food and Drug Administration and the National Institutes of Health. In addition to the general approval requirements set forth in paragraph (d)(1) of this section, an employee of the Food and Drug Administration or the National Institutes of Health shall obtain written approval prior to engaging, with or without compensation, in any outside employment, as defined in 5 CFR 2635.603(a), with, or any self-employed business activity involving the sale or promotion of products or services of, any person or organization that is a prohibited source of the employee’s component agency.
(3) Exceptions to prior approval requirements. (i) Notwithstanding the requirements of paragraphs (d)(1) and (d)(2) of this section, prior approval is not required for participation in the activities of a political, religious, social, fraternal, or recreational organization unless:
(A) The activity or the position held in the organization requires the provision of professional services within the meaning of paragraph (b)(3) of this section; or
(B) The activity is performed for compensation other than the reimbursement of expenses.
(ii) Notwithstanding the requirements of paragraphs (d)(1) and (d)(2) of this section, prior approval is not required for participation in an employment or other outside activity that has been exempted under paragraph (d)(7) of this section.
(4) Submission of requests for approval. (i) An employee seeking to engage in any of the activities for which advance approval is required shall make a written request for approval a reasonable time before beginning the activity. This request shall be directed to the employee’s supervisor. The supervisor shall submit the request and a statement addressing the extent to which the employee’s duties are related to the proposed outside activity to an agency designee, who shall make a final determination with respect to the request.
(ii) All requests for prior approval shall include the following information:
(A) The employee’s name, contact information, organizational location, occupational title, grade, step, salary, appointment type, and financial disclosure filing status;
(B) The nature of the proposed outside employment or other outside activity, including a full description of the specific duties or services to be performed;
(C) A description of the employee’s official duties that relate to the proposed activity;
(D) A description of how the employee’s official duties will affect the interests of the person for whom or organization with which the proposed activity will be performed;
(E) The name and address of the person for whom or organization with which the work or activity will be done, including the location where the services will be performed;
(F) A statement as to whether travel is involved and, if so, whether the transportation, lodging, meals, or per diem will be at the employee’s expense or provided by the person for whom or organization with which the work or activity will be done, and a description of the arrangements and an estimate of the costs of items to be furnished or reimbursed by the outside entity;
(G) The estimated total time that will be devoted to the activity. If the proposed outside activity is to be performed on a continuing basis, a statement of the estimated number of hours per year; for other employment, a statement of the anticipated beginning and ending date;
(H) A statement as to whether the work can be performed entirely outside of the employee’s regular duty hours and, if not, the estimated number of hours and type of leave that will be required;
(I) The method or basis of any compensation to be received (e.g., fee, honorarium, retainer, salary, advance, royalty, stock, stock options, non-travel related expenses, or other form of remuneration tendered in cash or in-kind in connection with the proposed activity) from the person for whom or organization with which the work or activity will be done;
(J) The amount of any compensation to be received from the person for whom or organization with which the work or activity will be done;
(K) The amount and date of any compensation received, or due for services performed, within the current and previous six calendar years immediately preceding the submission of the request for approval from the person for whom or organization with which the work or activity will be done (including any amount received or due from an agent, affiliate, parent, subsidiary, or predecessor of the proposed payor);
(L) A statement as to whether the compensation is derived from an HHS grant, contract, cooperative agreement, or other source of HHS funding or attributed to services related to an activity funded by HHS, regardless of the specific source of the compensation;
(M) For activities involving the provision of consultative or professional services, a statement indicating whether the client, employer, or other person on whose behalf the services are performed is receiving, or intends to seek, an HHS grant, contract, cooperative agreement, or other funding relationship;
(N) For activities involving teaching, speaking, or writing, a syllabus, outline, summary, synopsis, draft or similar description of the content and subject matter involved in the course, speech, or written product (including, if available, a copy of the text of any speech) and the proposed text of any disclaimer required by 5 CFR 2635.807(b)(2) or by the instructions or manual issuances authorized under paragraph (d)(6) of this section; and
(O) Such other relevant information that the designated agency ethics official or, with the concurrence of the designated agency ethics official, each of the separate agency components of HHS listed in § 5501.102(a) determines is necessary or appropriate in order to evaluate whether a proposed activity is likely to involve conduct prohibited by statute or Federal regulations, including 5 CFR part 2635 and this part.
(5) Standard for approval. Approval shall be granted only upon a determination that the outside employment or other outside activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
The granting of approval for an outside activity does not relieve the employee of the obligation to abide by all applicable laws governing employee conduct nor does approval constitute a sanction of any violation. Approval involves an assessment that the general activity as described on the submission does not appear likely to violate any criminal statutes or other ethics rules. Employees are reminded that during the course of an otherwise approvable activity, situations may arise, or actions may be contemplated, that, nevertheless, pose ethical concerns.
(6) Duration of approval. Approval shall be effective for a period not to exceed one year from the date of approval. Upon a significant change in the nature of the outside activity or in the employee’s official position or duties, the employee shall submit a revised request for approval using the procedure in paragraph (d)(4) of this section. If the outside activity is anticipated to exceed one year from the date of the most recent approval, the employee shall renew the request for approval no later than thirty days prior to the expiration of the period authorized.
(7) Responsibilities of the designated agency ethics official and component agencies. (i) The designated agency ethics official or, with the concurrence of the designated agency ethics official, each of the separate agency components of HHS listed in § 5501.102 may issue an instruction or manual issuance exempting categories of employment or other outside activities from a requirement of prior written approval based on a determination that the employment or activities within those categories would generally be approved and are not likely to involve conduct prohibited by statute or Federal regulations, including 5 CFR part 2635 and this part.
(ii) HHS components may specify internal procedures governing the submission of prior approval requests and designate appropriate officials to act on such requests. The instructions or manual issuances may include examples of outside employment and other outside activities that are permissible or impermissible consistent with 5 CFR part 2635 and this part. With respect to teaching, speaking, writing, or editing activities, the instructions or manual issuances may specify preclearance procedures and/or require disclaimers indicating that the views expressed do not necessarily represent the views of the agency or the United States.
(iii) The officials within the respective HHS components who are responsible for the administrative aspects of these regulations and the maintenance of records shall make provisions for the filing and retention of requests for approval of outside employment and other outside activities and copies of the notification of approval or disapproval.
(e) Waivers. The designated agency ethics official may grant a written waiver, for an individual or class of similarly situated individuals, from any prohibited outside activity provision in this section or in § 5501.109 based on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered. An individual or class waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
§ 5501.107 Teaching, speaking and writing by special Government employees in the Public Health Service.
(a) Applicability. This section applies to special Government employees in the Public Health Service who otherwise are prohibited from accepting compensation for teaching, speaking or writing that is related to their official duties, within the meaning of 5 CFR 2635.807(a)(2)(i)(C), because the invitation or the offer of compensation for the activity was extended at a time when the special Government employee was assigned to perform official duties that may substantially affect the interests of the inviter or offeror.
(b) Permissible compensation. A special Government employee may accept compensation for teaching, speaking or writing in circumstances described in paragraph (a) of this section only where the special Government employee recuses from the official assignment that may substantially affect the interests of the person who extended the invitation to engage in the activity or the offer of compensation.
§ 5501.108 Exception to the prohibition against assisting in the prosecution of claims against, or acting as an agent or attorney before, the Government, applicable only to employees assigned to federally recognized Indian tribes or Alaska Native villages or regional or village corporations pursuant to the Intergovernmental Personnel Act.
(a) 18 U.S.C. 205. Section 205 of title 18 of the United States Code prohibits an employee, whether or not for compensation, from acting as an agent or attorney for anyone in a claim against the United States, or from acting in such capacity on behalf of another before any department, agency, or other specified entity, in any particular matter in which the United States is a party or has a direct and substantial interest.
(b) Exception applicable only to employees assigned to federally recognized Indian tribes or Alaska Native villages or regional or village corporations pursuant to the Intergovernmental Personnel Act. Notwithstanding the provisions of 18 U.S.C. 205, the Indian Self-Determination Act (25 U.S.C. 450i(f)) authorizes Federal employees detailed or assigned to Indian tribes or Alaska Native villages or regional or village corporations, pursuant to the Intergovernmental Personnel Act (5 U.S.C. 3372), to act as agents or attorneys for, or appear on behalf of, such tribes or Alaska Native villages or corporations in connection with any matter pending before any department, agency, court, or commission, in which the United States is a party or has a direct and substantial interest. Such employees must advise, in writing, the head of the agency, with which they are dealing on behalf of an Indian tribe or Alaska Native village or corporation, of any personal and substantial involvement they may have had as an officer or employee of the United States in connection with the matter concerned.
§ 5501.109 Prohibited outside activities applicable to employees of the National Institutes of Health.
(a) Applicability. This section does not apply to special Government employees.
(b) Definitions. For purposes of this section:
(1) Compensation has the meaning set forth in 5 CFR 2635.807(a)(2)(iii).
(2) Continuing professional education means a course, a program, a series of courses or programs, or other educational activity provided to members of a profession, as defined in 5 CFR 2636.305(b)(1), or academic discipline and designed principally to maintain or advance the skills and competence of practitioners in a field of specialized knowledge and to expand an appreciation and understanding of the professional responsibilities, fiduciary obligations, or ethical aspirations incumbent upon members of the group. For those members of a profession or academic discipline that does not subject its members to licensure or continuing education requirements, the term continuing professional education includes those educational activities that exemplify a purpose and content similar to those offered to or required of members of a licensed profession.
(3) Data and safety monitoring board (DSMB) means a board, committee, or panel constituted in connection with an ongoing clinical study and comprised of individuals, other than the study sponsors, organizers, and investigators, who possess expertise in relevant specialties and disciplines, such as trial design, biostatistics, and bioethics, and who review accumulating safety and outcome data in order to ensure the continuing safety of the participating human subjects and of those yet to be recruited, and to assess the continuing validity and scientific merit of the investigation.
(4) Educational activity provider means a supported research institution or a health care provider or insurer that presents Grand Rounds or offers accredited continuing professional education (or, in the case of a profession or academic discipline whose members are not subject to licensure and which does not have program accreditation requirements, an education program determined by the designated agency ethics official or his designee or, in consultation with the designated agency ethics official or his designee, the NIH Director or the NIH Director’s designee to be substantially equivalent to an accredited continuing professional education program), but does not include a substantially affected organization.
(5) Employment has the meaning specified in 5 CFR 2635.603(a).
(6) Grand rounds means a regularly scheduled, interactive presentation or series of educational seminars that focus on clinical cases, recent biomedical or behavioral research results, or a review of scientific research methods and findings in a specific field, with supporting basic and clinical science information, that are conducted in an accredited medical school or an affiliated teaching hospital setting that provides practicing physicians, faculty, fellows, resident physician trainees, medical students, graduate students, and post-doctoral fellows, as well as allied and associated health professionals, and other staff, an opportunity to evaluate outcomes of patient treatment decisions, a forum to discuss clinical decision making, and a means to impart updates in diagnosis, treatment, therapy, and research as indicated by the context of the cases presented.
(7) Grant or scientific review committee means a board, committee, or panel of qualified experts assembled by an external grant-making entity or other funding institution for the purpose of making a funding decision, the members of which review, evaluate, rate, rank, or otherwise assess a proposed or ongoing project or program for which grant support is sought on the basis of various factors, such as scientific merit, feasibility, significance, approach, and originality (and scientific progress in any previous period of funding), and gauge the ability of the applicant(s), principal and associate investigators, and scientific team members to complete successfully the project or program, and then recommend to the grantor whether to fund or continue to fund a particular proposal or ongoing program.
(8) Health care provider or insurer means a hospital, clinic, skilled nursing facility, rehabilitation facility, durable medical equipment supplier, home health agency, hospice program, health maintenance organization, managed care organization, or other provider of health care items and services as defined in sections 1877(h)(6) or 1903(w)(7) of the Social Security Act (42 U.S.C. 1395nn(h)(6) or 1396b(w)(7)) and any entity organized and licensed as a risk-bearing entity eligible to offer health insurance or health benefits coverage.
(9) Scientific peer review is the evaluation of scientific research findings for competence, significance, and originality by qualified experts who research and submit work for publication in the same field and which provides systematized accountability for adherence to ethical guidelines commonly accepted within the relevant research community for disseminating scientific information.
(10) Substantially affected organization means:
(i) A biotechnology or pharmaceutical company; a medical device manufacturer; or a corporation, partnership, or other enterprise or entity significantly involved, directly or through subsidiaries, in the research, development, or manufacture of biotechnological, biostatistical, pharmaceutical, or medical devices, equipment, preparations, treatments, or products;
(ii) Any organization a majority of whose members are described in paragraph (b)(10)(i) of this section; and
(iii) Any other organization determined by the designated agency ethics official or, in consultation with the designated agency ethics official, by the NIH Director or the NIH Director’s designee that is substantially affected by the programs, policies, or operations of the NIH.
(11) Supported research institution means any educational institution or non-profit independent research institute that:
(i) Is, or within the last year has been, an applicant for or recipient of an NIH grant, cooperative agreement, or research and development contract;
(ii) Is, or within the last year has been, a proposer of or party to a cooperative research and development agreement (CRADA) with the NIH; or
(iii) Any organization a majority of whose members are described in paragraphs (b)(11)(i) or (ii) of this section.
(12) Unrestricted educational grant means funds received by or available to an educational activity provider from another source that are granted without stipulated conditions for their use other than the limitation that the funds shall be used to advance an educational program of the grant recipient. For purposes of this section, an educational grant shall not be considered unrestricted if the funding source for a continuing professional education program directly or indirectly:
(i) Selects or recommends the moderators, speakers, or presenters at the sponsored event;
(ii) Independently provides additional funding to the moderators, speakers, or presenters in connection with the educational activity;
(iii) Determines or recommends the audience composition;
(iv) Specifies or recommends the topics to be addressed, or
(v) Controls or recommends the planning, content, or implementation of the program in a manner inconsistent with guidelines established by a relevant professional association or accrediting organization that are designed to ensure that such activities are accurate, balanced, educational, free from commercial bias, nonpromotional, and independent of the influence of the funding source.
(13) Unrestricted financial contribution means funds received by or available to a publisher, academic press, editorial board, or other entity affiliated with or operated by a supported research institution or a health care provider or insurer from another source that are provided without stipulated conditions for their use other than the limitation that the funds shall be used to advance peer-reviewed writing or editing by the funds recipient. For purposes of this section, a financial contribution shall not be considered unrestricted if the funding source for peer-reviewed writing or editing directly or indirectly:
(i) Selects or recommends the author, reviewer, referee, or editor;
(ii) Independently provides additional funding to the author, reviewer, referee, or editor in connection with the writing or editing activity;
(iii) Determines or recommends the targeted audience of the writing or editing activity;
(iv) Specifies or recommends the topics to be addressed, or
(v) Controls or recommends the planning, content, or distribution of the written or edited product in a manner inconsistent with ethical guidelines commonly accepted within the relevant research community for disseminating scientific information which are designed to ensure that such writing or editing is accurate, unbiased, nonpromotional, transparent with respect to disclosure of potential conflicts, and independent of the influence of the funding source.
(c) Prohibitions—(1) Prohibited outside activities with substantially affected organizations, supported research institutions, and health care providers or insurers. Except as permitted by paragraph (c)(3) of this section, an employee of the NIH shall not:
(i) Engage in employment with a substantially affected organization, a supported research institution, or a health care provider or insurer;
(ii) Teach, speak, write, or edit for compensation for any substantially affected organization, supported research institution, or health care provider or insurer; or
(iii) Engage in any employment or self-employed business activity that involves the sale or promotion of products or services of a substantially affected organization or a health care provider or insurer, except for the purpose of commercializing invention rights obtained by the employee pursuant to Executive Order 10096, 15 U.S.C. 3710d, or implementing regulations.
(2) General exception. Nothing in paragraph (c)(1) of this section prevents an employee from engaging in employment with, or teaching, speaking, writing, or editing for, a political, religious, social, fraternal, or recreational organization.
(3) Specific exceptions. Notwithstanding the prohibitions in paragraph (c)(1) of this section:
(i) Teaching. An employee may engage in and accept compensation for:
(A) Teaching a course requiring multiple presentations as permitted under 5 CFR 2635.807(a)(3); or
(B) Delivering a class lecture that is unrelated to the employee’s official duties within the meaning of 5 CFR 2635.807 if the activity is performed as part of a regularly scheduled course offered under the established curriculum of an institution of higher education as defined at 20 U.S.C. 1001.
(ii) Clinical, medical, or health-related professional practice. An employee may engage in and accept compensation for the outside practice of medicine, dentistry, pharmacy, nursing, or similar health-related professional practice that involves the personal provision of care, treatment, or other health-related professional services to or in connection with individual patients, provided that:
(A) The provision of health-related professional services to such individuals is not part of any ongoing research project conducted or funded by the NIH;
(B) The employee does not establish a private practice relationship with a current or recently discharged NIH patient or subject of an NIH-conducted or NIH-funded clinical trial or protocol;
(C) The employee does not personally refer private practice patients to the NIH; and
(D) The professional practice does not involve substantial unrelated non-professional duties, such as personnel management, contracting and purchasing responsibilities (other than “out-of-stock” requisitioning), and does not involve employment by a medical product manufacturer in the conduct of biomedical research.
(iii) Clerical, retail, service industry, building trades, maintenance, or similar services. An employee may engage in and accept compensation for any outside employment or self-employed business activity that primarily involves manual or unskilled labor or utilizes talents, skills, or interests in areas unrelated to the health and scientific research activities of the NIH, such as clerical work, retail sales, service industry jobs, building trades, maintenance, or similar services.
(iv) Continuing professional education. An employee may engage in and accept compensation for a teaching, speaking, writing, or editing activity that is unrelated to the employee’s official duties within the meaning of 5 CFR 2635.807 if the activity is performed as part of a continuing professional education program conducted by an educational activity provider. If a substantially affected organization provides financial support for a continuing professional education program conducted by an educational activity provider, this exception is inapplicable unless the substantially affected organization is involved only as the funding source for an unrestricted educational grant.
(v) Authorship of writings subjected to scientific peer review or a substantially equivalent editorial review process. An employee may engage in and accept compensation for a writing or editing activity that is unrelated to the employee’s official duties within the meaning of 5 CFR 2635.807 if the resulting article, chapter, essay, report, text, or other writing is submitted to a publisher, academic press, editorial board, or other entity affiliated with or operated by a supported research institution or a health care provider or insurer for publication in a scientific journal, textbook, or similar publication that subjects manuscripts to scientific peer review or a substantially equivalent editorial review process. If a substantially affected organization funds the publishing activities of a supported research institution or a health care provider or insurer, this exception is inapplicable unless the substantially affected organization is involved only as an unrestricted financial contributor and exercises no editorial control.
(vi) Data and safety monitoring boards. An employee may serve as a member of a data and safety monitoring board for a clinical study conducted by a supported research institution or health care provider or insurer, provided that:
(A) The members of the DSMB are not selected or paid for their service by a substantially affected organization;
(B) The clinical study is not funded under a grant, cooperative agreement, or research and development contract from, or conducted pursuant to a cooperative research and development agreement (CRADA) with, or aided under another funding mechanism by, the NIH; and
(C) If the service is performed for compensation, the service does not entail prohibited assistance in the preparation of documents intended for submission to HHS within the meaning of § 5501.106(c)(1), and the clinical study is not an HHS-funded activity described in § 5501.106(c)(2).
(vii) Grand rounds. An employee may engage in and accept compensation for a teaching, speaking, writing, or editing activity that is unrelated to the employee’s official duties within the meaning of 5 CFR 2635.807 if the activity is performed as part of a Grand Rounds program conducted by an accredited educational institution offering instruction in the life sciences, such as a medical school or school of public health, or by an affiliated teaching hospital, provided that:
(A) The employee’s presentation includes an interactive component, such as visiting patients or discussing individual clinical cases, or interacting for educational purposes with undergraduates, graduates, or post-graduate students and fellows, in addition to any lecture;
(B) The audience is composed primarily of faculty and students or trainees registered in a biomedical or health-related program of studies; and
(C) A substantially affected organization or a speakers’ bureau affiliated with a substantially affected organization does not sponsor or underwrite the costs of the Grand Rounds program or the employee’s presentation, except pursuant to an unrestricted educational grant.
(viii) Grant or scientific review committee. An employee may serve on a grant or scientific review committee for a supported research institution or a health care provider or insurer, provided that:
(A) The members of the grant or scientific review committee are not selected or paid for their service by a substantially affected organization;
(B) The grant award or program in relation to which the recommendation of the grant or scientific review committee is sought is not funded under a grant, cooperative agreement, or research and development contract from, conducted pursuant to a cooperative research and development agreement (CRADA) with, or aided under another funding mechanism by, the NIH; and
(C) If the service is performed for compensation, the service does not entail prohibited assistance in the preparation of documents intended for submission to HHS within the meaning of § 5501.106(c)(1), and the grant award or program in relation to which the recommendation of the grant or scientific review committee is sought is not an HHS-funded activity described in § 5501.106(c)(2).
§ 5501.110 Prohibited financial interests applicable to senior employees of the National Institutes of Health.
(a) Applicability. This section does not apply to special Government employees or the spouse or minor children of a special Government employee.
(b) Definitions. For purposes of this section:
(1) Senior employee means the Director and the Deputy Director of the National Institutes of Health; members of the senior staff within the Office of the Director who report directly to the NIH Director; the Directors, the Deputy Directors, Scientific Directors, and Clinical Directors of each Institute and Center within NIH; Extramural Program Officials who report directly to an Institute or Center Director; and any employee of equivalent levels of decision-making responsibility who is designated as a senior employee by the designated agency ethics official or the NIH Director, in consultation with the designated agency ethics official.
(2) Substantially affected organization has the meaning set forth in § 5501.109(b)(10).
(c) Prohibition applicable to senior employees. Except as permitted by paragraph (d) of this section, a senior employee or the spouse or minor child of such senior employee shall not have a financial interest in a substantially affected organization.
(d) Exceptions for certain financial interests. Notwithstanding the prohibition in paragraph (c) of this section:
(1) Pension or other employee benefit. A senior employee or spouse or minor child of a senior employee may have a financial interest, such as a pension or other employee benefit, arising from employment with a substantially affected organization.
NIH employees, as opposed to spouses and minor children of employees, are generally prohibited under § 5501.109 from engaging in current employment with a substantially affected organization.
(2) De minimis holdings. A senior employee or spouse or minor child of a senior employee may have a financial interest in a substantially affected organization if:
(i) The aggregate market value of the combined interests of the senior employee and the senior employee’s spouse and minor children in any one substantially affected organization is equal to or less than the de minimis exemption limit for matters involving parties established by 5 CFR 2640.202(a) or $15,000, whichever is greater;
(ii) The holding, if it represents an equity interest, constitutes less than 1 percent of the total outstanding equity of the organization; and
(iii) The total holdings in substantially affected organizations and sector mutual funds that, in the literature they distribute to prospective and current investors or participants, state the objective or practice of concentrating their investments in the securities of substantially affected organizations account for less than 50 percent of the total value of the combined investment portfolios of the senior employee and the senior employee’s spouse and minor children.
(3) Diversified mutual funds. A senior employee or spouse or minor child of a senior employee may have an interest in a substantially affected organization that constitutes any interest in a publicly traded or publicly available investment fund (e.g., a mutual fund), or a widely held pension or similar fund, which, in the literature it distributes to prospective and current investors or participants, does not indicate the objective or practice of concentrating its investments in substantially affected organizations, if the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund.
(4) Exceptional circumstances. In cases involving exceptional circumstances, the NIH Director or the NIH Director’s designee, with the approval of the designated agency ethics official or his designee, may grant a written exception to permit a senior employee, or the spouse or minor child of a senior employee, or a class of such individuals, to hold a financial interest in a substantially affected organization based upon a determination that the application of the prohibition in paragraph (c) of this section is not necessary to ensure public confidence in the impartiality or objectivity with which HHS programs are administered or to avoid a violation of part 2635 of this title.
(5) Technology transfer. A senior employee may have a financial interest in connection with the development and commercialization of invention rights obtained by the employee pursuant to Executive Order 10096, 15 U.S.C. 3710d, or implementing regulations.
(6) Sector mutual funds. (i) A senior employee or spouse or minor child of a senior employee may have an interest in a substantially affected organization that constitutes any interest in a sector mutual fund that, in the literature it distributes to prospective and current investors or participants, does not indicate the objective or practice of concentrating its investments in the biomedical science, pharmaceutical, medical device, biotechnology, or health industry sectors.
(ii) A senior employee or spouse or minor child of a senior employee may have an interest in a substantially affected organization that constitutes any interest in a sector mutual fund that, in the literature it distributes to prospective and current investors or participants, states the objective or practice of concentrating its investments in the securities of substantially affected organizations provided that:
(A) The aggregate market value of the combined ownership interests of the senior employee and the senior employee’s spouse and minor children in such sector funds is equal to or less than the de minimis exemption limit for sector mutual funds established by 5 CFR 2640.201(b)(2)(i) or $50,000, whichever is greater; and
(B) The total holdings in substantially affected organizations and in sector mutual funds that, in the literature they distribute to prospective and current investors or participants, state the objective or practice of concentrating their investments in the securities of substantially affected organizations account for less than 50 percent of the total value of the combined investment portfolios of the senior employee and the senior employee’s spouse and minor children.
With respect to any excepted financial interest, employees are reminded of their obligations under 5 CFR part 2635, and specifically their obligation under subpart D to disqualify themselves from participating in any particular matter in which they, their spouses or minor children have a financial interest arising from publicly traded securities that exceeds the de minimis thresholds specified in the regulatory exemption at 5 CFR 2640.202 or from non-publicly traded securities that are not covered by the regulatory exemption. Furthermore, the agency may prohibit or restrict an individual employee from acquiring or holding any financial interest or a class of financial interests based on the agency’s determination that the interest creates a substantial conflict with the employee’s duties, within the meaning of 5 CFR 2635.403.
(e) Reporting and divestiture. For purposes of determining the divestiture period specified in 5 CFR 2635.403(d), as applied to financial interests prohibited under paragraph (c) of this section, the “date divestiture is first directed” means the date on which the new entrant public or confidential financial disclosure report required by part 2634 of this title or any report required by § 5502.107(c) of this chapter is due.
§ 5501.111 Awards tendered to employees of the National Institutes of Health.
(a) Applicability. This section does not apply to special Government employees.
(b) Definitions. For purposes of this section, official responsibility has the meaning set forth in 18 U.S.C. 202(b).
(c) Additional limitations on awards to employees of the National Institutes of Health. The following limitations shall apply to the acceptance by an employee of an award pursuant to 5 CFR 2635.204(d):
(1) Limitations applicable to employees with official responsibility for matters affecting an award donor. An employee shall not accept a gift with an aggregate market value of more than $200, or that is cash or an investment interest, that is an award or incident to an award from a person, organization, or other donor that:
(i) Is seeking official action from the employee, any subordinate of the employee, or any agency component or subcomponent under the employee’s official responsibility;
(ii) Does business or seeks to do business with any agency component or subcomponent under the employee’s official responsibility;
(iii) Conducts activities substantially affected by the programs, policies, or operations of any agency component or subcomponent under the employee’s official responsibility; or
(iv) Is an organization a majority of whose members are described in paragraphs (c)(1)(i) through (iii) of this section.
(2) Prior approval of awards—(i) No employee shall accept an award under 5 CFR 2635.204(d) or this section unless the receipt thereof has been approved in writing in advance in accordance with procedures specified by the designated agency ethics official, or with the concurrence of the designated agency ethics official, the NIH Director or the NIH Director’s designee.
(ii) Approval shall be granted only upon a determination that acceptance of the award is not prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
In some circumstances cash and other things of value provided in connection with the provision of personal services, including speaking or writing, may be compensation, not a gift. Other ethics rules governing outside activities may restrict receipt of such compensation. See, for example, 5 CFR 2635.807.
(d) Exception. Notwithstanding the prohibition in paragraph (c)(1) of this section, the NIH Director (or the Secretary, with respect to awards tendered to the NIH Director), with the approval of the designated agency ethics official, may grant a written exception to permit an employee to accept an award otherwise prohibited by this section under the following conditions:
(1) There is a determination by the NIH Director (or the Secretary, with respect to awards tendered to the NIH Director) that acceptance of the gift will further an agency interest because it confers an exceptionally high honor in the fields of medicine or scientific research. The following criteria will be considered in making such a determination:
(i) The identity of the awarding organization;
(ii) The longevity of the awards program;
(iii) The source of award funds;
(iv) The size of the monetary component of the award recognition;
(v) The identity and credentials of past award recipients;
(vi) The degree of publicity attendant to receipt of the award; and
(vii) The impact of the substantive contribution being recognized;
(2) Absent the prohibition in paragraph (c)(1) of this section, the gift would be permitted under part 2635 of this title; and
(3) The designated agency ethics official shall have determined that the application of the prohibition in paragraph (c)(1) of this section is not necessary to ensure public confidence in the impartiality or objectivity with which NIH programs are administered or to avoid a violation of part 2635 of this title.
(e) Disposition of improperly accepted awards—(1) Failure to obtain prior approval. If an employee accepts an award for which approval is required under paragraph (c)(2) of this section without obtaining such approval, the employee may be required, in addition to any penalty provided by law and applicable regulations, to forfeit the award by returning it to the donor.
(2) Receipt of prohibited award. If an employee accepts an award prohibited by paragraph (c)(1) of this section, the employee shall be required, in addition to any penalty provided by law and applicable regulations, to:
(i) Reject the award and instruct the donor to strike the honoree’s name from any list of award recipients;
(ii) Remove the recognition from the employee’s résumé or curriculum vitae;
(iii) Return any tangible indicia of the recognition to the donor; and
(iv) Forfeit the award by returning it to the donor.
§ 5501.112 One-year disqualification of employees of the National Institutes of Health from certain matters involving an award donor.
An employee, other than a special Government employee, of the National Institutes of Health who has, within the last year, accepted an award permitted under 5 CFR 2635.204(d) or § 5501.111 shall not participate in any particular matter involving specific parties in which the donor is or represents a party unless authorized to do so under 5 CFR 2635.502(d).
PART 5502—SUPPLEMENTAL FINANCIAL DISCLOSURE REQUIREMENTS FOR EMPLOYEES OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
§ 5502.101 General.
The regulations in this part apply to employees of the Department of Health and Human Services and supplement the Executive Branch Financial Disclosure Regulations in 5 CFR part 2634. Any regulation in this part made applicable only to the employees of an HHS component designated as a separate agency under § 5501.102(a) of this chapter shall apply to the employees of that component as defined in § 5501.102(b)(1) of this chapter.
§ 5502.102 Annual supplemental report of outside employment or activities.
Any employee, other than a special Government employee, for whom an outside employment or activity has been approved, or who has participated in any outside employment or activity for which prior approval is required, under part 5501 of this chapter shall file on or before February 28 of each year a report concerning all such activities that were approved or undertaken in the previous calendar year. The annual report shall be filed with the employee’s supervisor who shall review the form, in consultation with an agency ethics official, and determine whether the employee has complied with applicable laws and regulations and whether approval of any ongoing outside activity should be cancelled because the activity does not meet the standard in § 5501.106(d)(5) of this chapter.
§ 5502.103 Content of annual supplemental reports.
The annual supplemental report of outside employment or activities required by § 5502.102 shall include the following information:
(a) The employee’s name, contact information, organizational location, occupational title, grade, step, salary, appointment type, and financial disclosure filing status;
(b) A list of all outside activities for which prior approval is required under part 5501 of this chapter that were approved pursuant to 5 CFR 5501.106(d) or undertaken within the reporting period. The report must identify the person or organization for whom or with which the employee was to perform the activity and the approval date;
(c) A statement as to whether the anticipated work described in a previously approved outside activity was actually performed for the person or organization named in the request for approval;
(d) For each outside activity actually performed, the beginning date of the relationship with the outside entity, the date(s) personal services were provided, the total number of hours spent and leave used on the activity within the reporting period, and the ending date;
(e) For each outside activity that remains ongoing at the time of filing the report, a statement as to how long the activity is anticipated to continue, the date on which prior approval expires, and whether a request for renewal of approval is anticipated;
(f) For each outside activity actually performed, the type and amount of any income and/or reimbursements actually received during the reporting period and the date paid;
(g) For each outside activity actually performed, the type and amount of any income and/or reimbursements earned during or attributable to the reporting period that were not in fact received during the reporting period and remain due;
(h) A statement as to whether any change has occurred or is anticipated with respect to information supplied in the original outside activity approval request;
(i) A description of any change in the nature, scope, or subject matter of any approved activity; and
(j) A description of any change in jobs or in the duties and responsibilities of the employee’s position that occurred after the outside activity was approved.
§ 5502.104 Confidentiality of reports.
Each report filed under this part is confidential and shall not be disclosed to the public, except as provided under § 2634.604(b) of this title.
§ 5502.105 Agency procedures.
(a) The designated agency ethics official or, with the concurrence of the designated agency ethics official, each of the separate agency components of HHS listed in § 5501.102(a) of this chapter may prescribe forms for the collection of information under this part and establish procedures for the submission and review of each report filed. These procedures may provide for filing extensions, for good cause shown, totaling not more than 90 days.
(b) For good cause, the designated agency ethics official may extend the reporting deadlines for reports required under this part during the initial implementation phase for any reporting requirement, without regard to the 90 day maximum specified in paragraph (a) of this section.
§ 5502.106 Supplemental disclosure of prohibited financial interests applicable to employees of the Food and Drug Administration.
(a) Applicability. This section does not apply to special Government employees.
(b) Definitions. For purposes of this section:
(1) Confidential filer means an employee who meets the criteria in 5 CFR 2634.904 and who has not been excluded from the requirement of filing a confidential financial disclosure report under the procedures in 5 CFR 2634.905.
(2) Prohibited financial interest means a financial interest prohibited by § 5501.104(a), including those financial interests that are excepted under § 5501.104(b) of this chapter.
(3) Public filer means an employee who meets the criteria in 5 CFR 2634.202 and who has not been excluded from the requirement of filing a public financial disclosure report under the procedures in 5 CFR 2634.203.
(4) Remainder of HHS has the meaning set forth in § 5501.102(b)(2) of this chapter.
(5) Separate agency component has the meaning set forth in § 5501.102(a) of this chapter.
(c) Report of prohibited financial interests—(1) New entrant employees. A new entrant employee shall report in writing within 30 days after entering on duty with the FDA any prohibited financial interest and the value thereof held upon commencement of employment with the agency.
(2) Reassigned employees. An employee of a separate agency component other than the FDA or of the remainder of HHS who is reassigned to a position at the FDA shall report in writing within 30 days of entering on duty with the FDA any prohibited financial interest and the value thereof held on the effective date of the reassignment to the agency.
(3) Incumbent employees. An incumbent employee of the FDA who acquires any prohibited financial interest shall report such interest and the value thereof in writing within 30 days after acquiring the financial interest.
§ 5502.107 Supplemental disclosure of financial interests in substantially affected organizations applicable to employees of the National Institutes of Health.
(a) Applicability. This section does not apply to special Government employees.
(b) Definitions. For purposes of this section:
(1) Clinical investigator means an employee identified as a principal investigator, accountable investigator, lead associate investigator, medical advisory investigator, associate investigator, or other subinvestigator in an NIH clinical study involving human subjects under a clinical research protocol approved by an institutional review board.
(2) Clinical research has the meaning set forth in 42 U.S.C. 284d(b).
(3) Institutional review board (IRB) means any board, committee, or other group formally designated by an institution to review a clinical research protocol and approve the initiation of biomedical research involving human subjects and to assess periodically the progress of the investigation to protect the rights and welfare of the trial participants.
(4) Confidential filer means an employee who meets the criteria in 5 CFR 2634.904 and who has not been excluded from the requirement of filing a confidential financial disclosure report under the procedures in 5 CFR 2634.905.
(5) Public filer means an employee who meets the criteria in 5 CFR 2634.202 and who has not been excluded from the requirement of filing a public financial disclosure report under the procedures in 5 CFR 2634.203.
(6) Remainder of HHS has the meaning set forth in § 5501.102(b)(2) of this chapter.
(7) Separate agency component has the meaning set forth in § 5501.102(a) of this chapter.
(8) Substantially affected organization has the meaning set forth in § 5501.109(b)(10) of this chapter.
(c) Report of financial interests in substantially affected organizations—(1) New entrant employees. A new entrant employee who is a public filer or a confidential filer or who is designated to serve as a clinical investigator shall report in writing within 30 days after entering on duty with the NIH any financial interest in a substantially affected organization and the value thereof held upon commencement of employment with the agency.
(2) Reassigned employees. An employee of a separate agency component, other than the NIH, or of the remainder of HHS who is either a public filer, a confidential filer, or a clinical investigator who is reassigned to a position at the NIH shall report in writing within 30 days of entering on duty with the NIH any financial interest in a substantially affected organization and the value thereof held on the effective date of the reassignment to the agency.
(3) Incumbent employees. An incumbent employee of the NIH who is either a public filer, a confidential filer, or a clinical investigator who acquires any financial interest in a substantially affected organization shall report such interest and the value thereof in writing within 30 days after acquiring the financial interest. Any incumbent employee, irrespective of financial disclosure filing status, who is designated a clinical investigator shall report in writing within 30 days of the approval of the clinical research protocol by the relevant institutional review board any financial interest in a substantially affected organization and the value thereof held on the date of the IRB approval.
(4) Initial report by on duty employees. An employee on duty at the NIH on August 31, 2005, who is either a public filer, a confidential filer, or a clinical investigator shall report in writing on or before October 31, 2005, any financial interest in a substantially affected organization and the value thereof held on the date the report is filed.
PARTS 5503-5599 [RESERVED]
CHAPTER XLVI—POSTAL RATE COMMISSION
PART 5600 [RESERVED]
PART 5601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE POSTAL REGULATORY COMMISSION
§ 5601.101 General.
(a) Purpose. In accordance with § 2635.105 of this title, the regulations in this part apply to employees, including Commissioners, of the Postal Regulatory Commission (Commission) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in part 2635 of this title. In addition, the executive branch financial disclosure regulations contained in part 2634 of this title, additional regulations on responsibilities and conduct at part 735 of this title, and Commission-specific provisions contained in 39 CFR part 3000 apply to Commission employees.
(b) Definitions. For the purposes of this part:
(1) The term securities includes an interest in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets, and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles with respect thereto.
(2) The term parent means a company that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of an entity identified in § 5601.102 (b)(1)(i) through (v).
(3) The term person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary’s voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity.
(4) The term entity means person.
(5) The term DAEO means the Designated Agency Ethics Official, or his delegate under § 2638.601 of this title.
(6) The term employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner or trustee. Employment does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization unless such activities involve the practice of a profession within the meaning of § 2636.305(b)(1) of this title, including the giving of professional advice, or are for compensation, other than reimbursement of expenses.
(7) The term publicly held corporation means any corporation issuing any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934.
(8) The term dependent child means when used with respect to any reporting individual, any individual who is a son, daughter, stepson, or stepdaughter and who:
(i) Is unmarried, under age 21, and living in the household of the reporting individual; or
(ii) Is a dependent of the reporting individual within the meaning of section 152 of the Internal Revenue Code of 1986, 26 U.S.C. 152.
§ 5601.102 Prohibited financial interests.
(a) General prohibition. No employee, and no spouse or dependent child of an employee, shall acquire or hold any securities issued by an entity on the prohibited securities list described in paragraph (b) of this section.
(b) Prohibited securities list. At least once a year, the Commission will publish and distribute to employees a list of entities whose securities an employee or the spouse or dependent child of an employee may not own.
(1) The list shall include:
(i) An entity participating in a proceeding before the Commission in the last 4 years, e.g., complainants, appellants, intervenors, and entities filing comments on the record in Commission proceedings;
(ii) A party to a proceeding to which the Commission is a party, e.g., appellate proceedings, administrative proceedings, or civil actions;
(iii) An entity primarily engaged in the business of delivering packages, merchandise, or written communications, i.e., an entity whose primary business competes with the Postal Service;
(iv) An entity providing services or products to the Postal Service that can be expected to produce annual revenue:
(A) to a publicly held corporation exceeding $1,000,000, and if the entity reports its gross revenue publicly, exceeding 10 percent of its annual gross revenue; or
(B) to any other entity exceeding $100,000, and if the entity reports its gross revenue publicly, exceeding 5 percent of the entity’s annual gross revenue;
(v) Any other entities not listed above for which a Commission employee holding a security may raise an actual or apparent loss of impartiality affecting the integrity of the Commission’s programs and operations, e.g., entities primarily engaged in the business of publishing or distributing publications such as periodicals or sending advertising, promotional, or other material on behalf of itself or another entity through the mails; and
(vi) The parent corporation of any subsidiary described in paragraphs (b)(1)(i) through (v) of this section.
(2) The list shall not include an entity whose use of the mail is merely an incidental or minor factor in the general conduct of its business.
(c) Exception. Nothing in this section prohibits an employee, or the spouse or dependent child of an employee, from acquiring or holding an interest in a publicly traded or publicly available mutual fund or other collective investment fund, or in a widely held pension or mutual fund, provided that the fund’s prospectus or practice does not indicate the stated objective of concentrating its investments in entities identified in paragraphs (b)(1)(i) through (vi) of this section.
(d) Newly prohibited securities or new employees. Within 30 days after the Commission disseminates the prohibited securities list to an employee, an employee who owns, or whose spouse or dependent child owns, prohibited securities shall report that ownership to the DAEO. The employee’s report must be in writing and include the name of the prohibited security and the date of acquisition. Except as provided in paragraph (g) of this section, the employee, or the spouse or dependent child of the employee, shall divest prohibited securities within 90 days after dissemination of the prohibited securities list.
(e) Securities acquired without specific intent. Within 30 days after an employee, or the spouse or dependent child of an employee, acquires securities of an entity on the prohibited securities list as a result of marriage, inheritance, gift or otherwise without specific intent to acquire the securities, the employee shall report the acquisition to the DAEO. The employee’s report must be in writing and include the name of the prohibited security, the date of acquisition, and the method of acquisition. Except as provided in paragraph (g) of this section, an employee, or the spouse or dependent child of an employee, shall divest prohibited securities within 90 days after the date of acquisition.
(f) Divestiture—(1) Procedure for accomplishing divestiture. To alleviate an actual or apparent conflict of interest, an employee divesting prohibited securities shall obtain written confirmation from the DAEO that divesture has been accomplished. A request for such confirmation shall be submitted in writing with sufficient proof to enable the DAEO to confirm that the employee has divested the prohibited security. The employee shall continue to be recused until the date of the DAEO’s written confirmation that divesture has been accomplished.
(2) Extension of period to divest. Upon a showing of undue hardship, the DAEO may extend the 90 day period for divestiture specified in paragraphs (e) through (f) of this section.
(3) Disqualification pending divestiture. Pending divestiture of prohibited securities, an employee must disqualify himself or herself, in accordance with § 2635.402 of this title, from participation in particular matters which, as a result of continued ownership of the prohibited securities, would affect the financial interests of the employee, or those of the spouse or dependent child of the employee.
(g) Waivers. The DAEO may grant a written waiver from this section based on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of an employee’s misuse of position or loss of impartiality, or to otherwise ensure confidence in the impartiality and objectivity with which the Commission’s programs are administered, or in the case of a special Government employee, divestiture would result in substantial financial hardship. A waiver under this paragraph must be in writing and may impose conditions, such as requiring execution of a written disqualification.
§ 5601.103 Notice of disqualification when seeking employment.
(a) An employee who has been assigned to or is supervising work on a particular matter that affects the financial interests of a prospective employer and who is required, in accordance with § 2635.604(a) of this title, to disqualify himself or herself from participation in that matter shall provide written notice of disqualification to the DAEO within 3 business days. The DAEO shall inform the employee’s supervisor that the employee is disqualified from the matter. Public filers must comply with the notification requirement set forth in § 2635.607 of this title even when not required to disqualify from participation in a particular matter. Employees who file a notification statement in compliance with § 2635.607 of this title are not required to file a separate notice under this section.
(b) An employee may withdraw written notice under paragraph (a) of this section upon determining that disqualification from participation in the matter is no longer required. A withdrawal of disqualification shall be in writing and shall be provided to the DAEO. The DAEO shall inform the employee’s supervisor that the employee is no longer disqualified from the matter.
§ 5601.104 Prohibited outside employment.
An employee shall not engage in outside employment, either on a paid or unpaid basis, with or for an entity on the prohibited securities list described in § 5601.102(b)(1)(i) through (vi).
§ 5601.105 Prior approval for outside employment.
(a) Prior approval for outside employment. An employee who wishes to engage in outside employment, either on a paid or unpaid basis, shall obtain the prior written approval of the DAEO. A request for such approval shall be submitted in writing with sufficient description of the employment to enable the DAEO to give approval based on an informed determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including paragraph (a) of this section and part 2635 of this title. The DAEO shall provide a copy of any written approvals for outside employment to the employee’s supervisor.
(b) Scope of approval. An employee must submit a new request for approval upon either a significant change in the nature or scope of the outside employment or a change in the employee’s Commission position or assigned responsibilities.
PARTS 5602-5699 [RESERVED]
CHAPTER XLVII—FEDERAL TRADE COMMISSION
PART 5700 [RESERVED]
PART 5701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL TRADE COMMISSION
§ 5701.101 Prior approval for outside employment.
(a) Before engaging in any outside employment, whether or not for compensation, an employee of the Federal Trade Commission, other than a Commissioner, must obtain the written approval of his or her supervisor and the Designated Agency Ethics Official (DAEO) or his or her designee. Requests for approval shall be forwarded through normal supervisory channels to the DAEO and shall include, at a minimum, the following:
(1) A statement of the name of the person, group, or organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment;
(2) The employee’s certification that the outside employment will not depend in any way on information obtained as a result of the employee’s official Government position;
(3) The employee’s certification that no official duty time or Government property, resource, or facilities not available to the general public will be used in connection with the outside employment;
(4) The employee’s certification that he has read, is familiar with, and will abide by the restrictions contained in all applicable Federal laws and regulations, including those found in 18 U.S.C. chapter 11 and those found or referenced in subpart H (“Outside Activities”) of 5 CFR part 2635 (Standards of Ethical Conduct for Employees of the Executive Branch); and
(5) The written approval of the employee’s immediate supervisor.
(b) Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation. In the case of an employee who wishes to practice a profession involving a fiduciary relationship, as defined in 5 CFR 2636.305(b), approval will be granted only on a case-by-case basis.
(c) For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee, whether or not for compensation. It includes but it is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee. Prior approval is not required, however, to participate in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
§ 5701.102 Fundraising activities.
When engaging in personal fundraising, as described at 5 CFR 2635.808(c), an employee of the Federal Trade Commission may, notwithstanding the prohibition of § 2635.808(c)(1)(i), personally solicit funds from a person who is a prohibited source only under 5 CFR 2635.203(d)(3) (i.e., because the person “conducts activities regulated by” the Commission). The other provisions of § 2635.808(c) continue to apply to any such personal fundraising.
PARTS 5702-5799 [RESERVED]
CHAPTER XLVIII—NUCLEAR REGULATORY COMMISSION
PART 5800 [RESERVED]
PART 5801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NUCLEAR REGULATORY COMMISSION
§ 5801.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to members and other employees of the Nuclear Regulatory Commission and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, members and other employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634 and to additional regulations regarding their conduct contained in 10 CFR part 0.
§ 5801.102 Prohibited securities.
(a) General prohibition. No covered employee, and no spouse or minor child of a covered employee, shall own securities issued by an entity on the list described in paragraph (b) of this section.
(b) Prohibited securities list. Once a year, or on a more frequent basis, the Commission will publish and distribute to employees a list of entities whose securities a covered employee or the spouse or minor child of a covered employee may not own. The list shall consist of entities which are:
(1) Applicants for or holders of early site permits, construction permits, operating licenses, or combined construction permits and operating licenses for facilities which generate electric energy by means of a nuclear reactor;
(2) State or local governments, if the primary purpose of the security is to finance the construction or operation of a nuclear reactor or a low-level waste facility;
(3) Entities manufacturing or selling nuclear power or test reactors;
(4) Architectural-engineering companies providing services relating to a nuclear power reactor;
(5) Applicants for, or holders of, a certified standard design;
(6) Entities licensed or regulated by the Commission to mill, convert, enrich, fabricate, store, or dispose of source, byproduct, or special nuclear material, or applicants for such licenses that are designated by the Commission because they are or will be substantially engaged in such nuclear fuel cycle or disposal activities;
(7) The parent corporation of any subsidiary described in paragraphs (b)(1)-(b)(6) of this section; and
(8) An energy or utility sector investment fund which has more than 25% of its assets invested in securities issued by entities described in paragraphs (b)(1)-(b)(7) of this section.
(c) Definitions. For purposes of this section:
(1) A covered employee means:
(i) A member of the Commission;
(ii) The Inspector General of the NRC;
(iii) A member of the Senior Executive Service (SES);
(iv) An employee who holds a non-SES position above GG-15; and
(v) Any other employee, including a special Government employee, whose duties and responsibilities, as determined by the Commission or its designees, require application of the securities ownership prohibition contained in this section to ensure public confidence that NRC programs are conducted impartially and objectively. The positions of these employees are specified in NRC Management Handbook 7.7, which is available in the NRC Public Document Room; and
(2) The term “securities” includes all interests in debts or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles with respect thereto.
(d) Divestiture and reporting of prohibited securities—(1) Newly covered employees. Upon promotion or other appointment to a position subject to the securities prohibition of this section, a covered employee shall sign a certification:
(i) Identifying securities of an entity on the prohibited securities list which the employee, or the spouse or minor child of the employee, owns, or
(ii) Stating that the employee, or the spouse or minor child of the employee, does not own any prohibited securities.
(2) Newly prohibited securities. Within 30 days after publication of the prohibited securities list to which an entity’s name has been added, a covered employee who owns, or whose spouse or minor child owns, prohibited securities shall make a written report of that ownership to the Office of the General Counsel. Except as provided in paragraph (d)(4) of this section, the covered employee, or the spouse or minor child of the covered employee, shall divest prohibited securities within 90 days after publication of the prohibited securities list.
(3) Securities acquired without specific intent. Within 30 days after a covered employee, or the spouse or minor child of a covered employee, acquires securities of an entity on the prohibited securities list as a result of marriage, inheritance, gift or otherwise without specific intent to acquire the securities, the covered employee shall make a written report of the acquisition to the Office of the General Counsel. Except as provided in paragraph (d)(4) of this section, a covered employee, or the spouse or minor child of a covered employee, shall divest prohibited securities within 90 days after the date of acquisition.
(4) Extension of period to divest. Upon a showing of undue hardship, the Chairman of the Nuclear Regulatory Commission may extend the 90 day period for divestiture specified in paragraphs (d)(1) through (d)(3) of this section.
(5) Disqualification pending divestiture. Pending divestiture of prohibited securities, a covered employee must disqualify himself or herself, in accordance with 5 CFR 2635.402, from participation in particular matters which, as a result of continued ownership of the prohibited securities, would affect the financial interests of the employee, or those of the spouse or minor child of the employee. Disqualification is not required where a waiver described in 5 CFR 2635.402(d) applies. Procedures for obtaining individual waivers are contained in NRC Handbook 7.7, which is available in the NRC Public Document Room.
(6) Tax treatment of gain on divested securities. Where divestiture is required by this section, the covered employee (except a special Government employee) may be eligible to defer the tax consequences of divestiture under subpart J of 5 CFR part 2634, pursuant to procedures in NRC Handbook 7.7, which is available in the NRC Public Document Room.
(e) Waivers. (1) The Chairman may grant a waiver to permit a covered employee, or the spouse or minor child of a covered employee, to retain ownership of a security of an entity on the prohibited securities list upon a determination that the holding of the security is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that:
(i) Under the circumstances, application of the prohibition is not necessary to ensure confidence in the impartiality and objectivity with which NRC programs are administered;
(ii) Legal constraints prevent divestiture; or
(iii) For a special Government employee, divestiture would result in substantial financial hardship.
(2) Where a waiver has been granted under paragraph (e)(1) of this section, the covered employee must disqualify himself or herself, in accordance with 5 CFR 2635.402, from participation in particular matters which, as a result of continued ownership of the prohibited security, would affect the financial interests of the employee, or those of the spouse or minor child of the employee unless the employee has received a waiver described in 5 CFR 2635.402(d), pursuant to procedures in NRC Handbook 7.9, which is available in the NRC Public Document Room.
§ 5801.103 Prior approval for outside employment.
(a) An employee, other than a special Government employee, shall obtain written authorization before engaging in compensated outside employment with:
(1) A Commission licensee;
(2) An applicant for a Commission license;
(3) An organization directly engaged in activities in the commercial nuclear field;
(4) A Commission contractor;
(5) A Commission supplier;
(6) An applicant for or holder of a license issued by a State pursuant to an agreement between the Commission and the State;
(7) A trade association which represents clients concerning nuclear matters; or
(8) A law firm or other organization which is participating in an NRC proceeding or which regularly represents itself or clients before the NRC.
(b) Requests for approval shall be submitted in writing to the agency designee specified in NRC Management Directive 7.8, which is available in the NRC Public Document Room, in accordance with procedures set forth in the accompanying NRC Handbook.
(c) Approval of outside employment shall be granted in writing only upon a determination by the agency designee that the proposed outside employment would not violate a Federal statute or regulation, including 5 CFR 2635.
(d) For purposes of this section, “outside employment” means any form of non-Federal employment, business relationship or activity, involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker.
PARTS 5802-5899 [RESERVED]
CHAPTER XLIX—FEDERAL LABOR RELATIONS AUTHORITY
PART 5900 [RESERVED]
PART 5901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL LABOR RELATIONS AUTHORITY
§ 5901.101 General.
(a) Applicability. In accordance with 5 CFR 2635.105, and unless provided elsewhere in this part, these regulations apply to all employees of the Federal Labor Relations Authority (FLRA), including employees of the Federal Service Impasses Panel and the Office of the General Counsel, and supplement the Standards of Ethical Conduct for Employees of the Executive Branch (Standards) contained in 5 CFR part 2635.
(b) Cross-references. In addition to 5 CFR part 2635 and this part, FLRA employees are required to comply with implementing guidance and procedures issued by the FLRA in accordance with 5 CFR 2635.105(c). FLRA employees are also subject to the regulations concerning executive branch financial disclosure contained in 5 CFR part 2634, the regulations concerning executive branch financial interests contained in 5 CFR part 2640, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
(c) Agency designees. The Designated Agency Ethics Official (DAEO) and the Alternate Designated Agency Ethics Official (Alternate DAEO) shall serve as the FLRA’s designees to make determinations, grant approvals, and take other actions under 5 CFR part 2635 and this part.
§ 5901.102 Prior approval for outside employment.
(a) General requirement. Any FLRA employee, excluding all special Government employees (i.e., employees expected to work no more than 130 days in any 365-day period), shall obtain prior written approval from the DAEO or the Alternate DAEO before engaging in any outside employment, except to the extent that the DAEO or the Alternate DAEO has issued an instruction or manual pursuant to paragraph (e) of this section. Nonetheless, special Government employees remain subject to other statutory and regulatory provisions governing their outside activities, including 18 U.S.C. 203(c) and 205(c), as well as applicable provisions of 5 CFR part 2635.
(b) Definition of “employment.” (1) For the purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee for direct, indirect, or deferred compensation other than reimbursement of actual and necessary expenses. It also includes, irrespective of compensation, the following outside activities:
(i) Providing personal services as a consultant or professional, including service as an expert witness or as an attorney;
(ii) Providing personal services to a for-profit entity as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker; and
(iii) Writing when done under an arrangement with another person for production or publication of the written product.
(2) The definition does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless:
(i) The employee will receive compensation other than reimbursement of expenses;
(ii) The organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer or director of the organization; or
(iii) The activities will involve the provision of consultative or professional services. Consultative services means the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility. Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2).
(c) Procedure for requesting approval. (1) Requests for approval of outside employment shall be sent to either the DAEO or the Alternate DAEO through the employee’s normal supervisory channels and shall include the following information:
(i) The name of the person, group, or organization for which the outside employment is proposed to be performed;
(ii) The nature of the service to be performed and the position’s title, if any;
(iii) The proposed hours of work (if regularly scheduled) and the approximate dates of employment;
(iv) The employee’s explanation as to whether the proposed outside employment (including teaching, speaking, or writing) will implicate in any way information obtained as a result of the employee’s official Federal position; and
(v) The employee’s explanation that no Federal property, resources, or facilities not available to the general public will be used in connection with the outside employment.
(2) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position within the FLRA, the employee must, within seven calendar days of the change, submit a revised request for approval.
(3) The DAEO or the Alternate DAEO shall grant approval only on a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including part 2635 of this title, or paragraph (d) of this section. The DAEO or the Alternate DAEO will advise the employee, in writing, of the approval or denial of the request for outside employment and will maintain a record of the written request and determination.
(d) Prohibited outside employment. (1) Employees shall not engage in:
(i) Rendering legal advice regarding, or preparing an individual or group in any matter relating to, labor relations in either the private or public sector, outside the employee’s official duties. This prohibition shall not apply to a special Government employee unless he or she:
(A) Has participated personally and substantially as a Government employee or special Government employee in the same matter; or
(B) Has served with the FLRA 60 days or more during the immediately preceding period of 365 consecutive days; or
(C) Any other outside employment that conflicts with the employee’s official Government duties or responsibilities.
(2) Exceptions. Nothing in this paragraph (d) prevents an employee from:
(i) Acting, with or without compensation, as an agent or attorney for, or otherwise representing, the employee’s parents, spouse, child, or any other person for whom, or for any estate for which, the employee is serving as guardian, executor, administrator, trustee, or other personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and 205(e), or from providing advice or counsel to such persons or estate; or
(ii) Acting, without compensation, as an agent or attorney for, or otherwise representing, any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings, to the extent permitted by 18 U.S.C. 205.
(e) DAEO’s and Alternate DAEO’s responsibilities. The FLRA DAEO or Alternate DAEO may issue instructions or manual issuances governing the submission of requests for approval of outside employment. The instructions or manual issuances may exempt categories of employment from the prior approval requirement of this section based on a determination that employment within those categories of employment would generally be approved and is not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The DAEO or Alternate DAEO may include in these instructions or issuances examples of outside employment that are permissible or impermissible consistent with this part and 5 CFR part 2635.
§ 5901.103 Procedure for accomplishing disqualification.
(a) Disqualifying financial interest. An FLRA employee who is required, in accordance with 5 CFR 2635.402(c), to disqualify himself or herself from participation in a particular matter to which he or she has been assigned shall, notwithstanding the guidance in 5 CFR 2635.402(c)(1) and (2), provide written notice of disqualification to his or her supervisor and the DAEO upon determining that he or she will not participate in the matter.
(b) Disqualification to ensure impartiality. An FLRA employee who is required, in accordance with 5 CFR 2635.502(e), to disqualify himself or herself from participation in a particular matter involving specific parties to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.502(e)(1) and (2), provide written notice of disqualification to his or her supervisor and the DAEO upon determining that he will not participate in the matter.
(c) Disqualification from matters affecting prospective employers. An FLRA employee who is required, in accordance with 5 CFR 2635.604(a), to disqualify himself or herself from participation in a particular matter to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.604(b) and (c), provide written notice of disqualification to his or her supervisor and the DAEO upon determining that he will not participate in the matter.
(d) Withdrawal of notification. An FLRA employee may withdraw written notice under paragraphs (a), (b), or (c) of this section upon deciding that disqualification from participation in the matter is no longer required. A withdrawal of notification shall be in writing and provided to the employee’s supervisor and the DAEO.
PARTS 5902-5999 [RESERVED]
CHAPTER L—DEPARTMENT OF TRANSPORTATION
PART 6000 [RESERVED]
PART 6001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION
§ 6001.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Transportation and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635, employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
§ 6001.102 Agency designees.
For purposes of 5 CFR part 2635, the following Department of Transportation officials are agency designees within the meaning of 5 CFR 2635.102(b):
(a) The Designated Agency Ethics Official;
(b) The Alternate Agency Ethics Official;
(c) The Deputy Ethics Officials; and
(d) As designated by Deputy Ethics Officials, legal counsel in regional and other offices.
§ 6001.103 Designation of separate agency components.
(a) Pursuant to 5 CFR 2635.203(a), each of the following components of the Department of Transportation is designated as a separate agency for purpose of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources and § 2635.807 of this title governing teaching, speaking, or writing:
(1) Federal Aviation Administration;
(2) Federal Highway Administration;
(3) Federal Railroad Administration;
(4) Federal Transit Administration;
(5) Maritime Administration;
(6) National Highway Traffic Safety Administration;
(7) Saint Lawrence Seaway Development Corporation; and
(8) United States Coast Guard.
(b) Employees of Department of Transportation components not designated as separate agencies, including employees of the Office of the Secretary of Transportation, the Research and Special Programs Administration, and the Bureau of Transportation Statistics, will be treated as employees of DOT which shall be treated as a single agency that is separate from the above listed agencies for purposes of determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d) and for identifying the DOT employee’s agency under 5 CFR 2635.807 governing teaching, speaking, and writing.
§ 6001.104 Prohibited financial interests.
(a) Federal Railroad Administration (FRA). (1) Except as provided in paragraph (c) of this section, no FRA employee shall hold stock or have any other financial interest, including outside employment, in a railroad company subject to FRA regulation.
(2) No FRA employee appointed after December 1991 shall hold reemployment rights with a railroad company subject to FRA regulation after his or her first year of employment.
(3) No spouse or minor child of an FRA employee shall hold stock or any other securities interest in a railroad company subject to FRA regulation.
(b) Federal Aviation Administration (FAA). Except as provided in paragraphs (c) and (d) of this section, no FAA employee, or spouse or minor child of the employee, may hold stock or have any other securities interest in an airline or aircraft manufacturing company, or in a supplier of components or parts to an airline or aircraft manufacturing company.
(c) Exception. The prohibitions in paragraphs (a)(1) and (b) of this section do not apply to a financial interest in a publicly traded or publicly available investment fund, provided that, at the time of the employee’s appointment or upon initial investment in the fund, whichever occurs later, the fund does not have invested, or indicate in its prospectus the intent to invest more than 30 percent of its assets in a particular transportation or geographic sector and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund.
(d) Waiver. An agency designee may grant a written waiver from the prohibition contained in paragraph (b) of this section, based on a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which FAA programs are administered. A waiver under this paragraph may be accompanied by appropriate conditions, such as requiring execution of a written statement of disqualification. Notwithstanding the granting of any waiver, an employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.
(e) Period to divest. An individual subject to this section who acquires a financial interest subject to this section, as a result of gift, inheritance, or marriage, shall divest the interest within a period set by the agency designee. Until divestiture, the disqualification requirements of 5 CFR 2635.402 and 2635.502 remain in effect.
PARTS 6002-6099 [RESERVED]
CHAPTER LII—EXPORT-IMPORT BANK OF THE UNITED STATES
PART 6200 [RESERVED]
PART 6201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXPORT-IMPORT BANK OF THE UNITED STATES
§ 6201.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Export-Import Bank of the United States (Bank) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, employees of the Bank are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
§ 6201.102 Prior approval for outside employment.
(a) Prior approval requirement. Before engaging in any outside employment, whether or not for compensation, an employee, other than a special Government employee, must obtain the written approval of the employee’s immediate supervisor and the DAEO. Requests for approval shall be forwarded through normal supervisory channels to the DAEO and shall include the name of the person, group, or organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation (including 5 CFR part 2635). In the case of an employee who wishes to practice a profession involving a fiduciary relationship, as defined in 5 CFR 2636.305(b), approval will be granted only for each individual matter in the course of practicing such profession.
(c) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee or teacher. It also includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
PARTS 6202-6299 [RESERVED]
CHAPTER LIII—DEPARTMENT OF EDUCATION
PART 6300 [RESERVED]
PART 6301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF EDUCATION
§ 6301.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Education and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
§ 6301.102 Prior approval for certain outside activities.
(a) An employee, other than a special Government employee, must obtain written approval prior to engaging—with or without compensation—in the following outside activities:
(1) Except as provided in paragraph (b)(1) of this section, providing services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter:
(i) In which the United States is a party;
(ii) In which the United States has a direct and substantial interest; or
(iii) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.
(2) Except as provided in paragraph (b)(2) of this section:
(i) Serving as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, employee, advisory committee member, or active participant for a prohibited source; or
(ii) Engaging in teaching, speaking, consulting, or writing that relates to the employee’s official duties.
(b) Unless the services are to be provided for compensation, including reimbursement for transportation, lodging and meals:
(1) Prior approval is not required by paragraph (a)(1) of this section to provide services as an agent or attorney for, or otherwise to represent, another Department of Education employee who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings; and
(2) Prior approval is not required by paragraph (a)(2) of this section:
(i) To participate in the activities of a:
(A) Social, fraternal, civic, or political entity;
(B) Religious entity that is not a prohibited source; or
(C) Parent-Teacher Association or similar parent organization at the employee’s child’s school or day care center, other than as a member of a board of directors or other governing body of the school or center, or the educational agency of which it is a part; or
(ii) To provide direct instructional, social, or medical services to students or other individuals.
(c) An employee who is required by paragraph (a) of this section to obtain prior written approval shall submit a written request for approval in accordance with Department procedures.
(d) The cognizant reviewing official shall grant approval unless he or she determines that the outside activity is expected to involve conduct prohibited by statute or Federal regulations, including 5 CFR part 2635.
(e) For the purposes of this section:
(1) “Active participant” has the meaning set forth in 5 CFR 2635.502(b)(1)(v).
(2) “Prohibited source” has the meaning set forth in 5 CFR 2635.203(d).
(3) “Relates to the employee’s official duties” means that the activity meets one or more of the tests described in 5 CFR 2635.807(a)(2)(i) (B) through (E). It includes, in relevant part:
(i) Activities an employee has been invited to participate in because of his or her official position rather than his or her expertise in the subject matter;
(ii) A situation in which an employee has been asked to participate in an activity by a person or organization that has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties;
(iii) Activities that convey information derived from nonpublic information gained during the course of Government employment; and
(iv) Activities that deal in significant part with any matter to which the employee is or has been officially assigned in the last year, any ongoing or announced Department policy, program or operation, or—in the case of certain noncareer employees—any matter that is generally related to education or vocational rehabilitation.
PARTS 6302-6399 [RESERVED]
CHAPTER LIV—ENVIRONMENTAL PROTECTION AGENCY
PART 6400 [RESERVED]
PART 6401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY
§ 6401.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Environmental Protection Agency and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
§ 6401.102 Prohibited financial interests.
(a) The following employees are prohibited from holding the types of financial interests described in this section:
(1) Employees in the Office of Mobile Sources are prohibited from having outside employment with or holding stock or any other financial interest in manufacturers of automobiles and mobile source pollution control equipment.
(2) Employees in the Office of Pesticide Programs are prohibited from having outside employment with or holding stock or any other financial interest in companies that manufacture or provide wholesale distribution of pesticide products registered by the EPA. These restrictions apply to companies with subsidiaries in these areas but do not include retail distributors to the general public.
(3) Employees in the Office of Information Resources Management involved with data management contracting or computer contracting are prohibited from having outside employment with or holding stock or any other financial interest in data management, computer, or information processing firms.
(4) Employees who perform functions or duties under the Surface Mining Control and Reclamation Act (such as reviewing Environmental Impact Statements of the Office of Surface Mining in the Department of Interior) are prohibited by 30 U.S.C. 1211(f) from holding direct or indirect interests in underground or surface coal mining operations.
(i) Implementing regulations of the Office of Surface Mining at 30 CFR 706.3 define the terms “direct financial interest” and “indirect financial interest” as follows:
(A) Direct financial interest means ownership or part ownership by an employee of land, stocks, bonds, debentures, warrants, a partnership, shares, or other holding and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.
(B) Indirect financial interest means the same financial relationships as for direct ownership but where the employee reaps the benefits of such interests, including interests held by the employee’s spouse, minor child or other relatives, including in-laws, residing in the employee’s home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee’s functions or duties and the coal mining operation in which the spouse, minor child or other resident relative holds a financial interest.
(ii) Violation of the restrictions in this section is punishable by a fine of up to $2,500 or imprisonment for not more that one year, or both.
(iii) Employees who perform functions or duties under the Surface Mining Control and Reclamation Act are not prohibited thereunder from holding interests in excepted investment funds as defined at 5 CFR 2634.310(c)(2) provided that such funds are widely diversified, that is, hold no more than 5% of the value of their portfolios in the securities of any one issuer (other than the United States Government) and no more than 20% in any particular economic or geographic sector.
(5) Members of the Interagency Testing Committee established under section 4(e) of the Toxic Substances Control Act (15 U.S.C. 2603(e)) are prohibited thereunder from holding any stocks or bonds, or having any substantial pecuniary interest, in any person engaged in the manufacture, processing, or distribution in commerce of any substance or mixture subject to any requirement of the Act or any rule or order issued under the Act and, for a period of twelve months after their committee service has ceased, are prohibited thereunder from accepting employment or compensation from any person subject to any requirement of the Act or to any rule or order issued under the Act.
(i) The statutory prohibitions in this section are enforceable by an action for a court order to restrain violations.
(ii) Members of the Interagency Testing Committee are not prohibited thereunder from holding interests in excepted investment funds as defined at 5 CFR 2634.310(c)(2) provided that such fund are widely diversified, that is, hold no more than 5% of the value of their portfolios in the securities of any one issuer (other than the United States Government) and no more than 20% in any particular economic sector.
(b) The Designated Agency Ethics Official or the cognizant Deputy Ethics Official may grant a written waiver from the prohibitions in paragraph (a)(1) through (a)(3) of this section based on a determination that the waiver is not inconsistent with part 2635 of this title or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
§ 6401.103 Prior approval for outside employment.
(a) Requirement for approval. An employee shall obtain approval from his or her Deputy Ethics Official before engaging in outside employment, with or without compensation, that involves:
(1) Consulting services;
(2) The practice of a profession as defined in 5 CFR 2636.305(b)(1);
(3) Holding State or local public office;
(4) Subject matter that deals in significant part with the policies, programs or operations of EPA or any matter to which the employee presently is assigned or to which the employee has been assigned during the previous one-year period; or
(5) The provision of services to or for:
(i) An EPA contractor or subcontractor;
(ii) The holder of an EPA assistance agreement or subagreement; or
(iii) A firm regulated by the EPA office or Region in which the employee serves.
(b) Form and content of request. The employee’s request for approval of outside employment shall be submitted in writing to his or her Deputy Ethics Official. The request shall be sent through the employee’s immediate supervisor (for the supervisor’s information) and shall include:
(1) Employee’s name, title and grade;
(2) Nature of the outside activity, including a full description of the services to be performed and the amount of compensation expected;
(3) The name and business of the person or organization for which the work will be done (in cases of self-employment, indicate the type of services to be rendered and estimate the number of clients or customers anticipated during the next 6 months);
(4) The estimated time to be devoted to the activity;
(5) Whether the service will be performed entirely outside of normal duty hours (if not, estimate the number of hours of absence from work required);
(6) The employee’s statement that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment;
(7) The basis for compensation (e.g., fee, per diem, per annum, etc.);
(8) The employee’s statement that he or she has read, is familiar with, and will abide by the restrictions described in 5 CFR part 2635 and § 6401.102; and
(9) An identification of any EPA assistance agreements or contracts held by a person to or for whom services would be provided.
(c) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and § 6401.102. The decision must be in writing.
(d) Keeping the record up-to-date. If there is a change in the nature or scope of the duties or services performed or the nature of the employee’s business, the employee must submit a revised request for approval. Where an employee transfers to an organization for which a different Deputy Ethics Official has responsibility, the employee must obtain approval from the new Deputy Ethics Official. In addition, each approved request is valid only for five years unless the employee’s Deputy Ethics Official specifies a longer time period.
(e) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment, business relationship, or activity involving the provision of personal services by the employee, whether or not for compensation. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organizations, unless such activities are for compensation other than reimbursement for expenses.
PARTS 6402-6499 [RESERVED]
CHAPTER LV—NATIONAL ENDOWMENT FOR THE ARTS
PART 6500 [RESERVED]
PART 6501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL ENDOWMENT FOR THE ARTS
§ 6501.101 General.
In accordance with 5 CFR 2635.105, the regulations of this part apply to employees of the National Endowment for the Arts (NEA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, employees of the NEA are subject to the executive branch employee responsibilities and conduct regulations at 5 CFR part 735, the executive branch financial disclosure regulations at 5 CFR part 2634, and the executive branch financial interests regulations at 5 CFR part 2640.
§ 6501.102 Prior approval for outside employment.
(a) Before engaging in any outside employment with a prohibited source within the meaning of 5 CFR 2635.203(d), whether or not for compensation, an employee other than a special Government employee must obtain written approval from his or her immediate supervisor and the Designated Agency Ethics Official. The request for approval shall include the following:
(1) The name of the person, group or other organization for whom the work is to be performed, the type of work to be performed, and the proposed hours of work and approximate dates of employment; and
(2) A description of the employee’s NEA responsibilities and the employee’s certification that the outside employment will not depend on nonpublic information obtained as a result of the employee’s official Government position and that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment.
(b) Approval shall be granted only upon determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Outside employment means any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to personal services such as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product.
PARTS 6502-6599 [RESERVED]
CHAPTER LVI—NATIONAL ENDOWMENT FOR THE HUMANITIES
PART 6600 [RESERVED]
PART 6601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL ENDOWMENT FOR THE HUMANITIES
§ 6601.101 General.
In accordance with 5 CFR part 2635.105, the regulations of this part apply to employees of the National Endowment for the Humanities (NEH) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, employees of the NEH are subject to the executive branch employee responsibilities and conduct regulations at 5 CFR part 735, the executive branch financial disclosure regulations at 5 CFR part 2634, and the executive branch financial interests regulations at 5 CFR part 2640.
§ 6601.102 Prior approval for outside employment.
(a) Before engaging in any outside employment with a prohibited source within the meaning of 5 CFR 2635.203(d), whether or not for compensation, an employee other than a special Government employee must obtain written approval from his or her immediate supervisor and the Designated Agency Ethics Official. The request for approval shall include the following:
(1) A brief description of the employee’s official duties, a brief description of the proposed outside employment (including the name of the person, group or other organization for whom the work is to be performed), and a brief description of the employee’s discipline or inherent area of expertise based on experience or educational background; and
(2) Responses to the following questions:
(i) Whether the proposed outside employment will draw on non-public information or pertain to a matter to which the employee is presently assigned or has been assigned within the last year;
(ii) Whether the proposed outside employment pertains to an ongoing or announced agency policy or program;
(iii) Whether the proposed outside employment will involve teaching a course which is part of the established curriculum of an accredited institution of higher education, secondary school, elementary school, or an education or training program sponsored by a Federal, State or local government entity;
(iv) Whether the sponsor of the proposed outside employment has any interests before the NEH that may be substantially affected by the performance or nonperformance of the employee’s duties;
(v) Whether the employee intends to refer to his or her official NEH position during the proposed outside employment, and, if so, the text of any disclaimers that he or she will use; and
(vi) Whether the employee will receive any payment or compensation for the proposed activity, and, if so, how much.
(b) Approval shall be granted only upon determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Outside employment means any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services such as acting as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing done under arrangement with another person for production or publication of any written product.
PARTS 6602-6699 [RESERVED]
CHAPTER LVII—GENERAL SERVICES ADMINISTRATION
PART 6700 [RESERVED]
PART 6701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE GENERAL SERVICES ADMINISTRATION
§ 6701.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the General Services Administration (GSA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch (Standards) contained in 5 CFR part 2635. In addition to the executive branch-wide Standards in 5 CFR part 2635 and this part, GSA employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
§ 6701.102 Prohibition on solicited sales to subordinates.
A GSA employee shall not engage in solicitation of sales, on or off duty, to any GSA employee under his supervision, at any level. This prohibition applies, but is not limited to, solicitation for the sale of insurance, stock, mutual funds, real estate, computer equipment and any other commodities, goods or services except:
(a) The one-time sale of the employee’s personal property or privately owned dwelling; or
(b) Sales made in the course of outside employment of GSA employees in retail stores and under other circumstances not involving solicitation.
§ 6701.103 Prohibited purchases of property sold by GSA.
(a) General prohibition. Except as provided in paragraphs (b) and (c) of this section, no GSA employee, or spouse or minor child of a GSA employee, shall purchase, directly or indirectly Government property, real or personal, being sold by GSA.
(b) Exception. The prohibition in paragraph (a) of this section does not apply to the purchase of foreign gifts deposited with the agency pursuant to 5 U.S.C. 7342, that an employee may purchase pursuant to 41 CFR part 101-49.
(c) Waiver. An employee may make a purchase otherwise prohibited by paragraph (a) of this section where a written waiver of the prohibition has been given to the employee by the Administrator of GSA or his designee. Such a waiver may be granted only upon a determination that the waiver is not otherwise prohibited by law and that, in the mind of a reasonable person with knowledge of the particular circumstances, the purchase of the property will not raise a question as to whether the employee has used his official position or nonpublic information to obtain an advantageous purchase or create an appearance of loss of impartiality in the performance of the employee’s duties.
§ 6701.104 Prohibited purchases of real estate by certain GSA employees involved in the acquisition or disposal of real estate.
(a) General prohibition. Except as provided in paragraphs (b) and (c) of this section, employees who personally and substantially participate in or have official responsibility for the acquisition or disposal of real estate or interests therein, shall not directly or indirectly purchase or participate as an agent or otherwise in the purchase of any real estate or interest therein.
(b) Exception. The prohibition in paragraph (a) of this section does not apply to an employee’s purchase of real estate for use as his personal or other residential property, such as a vacation home.
(c) Waiver. An employee may make a purchase otherwise prohibited by this section where a written waiver of the prohibition has been given to the employee by the employee’s immediate supervisor, with the advice of a Deputy Standards of Conduct Counsellor or the Designated Agency Ethics Official. Such a waiver may be granted only if a determination is made that the waiver is not otherwise prohibited by law or regulation, and that in the mind of a reasonable person with knowledge of the particular circumstances, the purchase of such real estate or interest therein will not raise a question as to whether the employee will use his official position or nonpublic information to obtain an advantageous purchase or create an appearance of loss of impartiality in the performance of the employee’s duties.
§ 6701.105 Taking or disposing of Government property.
An employee shall not, directly or indirectly, take or dispose of, or allow the taking or disposal of, Government property, unless authorized to do so. For purposes of this section, property remains Government property until disposed of in accordance with applicable rules and regulations.
§ 6701.106 Prior approval for outside employment.
(a) Approval requirement. A GSA employee, other than a special Government employee, shall obtain written approval from his immediate supervisor prior to engaging in outside employment with a prohibited source, with or without compensation.
(b) Form of request for approval. A request for approval of outside employment shall include, at a minimum, the following:
(1) The employee’s name, location and occupational title;
(2) A brief description of the employee’s official duties;
(3) The nature of the outside employment, including a full description of the specific duties or services to be performed;
(4) The name and address of the prospective outside employer for which work will be done; and
(5) A statement that the employee currently has no official duties involving a matter that affects the outside employer and will disqualify himself from future participation in matters that could directly affect the outside employer.
(c) Standard for approval. Approval shall be granted unless a determination is made that the outside employment is expected to involve conduct prohibited by statute or regulation, including 5 CFR part 2635 and this part.
(d) Definitions. For purposes of this section:
(1) Employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves the provision of professional services or advice for compensation other than reimbursement for actual expenses.
(2) Prohibited source has the meaning in 5 CFR 2635.203(d), and includes any person who:
(i) Is seeking official action by GSA;
(ii) Does business or seeks to do business with GSA;
(iii) Conducts activities regulated by GSA;
(iv) Has interests that may be substantially affected by performance or nonperformance of the employee’s official duties; or
(v) Is an organization a majority of whose members are described in paragraphs (d)(2)(i) through (iv) of this section.
An employee may obtain advice from an agency ethics official as to whether a potential employer is a prohibited source.
§ 6701.107 Reporting waste, fraud, abuse and corruption.
GSA employees shall disclose immediately any waste, fraud, abuse, and corruption to appropriate authorities, such as the Office of Inspector General.
PARTS 6702-6799 [RESERVED]
CHAPTER LVIII—BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
PART 6800 [RESERVED]
PART 6801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
§ 6801.101 Purpose.
In accordance with 5 CFR 2635.105, the regulations in this part supplement the Standards of Ethical Conduct for Employees of the Executive Branch found at 5 CFR part 2635. They apply to members and other employees of the Board of Governors of the Federal Reserve System (“Board”).
§ 6801.102 Definitions.
For purposes of this part:
(a) Affiliate means any company that controls, is controlled by, or is under common corporate control with another company.
(b) (1) Debt or equity interest includes secured and unsecured bonds, debentures, notes, securitized assets, commercial paper, and preferred and common stock. The term encompasses both current and contingent ownership interests therein; any such beneficial or legal interest derived from a trust; any right to acquire or dispose of any long or short position in debt or equity interests; any interests convertible into debt or equity interests; and any options, rights, warrants, puts, calls, straddles, and derivatives with respect thereto.
(2) Debt or equity interest does not include deposits; credit union shares; any future interest created by someone other than the employee, his or her spouse, or dependent; or any right as a beneficiary of an estate that has not been settled.
(c) Dependent child means an employee’s son, daughter, stepson, or stepdaughter if:
(1) Unmarried, under the age of 21, and living in the employee’s household; or
(2) Claimed as a “dependent” on the employee’s income tax return.
(d) Depository institution means a bank, trust company, thrift institution, or any institution that accepts deposits, including a bank chartered under the laws of a foreign country.
(e) Employee means an officer or employee of the Board, including a Board member. It does not include a special Government employee.
(f) Primary government securities dealer means a firm with which the Federal Reserve conducts its open market operations.
(g) Supervisory employee means an employee who is a member of the professional staff at the Board with responsibilities in the area of banking supervision and regulation.
§ 6801.103 Prohibited financial interests.
(a) Prohibited interests. Except as permitted by this section, an employee, or an employee’s spouse or minor child, shall not own or control, directly or indirectly, any debt or equity interest in:
(1) A depository institution or any of its affiliates; or
(2) A primary government securities dealer or any of its affiliates, if such employee has regular, ongoing access to Class I Federal Open Market Committee information.
(b) Exceptions. The prohibition in paragraph (a) of this section does not apply to the ownership or control of a debt or equity interest in the following:
(1) Nonbanking holding companies. A publicly traded holding company that:
(i) Owns a bank and either the holding company or the bank is exempt under the Bank Holding Company Act of 1956, 12 U.S.C. 1841 et seq., (for example, a credit card bank, a nonbank bank or a grandfathered bank holding company), and the holding company’s predominant activity is not the ownership or operation of banks and thrifts;
(ii) Owns a thrift and its predominant activity is not the ownership or operation of banks and thrifts; or
(iii) Owns a primary government securities dealer and its predominant activity is not the ownership or operation of banks, thrifts or securities firms.
(2) Mutual funds. A publicly traded or publicly available mutual fund or other collective investment fund if:
(i) The fund does not have a stated policy of concentration in the financial services industry; and
(ii) Neither the employee nor the employee’s spouse exercises or has the ability to exercise control over the financial interests held by the fund or their selection.
(3) Pension plans. A widely held, diversified pension or other retirement fund that is administered by an independent trustee.
(c) Waivers. The Board’s Designated Agency Ethics Official, in consultation with Division management, may grant a written waiver permitting the employee to own or control a debt or equity interest prohibited by paragraph (a) of this section if:
(1) Extenuating circumstances exist, such as that ownership or control was acquired:
(i) Prior to Federal Reserve employment;
(ii) Through inheritance, gift, merger, acquisition, or other change in corporate structure, or otherwise without specific intent on the part of the employee, spouse, or minor child to acquire the debt or equity interest; or
(iii) By an employee’s spouse as part of a compensation package in connection with the spouse’s employment or prior to marriage to the employee;
(2) The employee makes a prompt and complete written disclosure of the interest;
(3) The employee’s disqualification from participating in any particular matter having a direct and predictable effect on the institution or any of its affiliates does not unduly interfere with the full performance of the employee’s duties; and
(4) Granting the waiver would be consistent with Division policy.
(d) Disqualification. If an employee or an employee’s spouse or minor child holds an interest in an entity under paragraph (b)(1) or (c) of this section, the employee must consult the Designated Agency Ethics Official in order to determine whether the employee must be disqualified from participating in any particular matter involving that entity or affiliate under the conflicts of interest rules of the Office of Government Ethics.
§ 6801.104 Speculative dealings. [Reserved]
§ 6801.105 Prohibition on preferential terms from regulated institutions.
An employee may not accept a loan from, or enter into any other financial relationship with, an institution regulated by the Board, if the loan or financial relationship is governed by terms more favorable than would be available in like circumstances to members of the public.
§ 6801.106 Prohibition on supervisory employees’ seeking credit from institutions involved in work assignments.
(a) Prohibition on supervisory employee’s seeking credit. (1) A supervisory employee may not, on his or her own behalf, or on behalf of his or her spouse or child or anyone else (including any business or nonprofit organization), seek or accept credit from, or renew or renegotiate credit with, a depository institution or any of its affiliates if the institution or affiliate is a party to an application, enforcement action, investigation, or other particular matter involving specific parties pending before the Board and:
(i) The supervisory employee is assigned to the matter; or
(ii) The supervisory employee is aware of the pendency of the matter and knows that he or she will participate in the matter by action, advice or recommendation.
(2) The prohibition in paragraph (a)(1) of this section also applies for three months after the supervisory employee’s participation in the matter has ended.
(b) Credit sought by spouse and other related persons. A supervisory employee must disqualify himself or herself from participating (by action, advice or recommendation) in any application, enforcement action, investigation or other particular matter involving specific parties to which a depository institution or any of its affiliates is a party as soon as the supervisory employee learns that any of the following related persons are seeking or have sought or accepted credit from, or have renewed or renegotiated credit with, the depository institution or any of its affiliates while the matter is pending before the Board:
(1) The employee’s spouse or dependent child;
(2) A company or business if the employee or the employee’s spouse or dependent child owns or controls more than 10 percent of its equity; or
(3) A partnership if the employee, or the employee’s spouse or dependent child is a general partner.
(c) Exception. The prohibition in paragraph (a) of this section and the disqualification requirement in paragraph (b) of this section do not apply with respect to credit obtained through the use of a credit card or overdraft protection on terms and conditions available to the public.
(d) Waivers. The Board’s Designated Agency Ethics Official, after consulting with the relevant division director, may grant a written waiver from the prohibition in paragraph (a) of this section, or the disqualification requirement in paragraph (b) of this section, based on a determination that participation in matters otherwise prohibited by this section would not create an appearance of loss of impartiality or use of public office for private gain, and would not otherwise be inconsistent with the Office of Government Ethics’ Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635) or prohibited by law.
§ 6801.107 Disqualification of supervisory employees from matters involving lenders.
(a) Disqualification required. A supervisory employee may not participate by action, advice or recommendation in any application, enforcement action, investigation, or other particular matter involving specific parties to which a depository institution or its affiliate is a party if any of the following are indebted to the depository institution or any of its affiliates:
(1) The employee;
(2) The spouse or dependent child of the employee;
(3) A company or business if the employee or the employee’s spouse or dependent child owns or controls more than 10 percent of its equity; or
(4) A partnership if the employee or the employee’s spouse or dependent child is a general partner.
(b) Exceptions—(1) Consumer credit on nonpreferential terms. Disqualification of a supervisory employee is not required by paragraph (a) of this section for the following types of indebtedness if payment on the indebtedness is current and the indebtedness is on terms and conditions offered to the public:
(i) Credit extended through the use of a credit card;
(ii) Credit extended through use of an overdraft protection line;
(iii) Amortizing consumer credit (e.g., home mortgage loans, automobile loans); and
(iv) Credit extended under home equity lines of credit.
(2) Indebtedness of a spouse or dependent child. Disqualification is not required with respect to any indebtedness of the employee’s spouse or dependent child, or a company, business or partnership in which the spouse or dependent child has an interest described in paragraphs (a)(3) and (a)(4) of this section, if:
(i) The indebtedness represents the sole financial interest or responsibility of the spouse, child, company, business or partnership and is not derived from the employee’s income, assets or activities; and
(ii) The employee has no knowledge of the identity of the lender.
(c) Waivers. The Board’s Designated Agency Ethics Official, after consulting with the relevant Division director, may grant a written waiver from the disqualification requirement in paragraph (a) of this section using the authorization process set forth in the Office of Government Ethics’ Standards of Ethical Conduct at 5 CFR 2635.502(d).
§ 6801.108 Restrictions resulting from employment of family members.
A supervisory employee may not participate in any particular matter to which a depository institution or its affiliate is a party if the depository institution or affiliate employs his or her spouse, child, parent or sibling unless the supervising officer, with the concurrence of the Board’s Designated Agency Ethics Official, has authorized the employee to participate in the matter using the authorization process set forth in the Office of Government Ethics’ Standards of Ethical Conduct at 5 CFR 2635.502(d).
§ 6801.109 Prior approval for compensated outside employment.
(a) Approval requirement. An employee shall obtain prior written approval from his or her Division director (or the Division director’s designee) and the concurrence of the Board’s Designated Agency Ethics Official before engaging in compensated outside employment.
(b) Standard for approval. Approval will be granted unless a determination is made that the prospective outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(c) Definition of employment. For purposes of this section, the term compensated outside employment means any form of compensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker.
PARTS 6802-6899 [RESERVED]
CHAPTER LIX—NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
PART 6900 [RESERVED]
PART 6901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
§ 6901.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the National Aeronautics and Space Administration (NASA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634, and to additional regulations regarding their conduct contained in 5 CFR part 735 and 14 CFR part 1207.
§ 6901.102 [Reserved]
§ 6901.103 Outside employment.
(a) General. A NASA employee shall not engage in outside employment prohibited by paragraph (c) of this section and shall obtain approval before engaging in the outside employment activities specified in paragraph (d) of this section.
(b) Definitions. Unless a term is otherwise defined in this part, the definitions set forth in 5 CFR part 2635 apply to terms used in this section. In addition, for purposes of this section:
(1) Outside employment means any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the organization is a prohibited source or unless such activities involve the provision of professional services or advice, or are for compensation other than reimbursement of expenses.
(2) Profession has the meaning set forth in 5 CFR 2636.305(b)(1).
(3) Student intern means a student employed through a student internship program implemented by the Office of Personnel Management (OPM).
(c) Prohibited outside employment. A NASA employee, other than a special Government employee or a student intern, shall not engage in outside employment with the following:
(1) A NASA contractor, subcontractor, or grantee in connection with work performed by that entity for NASA; or
(2) A party to a Space Act agreement, Commercial Launch Act agreement, or other agreement to which NASA is a party pursuant to specific statutory authority, if the employment is in connection with work performed under that agreement.
(d) Prior approval for outside employment. A NASA employee, other than a special Government employee, shall request and obtain approval before engaging in the following outside employment activities:
(1) Teaching, speaking, writing, or editing, unless the subject matter pertains to the private interests of the employee, such as a hobby, cultural activity, or a professional pursuit unrelated to the employee’s official duties;
(2) The practice of a profession or the rendering of professional consulting services;
(3) The management or conduct of a business in which the employee or the employee’s spouse has an ownership interest, if that business performs, or may seek to perform, work (other than routine consumer transactions) for the Federal Government or for a NASA contractor, grantee, or other party to an agreement with NASA;
(4) Holding State or local public office, whether by election or appointment;
(5) Employment with a NASA contractor, subcontractor, or grantee;
(6) Employment with a party to a Space Act agreement, Commercial Launch Act agreement, or other agreement to which NASA is a party pursuant to specific statutory authority;
(7) Serving as an officer, trustee, or member of a board, directorate, or other such body of a for profit organization or of a nonprofit organization that is a prohibited source; or
(8) Employment which involves the practice of a NASA-owned invention or the performance of experimental, developmental, research, design, or engineering work that relates to the official duties of such employee.
(e) Prior approval requested by employee. Even when not required by paragraph (d) of this section, a NASA employee may request prior approval using the procedures set forth in this section.
(f) Form of request for approval. A request for approval of outside employment shall be in writing and shall include the following:
(1) The employee’s name and occupational title;
(2) The nature of the employment, including a full description of the specific duties or services to be performed and a statement explaining any relationship between the outside activity and the official duties of the employee;
(3) The name and address of the person or organization for which work will be done;
(4) The estimated total time that will be devoted to the activity. If the employment is on a continuing basis, indicate the estimated number of hours per year; for other employment, indicate the anticipated beginning and ending date;
(5) A statement as to whether the work can be performed entirely outside of the employee’s regular duty hours and, if not, the estimated number of hours of absence from work that will be required;
(6) Whether the employee will receive compensation for the outside activity, and, if the employee is a covered noncareer employee as defined by 5 CFR 2636.303, the amount of compensation to be received; and
(7) A statement that the employee currently has no official duties involving a matter that affects the outside employer and will disqualify from future participation in matters that could directly affect the outside employer.
(g) Approval of requests—(1) When required to obtain approval prior to commencing outside employment pursuant to paragraph (d) of this section, a NASA employee shall receive approval from the employee’s immediate supervisor. Additional authority to approve requests is as follows:
(i) Center Directors and Deputy Center Directors shall receive approval by the Associate Administrator;
(ii) Center employees shall receive approval from the Center Director or a person designated to act for the Center Director; and
(iii) Headquarters employees shall receive approval from the employee’s Official-in-Charge.
(2) Prior to approval, the Office of the General Counsel shall review requests by Headquarters employees, Center Directors, Deputy Center Directors, and Center Chief Counsel. All other requests shall be reviewed by the Center Chief Counsel’s office, and for Office of Inspector General employees, by the Counsel to the Inspector General.
(3) Standard for approval. Approval will be granted unless a determination is made that the prospective outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(4) Scope of approval. Approval will be for a period not to exceed five years. Upon a significant change in the nature or scope of the outside employment or in the employee’s NASA position, the employee shall submit a revised request for approval.
(5) Notification of approval or disapproval. Employees will be notified in writing of the action taken on their requests.
(6) Records of requests. All requests for approval will be maintained in the local human resources/personnel office where the requesting employee works, or alternatively by the local NASA legal office upon the determination of the Center Chief Counsel and by the Office of the General Counsel upon the determination of the General Counsel.
PARTS 6902-6999 [RESERVED]
CHAPTER LX—UNITED STATES POSTAL SERVICE
PART 7000 [RESERVED]
PART 7001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE UNITED STATES POSTAL SERVICE
§ 7001.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635, as applied to employees of the United States Postal Service (Postal Service). Postal Service employees are subject, in addition to the standards in 5 CFR part 2635 and this part, to the executive branch financial disclosure regulations contained in 5 CFR part 2634, and to any rules of conduct issued separately by the Postal Service, including but not limited to regulations contained in 39 CFR part 447, the Postal Service’s Employee and Labor Relations Manual, and the Postal Service’s Procurement Manual.
§ 7001.102 Restrictions on outside employment and business activities.
(a) Prohibited outside employment and business activities. No Postal Service employee shall:
(1) Engage in outside employment or business activities that involve providing consultation, advice, or any subcontracting service, with respect to the operations, programs, or procedures of the Postal Service, to any person who has a contract with the Postal Service or who the employee has reason to believe will compete for such a contract;
(2) Except as permitted by paragraph (b)(2) of this section, engage in outside employment or business activities with, for, or as a person engaged in:
(i) The operation of a commercial mail receiving agency registered with the Postal Service; or
(ii) The delivery outside the mails of any type of mailable matter, except daily newspapers.
Example 1 to paragraph (a)(2)(ii): United Parcel Service (UPS), Federal Express (FedEx), Amazon, or DHL offers a part-time job to a Postal Service employee. Because UPS, FedEx, Amazon and DHL are persons engaged in the delivery outside the mails of mailable matter (as defined in paragraph (d)(3) of this section) that is not daily newspapers, the employee may not engage in employment with UPS, FedEx, Amazon, or DHL in any location in any capacity while continuing employment with the Postal Service in any location in any capacity. If the employee chooses to work for UPS, FedEx, Amazon, or DHL, the employee must end his or her postal employment before commencing work for that company.
(3) Engage in any fundraising (as defined in 5 CFR 2635.808(a)(1)), for-profit business activity, or sales activity, including the solicitation of business or the receipt of orders, for oneself or any other person, while on duty or in uniform, at any postal facility, or using any postal equipment. This paragraph does not prohibit an employee from engaging in fundraising at a postal facility as permitted in connection with the Combined Federal Campaign (CFC) under 5 CFR part 950.
(b) Prior approval for outside employment and business activities—(1) When prior approval required. A Postal Service employee shall obtain approval from the Postal Service’s Ethics Office in accordance with paragraph (b)(3) of this section prior to:
(i) Engaging in outside employment or business activities with or for any person with whom the employee has official dealings on behalf of the Postal Service;
(ii) Engaging in outside employment or business activities with, for, or as a person who has interests that are:
(A) Substantially dependent upon, or potentially affected to a significant degree by, postal rates, fees, or classifications; or
(B) Substantially dependent upon providing goods or services to, or for use in connection with, the Postal Service; or
(iii) Engaging in outside employment or business activities with or for any Highway Contract Route (HCR) contractor.
(2) When prior approval may be requested for prohibited outside employment and activities. If an entity with which an employee wishes to engage in outside employment or business activities is a subsidiary of an entity that is engaged in one the activities described in paragraph (a)(2) of this section, but does not itself engage in any those activities, the employee may request approval from the Postal Service’s Ethics Office to engage in such activity. The employee’s request should follow the procedures of paragraph (b)(3) of this section, and will be evaluated under the standard set forth in paragraph (b)(4) of this section.
(3) Submission and contents of request for approval. An employee who wishes to engage in outside employment or business activities for which approval is required by paragraph (b)(1) of this section shall submit a written request for approval to the Postal Service’s Ethics Office. The request shall be accompanied by a statement from the employee’s supervisor briefly summarizing the employee’s duties and stating any workplace concerns raised by the employee’s request for approval. The request for approval shall include:
(i) A brief description of the employee’s official duties;
(ii) The name of the outside employer, or a statement that the employee will be engaging in employment or business activities on his or her own behalf;
(iii) The type of employment or business activities in which the outside employer, if any, is engaged;
(iv) The type of services to be performed by the employee in connection with the outside employment or business activities;
(v) A description of the employee’s official dealings, if any, with the outside employer on behalf of the Postal Service; and
(vi) Any additional information requested by the Postal Service’s Ethics Office that is needed to determine whether approval should be granted.
(4) Standard for approval. The approval required by paragraph (b)(1) of this section shall be granted only upon a determination that the outside employment or business activities will not involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635, which includes, among other provisions, the principle stated at 5 CFR 2635.101(b)(14) that employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in part 2635.
(c) Special rules for outside employment or business activities of OIG employees—(1) When reporting required. A Postal Service Office of Inspector General (OIG) employee shall report compensated and uncompensated outside employment or business activities to the OIG’s Office of General Counsel, including:
(i) Any knowing sale or lease of real estate to the Postal Service or to a Postal Service employee or contractor, regardless of the frequency of such sales or leases or whether the sale or lease is at fair market value;
(ii) Any ownership or control of a publicly-accessible online or physical storefront; and
(iii) Volunteer activities, if they regularly exceed 20 hours per week or when the employee holds an officer position in the organization.
(2) When prior approval required. A Special Agent or Criminal Investigator shall also request and obtain written approval prior to engaging in outside employment or business activities which he or she is required to report under paragraph (c)(1) of this section. A request for approval shall be submitted to the OIG’s Office of General Counsel, which will be reviewed under the same standard stated in paragraph (b)(3) of this section.
(3) Implementation guidance. The OIG’s Office of General Counsel may issue internal instructions governing the submission of requests for approval of outside employment, business activities, and volunteer activities. The instructions may exempt categories of employment, business activities, or volunteer activities from the reporting and prior approval requirements of this section based on a determination that those activities would generally be approved and are not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The OIG’s Office of General Counsel may include in these instructions examples of outside activities that are permissible or impermissible consistent with this part and 5 CFR part 2635.
(d) Definitions. For purposes of this section:
(1) Outside employment or business activity means any form of employment or business, whether or not for compensation. It includes, but is not limited to, the provision of personal services as officer, employee, agent, attorney, consultant, contractor, trustee, teacher, or speaker. It also includes, but is not limited to, engagement as principal, proprietor, general partner, holder of a franchise, operator, manager, or director. It does not include equitable ownership through the holding of publicly-traded shares of a corporation.
(2) Commercial mail receiving agency means a private business that acts as the mail receiving agent for specific clients. The business must be registered with the post office responsible for delivery to the commercial mail receiving agency.
(3) A person engaged in the delivery outside the mails of any type of mailable matter means a person who is engaged in the delivery outside the mails of any letter, card, flat, or parcel eligible to be accepted for delivery by the Postal Service.
(4) A person having interests substantially dependent upon, or potentially affected to a significant degree by, postal rates, fees, or classifications includes a person:
(i) Primarily engaged in the business of publishing or distributing a publication mailed at Periodicals rates of postage;
(ii) Primarily engaged in the business of sending advertising, promotional, or other material on behalf of other persons through the mails;
(iii) Engaged in a commercial business that:
(A) Primarily utilizes the mails for the solicitation or receipt of orders for, or the delivery of, goods or services; and
(B) Can be expected to earn gross revenue exceeding $10,000 from utilizing the mails during the business’s current fiscal year; or
(iv) Who is, or within the past 4 years has been, a party to a proceeding before the Postal Regulatory Commission.
(5) A person having interests substantially dependent upon providing goods or services to, or for use in connection with, the Postal Service includes a person:
(i) Providing goods or services under contract(s) with the Postal Service that in total can be expected to provide revenue exceeding $100,000 over the term(s) of the contract(s); or
(ii) Substantially engaged in the business of preparing items for others for mailing through the Postal Service.
§ 7001.103 Statutory prohibition against interests in contracts to carry mail and acting as agent for contractors.
Section 440 of title 18, United States Code, makes it unlawful for any Postal Service employee to become interested in any contract for carrying the mail, or to act as agent, with or without compensation, for any contractor or person offering to become a contractor in any business before the Postal Service.
§ 7001.104 Prohibited financial interests of the members of the Board of Governors.
(a) General prohibitions. (1) No member of the Board of Governors, which includes the Postmaster General, the Deputy Postmaster General, and the nine appointed Governors of the United States Postal Service, or any spouse or minor child of any member of the Board of Governors, shall acquire or hold, directly or indirectly:
(i) Any financial interest in a person engaged in the delivery outside the mails of any type of mailable matter, except daily newspapers; or
(ii) Any financial interest in a publicly-traded entity engaged primarily in the business of leasing real property to the Postal Service.
(2) No member of the Board of Governors shall actively control the acquisition of, or the holding of, any financial interest described in paragraph (a)(1)(i) or (ii) of this section, on behalf of any entity whose financial interests are imputed to them under 18 U.S.C. 208. A member of the Board of Governors actively controls the financial interests of an entity if he or she selects or dictates the entity’s investments, such as stocks, bonds, commodities, or funds. A member of the Board of Governors does not actively control the financial interests of an entity if he or she merely directs the investment strategy of the entity, hires the entity’s financial manager(s) who selects the entity’s investments, or designates another employee of the entity to select the entity’s investments. A member of the Board of Governors may have such investment authority when serving as an officer, director, trustee, general partner, or employee of an entity.
(b) Exception. Paragraph (a) of this section does not prohibit any member of the Board of Governors or spouse or minor child of any member of the Board of Governors from directly or indirectly acquiring or holding, or a member of the Board of Governors from actively controlling on behalf of any entity, any financial interest in any publicly-traded or publicly-available mutual fund (as defined in 5 CFR 2640.102(k)) or other collective investment fund, including a widely-held pension or other retirement fund, that includes any financial interest described in paragraph (a)(1)(i) or (ii) of this section, provided that:
(1) Neither the member of the Board of Governors nor his or her spouse exercises active control over the financial interests held by the fund; and
(2) The fund does not have a stated policy of concentrating its investments in, as applicable, persons engaged in the delivery outside the mails of mailable matter, except daily newspapers, or persons engaged primarily in the business of leasing real property to the Postal Service.
(c) Reporting of prohibited financial interest and divestiture—(1) General. Any financial interest prohibited by paragraph (a) of this section shall be divested, in the case of a Governor, within 90 calendar days of confirmation by the Senate of the Governor’s nomination, and, in the case of a Postmaster General or Deputy Postmaster General, within 90 calendar days of his or her appointment, or as soon as possible thereafter if there are restrictions on divestiture.
(2) Newly-prohibited financial interests following confirmation or appointment. If a financial interest described in paragraph (a) of this section becomes prohibited subsequent to the Governor’s confirmation or a Postmaster General or Deputy Postmaster General’s appointment:
(i) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service’s Designated Agency Ethics Official (DAEO) within 30 calendar days of the DAEO informing the member of the Board of Governors that such financial interests have become prohibited; and
(ii) The prohibited financial interest shall be divested within 90 calendar days of the DAEO informing the member of the Board of Governors that such financial interests have become prohibited, or as soon as possible thereafter if there are restrictions on divestiture.
(3) Prohibited financial interests acquired without specific intent following confirmation or appointment. (i) If a member of the Board of Governors, or spouse or minor child of any member of the Board of Governors acquires a financial interest prohibited by paragraph (a)(1) of this section without specific intent to acquire it (such as through marriage, inheritance, or gift) subsequent to the Governor’s confirmation or the appointment of a Postmaster General or Deputy Postmaster General:
(A) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service’s DAEO within 30 calendar days of its acquisition; and
(B) The prohibited financial interest shall be divested within 90 calendar days of its acquisition, or as soon as possible thereafter if there are restrictions on divestiture.
(ii) If an entity whose financial interests are actively controlled by a member of the Board of Governors acquires a financial interest described in paragraph (a)(1)(i) or (ii) of this section without specific intent to acquire it (such as through a gift) subsequent to a Governor’s confirmation or the appointment of a Postmaster General or Deputy Postmaster General:
(A) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service’s DAEO within 30 calendar days of its acquisition; and
(B) The prohibited financial interest shall be divested within 90 calendar days of its acquisition, or as soon as possible thereafter if there are restrictions on divestiture.
(4) Disqualification from participating in particular matters pending divestiture. Pending any required divestiture of a prohibited financial interest provided for in this paragraph (c), a member of the Board of Governors shall disqualify himself or herself from participating in particular matters involving or affecting the prohibited financial interest. Disqualification is accomplished by not participating in the particular matter.
(d) Waiver of prohibited financial interests. For good cause shown by a member of the Board of Governors, the Postal Service’s DAEO may grant a written waiver to the member of the Board of Governors of any prohibited financial interest described in paragraph (a) or (c)(2) or (3) of this section; provided that the DAEO finds that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of the member of the Board of Governors’ misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality or objectivity with which the Postal Service’s programs are administered. The DAEO may impose appropriate conditions for granting of the waiver, such as requiring the member of the Board of Governors to execute a written statement of disqualification.
(e) Definition. For purposes of this section, a person engaged in the delivery outside the mails of any type of mailable matter is as defined in § 7001.102(d)(3).
PARTS 7002-7099 [RESERVED]
CHAPTER LXI—NATIONAL LABOR RELATIONS BOARD
PART 7100 [RESERVED]
PART 7101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL LABOR RELATIONS BOARD
§ 7101.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to Board members and other employees of the National Labor Relations Board (NLRB) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR 2635. Board Members and other employees are subject, in addition, to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
(b) Agency designee. Except as provided in § 7101.102, the Designated Agency Ethics Official shall serve as the NLRB’s designee for purposes of making the determinations, granting the approvals, and taking other actions under 5 CFR part 2635 and this part.
§ 7101.102 Prior approval for outside employment.
(a) General Requirement. Before engaging in compensated or uncompensated outside employment, an employee must obtain written approval:
(1) From the Board of General Counsel to engage in the private practice of law; or
(2) From the employee’s Chief Counsel, Regional Director, Branch Chief, or the equivalent for outside employment not involving the practice of law.
(b) Procedure for requesting approval (1) The approval required by paragraph (a) of this section shall be requested in writing in advance of engaging in outside employment, including the outside practice of law.
(2) The request for approval to engage in the outside practice of law or in other outside employment shall be submitted to the appropriate official as set forth in paragraph (a) of this section, and shall set forth, at a minimum:
(i) The name of the employer;
(ii) The nature of the legal activity or other work to be performed;
(iii) The estimated duration; and
(iv) The amount of compensation to be received.
(3) Upon a significant change in the nature of scope of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval.
(c) Standard for approval. (1) Approval shall be granted unless the agency designee determines that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(2) The agency designee may consult with the Designated Agency Ethics Official to ensure that the request for outside employment meets the standard in paragraph (c)(1) of this section.
(d) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
§ 7101.103 Standard for accomplishing disqualification; disqualifying financial interest.
An NLRB employee who is required, in accordance with 5 CFR 2635.402(c), to disqualify himself from participation in a particular matter to which he has been assigned shall, notwithstanding the guidance in 5 CFR 2635.402(c) (1) and (2), provide written notice of disqualification to his or her supervisor upon determining that he or she will not participate in the matter.
PARTS 7102-7199 [RESERVED]
CHAPTER LXII—EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 7200 [RESERVED]
PART 7201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
§ 7201.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to all employees of the Equal Employment Opportunity Commission (EEOC), including members of the Commission and the General Counsel, and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
§ 7201.102 Prohibited outside employment.
(a) No employee of the Equal Employment Opportunity Commission may engage in outside employment with a person who is currently and substantially affected by the employee’s performance of his or her official duties because the person is a party or representative of a party to a particular matter involving specific parties.
(b) No employee of the Equal Employment Opportunity Commission, other than a special Government employee, may receive compensation for representational services, or the rendering of advice or analysis, regarding any equal employment law or its application.
(c) No employee of the Equal Employment Opportunity Commission, other than a special Government employee, may engage in outside employment involving a particular matter pending at EEOC or an equal employment opportunity matter in which EEOC or the Federal government is a party. An employee may, however, with prior approval, provide uncompensated behind-the-scenes assistance to immediate family members in matters pending at EEOC or equal employment opportunity matters in which EEOC or the Federal government is a party. An employee may also, with prior approval, represent without compensation another EEOC employee in an administrative equal employment opportunity complaint against EEOC.
§ 7201.103 Prior approval for outside employment.
(a) Before engaging in any outside employment, with or without compensation, an employee of the Equal Employment Opportunity Commission must obtain written approval from his or her Deputy Ethics Counselor or designee.
(b) In addition to approval under paragraph (a) of this section, an employee must obtain prior written approval from the Designated Agency Ethics Official or designee to engage in:
(1) Compensated outside employment;
(2) The uncompensated practice of law; or
(3) Uncompensated outside employment that involves representation or the rendering of advice or analysis regarding any equal employment law, or serving as an officer or director of an organization whose activities are devoted substantially to equal employment opportunity matters.
(c) Approval will not be granted if the outside employment is expected to involve conduct inconsistent with or prohibited by a statute or Federal regulation, including 5 CFR part 2635 and this part.
(d) For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization unless:
(1) The employee’s participation involves the provision of professional services or advice;
(2) The employee will receive compensation other than reimbursement of expenses; or
(3) The organization’s activities are devoted substantially to matters relating to equal employment law and the employee will serve as officer or director of the organization.
PARTS 7202-7299 [RESERVED]
CHAPTER LXIII—INTER-AMERICAN FOUNDATION
PART 7300 [RESERVED]
PART 7301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INTER-AMERICAN FOUNDATION
§ 7301.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Inter-American Foundation, with the exception of members of the Foundation’s Board of Directors and Advisory Council, and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635, directors and other employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
(b) Designated agency ethics official. For purposes of this part and otherwise as required by 5 CFR 2638.202, the General Counsel of the Inter-American Foundation shall serve as the designated agency ethics official. The Deputy General Counsel shall serve as the alternate agency ethics official.
§ 7301.102 Prior approval for outside teaching, speaking and writing.
(a) Before engaging in outside teaching, speaking or writing, for compensation, an employee, with the exception of members of the Foundation’s Board of Directors and Advisory Council, shall obtain prior written approval from the designated agency ethics official or the alternate agency ethics official.
(b) Approval shall be granted only upon a determination that the outside teaching, speaking or writing is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
PARTS 7302-7399 [RESERVED]
CHAPTER LXIV—MERIT SYSTEMS PROTECTION BOARD
PART 7400 [RESERVED]
PART 7401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE MERIT SYSTEMS PROTECTION BOARD
§ 7401.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Merit Systems Protection Board (MSPB) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
(b) Cross-references. In addition to 5 CFR part 2635 and this part, MSPB employees are required to comply with implementing guidance and procedures issued by the MSPB in accordance with 5 CFR 2635.105(c). MSPB employees are also subject to the regulations concerning executive branch financial disclosure contained in 5 CFR part 2634, the regulations concerning executive branch financial interests contained in 5 CFR part 2640, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
§ 7401.102 Prior approval for outside employment.
(a) General requirement. Before engaging in any outside employment, with or without compensation, an employee of the MSPB, other than a special Government employee, must obtain written approval from the employee’s supervisor and the concurrence of the Designated Agency Ethics Official (DAEO) or the alternate DAEO, except to the extent that the MSPB DAEO or alternate DAEO has issued an instruction or manual pursuant to paragraph (e) of this section exempting an activity or class of activities from this requirement. Nonetheless, special Government employees remain subject to other statutory and regulatory provisions governing their outside activities, including 18 U.S.C. 203(c) and 205(c), as well as applicable provisions of 5 CFR part 2635.
(b) Definition of employment. For purposes of this section, employment means any form of non-Federal employment or business relationship involving the provision of personal services, whether or not for compensation. It includes, but is not limited to, services as an officer, director, employee, agent, advisor, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. The definition does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless:
(1) The employee will receive compensation other than reimbursement of expenses;
(2) The organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer or director of the organization; or
(3) The activities will involve the provision of consultative or professional services. Consultative services means the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility. Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2).
There is a special approval requirement set out in both 18 U.S.C. 203(d) and 205(e), respectively, for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. Thus, an employee who wishes to act as agent or attorney for, or otherwise represent his parents, spouse, child, or any person for whom, or any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters must obtain the approval required by law of the Government official responsible for the employee’s appointment in addition to the regulatory approval required in this section.
(c) Procedure for requesting approval. (1) The approval required by paragraph (a) of this section shall be requested by e-mail or other form of written correspondence in advance of engaging in outside employment as defined in paragraph (b) of this section.
(2) The request for approval to engage in outside employment or certain other activities shall set forth, at a minimum:
(i) The name of the employer or organization;
(ii) The nature of the legal activity or other work to be performed;
(iii) The title of the position; and
(iv) The estimated duration of the outside employment.
(3) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position within the MSPB, the employee must, within 7 calendar days of the change, submit a revised request for approval.
(d) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(e) DAEO’s and alternate DAEO’s responsibilities. The MSPB DAEO or alternate DAEO may issue instructions or manual issuances governing the submission of requests for approval of outside employment. The instructions or manual issuances may exempt categories of employment from the prior approval requirement of this section based on a determination that employment within those categories of employment would generally be approved and is not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The DAEO or alternate DAEO may include in these instructions or issuances examples of outside employment that are permissible or impermissible consistent with this part and 5 CFR part 2635.
PARTS 7402-7499 [RESERVED]
CHAPTER LXV—DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
PART 7500 [RESERVED]
PART 7501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
§ 7501.101 Purpose.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Housing and Urban Development (HUD or Department) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. Employees are required to comply with 5 CFR part 2635, this part, and any additional rules of conduct that the Department is authorized to issue.
§ 7501.102 Definitions.
For purposes of this part, and otherwise as indicated, the following definitions shall apply:
Affiliate means any entity that controls, is controlled by, or is under common control with another entity.
Agency designee, as used also in 5 CFR part 2635, means the Associate General Counsel for Ethics and Personnel Law, the Assistant General Counsel for the Ethics Law Division, and the HUD Regional Counsels.
Agency ethics official, as used also in 5 CFR part 2635, means the agency designees as specified above.
Bureau means the Office of the Inspector General.
Bureau Ethics Counselor means the General Counsel for the Bureau.
Deputy Bureau Ethics Counselor means the Bureau employee or employees who the Bureau Ethics Counselor has delegated responsibility to act under § 7501.106 for the Bureau.
Designated Agency Ethics Official (DAEO) means the General Counsel of HUD or the Deputy General Counsel for Operations in the absence of the General Counsel.
Employment means any compensated or uncompensated (including volunteer work for others while off-duty) form of non-federal activity or business relationship, including self-employment, that involves the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product.
Subsidized by the Department means any grant, loan, cooperative agreement, or other form of assistance provided by the Department, including the insurance or guarantee of a loan.
§ 7501.103 Waivers.
The Designated Agency Ethics Official, or the Bureau Ethics Counselor for a Bureau employee may waive any provision of this part upon finding that the waiver will not result in conduct inconsistent with 5 CFR part 2635 and is not otherwise prohibited by law and that application of the provision is not necessary to ensure public confidence in the Department’s impartial and objective administration of its programs. Each waiver shall be in writing and supported by a statement of the facts and findings upon which it is based and may impose appropriate conditions, such as requiring the employee’s execution of a written disqualification statement. A waiver will be considered only in response to a written waiver request submitted to an agency ethics official. The waiver request should include:
(a) The requesting employee’s Branch, Unit, and a detailed description of his or her official duties;
(b) The nature and extent of the proposed waiver;
(c) A detailed statement of the facts supporting the request; and
(d) The basis for the request, such as undue hardship or other exigent circumstances.
§ 7501.104 Prohibited financial interests.
(a) General requirement. This section applies to all HUD employees except special Government employees. Except as provided in paragraph (b) of this section, the employee, or the employee’s spouse or minor child, shall not directly or indirectly receive, acquire, or own:
(1) Federal Housing Administration (FHA) debentures or certificates of claim;
(2) A financial interest in a project, including any single family dwelling or unit, which is subsidized by the Department, except to the extent such subsidy represents assistance on the employee’s principal residence. The definition of “financial interest” is found at 5 CFR 2635.403(c);
(3)(i) Any Department subsidy provided pursuant to Section 8 of the United States Housing Act of 1937, as amended (42 U.S.C. 1437f), to or on behalf of a tenant of property owned by the employee or the employee’s spouse or minor child. However, such subsidy is permitted when:
(A) The employee, or the employee’s spouse or minor child acquires, without specific intent as through inheritance, a property in which a tenant receiving such a subsidy already resides;
(B) The tenant receiving such a subsidy lived in the rental property before the employee worked for the Department;
(C) The tenant receiving such a subsidy is a parent, child, grandchild, or sibling of the employee;
(D) The employee’s, or the employee’s spouse or minor child’s, rental property has an incumbent tenant who has not previously received such a subsidy and becomes the beneficiary thereof; or
(E) The location of the rental property is in a Presidentially declared emergency or natural disaster area and the employee receives prior written approval from an agency designee.
(ii) The exception provided by paragraph (a)(3)(i) of this section continues only as long as:
(A) The tenant continues to reside in the property; and
(B) There is no increase in that tenant’s rent upon the commencement of subsidy payments other than normal annual adjustments under the Section 8 program.
(b) Exception to prohibition for certain interests. Nothing in this section prohibits the employee, or the employee’s spouse or minor child from directly or indirectly receiving, acquiring, or owning:
(1) A financial interest in a publicly available or publicly traded investment fund that includes financial interests prohibited by paragraph (a)(2) of this section, so long as the employee neither exercises control nor has the ability to exercise control over the fund or the financial interests held in the fund;
(2) Mortgage insurance provided pursuant to section 203 of the National Housing Act (12 U.S.C. 1709) on the employee’s principal residence and any one other single family residence. Employees must adhere to the procedures established by the Assistant Secretary for Housing—FHA Commissioner in order to obtain FHA insurance;
(3) Department-owned single family property. Employees must adhere to the procedures established by the Assistant Secretary for Housing—FHA Commissioner in order to purchase a HUD-held property;
(4) Employment compensation and benefit packages provided by the employer of an employee’s spouse that include financial interests prohibited by paragraph (a)(2) of this section; or
(5) Government National Mortgage Association (GNMA) securities.
(c) Reporting and divestiture. An employee must report, in writing, to the appropriate agency ethics official, any interest prohibited under paragraph (a) of this section acquired prior to the commencement of employment with the Department or without specific intent, as through gift, inheritance, or marriage, within 30 days from the date of the start of employment or acquisition of such interest. Such interest must be divested within 90 days from the date reported unless waived by the Designated Agency Ethics Official in accordance with § 7501.103.
§ 7501.105 Outside activities.
(a) Prohibited outside activities. Subject to the exceptions set forth in paragraph (b) of this section, HUD employees, except special Government employees, shall not engage in:
(1) Employment with a business related to real estate or manufactured housing including, but not limited to, real estate brokerage, management and sales, architecture, engineering, mortgage lending, property insurance, appraisal services, title search services, construction, construction financing, land planning, or real estate development;
(2) The operation or management of investment properties to the extent that it rises to the level of a real estate-related business. HUD will determine whether an employee is operating or managing investment properties to an extent that it rises to the level of a real estate business based on the totality of the circumstances, and will consider whether the employee maintains an office; advertises or otherwise solicits clients or business; hires staff or employees; uses business stationary or other similar materials; files the business as a corporation, limited liability company, partnership, or other type of business association with a state government; establishes a formal or informal association with an existing business; hires a management company; and the nature and number of its investment properties;
(3) Employment with a person or entity who registered as a lobbyist or lobbyist organization pursuant to 2 U.S.C 1603(a) and engages in lobbying activity concerning the Department;
(4) Employment as an officer or director with a Department-approved mortgagee, a lending institution, or an organization that services securities for the Department; or
(5) Employment with the Federal Home Loan Bank System or any affiliate thereof.
(b) Exceptions to employment prohibitions. The prohibitions set forth in paragraph (a) of this section do not apply to:
(1) Serving as an officer or a member of the Board of Directors of:
(i) A Federal Credit Union;
(ii) A cooperative, condominium association, or homeowners association for a housing project that is not subject to regulation by the Department or, if so regulated, in which the employee personally resides; or
(iii) An entity designated in writing by the Designated Agency Ethics Official.
(2) Holding a real estate agent’s license; however, use of the license is limited as provided by paragraph (c) of this section.
(c) Prior approval requirement. (1) Employees, except special Government employees, shall obtain the prior written approval of an Agency Ethics Official before accepting compensated or uncompensated employment:
(i) As an officer, director, trustee, or general partner of, or in any other position of authority with a prohibited source, as defined at 5 CFR 2635.203(d);
(ii) With a state or local government;
(iii) In the same professional field as that of the employee’s official position; or
(iv) As a real estate agent in relation to purchasing or selling a single family property for use as the employee’s primary residence, or the primary residence of the employee’s immediate family member.
(2) Approval shall be granted unless the conduct is inconsistent with 5 CFR part 2635 or this part.
(d) Liaison representative. An employee designated to serve in an official capacity as the Department’s liaison representative to an outside organization is not engaged in an outside activity to which this section applies. Notwithstanding, an employee may be designated to serve as the Department’s liaison representative only as authorized by law, and as approved by the Department under applicable procedures.
§ 7501.106 Bureau instructions and designation of separate agency component.
(a) Bureau instructions. With the concurrence of the Designated Agency Ethics Official, the Bureau Ethics Counselor is authorized, consistent with 5 CFR 2635.105(c), to designate Deputy Bureau Ethics Counselors, to make a determination, issue explanatory guidance, and establish procedures necessary to implement this part, subpart I of 5 CFR part 2634, and 5 CFR part 2635 for the Bureau.
(b) Designation of separate agency component. Pursuant to 5 CFR 2635.203(a), the Office of the Inspector General is designated as a separate agency for purposes of the regulations contained in subpart B of 5 CFR part 2635, governing gifts from outside sources; and 5 CFR 2635.807, governing teaching, speaking, or writing.
PARTS 7502-7599 [RESERVED]
CHAPTER LXVI—NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
PART 7600 [RESERVED]
PART 7601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
§ 7601.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the National Archives and Records Administration (NARA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, employees of NARA are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
§ 7601.102 Prior approval of outside employment.
(a) Prior approval requirement. An employee, other than a special Government employee, must obtain written approval before engaging in any outside employment, whether or not for compensation. Requests for approval shall be submitted in accordance with procedures set forth in the NARA Administrative Procedures Manual, ADMIN. 201, copies of which can be obtained from the NARA designated agency ethics official.
(b) Standard of approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Scope of approval. Approval will be for a period not to exceed three years, after which renewed approval must be sought in accordance with this section. Upon a significant change in the nature or scope of the outside employment or in the employee’s NARA position, the employee shall submit a revised request for approval.
(d) Definition of employment. For purposes of this section, employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves the provision of professional services or advice for compensation other than reimbursement for actual expenses.
PARTS 7602-7699 [RESERVED]
CHAPTER LXVII—INSTITUTE OF MUSEUM AND LIBRARY SERVICES
PART 7700 [RESERVED]
PART 7701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INSTITUTE OF MUSEUM AND LIBRARY SERVICES
§ 7701.101 Purpose.
In accordance with 5 CFR 2635.105, the regulations of this part apply to employees of the Institute of Museum and Library Services (IMLS) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, employees of IMLS are subject to the executive branch employee responsibilities and conduct regulations at 5 CFR part 735, the executive branch financial disclosure regulations at 5 CFR part 2634, and the executive branch financial interests regulations at 5 CFR part 2640.
§ 7701.102 Prior approval for outside employment.
(a) Before engaging in any outside employment with a prohibited source within the meaning of 5 CFR 2635.203(d), whether or not for compensation, an employee other than a special Government employee must obtain written approval from his or her immediate supervisor and the Designated Agency Ethics Official. The request for approval shall include the following:
(1) The name of the person, group, or organization for which the work is to be performed, the type of work to be performed, and the proposed hours of work and approximate dates of employment;
(2) A brief description of the employee’s official IMLS duties and a brief description of the employee’s discipline or inherent area of expertise based on experience of educational background;
(3) The employee’s certification that the outside employment will not depend on information obtained as a result of the employee’s official Government position and that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment; and
(4) Responses to the following:
(i) Whether the proposed outside employment will pertain to a matter to which the employee is presently assigned or has been assigned within the last year;
(ii) Whether the proposed outside employment pertains to an ongoing or announced agency policy or program;
(iii) Whether the sponsor of the proposed outside employment has any interests before IMLS that may be substantially affected by the performance or nonperformance of the employee’s duties;
(iv) Whether the employee intends to refer to his or her official IMLS position during the proposed outside employment and if so, the text of any disclaimers that he or she will use;
(v) Whether the employee will receive any payment or compensation for the proposed outside employment; and
(vi) Whether the proposed outside employment will involve teaching a course which is part of the established curriculum of an accredited institution of higher education, secondary school, elementary school, or an education or training program sponsored by a Federal, State or local government entity.
(b) Approval shall be granted only upon determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(c) Outside employment means any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services such as acting as an officer, director, employee, trustee, agent, attorney, consultant, contractor, general partner, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product.
PARTS 7702-7799 [RESERVED]
CHAPTER LXVIII—COMMISSION ON CIVIL RIGHTS
PART 7800 [RESERVED]
PART 7801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS
§ 7801.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the United States Commission on Civil Rights (Commission) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained at 5 CFR part 2635. Employees of the Commission are required to comply with this part, 5 CFR part 2635, the executive branchwide financial disclosure and financial interests regulations at 5 CFR parts 2634 and 2640, and implementing guidance and procedures. Commission employees are also subject to the executive branch regulations on responsibilities and conduct at 5 CFR part 735.
(b) Definition. The Designated Agency Ethics Official (DAEO) is the Solicitor for the Commission.
§ 7801.102 Prior approval for outside employment.
(a) An employee, other than a special Government employee, of the Commission who wishes to engage in outside employment shall first obtain the approval, in writing, of the Designated Agency Ethics Official (DAEO). Volunteer professional services, however, may be “generally approved” in advance as described in paragraph (e) of this section.
(b) Standard for approval. Approval shall be granted by the DAEO only upon a determination that the prospective outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Upon a significant change in the nature or scope of the outside employment or the employee’s official position, the employee must submit a revised request for approval.
(d) For purposes of this section, “outside employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
(e)(1) The Commission may designate volunteer activities as “generally approved,” or preapproved by the DAEO, in order to facilitate the participation of the Commission’s professional and nonprofessional staff (whether involving legal or non-legal services). Non-representational pro bono legal services designated as “generally approved” require employees to notify the DAEO, the General Counsel (GC), and the employee’s supervisor (if different from the GC) prior to the employee’s participation; however, no additional prior approval is required. Representational pro bono legal services designated as “generally approved” still require prior case-specific written approval by the DAEO pursuant to this section, and notification of the GC and the employee’s supervisor (if different from the GC). Non-legal professional volunteer activities designated as “generally approved” require employees to notify their supervisor and the DAEO. However, no additional prior written approval is required.
(2) To provide professional services or advice to a program or activity not designated as “generally approved,” the employee must notify his or her supervisor and submit a written request and justification in advance to the DAEO. In addition, in order to provide pro bono legal services the employee must notify the GC (if the GC is not the employee’s supervisor). If providing representational pro bono legal services, the employee must also obtain written case-specific prior approval from the DAEO pursuant to this section. All requests for approval submitted to the DAEO must reflect that the required notifications were made by the employee. All DAEO approvals must be in writing.
PARTS 7802-7899 [RESERVED]
CHAPTER LXIX—TENNESSEE VALLEY AUTHORITY
PART 7900 [RESERVED]
PART 7901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE TENNESSEE VALLEY AUTHORITY
§ 7901.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Tennessee Valley Authority (TVA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition, some TVA employees are subject to the executive branch financial disclosure regulations at 5 CFR part 2634.
§ 7901.102 Prior approval for outside employment.
(a) Before engaging in outside employment, with or without compensation, an employee, other than a special Government employee, must obtain written approval from the supervising TVA vice president or designee. The written request shall be submitted through the employee’s supervisor or human resource office and shall, at a minimum, identify the employer or other person for whom the services are to be provided, as well as the duties, hours of work, and compensation involved in the proposed outside employment.
(b) Approval under paragraph (a) of this section shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) Vice presidents or other officers of TVA may, after consultation with the Designated Agency Ethics Official, exempt specified classes of employees from this section based upon a determination that the official duties of employees in the class are such that their outside employment activities are not likely to raise issues of compliance with 5 CFR part 2635.
(d) For purposes of this section, employment means any form of non-Federal employment or business relationship involving the provision of services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement for actual expenses.
PARTS 7902-7999 [RESERVED]
CHAPTER LXX—COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF COLUMBIA
PART 8000 [RESERVED]
PART 8001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE COURT SERVICES AND OFFENDER SUPERVISION AGENCY
§ 8001.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to the employees of the Court Services and Offender Supervision Agency (CSOSA or Agency), and the employees of the Pretrial Services Agency (PSA or Agency), an independent entity within CSOSA. The regulations in this part supplement the Standards of Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
(b) Cross-references. In addition to 5 CFR part 2635 and this part, CSOSA and PSA employees are subject to the executive branch financial disclosure regulations at 5 CFR part 2634, the regulations concerning executive branch financial interest contained in 5 CFR part 2640, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
§ 8001.102 Prior approval for outside employment.
(a) Prior approval requirement. An employee, other than a special Government employee, must obtain written approval from the employee’s immediate supervisor and the Designated Agency Ethics Official (DAEO) before engaging in any outside employment, whether or not for compensation.
(b) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves the provision of professional services or advice for compensation other than reimbursement for actual expenses, the organization’s activities are devoted substantially to matters relating to the employee’s official duties, or involves conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and paragraph (c) of this section.
(c) Standard of approval. Approval shall be granted only upon a determination that the outside employment or activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The employee’s immediate supervisor and the DAEO shall approve or deny the employee’s request for prior approval of outside employment within seven (7) calendar days of receiving from the employee complete information necessary to make such a determination.
(d) Scope of approval. Approval will be for a period of three years, after which the employee must request renewed approval in accordance with this section. If during the approved three-year period there is a significant change in the nature or scope of the outside employment or in the employee’s Agency position or duties, the employee shall submit a renewed request for approval within ten (10) calendar days of the change.
(e) Submission of application. The employee shall submit the request on a form provided by the DAEO through the employee’s immediate supervisor. The request must be submitted not less than ten (10) calendar days prior to the date the proposed employment will begin, in order to allow for completion of the review before the anticipated start of the outside employment. The form shall set forth at the minimum the description of the employee’s current position; information on the prospective employment, including the nature of the service to be performed, the anticipated date, and number of hours of work per week; whether the prospective employer has any contractual relationship with the Federal government; whether the employee will come in contact with defendants, offenders, family members, or their representatives in the course of the outside employment; whether the prospective employment involves any criminal justice matters; whether the employee will be required to testify as an expert witness in any matter related to the prospective employment; and whether the prospective employment involves solicitation or advertising services.
(f) Appeal. If the Designated Agency Ethics Official denied the request, the employee may appeal that decision to the Agency Director.
PARTS 8002-8099 [RESERVED]
CHAPTER LXXI—CONSUMER PRODUCT SAFETY COMMISSION
PART 8100 [RESERVED]
PART 8101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE CONSUMER PRODUCT SAFETY COMMISSION
§ 8101.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Consumer Product Safety Commission (CPSC). These regulations supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
§ 8101.102 Prohibitions applicable to Commissioners.
The Commissioners of the Consumer Product Safety Commission are subject to section 4(c) of the Consumer Product Safety Act, 15 U.S.C. 2053(c). That statutory provision provides that a Commissioner may not engage in any other business, vocation, or employment.
§ 8101.103 Prior approval for outside employment.
(a) Prior approval requirement. Before engaging in any outside employment, with or without compensation, an employee, other than a special Government employee. shall obtain prior written approval from his or her supervisor and the Designated Agency Ethics Official (DAEO) or Alternate DAEO. The Request for Approval of Outside Activity (CPSC Form 241), available from the DAEO or unit administrative officer, may be used to request approval. Requests for approval shall be forwarded through normal supervisory channels.
(b) Standard of approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by Federal statute or regulation, including 5 CFR part 2635.
(c) Notification of action. Employees will be notified in writing of the action taken on their requests. All requests will be maintained in the files of the Designated Agency Ethics Official for the duration of the requester’s CPSC employment.
(d) Duration and scope of approval. Approval will be for a period not to exceed two years, after which renewal approval must be sought. An employment must submit a new request for approval after two years or earlier upon either a significant change in the nature or scope of the outside employment or a change in the employee’s CPSC position.
(e) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment, business relationship or activity involving the provision of personal services by the employee, whether or not for compensation. Employment includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. Employment also includes writing when done under an arrangement with another person for production or publication of the written product. Employment does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, consumer or civic organization, unless such activities are for compensation other than reimbursement for expenses or involve the provision of professional services or advice to, or serving as an officer, trustee, or member of a board or other such body of, an organization that is a prohibited source as defined in 5 CFR 2635.203(d).
PARTS 8102-8199 [RESERVED]
CHAPTER LXXIII—DEPARTMENT OF AGRICULTURE
PART 8300 [RESERVED]
PART 8301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE
§ 8301.101 General.
(a) In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Agriculture (Department or USDA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
(b) In addition to 5 CFR part 2635 and this part, employees also are required to comply with the executive branch financial disclosure regulations at 5 CFR part 2634, the regulations on responsibilities and conduct contained in 5 CFR part 735, and Department guidance and procedures established pursuant to paragraph (c) of this section.
(c) With the concurrence of the Designated Agency Ethics Official (DAEO), agencies and components of the Department may, in accordance with 5 CFR 2635.105(c), issue explanatory guidance for their employees and establish procedures necessary to implement this part and part 2635 of this title. The Deputy Ethics Official for each agency or component shall retain copies of all such guidance issued by that agency or component.
§ 8301.102 Prior approval for outside employment.
(a) Prior approval requirement. An employee, other than a special Government employee, who is required to file either a public or confidential financial disclosure report (SF 278 or OGE Form 450), or an alternative form of reporting approved by the Office of Government Ethics, shall, before engaging in outside employment, obtain written approval in accordance with the procedures set forth in paragraph (c) of this section.
(b) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment or business relationship or activity involving the provision of personal services by the employee for direct, indirect, or deferred compensation other than reimbursement of actual and necessary expenses. It also includes, irrespective of compensation, the following outside activities.
(1) Providing personal services as a consultant or professional, including service as an expert witness or as an attorney; and
(2) Providing personal services to a for-profit entity as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee, which involves decision making or policymaking for the non-Federal entity, or the provision of advice or counsel.
(c) Submission of requests for approval. An employee seeking to engage in employment for which advance approval is required shall submit a written request for approval to the employee’s supervisor a reasonable time before the employee proposes to begin the employment. Upon a significant change in the nature of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval. The supervisor will forward written requests for approval to the agency designee, through normal supervisory channels. All requests for prior approval shall include the following information:
(1) The employee’s name, organizational location, occupational title, grade, and salary;
(2) The nature of the proposed outside employment, including a full description of the specific duties or services to be performed;
(3) A description of the employee’s official duties that relate in any way to the proposed employment;
(4) The name and address of the person or organization for whom or with which the employee is to be employed, including the location where the services will be performed;
(5) The method or basis of any compensation (e.g., fee, per diem, honorarium, royalties, stock options, travel and expenses, or other);
(6) A statement as to whether the compensation is derived from a USDA grant, contract, cooperative agreement, or other source of USDA funding;
(7) For employment involving the provision of consultative or professional services, a statement indicating whether the client, employer, or other person on whose behalf the services are performed is receiving, or intends to seek, a USDA grant, contract, cooperative agreement, or other funding relationship; and
(8) For employment involving teaching, speaking, writing or editing, the proposed text of any disclaimer required by 5 CFR 2635.807(b).
(d) Standard for approval. Approval shall be granted by the agency designee unless it is determined that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(e) Responsibilities of the component agencies. (1) The agency designee for each separate agency or component of USDA may issue an instruction or manual issuance exempting categories of employment from a requirement of prior written approval based on a determination that employment within those categories would generally be approved and is not likely to involve conduct prohibited by Federal statutes or regulations, including 5 CFR part 2635 and this part.
(2) Department components may specify internal procedures governing the submission of prior approval requests, including but not limited to: timely submission requirements; determination deadlines; appeals or reviews; and requirements for updating requests. Internal procedures also should designate appropriate officials to act on such requests. The instructions or manual issuances may include examples of outside employment that are permissible or impermissible consistent with 5 CFR part 2635 and this part. With respect to employment involving teaching, speaking or writing, the instructions or manual issuances may specify pre-clearance procedures and/or require disclaimers indicating that the views expressed do not necessarily represent the views of the agency, USDA or the United States.
(3) The officials within the respective USDA agencies or components responsible for the administrative aspects of these regulations and the maintenance of records shall make provisions for the filing and retention of requests for approval of outside employment and copies of the notification of approval or disapproval.
§ 8301.103 Additional rules for employees of the Farm Service Agency.
(a) Application. This section applies only to Farm Service Agency (FSA) personnel who are Federal employees within the meaning of 5 U.S.C. 2105. This section does not apply to FSA community committee members, county committee members, and county office personnel, who are either elected to their positions or are employees of community or county committees established under 16 U.S.C. 590h. For rules applicable to FSA community committee members, county committee members, and county office personnel, see 7 CFR part 7.
(b) Definition of FSA program participant. For purposes of this section, the phrase “FSA program participant,” includes any person who is, or is an applicant to become, an FSA borrower, FSA grantee, or recipient of any other form of FSA financial assistance available under any farm credit, payment or other program administered by FSA.
(c) Prohibited real estate purchases. (1) No FSA employee, or spouse or minor child of an FSA employee, may directly or indirectly purchase real estate held in the FSA inventory, for sale under forfeiture to FSA, or from an FSA program participant.
(2) Waiver. A request for an exception to the prohibition found in paragraph (c)(1) of this section may be submitted jointly by the FSA program participant and FSA employee (whether on his or her own behalf, or on behalf the employee’s spouse or minor child), to the FSA State Executive Director. The FSA State Executive Director may grant a written waiver from this prohibition based on a determination made with the advice and clearance of the DAEO and the FSA headquarters ethics advisor that the waiver is not inconsistent with part 2635 of this title nor 7 U.S.C. 1986 nor otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.
(d) Prohibited transactions with FSA program participants. (1) Except as provided in paragraph (d)(2) of this section, no FSA employee or spouse or minor child of an FSA employee may directly or indirectly: sell real property to; lease real property to or from; sell to, lease to or from, or purchase personal property from; or employ for compensation a person whom the FSA employee knows or reasonably should know is an FSA program participant directly affected by decisions of the particular FSA office in which the FSA employee serves.
(2) Exceptions. Paragraph (d)(1) of this section does not apply to:
(i) A sale, lease, or purchase of personal property, if it involves:
(A) Goods available to the general public at posted prices that are customary and usual within the community; or
(B) Property obtained pursuant to public auction; or
(ii) Transactions listed in (d)(1) of this section determined in advance by the appropriate FSA State Executive Director, after consulting with the FSA Headquarters ethics advisor, to be consistent with part 2635 of this title and otherwise not prohibited by law.
(e) Additional prior approval requirements for outside employment. Any FSA employee not otherwise required to obtain approval for outside employment under § 8301.102 shall obtain written approval in accordance with the procedures and standards set forth in paragraphs (c) and (d) of § 8301.102 before engaging in outside employment, as that term is defined by paragraph (b) of § 8301.102, with or for a person:
(1) Whom the FSA employee knows, or reasonably should know, is an FSA program participant; and
(2) Who is directly affected by decisions made by the particular FSA office in which the FSA employee serves.
§ 8301.104 Additional rules for employees of the Food Safety and Inspection Service.
Any employee of the Food Safety and Inspection Service not otherwise required to obtain approval for outside employment under § 8301.102, shall, before engaging in any form of outside employment, obtain written approval in accordance with the procedures and standards set forth in paragraphs (c) and (d) of § 8301.102
§ 8301.105 Additional rules for attorneys in the Office of the General Counsel.
(a) Additional rules for attorneys in the Office of the General Counsel regarding the outside practice of law. Any attorney serving within the Office of the General Counsel shall obtain written approval, in accordance with the procedures set forth in § 8301.102(c) and the standard for approval set forth in paragraph (b) of this section, before engaging in the outside practice of law, whether compensated or not. For purposes of this section the “outside practice of law” means those activities requiring professional licensure by a state bar as an attorney and include, but are not limited to, providing legal advice to a client, drafting legal documents, and representing clients in legal negotiations or litigation.
(b) Standard for approval. Approval shall be granted by the agency designee unless it is determined that the outside practice of law is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635, or paragraph (c) of this section.
(c)(1) Prohibited outside practice of law applicable to attorneys in the Office of the General Counsel. An employee who serves as an attorney within the Office of the General Counsel shall not engage in any outside practice of law that might require the attorney to:
(i) Assert a legal position that is or appears to be in conflict with the interests of the Department of Agriculture, the client to which the attorney owes a professional responsibility; or
(ii) Interpret any statute, regulation, or rule administered or issued by the Department of Agriculture, or where a supervisory attorney determines that the outside practice of law would conflict with the employee’s official duties or create the appearance of a loss of the attorney’s impartiality, as prohibited by 5 CFR 2635.802; or
(iii) Act as an agent or attorney in any matter in which the U.S. government is a party or has a direct and substantial interest, as prohibited by 18 U.S.C. 205.
(2) Exceptions. Nothing in paragraph (c)(1) of this section prevents an attorney in the Office of the General Counsel from:
(i) Acting, with or without compensation, as an agent or attorney for, or otherwise representing, the employee’s parents, spouse, child, or any other person for whom, or for any estate for which, the employee is serving as guardian, executor, administrator, trustee, or other personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and 205(e), or from providing advice or counsel to such persons or estates; or
(ii) Acting, without compensation, as an agent or attorney for, or otherwise representing, any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings, or from providing uncompensated advice and counsel to such person to the extent permitted by 18 U.S.C. 205; or
(iii) Acting, without compensation, as an agent or attorney for, or otherwise representing any cooperative, voluntary, professional, recreational, or similar organization or group not established or operated for profit, if a majority of the organization’s or group’s members are current employees of the United States or the District of Columbia, or their spouses or dependent children. As limited by 18 U.S.C. 205(d), this exception is not permitted for any representation with respect to a matter which involves prosecuting a claim against the United States under 18 U.S.C. 205(a)(1) or 18 U.S.C. 205(b)(1), or involves a judicial or administrative proceeding where the organization or group is a party, or involves a grant, contract, or other agreement providing for the disbursement of Federal funds to the organization or group; or
(iv) Giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.
(3) Specific approval procedures for paragraph (c)(2) of this section.
(i) The exceptions to 18 U.S.C. 203 and 205 described in paragraph (c)(2)(i) of this section do not apply unless the employee obtained the prior approval of the Government official responsible for the appointment of the employee to a Federal position.
(ii) The exceptions to 18 U.S.C. 205 described in paragraphs (c)(2)(ii) and (c)(2)(iii) of this section do not apply unless the employee has obtained the prior approval of a supervisory official who has authority to determine whether the employee’s proposed representation is consistent with the faithful performance of the employee’s duties.
(d) Pro Bono activity. Subject to compliance with paragraph (c) of this section, attorneys within the Office of the General Counsel are permitted to provide outside pro bono legal services (without compensation other than reimbursement of expenses) to organizations or individuals through a non-profit organization, without obtaining prior written approval in accordance with the procedures set forth in § 8301.102(c).
§ 8301.106 Additional rules for employees of the Office of Inspector General.
Any employee of the Office of Inspector General, not otherwise required to obtain approval for outside employment under § 8301.102, shall obtain written approval, in accordance with the procedures and standards set forth in paragraphs (c) and (d) of § 8301.102, before engaging in any form of outside employment that involves the following:
(a) Law enforcement, investigation, security, firearms training, defensive tactics training, and protective services;
(b) Auditing, accounting, bookkeeping, tax preparation, and other services involving the analysis, use, or interpretation of financial records;
(c) The practice of law, whether compensated or not; or
(d) Employment involving personnel, procurement, budget, computer, or equal employment opportunity services.
§ 8301.107 Additional rules for RD employees.
(a) Application. Except where otherwise noted below, this section applies to all of the Department’s RD employees, other than special Government employees, as defined at 18 U.S.C. 202, including employees of the Rural Housing Service, Rural Business and Cooperative Service, and Rural Utilities Service.
(b) Definition of RD program participant. For purposes of this section, the phrase “RD program participant,” includes any person (including any entity) who, either individually or collectively, currently has an outstanding loan, loan guaranty, or grant from RD, currently receives any other form of RD financial assistance under a credit, payment, or other program administered by RD, or has an application on file to become an RD borrower, RD grantee, or recipient of any other form of RD financial assistance available under any credit, payment or other program administered by RD. Voluntary membership by a person in a utility or public-type facility organization that is an RD program participant does not make the person an RD program participant.
(c) Prohibited financial interests. (1) Except as provided for in paragraph (c)(2) of this section, an RD employee, or a spouse or minor child of an RD employee, shall not knowingly own, receive, or acquire stock, or hold any other financial interest in a for-profit entity, or affiliate of a for-profit entity, that is an RD program participant, a business that does or seeks to do business with RD, or one that sells repeatedly to RD borrowers or contractors for payment from RD loan, loan guaranty, or grant funds, if that entity or affiliate is affected by decisions of the particular RD office in which the RD employee serves. Types of entities covered by this section include, but are not limited to the following:
(i) Entities engaged in commercial real estate sales and leasing, including brokers, sales agents, mortgage lenders, and other financial servers;
(ii) Title and abstract companies;
(iii) House/building construction companies and subcontractors;
(iv) Building supply companies and lumberyards;
(v) Insurance companies; and
(vi) Entities involved in land development.
(2) Exceptions. (i) Nothing in this section prohibits an RD employee, or a spouse or minor child of an RD employee, from owning any of the interests described in paragraph (c)(1) of this section where the interest is held through investment in a publicly traded or publicly available mutual fund or other collective investment fund or in a widely held pension or similar fund provided that the fund does not invest more than 5 percent of its assets in any one entity covered under paragraph (c)(1) of this section and does not invest more than 25 percent of its assets in any combination of entities covered under paragraph (c)(1) of this section.
(ii) Nothing in this section prohibits an RD employee, or a spouse or minor child of an RD employee, from owning Patronage Capital that the employee receives simply by reason of being a member of a nonprofit entity, such as an electric, telecommunications, or water cooperative. For purposes of this section, Patronage Capital is defined as amounts received for providing a service in excess of the amounts required for operating costs and expenses.
(d) Prohibited real estate purchases. Except in cases where a waiver has been granted pursuant to paragraph (g) of this section, no RD employee, or spouse or minor child of an RD employee may personally, or through the participation of another person, knowingly purchase real estate or personal property: Mortgaged or pledged to the Government through RD; held in the RD inventory; for sale under forfeiture to RD; or from an RD program participant.
(e) Prohibited transactions with RD program participants. (1) Except in cases where a transaction is subject to the exceptions set forth in paragraph (e)(2) of this section, or where a waiver has been granted pursuant to paragraph (g) of this section, no RD employee or spouse or minor child of an RD employee, may knowingly: Purchase an interest in or sell real property to; lease real property to or from; sell to, lease to or from, or purchase personal property from; seek or accept credit from RD-financed cooperative associations; or employ for compensation a person whom the RD employee or spouse or minor child of the RD employee, knows or reasonably should know is an RD program participant directly affected by decisions of the particular RD office in which the RD employee serves.
(2) Exceptions. Paragraph (e)(1) of this section does not apply to a sale, lease, or purchase of personal property, if it involves goods available to the general public at posted prices that are customary and usual within the community.
(f) Prohibited outside employment. No RD employee may provide personal consulting services for any person or entity with an application on file with, grant from, or outstanding loan or loan guaranty with RD, if the application, grant, or outstanding loan or loan guaranty could be affected directly by decisions of the particular RD office in which the RD employee serves.
(g) Waiver—(1) Approving officials. A written request for an exception to the prohibitions found in paragraphs (d) and (e) of this section may be submitted in advance of the transaction by the RD employee (whether on his or her own behalf, or on behalf of the employee’s own spouse or minor child) to:
(i) The RD State Director, for RD State-level employees; or
(ii) The Deputy Administrator for Operations and Management, for RD State Directors and National Office employees.
(2) Standards. The RD State Director or Deputy Administrator for Operations and Management may grant a written waiver from this prohibition based on a determination made with the concurrence of the USDA Office of Ethics that all three of the following conditions are satisfied:
(i) The waiver is not inconsistent with part 2635 of this title, this part, or 7 U.S.C. 1986, nor otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered;
(ii) The transaction:
(A) Appears free of duress or favoritism;
(B) Does not involve a contractual relationship or obligation that exceeds 365 consecutive calendar days; and
(C) Is in the best interests of the RD program participant; and
(iii) A denial of the request would likely cause significant hardship to the RD program participant.
(3) Additional conditions. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification. Approval of a waiver under this paragraph does not exempt the employee from complying with other applicable programmatic requirements under 7 CFR part 3550.9.
(h) Additional prior approval requirement for outside employment. (1) Any RD employee wishing to engage in outside employment as defined in paragraph (b) of § 8301.102 and who is not otherwise required to obtain approval therefor under that section, shall obtain prior written approval in accordance with the procedures set forth in paragraphs (c) and (d) of § 8301.102 if the outside employment is covered under paragraph (h)(2) or paragraph (h)(3) of this section.
(2) Outside employment is subject to the prior approval requirement of this paragraph if it involves any of the following activities, if conducted in the area serviced by the RD office in which the employee serves:
(i) Sale, appraisal, or assessment of real estate;
(ii) Performance of real estate brokerage services;
(iii) Service as a title attorney or title insurance representative;
(iv) Real estate development, including the construction of houses or other buildings;
(v) Service as an officer or on the board of directors of a bank or savings and loan association;
(vi) Service as an officer, member of the board of directors or trustees, or as an employee of an RD-financed entity;
(vii) Service as an officer, employee, or member of a governing board of a State, county, municipal, or other local political jurisdiction having the power to tax or zone real estate;
(viii) Membership in grazing associations, un-incorporated Economic Opportunity cooperatives, rental housing groups, and closely-held labor housing organizations;
(ix) Insurance sales; or
(x) Land speculation.
(3) Outside employment is also subject to the prior approval requirements of this paragraph if it is with or for a person whom the RD employee knows, or reasonably should know, is both:
(i) An RD program participant; and
(ii) Directly affected by decisions made by the particular RD office in which the RD employee serves.
PARTS 8302-8399 [RESERVED]
CHAPTER LXXIV—FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
PART 8400 [RESERVED]
PART 8401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
§ 8401.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to the employees of the Federal Mine Safety and Health Review Commission (Commission) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635. Commission employees also are subject to the executive branch financial disclosure regulations at 5 CFR part 2634.
§ 8401.102 Prohibited financial interests.
(a) Prohibition. Except as provided in this section, no employee (other than a special Government employee), or spouse or minor child of such an employee, shall have a financial interest, including compensated employment or indebtedness, in any company or other person engaged in mining activities subject to the Federal Mine Safety and Health Act of 1977 (Federal Mine Safety and Health Act), 30 U.S.C. 801 et seq.
(b) Exceptions. (1) This section does not prohibit an employee, or the spouse or minor child of an employee, from investing in a publicly traded or publicly available investment fund which, in its prospectus, does not indicate the objective or practice of concentrating its investments in the securities of any company or other person engaged in mining activities subject to the Federal Mine Safety and Health Act, provided that the employee neither:
(i) Exercises control over the financial interests held in the fund; nor
(ii) Has the ability to exercise control over the financial interests held in the fund.
(2)(i) Unless divestiture is required by paragraph (c) of this section, this section does not prohibit an employee, or the spouse or minor child of an employee, from owning or controlling securities of any company or other person engaged in mining activities subject to the Federal Mine Safety and Health Act, whenever:
(A) Ownership or control was acquired prior to the employee’s commencement of employment, through a change in marital status, or through circumstances beyond the employee’s control and without the appearance of attempting to circumvent the prohibitions in this section, such as acquisition by inheritance, gift, or merger, acquisition or other change in corporate ownership, provided that: (1) The employee makes full, written disclosure to the designated agency ethics official within 30 days after the security is acquired or the employment is commenced; and
(2) The employee is disqualified from participating in any decision, examination, audit, or other particular matter having a direct and predictable effect on such company or other person, in which the employee holds a direct or indirect interest.
(B) The securities result from a stock split, stock dividend or the exercise of preemptive rights arising out of securities permitted by paragraph (b)(2)(i)(A) of this section. This paragraph does not permit the holding of stocks purchased through voluntary reinvestment of cash dividends.
(ii) For purposes of this section, the term “securities” includes all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both current and contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and includes, without limitation, interests convertible into such securities, as well as options, rights, warrants, puts, calls, and straddles with respect thereto.
(c) Divestiture. The designated agency ethics official may require an employee to divest a security the employee is otherwise authorized to retain under paragraph (b)(2) of this section, based on a determination of substantial conflict under § 2635.403(b) of this title.
(d) Waivers. The designated agency ethics official may grant a written waiver from the prohibition contained in this section based on a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which Commission programs are administered. A waiver under this paragraph may be accompanied by appropriate conditions, such as requiring execution of a written statement of disqualification. Notwithstanding the grant of any waiver, an employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.
§ 8401.103 Prior approval for outside employment.
(a) Prior approval requirement. (1) Before engaging in any outside employment, whether or not for compensation, a Commission employee who is classified at GS-13 or above, as well a Commission attorney at any grade level, must obtain the written approval of the employee’s immediate supervisor and the designated agency ethics official. This requirement does not apply to a special Government employee of the Commission.
(2) Requests for approval shall be forwarded through the employee’s immediate supervisor to the designated agency ethics official and shall include at a minimum the name of the person, group, or organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted only upon a determination that outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR 2635 and this part.
(c) Definitions. For purposes of this section:
(1) Employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee or teacher. It also includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement expenses.
(2) Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1).
PARTS 8402-8499 [RESERVED]
CHAPTER LXXVI—FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
PART 8600 [RESERVED]
PART 8601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
§ 8601.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Federal Retirement Thrift Investment Board (Board) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition, Board employees are subject to the executive branch financial disclosure regulations at 5 CFR part 2634.
§ 8601.102 Prior approval for outside employment.
(a) Before engaging in outside employment, with or without compensation, an employee, other than a special Government employee, must obtain written approval from his or her office director. The written request shall be submitted through the employee’s immediate supervisor, unless the supervisor is the employee’s office director, and shall identify the employer or other person for whom the services are to be provided, as well as the duties, hours of work, and compensation involved in the proposed outside employment.
(b) Approval under paragraph (a) of this section shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) In addition to the approval required by paragraph (a) of this section, an employee whose outside employment involves teaching, speaking, or writing that relates to his or her official duties within the meaning of 5 CFR 2635.807(a)(2) shall obtain approval from the Executive Director of the Board to engage in the activity as an outside activity, rather than as part of the employee’s official duties.
(d) For purposes of this section, employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civil organization, unless the participation involves the provision of professional services or advice for compensation other than reimbursement for actual expenses.
PARTS 8602-8699 [RESERVED]
CHAPTER LXXVII—OFFICE OF MANAGEMENT AND BUDGET
PART 8700 [RESERVED]
PART 8701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OFFICE OF MANAGEMENT AND BUDGET
§ 8701.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to the employees of the Office of Management and Budget and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the standards in 5 CFR part 2635 and this part, OMB employees are subject to the executive branch financial disclosure regulations contained in 5 CFR part 2634.
§ 8701.102 Prior approval for outside employment.
(a) Before engaging in outside employment with or without compensation, an employee of the Office of Management and Budget, other than a special Government employee, must obtain the written approval of his or her division or office head, the General Counsel, and the Designated Agency Ethics Official (DAEO). Requests for approval shall be forwarded through normal supervisory channels to the division or office head, who shall forward the request to the General Counsel, to be forwarded with their successive approvals to the DAEO. The request for approval shall include, at a minimum, the following:
(1) A statement of the name of the person, group, or other organization for whom the work is to be performed; the type of work to be performed; and the proposed hours of work and approximate dates of employment; and
(2) A statement that the outside employment will not depend on information obtained as a result of the employee’s official Government position and that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment.
(b) Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(c) For purposes of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities involve the provision of professional services or advice or are for compensation other than reimbursement of expenses.
PARTS 8702-8799 [RESERVED]
CHAPTER LXXX—FEDERAL HOUSING FINANCE AGENCY
PART 9000 [RESERVED]
PART 9001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL HOUSING FINANCE AGENCY
§ 9001.101 General.
(a) Purpose and scope. In accordance with 5 CFR 2635.105, the purpose of this regulation is to supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. The regulation applies to employees of the Federal Housing Finance Agency (FHFA). Employees are required to comply with 5 CFR part 2635, this part, guidance and procedures established pursuant to this part, the regulation concerning the post-employment restriction for senior examiners at 12 CFR part 1212, and any additional rules of conduct that FHFA is authorized to issue. Employees should contact the DAEO if they have questions about any provision of this regulation or other ethics-related matters.
(b) Cross-references—(1) Regulations. FHFA employees are also subject to the regulations concerning executive branch financial disclosure contained in 5 CFR part 2634, the regulations concerning executive branch financial interests contained in 5 CFR part 2640, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
(2)(i) Statutory restriction. Section 1319D of the Act, 12 U.S.C. 4523, prohibits the Director or any former officer or employee of FHFA who, while employed by FHFA, was compensated at a rate in excess of the lowest rate for a position classified higher than GS-15 of the General Schedule under section 5107 of title 5, United States Code, from accepting compensation from an enterprise during the two-year period beginning on the date of his or her separation from employment by FHFA.
(ii) Notice to employees. The DAEO shall notify employees on an annual basis of the rate of compensation that triggers the subsequent employment restriction.
§ 9001.102 Definitions.
For purposes of this part, the term:
Affiliate means any entity that controls, is controlled by, or is under common control with another entity.
Designated Agency Ethics Official, or DAEO, as also used in 5 CFR part 2635, and “alternate DAEO” mean the individuals so designated by the Director, FHFA. The DAEO is responsible for designating agency ethics officials and ethics designees, as such terms are used in 5 CFR part 2635. The alternate DAEO acts as the DAEO in the DAEO’s absence.
Director means the Director of FHFA or his or her designee.
Employee means an officer or employee of FHFA, including a special Government employee. For purposes of this part, it also means an individual on detail from another agency to FHFA for a period of more than 30 calendar days.
Enterprise means the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation.
Federal Home Loan Bank or Bank means a Bank established under the Federal Home Loan Bank Act; the term “Federal Home Loan Banks” means, collectively, all the Federal Home Loan Banks.
Federal Home Loan Bank System means the Federal Home Loan Banks under the supervision of the Federal Housing Finance Agency.
Regulated entity means the Federal National Mortgage Association and any affiliate thereof; the Federal Home Loan Mortgage Corporation and any affiliate thereof; or any Federal Home Loan Bank; the term “regulated entities” means, collectively, the Federal National Mortgage Association and any affiliate thereof; the Federal Home Loan Mortgage Corporation and any affiliate thereof; and the Federal Home Loan Banks.
Safety and Soundness Act means the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501 et seq.), as amended by the Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654 (2008).
Security means all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper including loans securitized by mortgages or deeds of trust and securities backed by such instruments, as well as all types of preferred and common stock. The term encompasses current and contingent ownership interests including any beneficial or legal interest derived from a trust. Such interest includes any right to acquire or dispose of any long or short position in such securities and also includes, without limit, interests convertible into such securities, as well as options, rights, warrants, puts, calls and straddles with respect thereto. The term shall not, however, be construed to include deposit accounts, such as checking, savings, or money market deposit accounts.
§ 9001.103 Waivers.
(a) General. The DAEO may waive any provision of this part upon finding that the waiver will not result in conduct inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that application of the provision is not necessary to ensure public confidence in the impartiality and objectivity with which the programs of FHFA are administered. Each waiver shall be in writing and supported by a statement of the facts and findings upon which it is based and may impose appropriate conditions, including but not limited to requiring the employee to execute a written disqualification statement or an agreement not to acquire additional securities.
(b) Waiver of prohibitions relating to ownership or control of securities. The DAEO may grant a waiver permitting the employee or the employee’s spouse or minor children to own or control, directly or indirectly, any security prohibited under § 9001.104, if, in addition to the standards under paragraph (a) of this section:
(1) Extenuating circumstances exist, such as ownership or control of the security was acquired:
(i) Prior to employment with FHFA;
(ii) Through inheritance, gift, merger, acquisition, or other change in corporate structure, or otherwise without specific intent on the part of the employee, or employee’s spouse or minor children, to acquire the security; or
(iii) By an employee’s spouse or minor children as part of a compensation package in connection with employment or prior to marriage to the employee;
(2) The amount of the prohibited financial interest has a market value of less than the de minimis amount set forth in 5 CFR 2640.202(a);
(3) The employee makes a prompt and complete written disclosure of the interest; and
(4) If the employee is required to disqualify himself or herself from certain assignments, the disqualification does not unduly interfere with the full performance of the employee’s duties.
§ 9001.104 Prohibited financial interests.
(a) General prohibition. This section applies to all employees, except special Government employees. Except as permitted in paragraph (c) of this section, an employee or an employee’s spouse or minor children, shall not directly or indirectly own or control securities owned, issued, guaranteed, securitized, or collateralized by a regulated entity.
(b) Restrictions arising from third-party relationships. If any of the entities listed in paragraphs (b)(1) through (6) of this section owns securities that an employee is prohibited from owning directly by paragraph (a) of this section, the employee is deemed to hold the securities indirectly. The entities are—
(1) A partnership in which the employee or employee’s spouse or minor children are general partners;
(2) A partnership in which the employee or employee’s spouse or minor children individually or jointly hold more than a 10 percent limited partnership interest;
(3) A closely held corporation in which the employee or employee’s spouse or minor children individually or jointly hold more than a 10 percent equity interest;
(4) A trust in which the employee or employee’s spouse or minor children have a legal or beneficial interest;
(5) An investment club or similar informal investment arrangement between the employee or employee’s spouse or minor children and others; or
(6) Any other entity in which the employee or employee’s spouse or minor children individually or jointly hold more than a 10 percent equity interest.
(c) Exceptions to prohibition for certain interests. Notwithstanding paragraphs (a) and (b) of this section, an employee or an employee’s spouse or minor children may directly or indirectly own or control:
(1) A security for which a waiver has been granted pursuant to § 9001.103; and
(2) An interest in a publicly-traded or publicly-available diversified mutual fund or other collective diversified investment fund, including a widely-held pension or other retirement fund if:
(i) Neither the employee, the employee’s spouse, nor the employee’s minor children exercise or have the ability to exercise control over the financial interests held by the fund; and
(ii) The fund does not indicate in its prospectus the objective or practice of concentrating its investments in securities of a regulated entity or regulated entities generally, and less than 25 percent of the total holdings of the fund are comprised of securities owned, issued, guaranteed, securitized, or collateralized by one or more regulated entities.
(d) Reporting and divestiture. An employee must provide, in writing, to the DAEO any financial interest prohibited under paragraph (a) of this section acquired prior to the effective date of this part or the commencement of employment with FHFA or without specific intent, as through gift, inheritance, or marriage, within 30 calendar days from the effective date of this part, commencement of employment with FHFA, or acquisition of such interest. Such financial interest must be divested within 90 calendar days from the date reported unless a waiver is granted in accordance with § 9001.103.
§ 9001.105 Outside employment.
(a) Prohibited outside employment. Employees, except special Government employees, shall not engage in:
(1) Employment with a person or entity, other than a State or local government, that is registered as a lobbyist under the Lobbying Disclosure Act of 1995 (2 U.S.C. chapter 26) and engages in lobbying activities concerning FHFA programs; or
(2) Employment with any regulated entity or with the Office of Finance of the Federal Home Loan Bank System.
(b) Prior approval for and concurrence with other outside employment—(1) Except as provided in paragraph (b)(2) of this section, before engaging in any outside employment that is not prohibited under paragraph (a) of this section, with or without compensation, an employee, other than a special Government employee, must obtain written approval from his or her supervisor and the concurrence of the DAEO. Nonetheless, special Government employees remain subject to other statutory and regulatory provisions governing their outside activities, including 18 U.S.C. 203(c) and 205(c), as well as applicable provisions of 5 CFR part 2635.
(2) An employee, other than a special Government employee, who before the effective date of this part or commencement of employment with FHFA commenced engaging in outside employment that is not prohibited under paragraph (a) of this section must request written approval from his or her supervisor and the concurrence of the DAEO within 30 calendar days of the effective date of this part or commencement of employment with FHFA. The employee may continue engaging in the outside employment while the request is under review.
(c) Definition of outside employment. For purposes of paragraph (b) of this section, outside employment means any form of non-Federal employment or business relationship involving the provision of personal services, whether or not for compensation. It includes, but is not limited to, services as an officer, director, employee, agent, advisor, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person or entity for production or publication of the written product. The definition does not include positions as trustee for a family trust for which the only beneficiaries are the employee, the employee’s spouse, the employee’s minor or dependent children, or any combination thereof. The definition also does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless:
(1) The employee will receive compensation other than reimbursement of expenses;
(2) The organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer or director of the organization; or
(3) The activities will involve the provision of consultative or professional services. Consultative services means the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility. Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2).
There is a special approval requirement set out in both 18 U.S.C. 203(d) and 205(e), respectively, for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. Thus, an employee who wishes to act as agent or attorney for, or otherwise represent his or her parents, spouse, children, or any person for whom, or any estate for which, he or she is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters must obtain the approval required by law of the Government official responsible for the employee’s appointment in addition to the regulatory approval required in this section.
(d) Procedure for requesting approval and concurrence—(1) The approval required by paragraph (b) of this section shall be requested by e-mail or other form of written correspondence in advance of engaging in outside employment as defined in paragraph (c) of this section.
(2) The request for approval to engage in outside employment shall set forth, at a minimum:
(i) The name of the employer or organization;
(ii) The nature of the activity or other work to be performed;
(iii) The title of the position; and
(iv) The estimated duration of the outside employment.
(3) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position within FHFA, the employee must, within seven calendar days of the change, submit a revised request for approval and concurrence.
(e) Standard for concurrence. The DAEO may concur with the supervisor’s approval required by paragraph (b) of this section only upon his or her written determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.
(f) Issuance of instructions. The DAEO may issue written instructions governing the submission of requests for approval of and concurrence with outside employment under paragraph (d) of this section. The instructions may exempt categories of employment from the prior approval and concurrence requirement of paragraph (b) of this section based on a determination by the DAEO that employment within those categories of employment will generally be approved and is not likely to involve conduct prohibited by Federal law or regulation, including 5 CFR part 2635 and this part.
§ 9001.106 Restrictions resulting from employment of family and household members.
(a) Disqualification of employee. An employee may not participate in any particular matter in which a regulated entity is a party if the regulated entity employs as an employee or a consultant his or her spouse, child, parent, or sibling, or member of his or her household unless the DAEO has authorized the employee to participate in the matter using the standard set forth in 5 CFR 2635.502(d).
(b) Reporting certain relationships. Within 30 calendar days of the spouse, child, parent, sibling, or member of the employee’s household being employed by the regulated entity, the employee shall provide in writing notice of such employment to the DAEO.
§ 9001.107 Other limitations.
(a) Director and Deputy Directors. The Director, the Deputy Director of the Division of Enterprise Regulation, the Deputy Director of the Division of Federal Home Loan Bank Regulation, and the Deputy Director for Housing Mission and Goals are subject to additional financial interest limitations as set forth in section 1312(g) of the Safety and Soundness Act, 12 U.S.C. 4512(g).
(b) Financial interests in Bank members and other financial institutions. If an employee or the spouse or minor children of the employee directly or indirectly owns a financial interest in a member of a Bank or in a financial institution such as a mortgage bank, mortgage broker, bank, thrift, or other financial institution that originates, insures, or services mortgages that are owned, guaranteed, securitized, or collateralized by a regulated entity, the employee is cautioned not to violate the statutory prohibition against financial conflicts of interest set forth in 18 U.S.C. 208. The government-wide de minimis and other exceptions set forth in 5 CFR 2640.202 are applicable to the ownership or control of interests in such financial institutions. Employees are encouraged to seek a determination from the DAEO as to whether the financial interest in the member of the Bank or in the financial institution creates a financial conflict of interest or an appearance of a conflict of interest and whether the employee should disqualify himself or herself from participating in an official capacity in a particular matter involving the financial institution.
§ 9001.108 Prohibited recommendations.
Employees shall not make any recommendation or suggestion, directly or indirectly, concerning the acquisition, sale, or divestiture of securities of a regulated entity.
§ 9001.109 Prohibited purchase of assets.
An employee or the employee’s spouse or minor children shall not purchase, directly or indirectly, any real or personal property from a regulated entity, unless it is sold at public auction or by other means which would assure that the selling price is the asset’s fair market value.
PARTS 9002-9099 [RESERVED]
CHAPTER LXXXIII—SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
PART 9300 [RESERVED]
PART 9301—DISCLOSURE OF RECORDS AND INFORMATION
Subpart A—Freedom of Information Act
Procedures for Disclosure of Records Under the Freedom of Information Act
§ 9301.1 In general.
This information is furnished for the guidance of the public and in compliance with the requirements of the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. This subpart should be read in conjunction with the FOIA. The Freedom of Information Act applies to third-party requests for documents concerning the general activities of the government and of SIGAR in particular. When a U.S. citizen or an individual lawfully admitted for permanent residence requests access to his or her own records, it is considered a Privacy Act request. Such records are maintained by SIGAR under the individual’s name or personal identifier. Although requests are considered either FOIA requests for Privacy Act requests, agencies process requests in accordance with both laws, which provides the greatest degree of lawful access while safeguarding an individual’s privacy.
§ 9301.2 Authority and functions.
Section 1229 of the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, established the Special Inspector General for Afghanistan Reconstruction (SIGAR). SIGAR’s mission under Sections 1229 and 842 of Public Law 110-181, is to provide independent oversight of the treatment, handling, and expenditure of funds appropriated or otherwise made available for the reconstruction of Afghanistan; detect and deter fraud, waste, and abuse of U.S. funds; and promote actions to increase program economy, efficiency, and effectiveness.
§ 9301.3 Organization.
SIGAR maintains its headquarters in Arlington, Virginia, and field offices in Kabul and elsewhere in Afghanistan.
Procedures
§ 9301.4 Availability of records.
SIGAR provides records to individual requesters in response to FOIA requests. Records that are required by the FOIA to be made available for public inspection and copying are accessible on SIGAR’s Web site, http://www.sigar.mil. SIGAR will also identify records of interest to the public that are appropriate for public disclosure, and then post these records.
§ 9301.5 Accessing records without request
Certain SIGAR records, including the agency’s Quarterly Report, audit reports, testimony, oversight plans, press releases, other public issuances, and records that are required by 5 U.S.C. 552(a)(2) to be made publicly available are available electronically from SIGAR’s homepage at http://www.sigar.mil. SIGAR encourages requesters to visit its Web site before making a request for records under § 9301.6.
§ 9301.6 Requesting records.
(a) Written requests required. For records not available as described under § 9301.5, requesters wishing to obtain information from SIGAR should submit a written request to SIGAR’s FOIA Officer. Requests should be addressed to FOIA Officer, Office of the Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 601-3804 or by email to [email protected].
(b) Contents of requests. Requests should be as specific as possible and should reasonably specify the records sought so that the records can be located with a reasonable amount of effort. The request should identify the desired record or describe it, and include information such as the date, title or name, author, recipient, and subject matter of the record, where possible. The request should also include a statement of the requester’s willingness to pay fees, or request a fee waiver. The words “FOIA REQUEST” or “REQUEST FOR RECORDS” should be clearly marked on the cover letter, letter, and/or envelope.
(c) Response to requests—(1) Processing. SIGAR will provide an individualized tracking number, and estimated date of completion, and a brief description of the subjects of the request in an acknowledgement letter to the requester. The FOIA Officer shall determine within 20 days (except Saturdays, Sundays, and federal holidays) after receiving a request for records, whether it is appropriate to grant or deny the request. The 20-day period may be tolled once if the FOIA Officer requests information from the requestor or if additional time is necessary to clarify issues with the requestor regarding a fee assessment.
(i) Request granted. If the FOIA Officer decides to grant the request, either in-full or in-part, the FOIA Officer shall promptly provide the requester written notice of the decision. The FOIA Officer shall include with the notice both the requested records and a copy of the decision. The notice shall also describe the procedure for filing an appeal.
(ii) Adverse determinations. If the FOIA Officer denies the request, in full or part, or applies exemptions to withhold requested documents, the FOIA Officer shall provide the requester written notice of the adverse determination together with the approximate number of pages of information withheld and the exemption under which the information was withheld. SIGAR will indicate, if technically feasible, the amount of information deleted and the exemption under which the deletion is made at the place in the record where the deletion was made. SIGAR will also indicate the exemption under which a deletion is made on the released portion of the record, unless including that indication would harm an interest protected by the exemptions. The notice shall also describe the procedure for filing an appeal. SIGAR will further notify the requester of their right to seek assistance from SIGAR’s FOIA Public Liaison or dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services in the case of an adverse determination.
(iii) Consultations and referrals: When SIGAR receives a request for a record in its possession, it will determine whether another agency of the Federal Government, is better able to determine whether the record is exempt from disclosure under the FOIA and, if so, whether it should be disclosed as a matter of administrative discretion. If SIGAR determines that it is best able to process the record in response to the request, then it will do so. If SIGAR determines that it is not best able to process the record, then it will either:
(A) Respond to the request regarding that record, after consulting with the agency best able to determine whether to disclose it and with any other agency that has a substantial interest in it; or
(B) Refer the responsibility for responding to the request regarding that record to the agency that originated the record (but only if that agency is subject to the FOIA). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it.
(2)(i) Expedited processing. At the time a requester submits an initial request for records the requester may ask the FOIA Officer in writing to expedite processing of the request. The request for expedited processing must be accompanied by a written statement, which shall state that it is true and correct to the best of the requester’s knowledge and belief, explaining why expedited processing is warranted. The FOIA Officer shall generally grant requests for expedited processing of requests for records, and appeals of denials under paragraph (d)(2) of this section, whenever the FOIA Officer determines that:
(A) Failure to obtain the requested records on an expedited basis could reasonably pose a threat to a person’s life or physical safety; or
(B) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about Government activity that is the specific subject of the FOIA request.
(ii) The FOIA Officer shall ordinarily decide within ten calendar days after receiving a request for expedited processing whether to grant it and shall notify the requester of the decision. If the FOIA Officer grants a request for expedited processing, the FOIA Officer shall process the request as soon as practicable. If the FOIA Officer denies a request for expedited processing, SIGAR shall act expeditiously on any appeal of that denial.
(3) Extension for unusual circumstances—
(i) In general. If the FOIA Officer determines that unusual circumstances exist, the FOIA Officer may extend for no more than ten days (except Saturdays, Sundays and Federal holidays) the time limits described in paragraph (c)(1) of this section by providing written notice of the extension to the requester. The FOIA Officer shall include with the notice a brief statement of the reason for the extension and the date the FOIA Officer expects to make the determination. If the extension goes beyond ten working days, the FOIA Officer will include a notification of the requester’s right to seek dispute resolutions services from the Office of Government Information Services.
(ii) Additional procedures. The FOIA Officer shall provide written notice to the requester if the FOIA Officer decides that the determination cannot be made within the time limit described in paragraph (c)(3)(i) of this section. The notice shall afford the requester an opportunity to limit the scope of the request to the extent necessary for the FOIA Officer to process it within that time limit or an opportunity to arrange a longer period for processing the request.
(d) Appeals—(1) Initiating appeals. Requesters not satisfied with the FOIA Officer’s written decision may request SIGAR’s FOIA Appellate Authority to review the decision. Appeals must be delivered in writing within 90 days of the date of the decision and shall be addressed to the FOIA Appellate Authority, Office of Privacy, Records & Disclosure, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. As there may be delays in mail delivery, it is advisable to Fax appeals to (703) 601-3804 or email to [email protected]. An appeal shall include a statement specifying the records that are the subject of the appeal and explaining why the Appellate Authority should grant the appeal.
(2) Appeal decisions. The Appellate Authority shall decide the appeal within 20 days (except Saturdays, Sundays and federal holidays) from the date it receives the appeal. If the Appellate Authority denies the appeal in full or part, the Appellate Authority shall promptly notify the requester in writing of the Appellate Authority’s decision and the provisions for judicial review. If the Appellate Authority grants the appeal, the FOIA Officer shall notify the requester in writing and shall make available to the requester copies of the releasable records once the requester pays any fees that SIGAR assesses under §§ 9301.8 through 9301.10.
(3) Dispute resolution. A response to an appeal will advise the requester that the 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer dispute resolution services to resolve disputes between FOIA requesters and Federal agencies as a nonexclusive alternative to litigation. Dispute resolution is a voluntary process. A requester may contact OGIS in any of the following ways: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740; Email: [email protected]; Telephone: 202-741-5770; Facsimile: 202-741-5769; Toll-free: 1-877-684-6448.
Costs
§ 9301.7 Definitions.
For purposes of this subpart:
(a) Commercial use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the requester’s or other person’s commercial, trade, or profit interests.
(b) Direct costs means those costs incurred in searching for and duplicating (and, in the case of commercial use requests, reviewing) documents to respond to a FOIA request. Direct costs include, for example, salaries of employees who perform the work and costs of conducting large-scale computer searches.
(c) Duplicate means to copy records to respond to a FOIA request. Copies can take the form of paper, audio-visual materials, or electronic records, among others.
(d) 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, and an institution of vocational education, that operates a program or programs of scholarly research.
(e) Fee category means one of the three categories that agencies place requesters in for the purpose of determining whether a requester will be charged fees for search, review and duplication.
(f) Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied.
(g) Non-commercial scientific institution means an institution that is not operated on a commercial basis and that operates solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(h) Representative of the news media means 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) Review means to examine a record to determine whether any portion of the record may be withheld and to process a record for disclosure, including by redacting it.
(j) Search for means look for and retrieve records covered by a FOIA request, including by looking page-by-page or line-by-line to identify responsive material within individual records.
§ 9301.8 Fees in general.
SIGAR shall charge reasonable fees that recoup the full allowable direct costs it incurs in responding to FOIA requests. SIGAR will provide an estimated amount of fees, including a breakdown of the fees for search, review, and/or duplication. SIGAR may assess charges for time spent searching for records even if SIGAR is unable to locate the records or if the records are located and determined to be exempt from disclosure. In general, SIGAR shall apply the following fee schedule, subject to §§ 9301.9 through 9301.11:
(a) Manual searches. Time devoted to manual searches shall be charged on the basis of the salary of the employee(s) conducting the search (basic hourly rate(s) of pay for the employee).
(b) Electronic searches. Fees shall reflect the direct cost of conducting the search. This will include the cost of operating the central processing unit for that portion of operating time that is directly attributable to searching for and printing records responsive to the FOIA request and operator/programmer salary attributable to the search.
(c) Record reviews. Time devoted to reviewing records shall be charged on the same basis as under paragraph (a) of this section, but shall only be applicable to the initial review of records located in response to commercial use requests.
(d) Duplication. Fees for copying paper records or for printing electronic records shall be assessed at a rate of $.10 per page. For other types of copies such as disks or audio visual tapes, SIGAR shall charge the direct cost of producing the document(s). If duplication charges are expected to exceed $25, the FOIA Officer shall notify the requester, unless the requester has indicated in advance a willingness to pay fees as high as those anticipated.
(e) Advance payments required. (1) The FOIA Officer may require a requester to make an advance deposit of up to the amount of the entire anticipated fee before the FOIA Officer begins to process the request if:
(i) The FOIA Officer estimates that the fee will exceed $250; or
(ii) [Reserved]
(2) The requester has previously failed to pay a fee in a timely fashion.
(i) [Reserved]
(ii) When the FOIA Officer requires a requester to make an advance payment, the 20-day period described in § 9301.6(c)(1) shall begin when the FOIA Officer receives the payment.
(f) No assessment of fee. SIGAR shall not charge a fee to any requester if:
(1) The cost of collecting the fee would be equal to or greater than the fee itself; or
(2) SIGAR fails to comply with any time limit under the FOIA for responding to a request for records where no unusual or exceptional circumstances apply.
(3) SIGAR determines that unusual circumstances apply to the processing of a request, provides timely notice to the requester, and delay is excused for an additional ten days, but SIGAR still fails to respond within the timeframe established by the additional delay. This provision applies only to search fees or duplication fees for educational institution, non-commercial scientific institution, or representative of the news media requesters. However, the following exceptions shall apply:
(i) Notwithstanding § 9301.8(f)(3), if SIGAR determines that unusual circumstances apply and that more than 5000 pages are necessary to respond to the request, SIGAR may continue to charge search fees, or duplication fees for requesters in preferred status, for as long as necessary, after timely written notice has been made to the requester and SIGAR has discussed with the requester how the requester could effectively limit the scope of the request via written mail, electronic mail, or telephone, or made three good-faith attempts to do so.
§ 9301.9 Fees for categories of requesters.
SIGAR shall assess fees for certain categories of requesters as follows:
(a) Commercial use requesters. In responding to commercial use requests, SIGAR shall assess fees that recover the full direct costs of searching for, reviewing and duplicating records.
(b) Educational institutions. SIGAR shall provide records to requesters in this category for the cost of duplication alone, excluding charges for the first 100 pages. To qualify for inclusion in this fee category, a requester 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 scholarly research, not an individual goal.
(c) Representatives of the news media. SIGAR shall provide records to requesters in this category for the cost of duplication alone, excluding charges for the first 100 pages.
(d) All other requesters. SIGAR shall charge requesters who do not fall within paragraphs (a) through (c) of this section fees that recover the full direct cost of searching for and duplicating records, excluding charges for the first 100 pages of reproduction and the first two hours of search time.
§ 9301.10 Other charges.
SIGAR may apply other charges, including the following:
(a) Special charges. SIGAR shall recover the full cost of providing special services, such as sending records by an overnight delivery service, to the extent that SIGAR elects to provide them.
(b) Interest charges. SIGAR may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the FOIA Officer sent the billing. Interest shall be charged at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of billing.
(c) Aggregating requests. When the FOIA Officer reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a request into a series of requests within a 30-day period for the purpose of avoiding fees, the FOIA Officer shall aggregate those requests and charge accordingly.
§ 9301.11 Payment and waiver.
(a) Remittances. Payment shall be made in the form of check or money order made payable to the Treasury of the United States. At the time the FOIA Officer notifies a requestor of the applicable fees, the Officer shall inform the requestor of where to send the payment.
(b) Waiver. SIGAR may waive all or part of any fee provided for in §§ 9301.8 through 9301.9 when the FOIA Officer deems that as a matter of administrative discretion or disclosure of the information is in the general public’s 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. Requesters may request a waiver in their initial FOIA request letter. Requests for a fee waiver should explain how the information requested contributes to the public’s understanding of the operations or activities of the government. In determining whether a fee should be waived, the FOIA Officer may consider whether:
(1) The subject matter specifically concerns identifiable operations or activities of the government;
(2) The information is already in the public domain;
(3) Disclosure of the information would contribute to the understanding of the public-at-large as opposed to a narrow segment of the population;
(4) Disclosure of the information would significantly enhance the public’s understanding of the subject matter;
(5) Disclosure of the information would further a commercial interest of the requester; and
(6) The public’s interest is greater than any commercial interest of the requester.
Subpart B—Privacy Act
§ 9301.12 Purpose and scope.
The purpose of this subpart is to provide certain safeguards for an individual against the invasion of his or her personal privacy by SIGAR. This subpart is promulgated pursuant to the requirements applicable to all federal agencies contained in 5 U.S.C. 552a(f).
§ 9301.13 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 SIGAR contains a record pertaining to them should address their inquiries to the Privacy Officer, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 601-3804 or by email to [email protected]. The written inquiry should contain a specific reference to the system of records maintained by the SIGAR listed in the SIGAR Notice of Systems of Records, or it should describe the type of record in sufficient detail reasonably to identify the system of records. Notice of SIGAR systems of records subject to the Privacy Act will be published in the
(b) At a minimum, the request should contain sufficient identifying information to allow SIGAR to determine if there is a record pertaining to the individual making the request in a particular system of records. In instances when the requester’s identification is insufficient to ensure disclosure to the individual to whom the information pertains in view of the sensitivity of the information, SIGAR reserves the right to solicit from the person requesting access to a record additional identifying information.
(c) Ordinarily the person requesting will be informed whether the named system of records contains a record pertaining to such person within 10 days 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 Privacy Officer will inform the person making the request the reasons for the delay and the date on which a response may be anticipated.
§ 9301.14 Requests for access.
(a) Requirement for written requests. An individual desiring to gain access to a record pertaining to him or her in a system of records maintained by SIGAR must submit his or her request in writing in accordance with the procedures set forth in paragraph (b) of this section. Individuals employed by the SIGAR may make their requests 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 SIGAR need not be made in writing.
(b) Procedures—(1) Content of the request. The request for access to a record in a system of records shall be addressed to the Privacy Officer at the address cited above, and shall name the system of records or contain a concise description of such system of records. The request should state that the request is pursuant to the Privacy Act of 1974. In the absence of such a statement, if the request is for a record pertaining to the person requesting access which is maintained by SIGAR in a system of records, the request will be considered under both the Privacy Act of 1974 and the Freedom of Information Act, depending on which would allow greater access to the records requested. The request should contain necessary information to verify the identity of the person requesting access (see paragraph (b)(2)(vi) of this section). In addition, such person 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 SIGAR Notice of Systems of Records.
(i) If the request for access follows a prior request under § 9301.1, 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 SIGAR response to that request is attached. If the individual specifically desires a copy of the record, the request should so specify under § 9301.4.
(ii) [Reserved]
(2) SIGAR action on request. A request for access will ordinarily be answered within 10 days, except when the Privacy Officer determines otherwise, in which case the person making the request will be informed of the reasons for the delay and an estimated date by which the request will be answered. When the request can be answered within 10 days, it 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 systems of records maintained by SIGAR;
(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 person requesting access is unable to meet the specified date and time, alternative arrangements may be made with the Privacy Officer;
(iii) A statement, when appropriate, that examination in person will be the sole means of granting access only when the Privacy Officer has determined that it would not unduly impede the right of access of the person making the request.
(iv) The amount of fees charged, if any (see §§ 9301.6 and 9301.7). (Fees are applicable only to requests for copies);
(v) The name, title, and telephone number of the SIGAR official having operational control over the record; and
(vi) The documentation required by SIGAR to verify the identity of the person making the request. At a minimum, SIGAR verification standards include the following:
(A) Current or former SIGAR Employees. Current or former SIGAR employees requesting access to a record pertaining to them in a system of records maintained by SIGAR 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 SIGAR employee cannot be so identified by the official having operational control over the records, identification documentation will be required. The employee’s common access card, 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 SIGAR employees. Individuals other than current or former SIGAR employees requesting access to a record pertaining to them in a system of records maintained by SIGAR must produce identification documentation of the type described in paragraph (b)(2)(vi)(A) of this section, prior to being granted access. The extent of the identification documentation required will depend on the type of record for which access is requested. In most cases, identification verification will be accomplished by the presentation of two forms of identification. Any additional requirements will be specified in the system of records notices published by SIGAR pursuant to 5 U.S.C. 552a(e)(4).
(C) Access granted by mail. For records to be made accessible by mail, the Privacy Officer 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 a person making a request of information under the FOIA, 5 U.S.C. 552. When, in the opinion of the Privacy Officer 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 to which access is sought, 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 person making the request.
(E) Access by the parent of a minor, or by a legal guardian. A parent of a minor, upon presenting suitable personal identification, may act on behalf of the minor to gain access to any record pertaining to the minor maintained by SIGAR 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, upon the presentation of the documents authorizing the legal guardian to so act, and upon suitable personal identification of the guardian.
(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 SIGAR 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) Granting access to individuals other than the subject of the record. SIGAR will not disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, pursuant to the Privacy Act of 1974.
(H) Denial of access for inadequate identification documentation. If the official having operation control over the records in a system of records maintained by SIGAR determines that an individual seeking access has not provided sufficient identification documentation to permit access, the official shall consult with the Privacy Officer prior to finally denying the individual access.
(vii) Medical records. The records in a system of records which are medical records shall be disclosed to the individual to whom they pertain in such manner and following such procedures as the Privacy Officer shall direct. When SIGAR in consultation with a physician, determines that the disclosure of medical information could have an adverse effect upon the individual to whom it pertains, SIGAR may transmit such information to a physician named by the individual.
(viii) Exceptions. Nothing in this section shall be construed to entitle an individual the right to access to any information compiled in reasonable anticipation of litigation.
§ 9301.15 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 § 9301.14.
§ 9301.16 Requests for copies of records.
Rules governing requests for copies of records are the same as those for the granting of access to the records (including verification of identity) outlined in § 9301.14. (See also § 9301.19 for rules regarding fees.)
§ 9301.17 Requests to amend records.
(a) Requirement for written requests. Individuals desiring to amend a record that pertains to them in a system of records maintained by SIGAR 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 SIGAR.
(b) Procedures. (1)(i) The request to amend a record in a system of records shall be addressed to the Privacy Officer. 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 in this paragraph, copies of previous correspondence between the individual and SIGAR will serve in lieu of a separate description of the record.
(ii) When the individual’s identity has been previously verified pursuant to § 9301.14(b)(2)(vi), further verification of identity is not required as long as the communication does not suggest that a need for verification has reappeared. If the individual’s identity has not been previously verified, SIGAR may require identification validation as described in § 9301.14(b)(2)(vi). Individuals desiring assistance in the preparation of a request to amend a record should contact the Privacy Officer 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 desired 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 SIGAR to understand the basis for the request and to make an appropriate amendment to the record.
(iv) The request should 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 SIGAR of personal information merely to permit verification of records, the burden of persuading SIGAR to amend a record will be upon the individual. The individual must furnish sufficient facts or credible documentation to persuade the official in charge of the system of the inaccuracy, irrelevancy, untimeliness, or incompleteness of the record.
(2) SIGAR 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. In the event a decision cannot be made within this time frame, the individual making the request will be informed within 10 days of the expected date for a decision. The decision upon a request for amendment will include the following:
(i) The decision of SIGAR 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 SIGAR (see § 9301.18).
(vi) A description of any other procedures which may be required of the individual in order to process the appeal.
§ 9301.18 Request for review.
(a) Individuals wishing to request a review of the decision by SIGAR with regard to an initial request to amend a record in accordance with the provisions of § 9301.17, should submit the request for review in writing and, to the extent possible, include the information specified in § 9301.17(a). Individuals desiring assistance in the preparation of their request for review should contact the Privacy Officer 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 SIGAR in which the request to amend was denied, and also should state the reasons why the individual believes that the disputed information should be 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 § 9301.17, set forth by SIGAR in its decision denying the amendment. In order to avoid the unnecessary retention of personal information, SIGAR reserves the right to dispose of the material concerning the request to amend a record if no request for review in accordance with this section is received by SIGAR within 180 days of the mailing by SIGAR of its decision upon an initial request. A request for review received after the 180 day period may, at the discretion of the Privacy Officer, be treated as an initial request to amend a record.
(c) The request for review should be addressed to the Appellate Authority, Office of the Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 601-3804 or by email to [email protected].
(d) Final determinations on requests for reviews within SIGAR will be made by the Appellate Authority. Additional information may be requested by the Appellate Authority from the person requesting a review if necessary to make a determination.
(e) The Appellate Authority will inform the person making the request in writing of the decision on the request for review within 30 days (excluding Saturdays, Sundays and legal Federal holidays) from the date of receipt by SIGAR of the individual’s request for review, unless the Appellate Authority extends the 30 day period for good cause. The extension and the reasons therefore will be sent by SIGAR to the individual within the initial 30 day period. Included in the notice of a decision being reviewed, if the decision does not grant in full the request for review, will be a description of the steps the individual may take to obtain judicial review of such a decision, and a statement that the individual may file a concise statement with SIGAR setting forth the individual’s reasons for his disagreement with the decision upon the request for review. The SIGAR Privacy Officer 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 have the information in dispute clearly noted and a copy of the concise statement furnished, setting forth its reasons for not making the requested changes, if SIGAR chooses to file such a statement. A copy of the individual’s statement, and if it chooses, SIGAR’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).
§ 9301.19 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 Privacy Officer may, at no charge, provide copies of a record if it is determined that 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 copying of 4 pages or more. There is no charge for copying fewer pages.
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25, the person making the request shall be 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, an advance deposit may be required. The notice or request for an advance deposit shall extend an offer to the person requesting to consult with the Privacy Officer in order to reformulate the request in a manner which will reduce the fees, yet still meet the needs of individuals making the request.
(3) Fees must be paid in full prior to issuance of requested copies. In the event the person requesting 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 Privacy Officer, Office of the Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202.
(5) A receipt for fees paid will be given upon request.
§ 9301.20 Exemptions.
Systems of records maintained by SIGAR are authorized to be exempted from certain provisions of the Privacy Act under the general and specific exemptions set forth in the Act. In utilizing these exemptions, SIGAR is exempting only those portions of systems that are necessary for the proper functioning of SIGAR and that are consistent with the Privacy Act. Where compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, e.g., public source materials, the applicable exemption may be waived, either partially or totally, by SIGAR, in the sole discretion of SIGAR, as appropriate.
(a) General exemptions. (1) Individuals may not have access to records maintained by SIGAR that were provided by another agency that has determined by regulation that such information is subject to general exemption under 5 U.S.C. 552a(j)(1). If such exempt records are the subject of an access request, SIGAR will advise the requester of their existence and of the name and address of the source agency, unless that information is itself exempt from disclosure.
(2) The systems of records maintained by the Investigations Directorate (SIGAR-08), are subject to general exemption under 5 U.S.C. 552a(j)(2). All records contained in record system SIGAR-08, Investigations Records, are exempt from all provisions of the Privacy Act except sections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) to the extent to which they meet the criteria of section (j)(2). These exemptions are necessary to ensure the effectiveness of the investigative, judicial, and protective processes. These exemptions are necessary to ensure the proper functions of the law enforcement activity, to protect confidential sources of information, to fulfill promises of confidentiality, to prevent interference with the enforcement of criminal laws, to avoid the disclosure of investigative techniques, to avoid the endangering of the life and safety of any individual, to avoid premature disclosure of the knowledge of potential criminal activity and the evidentiary bases of possible enforcement actions, and to maintain the integrity of the law enforcement process.
(3) The systems of records maintained by the Investigations Directorate (SIGAR-08) are exempted from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) pursuant to the provisions of 5 U.S.C. 552a(k)(1), (2), and (5). These exemptions are necessary to protect material required to be kept secret in the interest of national defense and foreign policy; to prevent individuals that are the subject of investigation from frustrating the investigatory process; to ensure the proper functioning and integrity of law enforcement activities; to prevent disclosure of investigative techniques; to maintain the confidence of foreign governments in the integrity of the procedures under which privileged or confidential information may be provided; to fulfill commitments made to sources to protect their identities and the confidentiality of information and to avoid endangering these sources and law enforcement personnel; and to ensure the proper functioning of the investigatory process, to ensure effective determination of suitability, eligibility, and qualification for employment and to protect the confidentiality of sources of information.
(b) [Reserved]
PART 9302—REQUESTS FOR TESTIMONY OR THE PRODUCTION OF RECORDS IN A COURT OR OTHER PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A PARTY
§ 9302.1 SIGAR Touhy regulations.
(a) Applicability. (1) This section sets forth the policies and procedures of the Special Inspector General for Afghanistan Reconstruction (SIGAR or the agency) regarding the testimony of employees and former employees as witnesses and the production or disclosure of SIGAR documents or information for use in legal proceedings in which the United States is not a party and where the demand is pursuant to a subpoena, order or request (collectively referred to in this section as a “demand”).
(2) This section does not apply to any legal proceeding in which an employee is to testify while on leave status regarding facts or events that are unrelated to the official business of SIGAR.
(3)(i) Nothing in this section affects the rights and procedures governing public access to agency records pursuant to the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a).
(ii) Demands in legal proceedings in which the United States is not a party for the production of SIGAR records or information, or for the testimony of SIGAR employees, regarding information or documents that are protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905) or other statutes, must satisfy the requirements for disclosure set forth in those statutes and the applicable regulations of this part, before the records may be provided or testimony given.
(4) This section is intended to provide guidance for the internal operations of SIGAR and to inform the public about SIGAR procedures concerning service of process upon SIGAR and its responses to demands. The procedures specified in this section, or the failure of any SIGAR employee to follow the procedures specified in this section, are not intended to, do 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.
(b) Definitions. For purposes of this section:
Agency counsel means: SIGAR’s General Counsel or his or her designee.
Demand means a subpoena, order or request for testimony, documents or information related to, or for possible use in, a legal proceeding in which the United States is not a party.
Document means any record or other property, no matter what media, and including copies thereof, held by SIGAR, including without limitation, letters, Emails, telegrams, memoranda, facsimiles, reports, studies, calendar and diary entries, maps, graphs, pamphlets, notes, charts, tabulations, analyses, statistical or informational accumulations, summaries of meetings and conversations, film impressions, magnetic tapes and sound or mechanical reproductions.
Employee means all employees or officers of SIGAR, including (for the purpose of this section only) contractors and any other individuals who have been appointed by, or are subject to the supervision, jurisdiction or control of SIGAR. The procedures established within this subpart also apply to former employees of SIGAR where specifically stated in this section.
General Counsel means the General Counsel of SIGAR.
Legal proceeding means all pretrial, trial and post-trial stages of all judicial or administrative actions, hearings, investigations, arbitrations or similar proceedings before courts, commissions, boards, grand juries, or other tribunals, foreign or domestic. This term includes all phases of discovery as well as responses to informal requests by attorneys or others involved in legal proceedings seeking interviews or the like.
Official business means the authorized business of SIGAR as stated in the “National Defense Authorization Act for Fiscal Year 2008,” Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as amended, and Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note.
Testimony means an employee’s statement in any form, including testifying before a court or other tribunal or board, giving depositions, interviews, telephonic, televised, videoconference or videotaped statements, and providing written responses to interrogatories, admission requests or other discovery.
(c) SIGAR policy. (1) SIGAR was established by Section 1229 of the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181 (January 28, 2008), as a wartime or overseas contingency operation oversight agency of the United States Government’s Executive Branch. SIGAR’s Inspector General is appointed by the President of the United States. See Pub. L. 110-181, Section 1229(c). SIGAR performs oversight of Afghanistan reconstruction and security programs, operations and contracts to prevent and detect waste, fraud and abuse pursuant to Sections 1229 and 842 of Public Law 110-181. The records of an inspector general frequently contain sensitive law enforcement information that is protected from disclosure or obtained under guarantees of confidentiality.
(2) In appropriate cases, the agency counsel shall notify the United States Department of Justice (DOJ) of the demand and coordinate with the DOJ to file any appropriate motions or other pleadings.
(3) No current or former employee shall, in response to a demand, produce any SIGAR documents, provide testimony regarding any information relating to or based upon SIGAR documents, or disclose any information or produce materials acquired as part of the performance of that employee’s official duties or official status, in a legal proceeding in which the United States is not a party, without the prior written authorization of the General Counsel. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); and 5 U.S.C. 301 (“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.”)
(d) Procedures for demand for testimony or production of documents. (1) A written demand directed to SIGAR for the testimony of a SIGAR employee or for the production of documents shall be served in accordance with the requirements of the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, or applicable state procedures, as appropriate. If the demand is served by the U.S. mails, it should be addressed to the General Counsel, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202-3940. If the demand is served by overnight delivery service or courier, it should be directed to the General Counsel, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202-3940. SIGAR’s acceptance of a demand shall not constitute an admission or waiver of any objection with respect to the propriety of jurisdiction, service of process, venue, or any other defense in law or equity available under applicable law.
(2) A subpoena or other demand for testimony directed to an employee or former employee shall be served in accordance with the Federal Rules of Civil or Criminal Procedure or applicable State procedure; and a copy of the subpoena or demand shall be delivered to the General Counsel.
(3)(i) Touhy Request. In court cases in which the United States or SIGAR is not a party, where the giving of testimony or the production of documents by SIGAR, or a current or former employee is desired, a verified statement (declaration under penalty of perjury) by the litigant or his counsel, setting forth the information with respect to which the testimony or production is desired (“Touhy Request”), must be submitted in order to obtain a decision concerning whether such testimony or production will be authorized by SIGAR. The Touhy Request should include: the title of the legal proceeding, the court or other forum, the requesting party’s interest in the legal proceeding, a statement whether other evidence reasonably suited to the requester’s needs is not otherwise available, and, if testimony is requested, the subject matter and intended use of the testimony, a statement whether document(s) could be provided in lieu of testimony to satisfy the request, and a statement that the requester will submit a check for costs of duplication at commercially reasonable rates to SIGAR if the request is granted. The purpose of these requirements is to assist the General Counsel in making a fair and informed decision under governing law regarding whether testimony or the production of document should be authorized and under what conditions, if any. Permission to testify or produce documents will be limited to the areas of proposed testimony described in the Touhy Request.
(ii) Agency counsel may consult or negotiate with an attorney for a party or the party, if not represented by an attorney, to refine or limit a demand so that compliance is less burdensome or to obtain information necessary to make the determination required by paragraph (e) of this section. Failure of the requester to cooperate in good faith to enable the General Counsel to make an informed determination under this subpart may serve as a basis for denying the Touhy Request.
(iii) A determination under this section to comply or not to comply with the Touhy Request is without prejudice to the agency’s assertion of privilege, lack of relevance, technical deficiency, or any other objection to the demand.
(4)(i) Employees shall immediately refer all inquiries and demands made to SIGAR or its employees to the General Counsel.
(ii) An employee who receives a demand shall forward the demand to the General Counsel, who will determine the agency’s response to the demand under this section.
(e) Factors to be considered by the General Counsel with respect to a Touhy Request. (1) In deciding whether to authorize the release of official information or the testimony of SIGAR personnel concerning official information (hereafter referred to as the “disclosure”), the General Counsel shall consider the following factors:
(i) Whether the demand is unduly burdensome to the agency or otherwise inappropriate under the applicable rules of discovery, evidence and procedure governing the litigation in which the demand arose, balanced against the need for the specific testimony or documents sought;
(ii) Whether the demand is appropriate under the relevant substantive law of privilege and disclosure of Government information, or seeks information or documents protected from disclosure under the Freedom of Information Act, 5 U.S.C. 552(b), the Privacy Act, 5 U.S.C. 552a, or the Inspector General Act of 1978, as amended, 5 U.S.C. App.;
(iii) Whether the demand would interfere with SIGAR’s statutory mandate stated in the “National Defense Authorization Act for Fiscal Year 2008,” Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as amended; Pub. L. 110-181, Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note; or the Inspector General Act of 1978, as amended, 5 U.S.C. App.;
(iv) Whether the demand would be in the public interest;
(v) The extent to which the time of employees for conducting official agency business would be compromised;
(vi) Whether the request demonstrates that the information requested is relevant and material to the action pending, genuinely necessary to the proceeding, unavailable from other sources, and reasonable in scope; and
(vii) Whether other similar requests are likely to have a deleterious cumulative effect on the expenditure of agency time and resources.
(2) Among those demands and requests in response to which compliance will ordinarily not be authorized are those with respect to which any of the following factors exists:
(i) The requested disclosure elicits information or documents protected by a statute, Executive Order or regulation, including but not limited to Section 7(b) of the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, section 7(b), or other prohibition from disclosure;
(ii) The requested disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source, confidential informant or undercover agent, or disclose trade secrets or similar confidential commercial or financial information.
(iii) The integrity of the administrative and deliberative processes of SIGAR would be jeopardized;
(iv) The requested disclosure would not be appropriate under the rules of procedure governing the pending litigation or matter in which the demand arose;
(v) The requested disclosure is not appropriate under the relevant substantive law concerning privilege; or
(vi) The requested disclosure, except when production is in camera, would reveal information properly classified or other matters exempt from unrestricted disclosure.
(3) All decisions granting or denying a Touhy Request must be in writing and, if a denial, provide the grounds for the decision in summary form based on one or more of the factors listed above.
(f) Requests for opinion or expert testimony. (1) Pursuant to 5 CFR 2635.805, an employee shall not provide, with or without compensation, opinion or expert testimony in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, except on behalf of the United States or a party represented by the Department of Justice, without written approval of agency counsel.
(2) Upon a showing by the requestor of exceptional need or unique circumstances, the General Counsel may, in writing, grant authorization for an employee, or former employee, to appear and testify.
(3) Any expert or opinion testimony by a former employee of SIGAR shall be excepted from the restriction under 5 CFR 2635.805 where the testimony involves only general expertise gained while employed at SIGAR.
(g) Procedures when agency counsel directs an employee not to testify or provide documents. (1) If agency counsel determines that an employee or former employee should not comply with a subpoena or other request for testimony or the production of documents, agency counsel will so inform the employee and the requesting party who submitted the demand.
(2) If, despite the determination of the agency counsel that testimony should not be given or documents not be produced, a court of competent jurisdiction or other tribunal orders the employee or former employee to testify and/or produce documents, the employee shall promptly notify the General Counsel of such Order.
(i) If agency counsel determines that no further legal review of, appeal from, or challenge to, the Order will be sought, agency counsel shall promptly inform the employee or former employee of said determination.
(ii) If SIGAR determines to challenge an Order directing testimony or the production of documents in litigation in which the United States is not a party, the employee should not comply with the Order. The employee should appear at the time and place as commanded in the order or subpoena. If legal counsel cannot appear on behalf of the employee, the employee should produce a copy of this section and respectfully inform the Court or other legal tribunal that he/she has been advised by the General Counsel not to provide the requested testimony or documents pursuant to the decision of the United States Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and this section. Agency counsel will coordinate with the DOJ to file such motions or other pleadings that may be deemed appropriate in the circumstances, such as, for example, a notice to remove the case from state court to Federal court, or a motion to quash or modify the subpoena, or a motion for a protective order.
(h) Fees. In the event that a Touhy Request is granted, SIGAR may charge reasonable fees to parties seeking official information or records. Such fees are calculated to reimburse the Government for the expense of providing such information or records, and may include the costs of time expended by SIGAR employees to process and respond to the request; attorney time for reviewing the request and any responsive records and for related legal work in connection with the request; and reasonable expenses generated by materials and equipment used to search for, produce, and copy the responsive information or records.
PART 9303—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OFFICE OF THE SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
§ 9303.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, SIGAR employees are subject to the executive branch-wide financial disclosure regulations contained in 5 CFR part 2634; the executive branch regulations regarding outside employment at 5 CFR part 2636; and the regulations concerning executive branch financial interests contained in 5 CFR part 2640.
§ 9303.102 Prior approval for certain outside activities.
(a) Prior approval requirement. An employee, other than a special Government employee, shall obtain written approval before engaging—with or without compensation—in the following outside activities:
(1) Providing professional services involving the application of the same specialized skills or the same educational background as performance of the employee’s official duties;
(2) Teaching, speaking, or writing that relates to the employee’s official duties;
(3) Serving as an officer, director, trustee, general partner, employee, agent, attorney, consultant, contractor, or active participant for a prohibited source, except that prior approval is not required by this paragraph (a)(3) to provide such service without compensation (other than reimbursement of expenses) for a prohibited source that is a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless prior approval for the activity is required by paragraph (a)(1), (a)(2), or (a)(4) of this section; or
(4) Providing services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter:
(i) In which the United States is a party;
(ii) In which the United States has a direct and substantial interest; or
(iii) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.
(b) Submission of requests for approval. (1) Requests for approval shall be submitted in writing to SIGAR’s Inspector General or Inspector General’s designee through normal supervisory channels. Such requests shall include, at a minimum, the following:
(i) The employee’s name and position title;
(ii) The name and address of the person or organization for whom or for which the outside activity is to be performed;
(iii) A description of the proposed outside activity, including the duties and services to be performed while engaged in the activity; and
(iv) The proposed hours that the employee will engage in the outside activity, and the approximate dates of the activity.
(2) Together with the employee’s request for approval, the employee shall provide a certification that:
(i) The outside activity will not depend in any way on nonpublic information;
(ii) No official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside activity; and
(iii) The employee has read subpart H (“Outside Activities”) of 5 CFR part 2635.
(3) Upon a significant change in the nature or scope of the outside activity or in the employee’s official position, the employee shall submit a revised request for approval.
(c) Approval of requests. Approval shall be granted only upon a determination by SIGAR’s Inspector General or Inspector General’s designee, in consultation with the General Counsel and the Director of Public Affairs, that the outside activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(d) Definitions. For purposes of this section:
(1) Active participant has the meaning set forth in 5 CFR 2635.502(b)(1)(v).
(2) Nonpublic information has the meaning set forth in 5 CFR 2635.703(b).
(3) Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1).
(4) Prohibited source has the meaning set forth in 5 CFR 2635.203(d).
(5) Relates to the employee’s official duties has the meaning set forth in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E).
PARTS 9304-9399 [RESERVED]
CHAPTER LXXXIV—BUREAU OF CONSUMER FINANCIAL PROTECTION
PART 9400 [RESERVED]
PART 9401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE BUREAU OF CONSUMER FINANCIAL PROTECTION
§ 9401.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635 (OGE Standards) and prescribe the standards of ethical conduct applicable to employees of the Bureau of Consumer Financial Protection (Bureau).
(b) Other regulations, guidance and procedures. Employees are required to comply with the OGE Standards and the CFPB Ethics Regulations, as well as with guidance and procedures issued by the Bureau pursuant to 5 CFR 2635.105(c). Employees also are subject to all other government-wide regulations concerning executive branch ethics including without limitation, financial disclosure regulations contained in 5 CFR part 2634, regulations concerning financial interests contained in 5 CFR part 2640, post-employment conflict of interest restrictions contained in 5 CFR part 2641, outside earned income limitations and employment and affiliation restrictions applicable to certain noncareer employees contained in 5 CFR part 2636, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
§ 9401.102 Definitions.
For purposes of this part:
CFPB Ethics Regulations means the supplemental ethics standards set forth in this part.
Control means the possession, direct or indirect, of the power or authority to manage, direct, or oversee.
Credit has the meaning set forth in 12 U.S.C. 5481(7) and as further defined in regulations promulgated by the Bureau to implement that statute. A person may have credit without any outstanding balance owed.
Dependent child has the meaning set forth in 5 CFR 2634.105(d). It includes an employee’s son, daughter, stepson, or stepdaughter if:
(1) Unmarried, under the age of 21, and living in the employee’s household; or
(2) Claimed as a “dependent” on the employee’s income tax return.
Designated Agency Ethics Official (DAEO) means the official within the Bureau that the Director has appointed to coordinate and manage the ethics program at the Bureau, under 5 CFR 2638.104(a). For purposes of this part, the term “DAEO” also includes the Alternate DAEO appointed under 5 CFR 2638.104(d), and a designee of the DAEO or Alternate DAEO unless a particular provision says an authority is reserved to the DAEO.
Director means the Director of the Bureau.
Domestic partner means a person with whom a Bureau employee:
(1) Has a close and committed personal relationship and both parties are at least 18 years of age, are each other’s sole domestic partner and intend to remain in the relationship indefinitely, and neither is married to, in a civil union with, or partnered with any other spouse or domestic partner;
(2) Is not related by blood in a manner that would bar marriage under the laws of the jurisdiction in which the employee resides;
(3) Is in a financially interdependent relationship in which both agree to be responsible for each other’s common welfare and share in financial obligations; and
(4) Has shared for at least six months the same regular and permanent residence in a committed relationship and both parties intend to do so indefinitely, or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle.
Employee means an employee of the Bureau, other than a special Government employee.
Entity supervised by the Bureau means a person that is subject to the Bureau’s supervision authority pursuant to 12 U.S.C. 5514(a)(1) or 5515(a) and in regulations promulgated thereunder, as identified on a list to be maintained by the Bureau.
Indebted or indebtedness means a legal obligation under which an individual or borrower received money or assets on credit, and currently owes payment.
Indebted to an entity means an obligation to make payments to an entity as a result of an indebtedness, whether originally made with that entity or with another entity. This includes without limitation, a servicer to whom payments are made.
OGE Standards mean the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.
Participate means personal and substantial participation and has the meaning set forth in 5 CFR 2635.402(b)(4). An employee participates when, for example, the employee makes a decision, gives approval or disapproval, renders advice, provides a recommendation, conducts an investigation or examination, or takes an official action in a particular matter, and such involvement is of significance to the matter. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.
Particular matter has the meaning set forth in 5 CFR 2635.402(b)(3). The term includes a matter that involves deliberation, decision, or action and is focused upon the interests of specific persons or a discrete and identifiable class of persons. It may include governmental action such as legislation, regulations, or policy-making that is narrowly focused on the interests of a discrete and identifiable class of persons.
Particular matter involving specific parties has the meaning set forth in 5 CFR 2641.201(h). Such a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identified parties. The term includes without limitation, a contract, audit, enforcement action, examination, investigation, litigation proceeding, or request for a ruling.
Person has the same meaning set forth in 5 CFR 2635.102(k). It includes without limitation, an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution.
Practice of law means the provision of legal advice or services where there is a client relationship of trust or reliance. One is presumed to be practicing law when engaging in any of the following conduct on behalf of another:
(1) Preparing any legal document, including any deeds, mortgages, assignments, discharges, leases, trust instruments, or any other instruments intended to affect interests in real or personal property, wills, codicils, instruments intended to affect the disposition of property of decedents’ estates, other instruments intended to affect or secure legal rights, and contracts except routine agreements incidental to a regular course of business;
(2) Preparing or expressing legal opinions;
(3) Appearing or acting as an attorney in any tribunal;
(4) Preparing any claims, demands or pleadings of any kind, or any written documents containing legal argument or interpretation of law, for filing in any court, administrative agency, or other tribunal;
(5) Providing advice or counsel as to how any of the activities described in paragraphs (1) through (4) of this definition might be done, or whether they were done, in accordance with applicable law; or
(6) Furnishing an attorney or attorneys, or other persons, to render the services described in paragraphs (1) through (5) of this definition.
Security means an interest in debt or equity instruments. The term includes without limitation, secured and unsecured bonds, debentures, notes, securitized assets, commercial papers, and preferred and common stock. The term encompasses both current and contingent ownership interests; a beneficial or legal interest derived from a trust; a right to acquire or dispose of any long or short position in debt or equity interests; interests convertible into debt or equity interests; and options, rights, warrants, puts, calls, straddles, derivatives, and other similar interests. It does not include deposits; credit union shares; a future interest created by someone other than the employee or the employee’s spouse or dependent child; or a right as a beneficiary of an estate that has not been settled.
Special Government employee has the meaning set forth in 5 CFR 2635.102(l).
Spouse means an employee’s husband or wife by lawful marriage, but does not include an employee’s spouse if:
(1) The employee and the employee’s spouse are separated;
(2) The employee and the employee’s spouse live apart;
(3) There is an intention to end the marriage or separate permanently; and
(4) The employee has no control over the separated spouse’s securities.
Vested legal or beneficial interest means a present right or title to property, which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future. This includes a future interest when one has a right, defeasible or indefeasible, to immediate possession or enjoyment of the property, upon the ceasing of another’s interest.
§ 9401.103 Prior approval for outside employment.
(a) General requirement. Before engaging in outside employment, an employee must obtain written approval from the employee’s supervisor and the concurrence of the DAEO, except to the extent that the Bureau has issued an instruction or internal directive pursuant to paragraph (e) of this section exempting an activity or class of activities from this requirement.
(b) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment, business relationship, or activity involving the provision of personal services by the employee, regardless of whether the services are compensated. It includes without limitation, personal services as an officer, director, employee, agent, advisor, attorney, consultant, contractor, general partner, trustee, teacher, speaker, or writer.
Both 18 U.S.C. 203(d) and 205(e) require special approval for certain representational activities in claims against and other matters affecting the interests of the Government. Thus, an employee who wishes to act as agent or attorney for or otherwise represent his or her parents, spouse, child, or a person for whom or for an estate for which he or she is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters as described in those statutes shall obtain the approval of the Government official responsible for the employee’s appointment in addition to the regulatory approval required in this section.
(c) Standard for approval. Approval will be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute, the OGE Standards, or the CFPB Ethics Regulations in this part.
(d) Renewed request for approval. Upon a significant change in either the nature, scope, or duties of the employee’s outside employment or in the employee’s official Bureau position, the employee shall submit a new request for approval.
(e) DAEO responsibilities. The DAEO may issue instructions or internal directives governing the submission of requests for approval of outside employment and designating appropriate officials to act on such requests. The instructions or internal directives may exempt categories of employment from the prior approval requirement of this section based on a determination that employment within those categories generally would be approved and is not likely to involve prohibited conduct or create an appearance of lack of impartiality.
§ 9401.104 Additional rules concerning outside employment for covered employees.
(a) Prohibited outside employment with an entity supervised by the Bureau. A covered employee shall not engage in compensated outside employment for an entity supervised by the Bureau or for an officer, director, or employee of such entity. For purposes of this section, “employment” has the same meaning as set forth in § 9401.103(b).
(b) Use of professional licenses related to real estate. A covered employee who holds a license related to real estate, mortgage brokerage, property appraisals, or real property insurance is prohibited from using such license for the production of income. The DAEO, in consultation with senior management in the Division in which the employee works, may grant a limited waiver to this prohibition based on a written finding that the specific transaction which requires use of the license will not create an appearance of loss of impartiality or use of public office for private gain.
(c) Definition of covered employee. For purposes of this section, “covered employee” means:
(1) An employee in the Division of Supervision, Enforcement, and Fair Lending;
(2) An employee serving in an attorney position;
(3) An employee in the Office of Research, serving as a section chief at Bureau pay band 71 or above or as a senior economist in the Compliance Analytics and Policy Section;
(4) An employee serving in the Office of Consumer Response in an investigations position;
(5) An employee required to file a Public Financial Disclosure Report (OGE Form 278e) under 5 CFR part 2634; or
(6) Any other Bureau employee specified in a Bureau order or directive whose duties and responsibilities, as determined by the DAEO, require application of the prohibition on outside employment contained in this section to ensure public confidence that the Bureau’s programs are conducted impartially and objectively.
§ 9401.105 Additional rules concerning outside employment for Bureau attorneys.
(a) Prohibited outside practice of law. In addition to the prior approval requirements under § 9401.103 and the outside employment restrictions under § 9401.104, an employee serving in an attorney position shall not engage in the practice of law outside the employee’s official Bureau duties that might require the attorney to:
(1) Take a position that is or appears to be in conflict with the interests of the Bureau; or
(2) Interpret any statute, regulation, or rule administered or issued by the Bureau.
(b) Exemption for self representation. Nothing in this section prevents a Bureau attorney from acting as an agent or attorney for or otherwise representing himself or herself in the outside practice of law, except:
(1) In those matters in which the attorney has participated personally and substantially as a Government employee; or
(2) In those matters which are the subject of the attorney’s official responsibility.
§ 9401.106 Prohibited financial interests.
(a) Prohibited interests. Except as permitted by this section, an employee or an employee’s spouse or minor child shall not own or control a security in:
(1) An entity supervised by the Bureau; or
(2) A collective investment fund that has a stated policy of concentrating its investments in the financial services or banking industry. A collective investment fund includes, without limitation, mutual funds, unit investment trusts (UITs), exchange traded funds (ETFs), real estate investment trusts (REITs), and limited partnerships.
(b) Exceptions. Interests prohibited in paragraph (a) of this section do not include the ownership or control of a security in:
(1) Collective investment funds. A publicly traded or publicly available collective investment fund if:
(i) The fund does not have a stated policy of concentrating its investments in the financial services or banking industry; and
(ii) Neither the employee nor the employee’s spouse or minor child exercises or has the ability to exercise control over or selection of the financial interests held by the fund.
(2) Diversified employee benefit plans. A pension or other retirement fund, trust, or plan established or maintained by an employer or an employee organization, or both, to provide its participants with medical, disability, death, unemployment, or vacation benefits, training programs, day care centers, scholarship funds, prepaid legal services, deferred income, or retirement income (employee plan), provided:
(i) The employee plan does not have a stated policy of concentrating its investments in any industry, business, single country other than the United States, or bonds of a single State within the United States;
(ii) The investments of the employee plan are administered by an independent trustee;
(iii) The employee plan’s trustee has a written policy of varying the plan investments;
(iv) Neither the employee nor the employee’s spouse or minor child participates in the selection of the employee plan’s investments or designates specific plan investments (except for directing that contributions be divided among several different categories of investments, such as stocks, bonds, or mutual funds, which are available to plan participants); and
(v) The employee plan is not a profit-sharing or stock bonus plan.
(3) Federal retirement and thrift savings plans. Funds administered by the Thrift Plan for Employees of the Federal Reserve System, the Retirement Plan for Employees of the Federal Reserve System, the Thrift Savings Plan, or a Federal government agency.
(4) State pension plans. A pension plan established or maintained by a State government or any political subdivision of a State government for its employees.
(c) Reporting and divestiture of prohibited interests—(1) New employees. Within 30 calendar days from the start of employment with the Bureau, an employee must notify the DAEO in writing of a financial interest prohibited under paragraph (a) of this section that the employee or the employee’s spouse or minor child acquired prior to the start of the employee’s employment with the Bureau. The employee or the employee’s spouse or minor child shall divest prohibited securities within 90 days after the start of the employee’s employment at the Bureau.
(2) Newly prohibited interest. Within 30 days after the Bureau updates and internally publishes a new list of entities supervised by the Bureau, an employee who owns or controls, or whose spouse or minor child owns or controls, a security in an entity newly added to that list must notify the DAEO in writing. The employee or the employee’s spouse or minor child shall divest prohibited securities within 90 days after internal publication of the new list.
(3) Interests acquired without specific intent. If an employee or an employee’s spouse or minor child acquires a financial interest prohibited under paragraph (a) of this section as a result of marriage, inheritance, or otherwise without specific intent to acquire, the employee must notify the DAEO in writing within 30 days of the acquisition. The employee or the employee’s spouse or minor child shall divest prohibited securities within 90 days of the acquisition.
(d) Disqualification and divestiture—(1) Securities in entities supervised by the Bureau. If an employee or an employee’s spouse or minor child owns or controls a security in an entity that is prohibited under paragraph (a)(1) of this section, the employee shall immediately disqualify himself or herself from participating in all particular matters affecting that entity, unless and until the security is divested or the employee is granted a waiver pursuant to paragraph (e) of this section and the waiver includes an authorization allowing the employee to participate in such matters.
(2) Securities in collective investment funds. If an employee or an employee’s spouse or minor child owns or controls a security in a collective investment fund that is prohibited under paragraph (a)(2) of this section, the employee shall immediately disqualify himself or herself from participating in all particular matters affecting one or more holdings of the collective investment fund if the affected holding is invested in the financial services or banking industry, unless and until the collective investment fund is divested or the employee is granted a waiver pursuant to paragraph (e) of this section and the waiver includes an authorization allowing the employee to participate in such matters.
(e) Waivers. Upon request by the employee, the DAEO in the DAEO’s sole discretion has the authority to grant an individual waiver under this paragraph. The DAEO’s authority to grant an individual waiver under this paragraph may not be delegated to any person except the Alternate DAEO. The DAEO, in consultation with senior management in the Division in which the employee works, may issue a written waiver permitting the employee or the employee’s spouse or minor child to own or control a particular security that otherwise would be prohibited by this section, after considering all relevant factors. Relevant factors include, without limitation, whether:
(1) Mitigating circumstances exist due to the way the employee or the employee’s spouse or minor child acquired ownership or control of the security. Mitigating circumstances may include without limitation:
(i) The employee or the employee’s spouse or minor child acquired the security through inheritance, merger, acquisition, or other change in corporate structure, or otherwise without specific intent on the part of the employee or the employee’s spouse or minor child; or
(ii) The employee’s spouse received the security as part of a compensation package in connection with employment or prior to marriage to the employee;
(2) The employee makes a prompt and complete written disclosure of the security to the DAEO;
(3) The disqualification of the employee from participating in particular matters pursuant to paragraph (d) of this section, as specified in the written waiver, would not unduly interfere with the full performance of the employee’s duties; and
(4) The granting of the waiver would not unduly undermine the public’s confidence in the impartiality and objectivity with which:
(i) The employee performs the employee’s official Bureau duties; and
(ii) The Division in which the employee works executes its programs and functions.
(f) Covered third party entities. Immediately after becoming aware that a covered third party entity owns or controls a security that an employee would be prohibited from owning or controlling under paragraph (a) of this section, the employee shall report the interest in writing to the DAEO. The DAEO may require the employee to terminate the relationship with the covered third party entity, disqualify himself or herself from certain particular matters, or take other action as necessary to avoid a statutory violation, a violation of the OGE Standards, or the CFPB Ethics Regulations, including an appearance of misuse of position or loss of impartiality. For purposes of this paragraph, “covered third party entity” includes:
(1) A partnership in which the employee or the employee’s spouse or minor child is a general partner;
(2) A partnership or closely held corporation in which the employee or the employee’s spouse or minor child individually or jointly holds more than a 10 percent equity interest;
(3) A trust in which the employee or the employee’s spouse or minor child has a vested legal or beneficial interest;
(4) An investment club or similar informal investment arrangement between the employee or the employee’s spouse or minor child, and others;
(5) A qualified profit sharing, retirement, or similar plan in which the employee or the employee’s spouse or minor child has an interest; or
(6) An entity in which the employee or the employee’s spouse or minor child individually or jointly holds more than a 25 percent equity interest.
§ 9401.107 Prohibition on acceptance of credit or indebtedness on preferential terms from an entity supervised by the Bureau.
An employee or the employee’s spouse or minor child may not accept credit from, become indebted to, or enter into a financial relationship with an entity supervised by the Bureau, unless the credit, indebtedness, or other financial relationship:
(a) Is offered on terms and conditions no more favorable than those offered to the general public; and
(b) Is not otherwise prohibited by law or inconsistent with the OGE Standards or the CFPB Ethics Regulations.
§ 9401.108 Restrictions on seeking, obtaining, or renegotiating credit or indebtedness from an entity that is a party or represents a party to a matter to which an employee is assigned or may be assigned.
(a) General rules regarding seeking, obtaining, or renegotiating credit or indebtedness—(1) Prohibition. While an employee is assigned to participate in a particular matter involving specific parties, the employee or the employee’s spouse or minor child shall not seek, obtain, or renegotiate credit or indebtedness with an entity that is a party or represents a party to the matter. This prohibition also applies to a particular matter involving specific parties pending at the Bureau in which the employee is not currently participating but of which the employee is aware and believes it is likely that the employee will participate.
(2) Cooling off period. The prohibition in paragraph (a)(1) of this section continues for two years after the employee’s participation in the particular matter has ended.
(b) Rules regarding credit or indebtedness secured by principal residence. Notwithstanding paragraph (a) of this section, an employee or an employee’s spouse or minor child may seek, obtain, or renegotiate credit or indebtedness secured by residential real property with an entity, subject to the following conditions:
(1) The residential real property is or will be the principal residence of the employee or the employee’s spouse or minor child;
(2) A minimum of three months have passed since the end of the employee’s participation in each particular matter involving specific parties in which that entity was a party or represented a party;
(3) The employee is disqualified from participating in particular matters involving specific parties in which that entity is a party or represents a party while the employee or the employee’s spouse or minor child is seeking, obtaining, or renegotiating the credit or indebtedness;
(4) The employee or the employee’s spouse or minor child seeking, obtaining, or negotiating the credit or indebtedness must satisfy all financial requirements generally applicable to all applicants for the same type of credit or indebtedness for residential real property; and
(5) The credit or indebtedness is obtained on terms and conditions no more favorable than those offered to the general public.
(c) Specific rules for employee’s spouse and minor child. The prohibitions in paragraphs (a) and (b) of this section do not apply when the employee’s spouse or minor child is seeking, obtaining, or renegotiating credit or indebtedness and:
(1) The credit or indebtedness is supported only by the income or independent means of the spouse or minor child;
(2) The credit or indebtedness is obtained on terms and conditions no more favorable than those offered to the general public; and
(3) The employee does not participate in the negotiating for the credit or indebtedness or serve as co-maker, endorser or guarantor of the credit or indebtedness.
(d) Disqualification requirement for credit or indebtedness sought by person related to an employee. An employee shall disqualify himself or herself from participating in a particular matter involving specific parties as soon as the employee learns that any of the following persons are seeking, obtaining, or renegotiating credit or indebtedness with an entity that is a party or represents a party to the matter:
(1) The employee’s spouse, domestic partner, or dependent child;
(2) A partnership in which the employee or the employee’s spouse, domestic partner, or dependent child is a general partner;
(3) A partnership or closely held corporation in which the employee or the employee’s spouse, domestic partner, or dependent child individually or jointly owns or controls more than a 10 percent equity interest;
(4) A trust in which the employee or the employee’s spouse, domestic partner, or dependent child has a vested legal or beneficial interest;
(5) An investment club or similar informal investment arrangement between the employee or the employee’s spouse, domestic partner, or dependent child, and others;
(6) A qualified profit sharing, retirement, or similar plan in which the employee or the employee’s spouse, domestic partner, or dependent child has an interest; or
(7) An entity in which the employee or the employee’s spouse, domestic partner, or dependent child individually or jointly holds more than a 25 percent equity interest.
(e) Exemptions. The following forms of credit are exempted from the prohibitions in paragraphs (a) and (b) of this section and the disqualification requirement in paragraph (d) of this section, provided the credit is offered on terms and conditions no more favorable than those offered to the general public:
(1) Revolving consumer credit or charge cards;
(2) Overdraft protection on checking accounts and similar accounts; and
(3) The provision of telephone, cable, gas, electricity, water, or other similar utility services provided on credit (i.e., the service is provided before payment is due such that consumers incur debt as they use the service and receive periodic bills for the services used).
(f) Waivers. The DAEO, after consultation with senior management in the Division in which the employee works, may grant a written waiver from the prohibition in paragraphs (a) or (b) of this section or the disqualification requirement in paragraph (d) of this section, based on a determination that participation in matters otherwise prohibited by this section would not be prohibited by law (18 U.S.C. 208) or create an appearance of loss of impartiality or use of public office for private gain, and would not otherwise be inconsistent with the OGE Standards or the CFPB Ethics Regulations.
§ 9401.109 Disqualification of employees from particular matters involving existing creditors or lenders.
(a) Disqualification required. Absent an authorization pursuant to paragraph (d) of this section, an employee shall not participate in a particular matter involving specific parties if the employee is aware that any of the following have credit with or are indebted to an entity that is a party or represents a party to the matter:
(1) The employee;
(2) The employee’s spouse, domestic partner, or dependent child;
(3) A partnership in which the employee or the employee’s spouse, domestic partner, or dependent child is a general partner;
(4) A partnership or closely held corporation in which the employee or the employee’s spouse, domestic partner, or dependent child individually or jointly owns or controls more than 10 percent of its equity;
(5) A trust in which the employee or the employee’s spouse, domestic partner, or dependent child has a vested legal or beneficial interest;
(6) An investment club or similar informal investment arrangement between the employee or the employee’s spouse, domestic partner, or dependent child, and others;
(7) A qualified profit sharing, retirement, or similar plan in which the employee or the employee’s spouse, domestic partner, or dependent child has an interest; or
(8) An entity in which the employee or the employee’s spouse, domestic partner, or dependent child individually or jointly holds more than a 25 percent equity interest.
(b) Forms of credit and indebtedness exempted. The following forms of credit and indebtedness are exempted from the disqualification requirement in paragraph (a) of this section, as long as the person listed in paragraphs (a)(1) through (a)(8) of this section is not in an adversarial position (e.g., delinquent in payments; disputing the terms or conditions of the account; subject to debt collection measures like wage garnishment; involved in any disagreement that may cast doubt on the employee’s ability to remain impartial) with the entity that extended the credit or to which the indebtedness is owed, and the credit or indebtedness was offered on terms and conditions no more favorable than those offered to the general public:
(1) Revolving consumer credit or charge cards;
(2) Overdraft protection on checking accounts and similar accounts;
(3) Amortizing indebtedness on consumer goods (e.g., automobiles);
(4) Automobile leases for primarily personal (consumer) use vehicles;
(5) The provision of telephone, cable, gas, electricity, water, or other similar utility services provided on credit (i.e., the service is provided before payment is due such that consumers incur debt as they use the service and receive periodic bills for the services used);
(6) Educational loans (e.g., student loans; loans taken out by a parent or guardian to pay for a child’s education costs); and
(7) Loans on residential homes (e.g., home mortgages; home equity lines of credit).
(c) Credit or indebtedness of employee’s spouse, domestic partner, dependent child, or other specified persons. An employee’s disqualification under paragraph (a) of this section is not required if:
(1) The credit or indebtedness is solely the responsibility of the person listed in paragraphs (a)(2) through (a)(8) of this section; and
(2) The credit or the liability for repayment of the indebtedness is not dependent on, attributable to, or derived from the employee’s income, assets, or activities.
(d) Authorization to participate. The DAEO may authorize an employee to participate in a matter that would require disqualification under paragraph (a) of this section, using the authorization process set forth in 5 CFR 2635.502(d) of the OGE Standards. The DAEO will consult with senior management in the Division in which the employee works before issuing such an authorization.
§ 9401.110 Prohibited recommendations.
An employee shall not make recommendations or suggestions, directly or indirectly, concerning the acquisition or sale or other divestiture of a security in an entity supervised by the Bureau, or an entity that is a party or represents a party to a particular matter involving specific parties to which the employee is assigned.
§ 9401.111 Restriction on participating in matters involving covered entities.
(a) Disqualification required. Absent an authorization pursuant to paragraph (c) of this section, an employee shall not participate in a particular matter involving specific parties if a covered entity is a party or represents a party to the matter.
(b) “Covered entity” defined. For purposes of this section, a “covered entity” includes:
(1) Any person for whom the employee is serving or seeking to serve, or has served within the last year, as officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee; or
(2) Any person for whom the employee is aware the employee’s spouse, domestic partner, fiancé, child, parent, sibling, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, half-sister, or member of the employee’s household is serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee.
(c) Waivers. The DAEO may authorize the employee to participate in a matter that would require disqualification under paragraph (a) of this section, using the authorization process set forth in 5 CFR 2635.502(d) of the OGE Standards. The DAEO will consult with senior management in the Division in which the employee works before issuing such an authorization.
§ 9401.112 Prohibited purchase of assets.
An employee, or an employee’s spouse or minor child, shall not purchase, directly or indirectly, any real or personal property from an entity supervised by the Bureau, unless it is sold at public auction or by other means which assures that the selling price reflects the asset’s fair market value.
§ 9401.113 Waivers.
The DAEO may grant a written waiver from any provision of this part where the DAEO finds good cause to do so; provided, however, that the DAEO will not do so unless the DAEO finds that the waiver is not inconsistent with the OGE Standards or otherwise prohibited by law and that, under the particular circumstances, application of the provision being waived is not necessary in order to avoid a violation of an ethics rule. Each waiver must be in writing and supported by a statement of facts and findings and may impose appropriate conditions, such as requiring the employee to execute a written disqualification statement.
PARTS 9402-9499 [RESERVED]
CHAPTER LXXXVI—NATIONAL CREDIT UNION ADMINISTRATION
PART 9600 [RESERVED]
PART 9601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL CREDIT UNION ADMINISTRATION
§ 9601.101 General
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the National Credit Union Administration (NCUA), other than special government employees as defined in 5 CFR 2635.102(l) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635 (Office of Government Ethics (OGE) Standards).
(b) Other regulations, guidance and procedures. In addition to 5 CFR part 2635 and this part, NCUA employees are required to comply with implementing guidance and procedures issued by the NCUA in accordance with 5 CFR 2635.105(c). NCUA employees are also subject to other government-wide ethics regulations including, but not limited to: Regulations concerning financial disclosure contained in 5 CFR part 2634, regulations concerning executive branch financial interests and conflicts contained in 5 CFR part 2640, and regulations concerning post-employment restrictions contained in 5 CFR part 2641. Certain senior NCUA examiners are also subject to post-employment restrictions contained in NCUA’s Regulation found at 12 CFR part 796. Employees should contact an NCUA ethics official if they have questions about any provision of this regulation or other ethics-related matters.
§ 9601.102 Definitions.
The following definitions apply to this part:
(a) Employment. (1) For purposes of this section, “employment” means any form of non-Federal employment, business relationship, or activity involving the provision of personal services by the employee, whether or not for compensation. It includes, but is not limited to, services as an officer, director, employee, agent, advisor, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes a writing when done under an arrangement with another person for production or publication of the written product.
(2) The definition of employment does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless:
(i) The employee will receive compensation other than reimbursement of expenses; or
(ii) The organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E).
There is a special approval requirement set out in both 18 U.S.C. 203(d) and 205(e), respectively, for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. Thus, an employee who wishes to act as agent or attorney for, or otherwise represent his parents, spouse, child, or any person for whom, or any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters must obtain the approval required by law of the Government official responsible for the employee’s appointment in addition to the regulatory approval of this section.
(b) Credit union-related entities. (1) Credit union includes insured and non-insured credit unions as defined in Section 102(7) of the Federal Credit Union Act (the Act), 12 U.S.C. 1752(7).
(2) Credit union service organization as defined in § 741.222(a) of the NCUA Regulations, 12 CFR 741.222(a).
(3) Credit union trade groups include credit union trade organizations whose membership is comprised of credit union, CUSO, state credit union regulators, state credit union organizations, and officials and employees of such organizations.
(4) Other credit union-related entities may be defined pursuant to Agency Instruction.
§ 9601.103 Prohibited outside employment.
No employee may engage in outside employment, with or without compensation, with any credit union, credit union trade group, credit union service organization, or other credit union-related entity, in any capacity.
§ 9601.104 Prior approval for outside employment.
(a) General requirement. (1) Before engaging in any outside employment, with or without compensation, other than prohibited employment in § 9601.103, an NCUA employee, other than a special government employee, must obtain written approval from the employee’s supervisor and the concurrence of the Designated Agency Ethics Official (DAEO), except to the extent that the DAEO has issued an instruction pursuant to § 9601.105 exempting an activity or class of activities from this requirement.
(2) Any employee, other than a special government employee, who, before the effective date of this part or commencement of employment with NCUA, began engaging in outside employment must, within 30 calendar days of the effective date of this part or 30 days of commencement of employment with NCUA, either terminate such employment if it is in violation of § 9601.103 or request written approval from his or her supervisor and the concurrence of the DAEO in accordance with this section. The employee may continue engaging in the outside employment while the request for approval is under review.
(b) Procedure for requesting approval. (1) Employees shall request the approval required by paragraph (a) of this section by email or other form of written correspondence in advance of engaging in outside employment as defined in § 9601.102. The employee requesting approval shall submit the request to his/her supervisor.
(2) The request for approval to engage in outside employment shall set forth, at a minimum:
(i) The name of the employer or organization;
(ii) The nature of the activity or other work to be performed;
(iii) The title of the position; and
(iv) The estimated duration of the outside employment.
(3) Upon a significant change in the nature or scope of the outside employment or in the employee’s official position with the NCUA, the employee must, within 7 calendar days of the change, submit a revised request for approval.
(c) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
§ 9601.105 DAEO’s responsibilities.
The NCUA DAEO may issue Instructions governing the submission of requests for approval of outside employment. The Instructions may exempt categories of employment from prior approval requirement of this section based on a determination that employment within those categories of employment would generally be approved and is not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The DAEO may include in these Instructions examples of outside employment that are permissible or impermissible consistent with this part and 5 CFR part 2635, including examples of other credit union-related entities.
PARTS 9602-9699 [RESERVED]
CHAPTER XCVII—DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM (DEPARTMENT OF HOMELAND SECURITY—OFFICE OF PERSONNEL MANAGEMENT)
PART 9700 [RESERVED]
PART 9701—DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM
Subpart A—General Provisions
§ 9701.101 Purpose.
(a) This part contains regulations governing the establishment of a new human resources management system within the Department of Homeland Security (DHS), as authorized by 5 U.S.C. 9701. As permitted by section 9701, these regulations waive and replace various statutory provisions that would otherwise be applicable to affected DHS employees. These regulations are issued jointly by the Secretary of Homeland Security and the Director of the Office of Personnel Management (OPM).
(b) The system established under this part is designed to be mission-centered, performance-focused, flexible, contemporary, and excellent; to generate respect and trust through employee involvement; to be based on the principles of merit and fairness embodied in the statutory merit system principles; and to comply with all other applicable provisions of law.
§ 9701.102 Eligibility and coverage.
(a) All civilian employees of the Department are eligible for coverage under one or more subparts of this part except those covered by a provision of law outside the waivable chapters of title 5, U.S. Code, identified in § 9701.104. For example, Transportation Security Administration employees, employees appointed under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Secret Service Uniformed Division members, Coast Guard Academy faculty members, and Coast Guard military members are not eligible for coverage under any classification or pay system established under subpart B or C of this part. Refer to subparts B through G of this part for specific information regarding the coverage of each subpart.
(b)(1) Subpart A of this part becomes applicable to all eligible employees on March 3, 2005.
(2) The Secretary or designee may, at his or her sole and exclusive discretion and after coordination with OPM, establish the effective date for applying subparts E, F, and G of this part to all eligible employees. Unless otherwise determined by the Secretary and the Director, subparts E, F, and G of this part will become applicable to all eligible employees no later than August 1, 2005.
(3) With respect to subparts B, C, and D of this part, the Secretary or designee may, at his or her sole and exclusive discretion and after coordination with OPM, apply one or more of these subparts to a specific category or categories of eligible civilian employees at any time. With respect to any given category of civilian employees, the Secretary or designee may apply some of these subparts, but not others, and such coverage determinations may be made effective on different dates (e.g., in order to phase in coverage under a new classification, pay, and performance management system).
(4) DHS will notify affected employees and labor organizations in advance of the application of one or more subparts of this part to them.
(c) Until the Secretary or designee makes a determination under paragraph (b) of this section to apply the provisions of one or more subparts of this part to a particular category or categories of eligible DHS employees, those DHS employees will continue to be covered by the applicable Federal laws and regulations that would apply to them in the absence of this part. All personnel actions affecting DHS employees must be based on the Federal laws and regulations applicable to them on the effective date of the action.
(d) Any new DHS classification, pay, or performance management system covering Senior Executive Service (SES) members must be consistent with the policies and procedures established by the Governmentwide SES pay-for-performance system authorized by 5 U.S.C. chapter 53, subchapter VIII, and applicable implementing regulations issued by OPM. If the Secretary determines that SES members employed by DHS should be covered by classification, pay, or performance management provisions that differ substantially from the Governmentwide SES pay-for-performance system, the Secretary and the Director must issue joint regulations consistent with all of the requirements of 5 U.S.C. 9701.
(e) At his or her sole and exclusive discretion, the Secretary or designee may, after coordination with OPM, rescind the application under paragraph (b) of this section of one or more subparts of this part to a particular category of employees and prescribe implementing directives for converting that category of employees to coverage under applicable title 5 provisions. DHS will notify affected employees and labor organizations in advance of a decision to rescind the application of one or more subparts of this part to them.
(f) The Secretary or other authorized DHS official may exercise an independent legal authority to establish a parallel system that follows some or all of the requirements in this part for a category of employees who are not eligible for coverage under this part.
§ 9701.103 Definitions.
In this part:
Authorized agency official means the Secretary or an official who is authorized to act for the Secretary in the matter concerned.
Coordination means the process by which DHS, after appropriate staff-level consultation, officially provides OPM with notice of a proposed action and intended effective date. If OPM concurs, or does not respond to that notice within 30 calendar days, DHS may proceed with the proposed action. However, if OPM indicates the matter has Governmentwide implications or consequences, DHS will not proceed until the matter is resolved. The coordination process is intended to give due deference to the flexibilities afforded DHS by the Homeland Security Act and the regulations in this part, without compromising OPM’s institutional responsibility, as codified in 5 U.S.C. chapter 11 and Executive Order 13197 of January 18, 2001, to provide Governmentwide oversight in human resources management programs and practices.
Department or DHS means the Department of Homeland Security.
Director means the Director of the Office of Personnel Management.
Employee means an employee within the meaning of that term in 5 U.S.C. 2105.
General Schedule or GS means the General Schedule classification and pay system established under chapter 51 and subchapter III of chapter 53 of title 5, U.S. Code.
Implementing directives means directives issued at the Departmental level by the Secretary or designee to carry out any policy or procedure established in accordance with this part. These directives may apply Departmentwide or to any part of the Department as determined by the Secretary at his or her sole and exclusive discretion.
OPM means the Office of Personnel Management.
Secretary means the Secretary of Homeland Security or, as authorized, the Deputy Secretary of Homeland Security.
Secretary or designee means the Secretary or a DHS official authorized to act for the Secretary in the matter concerned who serves as—
(1) The Undersecretary for Management; or
(2) The Chief Human Capital Officer for DHS.
Subject to the requirements and limitations in 5 U.S.C. 9701, the provisions in the following chapters of title 5, U.S. Code, and any related regulations, may be waived or modified in exercising the authority in 5 U.S.C. 9701:
(a) Chapter 43, dealing with performance appraisal systems;
(b) Chapter 51, dealing with General Schedule job classification;
(c) Chapter 53, dealing with pay for General Schedule employees, pay and job grading for Federal Wage System employees, and pay for certain other employees;
(d) Chapter 71, dealing with labor relations;
(e) Chapter 75, dealing with adverse actions and certain other actions; and
(f) Chapter 77, dealing with the appeal of adverse actions and certain other actions.
§ 9701.105 Continuing collaboration.
(a) In accordance with 5 U.S.C. 9701(e)(1)(D), this section provides employee representatives with an opportunity to participate in the development of implementing directives. This process is not subject to the requirements established by subpart E of this part, including but not limited to §§ 9701.512 (regarding conferring on procedures for the exercise of management rights), 9701.517(a)(5) (regarding enforcement of the duty to consult or negotiate), 9701.518 (regarding the duty to bargain, confer, and consult), or 9701.519 (regarding impasse procedures).
(b)(1) For the purpose of this section, the term “employee representatives” includes representatives of labor organizations with exclusive recognition rights for units of DHS employees, as well as representatives of employees who are not within a unit for which a labor organization has exclusive recognition.
(2) Consistent with 5 U.S.C. 9701(e)(2)(A), (B), and (D), DHS will determine the number of employee representatives to be engaged in the continuing collaboration process.
(3) Each national labor organization with multiple collective bargaining units accorded exclusive recognition will determine how its units will be represented within the limitations imposed by DHS.
(c)(1) Within timeframes specified by DHS, employee representatives will be provided with an opportunity to submit written comments and/or to discuss their views with DHS officials on proposed final draft implementing directives.
(2) As the Department determines necessary, employee representatives will be provided with an opportunity to discuss their views with DHS officials and/or to submit written comments at initial identification of implementation issues and conceptual design and/or at review of draft recommendations or alternatives.
(d) Employee representatives will be provided with access to information, including research, to make their participation in the continuing collaboration process productive.
(e) Any written comments submitted by employee representatives regarding proposed final draft implementing directives will become part of the record and will be forwarded to the Secretary or designee for consideration in making a final decision.
(f) Nothing in the continuing collaboration process affects the right of the Secretary to determine the content of implementing directives and to make them effective at any time.
(g) In accordance with 5 U.S.C. 9701(e)(2), any procedures necessary to carry out this section will be established by the Secretary and the Director jointly as internal rules of Departmental procedure which will not be subject to review.
§ 9701.106 Relationship to other provisions.
(a)(1) The provisions of title 5, U.S. Code, are waived or modified to the extent authorized by 5 U.S.C. 9701 to conform to the provisions of this part.
(2) This part must be interpreted in a way that recognizes the critical mission of the Department. Each provision of this part must be construed to promote the swift, flexible, effective day-to-day accomplishment of this mission, as defined by the Secretary or designee. The interpretation of the regulations in this part by DHS and OPM must be accorded great deference.
(b) For the purpose of applying other provisions of law or Governmentwide regulations that reference provisions under chapters 43, 51, 53, 71, 75, and 77 of title 5, U.S. Code, the referenced provisions are not waived but are modified consistent with the corresponding regulations in this part, except as otherwise provided in this part (including paragraph (c) of this section) or in DHS implementing directives. Applications of this rule include, but are not limited to, the following:
(1) If another provision of law or Governmentwide regulations requires coverage under one of the chapters modified or waived under this part (i.e., chapters 43, 51, 53, 71, 75, and 77 of title 5, U.S. Code), DHS employees are deemed to be covered by the applicable chapter notwithstanding coverage under a system established under this part. Selected examples of provisions that continue to apply to any DHS employees (notwithstanding coverage under subparts B through G of this part) include, but are not limited to, the following:
(i) Foreign language awards for law enforcement officers under 5 U.S.C. 4521-4523;
(ii) Pay for firefighters under 5 U.S.C. 5545b;
(iii) Differentials for duty involving physical hardship or hazard under 5 U.S.C. 5545(d);
(iv) Recruitment, relocation, and retention payments under 5 U.S.C. 5753-5754;
(v) Physicians’ comparability allowances under 5 U.S.C. 5948; and
(vi) The higher cap on relocation bonuses for law enforcement officers established by section 407 of the Federal Employees Pay Comparability Act of 1990 (section 529 of Pub. L. 101-509).
(2) In applying the back pay law in 5 U.S.C. 5596 to DHS employees covered by subpart G of this part (dealing with appeals), the reference in section 5596(b)(1)(A)(ii) to 5 U.S.C. 7701(g) (dealing with attorney fees) is considered to be a reference to a modified section 7701(g) that is consistent with § 9701.706(h).
(3) In applying the back pay law in 5 U.S.C. 5596 to DHS employees covered by subpart E of this part (dealing with labor relations), the reference in section 5596(b)(5) to section 7116 (dealing with unfair labor practices) is considered to be a reference to a modified section 7116 that is consistent with § 9701.517.
(c) When a specified category of employees is covered by a classification and pay system established under subparts B and C of this part, the following provisions do not apply:
(1) Time-in-grade restrictions that apply to competitive service GS positions under 5 CFR part 300, subpart F;
(2) Supervisory differentials under 5 U.S.C. 5755; and
(3) Law enforcement officer special rates and geographic adjustments under sections 403 and 404 of the Federal Employees Pay Comparability Act of 1990 (section 529 of Pub. L. 101-509).
(d) Nothing in this part waives, modifies or otherwise affects the employment discrimination laws that the Equal Employment Opportunity Commission (EEOC) enforces under 42 U.S.C. 2000e et seq., 29 U.S.C. 621 et seq., 29 U.S.C. 791 et seq., and 29 U.S.C. 206(d). Employees and applicants for employment in DHS will continue to be covered by EEOC’s Federal sector regulations found at 29 CFR part 1614.
§ 9701.107 Program evaluation.
(a) DHS will establish procedures for evaluating the regulations in this part and their implementation. DHS will provide designated employee representatives with an opportunity to be briefed and a specified timeframe to provide comments on the design and results of program evaluations.
(b) Involvement of employee representatives under this section will occur at the following stages:
(1) Identification of the scope, objectives, and methodology to be used in program evaluation; and
(2) Review of draft findings and recommendations.
(c) Involvement in the evaluation process does not waive the rights of any party under applicable law or regulations.
Subpart B—Classification
General
§ 9701.201 Purpose.
(a) This subpart contains regulations establishing a classification structure and rules for covered DHS employees and positions to replace the classification structure and rules in 5 U.S.C. chapter 51 and the job grading system in 5 U.S.C. chapter 53, subchapter IV, in accordance with the merit principle of equal pay for work of equal value.
(b) Any classification system prescribed under this subpart must be established in conjunction with the pay system described in subpart C of this part.
§ 9701.202 Coverage.
(a) This subpart applies to eligible DHS employees and positions listed in paragraph (b) of this section, subject to a determination by the Secretary or designee under § 9701.102(b).
(b) The following employees and positions are eligible for coverage under this subpart:
(1) Employees and positions that would otherwise be covered by the General Schedule classification system established under 5 U.S.C. chapter 51;
(2) Employees and positions that would otherwise be covered by a prevailing rate system established under 5 U.S.C. chapter 53, subchapter IV;
(3) Employees in senior-level (SL) and scientific or professional (ST) positions who would otherwise be covered by 5 U.S.C. 5376; and
(4) Members of the Senior Executive Service (SES) who would otherwise be covered by 5 U.S.C. chapter 53, subchapter VIII, subject to § 9701.102(d).
§ 9701.203 Waivers.
(a) When a specified category of employees is covered by a classification system established under this subpart, the provisions of 5 U.S.C. chapter 51 and 5 U.S.C. 5346, and related regulations, are waived with respect to that category of employees, except as provided in paragraph (b) of this section, § 9701.106, and § 9701.222(d) (with respect to OPM’s authority under 5 U.S.C. 5112(b) and 5346(c) to act on requests for review of classification decisions).
(b) Section 5108 of title 5, U.S. Code, dealing with the classification of positions above GS-15, is not waived.
§ 9701.204 Definitions.
In this subpart:
Band means a work level or pay range within an occupational cluster.
Basic pay means an employee’s rate of pay before any deductions and exclusive of additional pay of any kind, except as expressly provided by law or regulation. For the specific purposes prescribed in §§ 9701.332(c) and 9701.333, respectively, basic pay includes locality and special rate supplements.
Classification, also referred to as job evaluation, means the process of analyzing and assigning a job or position to an occupational series, cluster, and band for pay and other related purposes.
Competencies means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position.
Occupational cluster means a grouping of one or more associated or related occupations or positions. An occupational cluster may include one or more occupational series.
Occupational series means the number OPM or DHS assigns to a group or family of similar positions for identification purposes (for example: 0110, Economist Series; 1410, Librarian Series).
Position or Job means the duties, responsibilities, and related competency requirements that are assigned to an employee whom the Secretary or designee approves for coverage under § 9701.202(a).
§ 9701.205 Bar on collective bargaining.
As provided in the definition of conditions of employment in § 9701.504, any classification system established under this subpart is not subject to collective bargaining. This bar on collective bargaining applies to all aspects of the classification system, including but not limited to coverage determinations, the design of the classification structure, and classification methods, criteria, and administrative procedures and arrangements.
Classification Structure
§ 9701.211 Occupational clusters.
For the purpose of classifying positions, DHS may, after coordination with OPM, establish occupational clusters based on factors such as mission or function; nature of work; qualifications or competencies; career or pay progression patterns; relevant labor-market features; and other characteristics of those occupations or positions. DHS must document in implementing directives the criteria and rationale for grouping occupations or positions into occupational clusters.
§ 9701.212 Bands.
(a) For purposes of identifying relative levels of work and corresponding pay ranges, DHS may, after coordination with OPM, establish one or more bands within each occupational cluster.
(b) Each occupational cluster may include, but is not limited to, the following bands:
(1) Entry/Developmental—work that involves gaining the competencies needed to perform successfully in a Full Performance band through appropriate formal training and/or on-the-job experience.
(2) Full Performance—work that involves the successful completion of any required entry-level training and/or developmental activities necessary to independently perform the full range of non-supervisory duties of a position in an occupational cluster.
(3) Senior Expert—work that involves an extraordinary level of specialized knowledge or expertise upon which DHS relies for the accomplishment of critical mission goals and objectives; reserved for a limited number of non-supervisory employees.
(4) Supervisory—work that may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties.
(c) DHS must document in implementing directives the definitions for each band which specify the type and range of difficulty and responsibility, qualifications, competencies, or other characteristics of the work encompassed by the band.
(d) DHS must, after coordination with OPM, establish qualification standards and requirements for each occupational cluster, occupational series, and/or band. DHS may use the qualification standards established by OPM or, after coordination with OPM, may establish different qualification standards. This paragraph does not waive or modify any DHS authority to establish qualification standards or requirements under 5 U.S.C. chapters 31 and 33 and OPM implementing regulations.
Classification Process
§ 9701.221 Classification requirements.
(a) DHS must develop a methodology for describing and documenting the duties, qualifications, and other requirements of categories of jobs, and DHS must make such descriptions and documentation available to affected employees.
(b) An authorized agency official must—
(1) Assign occupational series to jobs consistent with occupational series definitions established by OPM under 5 U.S.C. 5105 and 5346 or by DHS, after coordination with OPM; and
(2) Apply the criteria and definitions required by § 9701.211 and § 9701.212 to assign jobs to an appropriate occupational cluster and band.
(c) DHS must establish procedures for classifying jobs and may make such inquiries or investigations of the duties, responsibilities, and qualification requirements of jobs as it considers necessary for the purpose of this section.
(d) Classification decisions become effective on the date designated by the authorized agency official who makes the decision.
(e) DHS must establish a plan to periodically review the accuracy of classification decisions.
§ 9701.222 Reconsideration of classification decisions.
(a) An individual employee may request that DHS or OPM reconsider the pay system, occupational cluster, occupational series, or band assigned to his or her current official position of record at any time.
(b) DHS will, after coordination with OPM, establish implementing directives for reviewing requests for reconsideration, including nonreviewable issues, rights of representation, and the effective date of any corrective actions. OPM will, after consulting with DHS, establish separate policies and procedures for reviewing reconsideration requests.
(c) An employee may request OPM to review a DHS determination made under paragraph (a) of this section. If an employee does not request an OPM reconsideration decision, DHS’s classification determination is final and not subject to further review or appeal.
(d) OPM’s final determination on a request made under this section is not subject to further review or appeal.
Transitional Provisions
§ 9701.231 Conversion of positions and employees to the DHS classification system.
(a) This section describes the transitional provisions that apply when DHS positions and employees are converted to a classification system established under this subpart. Affected positions and employees may convert from the GS system, a prevailing rate system, the SL/ST system, or the SES system, as provided in § 9701.202. For the purpose of this section, the terms “convert,” “converted,” “converting,” and “conversion” refer to positions and employees that become covered by the classification system as a result of a coverage determination made under § 9701.102(b) and exclude employees who are reassigned or transferred from a noncovered position to a position already covered by the DHS system.
(b) DHS will issue implementing directives prescribing policies and procedures for converting the GS or prevailing rate grade of a position to a band and for converting SL/ST and SES positions to a band upon initial implementation of the DHS classification system. Such procedures must include provisions for converting an employee who is retaining a grade under 5 U.S.C. chapter 53, subchapter VI, immediately prior to conversion. As provided in § 9701.373, DHS must convert employees to the system without a reduction in their rate of pay (including basic pay and any applicable locality payment under 5 U.S.C. 5304, special rate under 5 U.S.C. 5305, locality rate supplement under § 9701.332, or special rate supplement under § 9701.333).
§ 9701.232 Special transition rules for Federal Air Marshal Service.
Notwithstanding any other provision in this subpart, if DHS transfers Federal Air Marshal Service positions from the Transportation Security Administration (TSA) to another organization within DHS, DHS may cover those positions under a classification system that is parallel to the classification system that was applicable to the Federal Air Marshal Service within TSA. DHS may, after coordination with OPM, modify that system. DHS will issue implementing directives on converting Federal Air Marshal Service employees to any new classification system that may subsequently be established under this subpart, consistent with the conversion rules in § 9701.231.
Subpart C—Pay and Pay Administration
General
§ 9701.301 Purpose.
(a) This subpart contains regulations establishing pay structures and pay administration rules for covered DHS employees to replace the pay structures and pay administration rules established under 5 U.S.C. chapter 53, as authorized by 5 U.S.C. 9701. These regulations are designed to provide DHS with the flexibility to allocate available funds strategically in support of DHS mission priorities and objectives. Various features that link pay to employees’ performance ratings are designed to promote a high-performance culture within DHS.
(b) Any pay system prescribed under this subpart must be established in conjunction with the classification system described in subpart B of this part.
(c) The pay system established under this subpart, working in conjunction with the performance management system established under subpart D of this part, is designed to incorporate the following features:
(1) Adherence to merit principles set forth in 5 U.S.C. 2301;
(2) A fair, credible, and transparent employee performance appraisal system;
(3) A link between elements of the pay system established in this subpart, the employee performance appraisal system, and the Department’s strategic plan;
(4) Employee involvement in the design and implementation of the system (as specified in § 9701.105);
(5) Adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the pay system established in this subpart;
(6) Periodic performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period, and setting timetables for review;
(7) Effective safeguards so that the management of the system is fair and equitable and based on employee performance; and
(8) A means for ensuring that adequate resources are allocated for the design, implementation, and administration of the performance management system that supports the pay system established under this subpart.
§ 9701.302 Coverage.
(a) This subpart applies to eligible DHS employees in the categories listed in paragraph (b) of this section, subject to a determination by the Secretary or designee under § 9701.102(b).
(b) The following employees are eligible for coverage under this subpart:
(1) Employees who would otherwise be covered by the General Schedule pay system established under 5 U.S.C. chapter 53, subchapter III;
(2) Employees who would otherwise be covered by a prevailing rate system established under 5 U.S.C. chapter 53, subchapter IV;
(3) Employees in senior-level (SL) and scientific or professional (ST) positions who would otherwise be covered by 5 U.S.C. 5376; and
(4) Members of the Senior Executive Service (SES) who would otherwise be covered by 5 U.S.C. chapter 53, subchapter VIII, subject to § 9701.102(d).
§ 9701.303 Waivers.
(a) When a specified category of employees is covered by the pay system established under this subpart, the provisions of 5 U.S.C. chapter 53, and related regulations, are waived with respect to that category of employees, except as provided in § 9701.106 and paragraphs (b) through (f) of this section.
(b) The following provisions of 5 U.S.C. chapter 53 are not waived:
(1) Section 5307, dealing with the aggregate limitation on pay;
(2) Sections 5311 through 5318, dealing with Executive Schedule positions;
(3) Section 5371, insofar as it authorizes OPM to apply the provisions of 38 U.S.C. chapter 74 to DHS employees in health care positions covered by section 5371 in lieu of any DHS pay system established under this subpart or the following provisions of title 5, U.S. Code: Chapters 51, 53, and 61, and subchapter V of chapter 55. The reference to “chapter 51” in section 5371 is deemed to include a classification system established under subpart B of this part; and
(4) Section 5377, dealing with the critical pay authority.
(c) Section 5373 is modified. The limit on rates of basic pay, including any applicable locality payment or supplement, for DHS employees who are not covered by this subpart and whose pay is set by administrative action (e.g., Coast Guard Academy faculty) is increased to the rate for level III of the Executive Schedule.
(d) Section 5379 is modified. DHS may, after coordination with OPM, establish and administer a student loan repayment program for DHS employees, except that DHS may not make loan payments for any noncareer appointees to the SES (as defined in 5 U.S.C. 3132(a)(7)) or for any employee occupying a position that is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character. Notwithstanding § 9701.302(a), any DHS employee otherwise covered by section 5379 is eligible for coverage under the provisions established under this paragraph, subject to a determination by the Secretary or designee under § 9701.102(b).
(e) In approving the coverage of employees who would otherwise be covered by a prevailing rate system established under 5 U.S.C. chapter 53, subchapter IV, DHS may limit the waiver so that affected employees remain entitled to environmental or other differentials established under 5 U.S.C. 5343(c)(4) and night shift differentials established under 5 U.S.C. 5343(f) if such employees are grouped in separate occupational clusters (established under subpart B of this part) that are limited to employees who would otherwise be covered by a prevailing rate system.
(f) Employees in SL/ST positions and SES members who are covered by a basic pay system established under this subpart are considered to be paid under 5 U.S.C. 5376 and 5382, respectively, for the purpose of applying 5 U.S.C. 5307(d).
§ 9701.304 Definitions.
In this part:
48 contiguous States means the States of the United States, excluding Alaska and Hawaii, but including the District of Columbia.
Band means a work level or pay range within an occupational cluster.
Band rate range means the range of rates of basic pay (excluding any locality or special rate supplements) applicable to employees in a particular band, as described in § 9701.321. Each band rate range is defined by a minimum and maximum rate.
Basic pay means an employee’s rate of pay before any deductions and exclusive of additional pay of any kind, except as expressly provided by law or regulation. For the specific purposes prescribed in §§ 9701.332(c) and 9701.333, respectively, basic pay includes locality and special rate supplements.
Competencies means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position.
Day means a calendar day.
Demotion means a reduction to a lower band within the same occupational cluster or a reduction to a lower band in a different occupational cluster under implementing directives issued by DHS pursuant to § 9701.355.
Locality rate supplement means a geographic-based addition to basic pay, as described in § 9701.332.
Modal rating means the rating of record that occurs most frequently in a particular pay pool.
Occupational cluster means a grouping of one or more associated or related occupations or positions. An occupational cluster may include one or more occupational series.
Promotion means an increase to a higher band within the same occupational cluster or an increase to a higher band in a different occupational cluster under implementing directives issued by DHS pursuant to § 9701.355.
Rating of record means a performance appraisal prepared—
(1) At the end of an appraisal period covering an employee’s performance of assigned duties against performance expectations (as defined in § 9701.404) over the applicable period; or
(2) To support a pay determination, including one granted in accordance with subpart C of this part, a within-grade increase granted under 5 CFR 531.404, or a pay determination granted under other applicable rules.
SES means the Senior Executive Service established under 5 U.S.C. chapter 31, subchapter II.
SL/ST refers to an employee serving in a senior-level position paid under 5 U.S.C. 5376. The term “SL” identifies a senior-level employee covered by 5 U.S.C. 3324 and 5108. The term “ST” identifies an employee who is appointed under the special authority in 5 U.S.C. 3325 to a scientific or professional position established under 5 U.S.C. 3104.
Special rate supplement means an addition to basic pay for a particular category of employees to address staffing problems, as described in § 9701.333. A special rate supplement is paid in place of any lesser locality rate supplement that would otherwise apply.
Unacceptable performance means the failure to meet one or more performance expectations, as described in § 9701.406.
§ 9701.305 Bar on collective bargaining.
As provided in the definition of conditions of employment in § 9701.504, any pay program established under authority of this subpart is not subject to collective bargaining. This bar on collective bargaining applies to all aspects of the pay program, including but not limited to coverage decisions, the design of pay structures, the setting and adjustment of pay levels, pay administration rules and policies, and administrative procedures and arrangements.
Overview of Pay System
§ 9701.311 Major features.
Through the issuance of implementing directives, DHS will establish a pay system that governs the setting and adjusting of covered employees’ rates of pay. The DHS pay system will include the following features:
(a) A structure of rate ranges linked to various bands for each occupational cluster, in alignment with the classification structure described in subpart B of this part;
(b) Policies regarding the setting and adjusting of basic pay rate ranges based on mission requirements, labor market conditions, and other factors, as described in §§ 9701.321 and 9701.322;
(c) Policies regarding the setting and adjusting of supplements to basic pay based on local labor market conditions and other factors, as described in §§ 9701.331 through 9701.334;
(d) Policies regarding employees’ eligibility for pay increases based on adjustments in rate ranges and supplements, as described in §§ 9701.323 through 9701.325 and 9701.335 through 9701.337;
(e) Policies regarding performance-based pay adjustments, as described in §§ 9701.341 through 9701.346;
(f) Policies on basic pay administration, including movement between occupational clusters, as described in §§ 9701.351 through 9701.356;
(g) Policies regarding special payments that are not basic pay, as described in §§ 9701.361 through 9701.363; and
(h) Linkages to employees’ performance ratings of records, as described in subpart D of this part.
§ 9701.312 Maximum rates.
(a) DHS may not pay any employee an annual rate of basic pay in excess of the rate for level III of the Executive Schedule, except as provided in paragraph (b) of this section.
(b) DHS may establish the maximum annual rate of basic pay for members of the SES at the rate for level II of the Executive Schedule if DHS obtains the certification specified in 5 U.S.C. 5307(d).
§ 9701.313 Homeland Security Compensation Committee.
(a) DHS will establish a Homeland Security Compensation Committee to provide options and/or recommendations for consideration by the Secretary or designee on strategic compensation matters such as Departmental compensation policies and principles, the annual allocation of funds between market and performance pay adjustments, and the annual adjustment of rate ranges and locality and special rate supplements. The Compensation Committee will consider factors such as turnover, recruitment, and local labor market conditions in providing options and recommendations for consideration by the Secretary. The Secretary’s or designee’s determination with regard to those options and/or recommendations is final and not subject to further review.
(b) The Compensation Committee will be chaired by the DHS Undersecretary for Management. The Compensation Committee has 14 members, including 4 officials of labor organizations granted national consultation rights (NCR) in accordance with § 9701.518(d)(2). An OPM official will serve as an ex officio member of the Compensation Committee. DHS will provide technical staff to support the Compensation Committee.
(c) DHS will establish procedures governing the membership and operation of the Compensation Committee.
(d) An individual will be selected by the Chair to facilitate Compensation Committee meetings. The facilitator will be selected from a list of nominees developed jointly by representatives of the Department and NCR labor organizations, the latter acting as a single party, according to procedures and time limits established by implementing directives. Nominees must be known for their integrity, impartiality, and expertise in facilitation and compensation. If the Department and the labor organizations are unable to reach agreement on a joint list of nominees, they will enlist the services of the Federal Mediation and Conciliation Service (FMCS) to assist them. If the parties are unable to reach agreement with FMCS assistance, each party will prepare a list of up to three nominees and provide those separate lists to FMCS; FMCS may add up to three additional nominees. From that combined list of nominees, the Department and the labor organizations, the latter acting as a single party, will alternately strike names from the list until five names remain; those five nominees will be submitted to the Chair for consideration. The Chair may request that the parties develop an additional list of nominees. If the representatives of the Department’s NCR labor organizations, acting as a single party, do not participate in developing the list of nominees in accordance with this section, the Chair will select the facilitator.
(e) After considering the views of all Compensation Committee members, the Chair prepares and provides options and/or recommendations to the Secretary or designee. Members may present their views on the final recommendations in writing as part of the final recommendation package. The Secretary or designee will make the final decision and notify the Compensation Committee. This process is not subject to the requirements established by §§ 9701.512 (regarding conferring on procedures for the exercise of management rights), 9701.517(a)(5) (regarding enforcement of the duty to consult or negotiate), 9701.518 (regarding the duty to bargain, confer, and consult), or 9701.519 (regarding impasse procedures).
(f) The Secretary retains the right to make determinations regarding the annual allocation of funds between market and performance pay adjustments, the annual adjustment of rate ranges and locality and special rate supplements, or any other matter recommended by the Compensation Committee, and to make such determinations effective at any time.
§ 9701.314 DHS responsibilities.
DHS responsibilities in implementing this subpart include the following:
(a) Providing OPM with information regarding the implementation of the programs authorized under this subpart at OPM’s request;
(b) Participating in any interagency pay coordination council or group established by OPM to ensure that DHS pay policies and plans are coordinated with other agencies; and
(c) Fulfilling all other responsibilities prescribed in this subpart.
Setting and Adjusting Rate Ranges
§ 9701.321 Structure of bands.
(a) DHS may, after coordination with OPM, establish ranges of basic pay for bands, with minimum and maximum rates set and adjusted as provided in § 9701.322. Rates must be expressed as annual rates.
(b) For each band within an occupational cluster, DHS will establish a common rate range that applies in all locations.
§ 9701.322 Setting and adjusting rate ranges.
(a) Within its sole and exclusive discretion, DHS may, after coordination with OPM, set and adjust the rate ranges established under § 9701.321 on an annual basis. In determining the rate ranges, DHS and OPM may consider mission requirements, labor market conditions, availability of funds, pay adjustments received by employees of other Federal agencies, and any other relevant factors.
(b) DHS may, after coordination with OPM, determine the effective date of newly set or adjusted band rate ranges. Unless DHS determines that a different effective date is needed for operational reasons, these adjustments will become effective on or about the date of the annual General Schedule pay adjustment authorized by 5 U.S.C. 5303.
(c) DHS may establish different rate ranges and provide different rate range adjustments for different bands.
(d) DHS may adjust the minimum and maximum rates of a band by different percentages.
§ 9701.323 Eligibility for pay increase associated with a rate range adjustment.
(a) When a band rate range is adjusted under § 9701.322, employees covered by that band are eligible for an individual pay increase. An employee who meets or exceeds performance expectations (i.e., has a rating of record above the unacceptable performance level for the most recently completed appraisal period) must receive an increase in basic pay equal to the percentage value of any increase in the minimum rate of the employee’s band resulting from a rate range adjustment under § 9701.322. The pay increase takes effect at the same time as the corresponding rate range adjustment, except as provided in §§ 9701.324 and 9701.325. For an employee receiving a retained rate, the amount of the increase under this paragraph is determined under § 9701.356.
(b) If an employee does not have a rating of record for the most recently completed appraisal period, he or she must be treated in the same manner as an employee who meets or exceeds performance expectations and is entitled to receive an increase based on the rate range adjustment, as provided in paragraph (a) of this section.
(c) An employee whose rating of record is unacceptable is prohibited from receiving a pay increase as a result of a rate range adjustment, except as provided by §§ 9701.324 and 9701.325. Because the employee’s pay remains unchanged, failure to receive a pay increase is not considered an adverse action under subpart F of this part.
§ 9701.324 Treatment of employees whose rate of basic pay does not fall below the minimum rate of their band.
An employee who does not receive a pay increase under § 9701.323 because of an unacceptable rating of record and whose rate of basic pay does not fall below the minimum rate of his or her band as a result of that rating will receive such an increase if he or she demonstrates performance that meets or exceeds performance expectations, as reflected by a new rating of record issued under § 9701.409(b). Such an increase will be made effective on the first day of the first pay period beginning on or after the date the new rating of record is issued.
§ 9701.325 Treatment of employees whose rate of basic pay falls below the minimum rate of their band.
(a) In the case of an employee who does not receive a pay increase under § 9701.323 because of an unacceptable rating of record and whose rate of basic pay falls below the minimum rate of his or her band as a result of that rating, DHS must—
(1) If the employee demonstrates performance that meets or exceeds performance expectations within 90 days after the date of the rate range adjustment, issue a new rating of record under § 9701.409(b) and adjust the employee’s pay prospectively by making the increase effective on the first day of the first pay period beginning on or after the date the new rating of record is issued; or
(2) Initiate action within 90 days after the date of the rate range adjustment to demote or remove the employee in accordance with the adverse action procedures established in subpart F of this part.
(b) If DHS fails to initiate a removal or demotion action under paragraph (a)(2) of this section within 90 days after the date of a rate range adjustment, the employee becomes entitled to the minimum rate of his or her band rate range on the first day of the first pay period beginning on or after the 90th day following the date of the rate range adjustment.
Locality and Special Rate Supplements
§ 9701.331 General.
The basic pay ranges established under §§ 9701.321 through 9701.323 may be supplemented in appropriate circumstances by locality or special rate supplements, as described in §§ 9701.332 through 9701.335. These supplements are expressed as a percentage of basic pay and are set and adjusted as described in § 9701.334. As authorized by § 9701.356, DHS implementing directives will determine the extent to which §§ 9701.331 through 9701.337 apply to employees receiving a retained rate.
§ 9701.332 Locality rate supplements.
(a) For each band rate range, DHS may, after coordination with OPM, establish locality rate supplements that apply in specified locality pay areas. Locality rate supplements apply to employees whose official duty station is located in the given area. DHS may provide different locality rate supplements for different occupational clusters or for different bands within the same occupational cluster in the same locality pay area.
(b) For the purpose of establishing and modifying locality pay areas, 5 U.S.C. 5304 is not waived. A DHS decision to use the locality pay area boundaries established under 5 U.S.C. 5304 does not require separate DHS regulations. DHS may, after coordination with OPM and in accordance with the public notice and comment provisions of 5 U.S.C. 553, publish Departmental regulations (6 CFR Chapter I) in the
(c) Locality rate supplements are considered basic pay for only the following purposes:
(1) Retirement under 5 U.S.C. chapter 83 or 84;
(2) Life insurance under 5 U.S.C. chapter 87;
(3) Premium pay under 5 U.S.C. chapter 55, subchapter V, or similar payments under other legal authority;
(4) Severance pay under 5 U.S.C. 5595;
(5) Application of the maximum rate limitation set forth in § 9701.312;
(6) Determining the rate of basic pay upon conversion to the DHS pay system established under this subpart, consistent with § 9701.373(b);
(7) Other payments and adjustments authorized under this subpart as specified by DHS implementing directives;
(8) Other payments and adjustments under other statutory or regulatory authority that are basic pay for the purpose of locality-based comparability payments under 5 U.S.C. 5304; and
(9) Any provisions for which DHS locality rate supplements must be treated as basic pay by law.
§ 9701.333 Special rate supplements.
DHS will, after coordination with OPM, establish special rate supplements that provide higher pay levels for subcategories of employees within an occupational cluster if DHS determines that such supplements are warranted by current or anticipated recruitment and/or retention needs. In exercising this authority, DHS will issue necessary implementing directives. Any special rate supplement must be treated as basic pay for the same purposes as locality rate supplements, as described in § 9701.332(c), and for the purpose of computing cost-of-living allowances and post differentials in nonforeign areas under 5 U.S.C. 5941.
§ 9701.334 Setting and adjusting locality and special rate supplements.
(a) Within its sole and exclusive discretion, DHS may, after coordination with OPM, set and adjust locality and special rate supplements. In determining the amounts of the supplements, DHS and OPM may consider mission requirements, labor market conditions, availability of funds, pay adjustments received by employees of other Federal agencies, and any other relevant factors.
(b) DHS may, after coordination with OPM, determine the effective date of newly set or adjusted locality and special rate supplements. Established supplements will be reviewed for possible adjustment on an annual basis in conjunction with rate range adjustments under § 9701.322.
§ 9701.335 Eligibility for pay increase associated with a supplement adjustment.
(a) When a locality or special rate supplement is adjusted under § 9701.334, an employee to whom the supplement applies is entitled to the pay increase resulting from that adjustment if the employee meets or exceeds performance expectations (i.e., has a rating of record above the unacceptable performance level for the most recently completed appraisal period). This includes an increase resulting from the initial establishment and setting of a special rate supplement. The pay increase takes effect at the same time as the applicable supplement is set or adjusted, except as provided in §§ 9701.336 and 9701.337.
(b) If an employee does not have a rating of record for the most recently completed appraisal period, he or she must be treated in the same manner as an employee who meets or exceeds performance expectations and is entitled to any pay increase associated with a supplement adjustment, as provided in paragraph (a) of this section.
(c) An employee who has an unacceptable rating of record is prohibited from receiving a pay increase as a result of an increase in an applicable locality or special rate supplement, except as provided by §§ 9701.336 and 9701.337. Because the employee’s pay remains unchanged, failure to receive a pay increase is not considered an adverse action under subpart F of this part.
§ 9701.336 Treatment of employees whose pay does not fall below the minimum adjusted rate of their band.
An employee who does not receive a pay increase under § 9701.335 because of an unacceptable rating of record and whose rate of basic pay (including a locality or special rate supplement) does not fall below the minimum adjusted rate of his or her band as a result of that rating will receive such an increase if he or she demonstrates performance that meets or exceeds performance expectations, as reflected by a new rating of record issued under § 9701.409(b). Such an increase will be made effective on the first day of the first pay period beginning on or after the date the new rating of record is issued.
§ 9701.337 Treatment of employees whose rate of pay falls below the minimum adjusted rate of their band.
(a) In the case of an employee who does not receive a pay increase under § 9701.335 because of an unacceptable rating of record and whose rate of basic pay (including a locality or special rate supplement) falls below the minimum adjusted rate of his or her band as a result of that rating, DHS must—
(1) If the employee demonstrates performance that meets or exceeds performance expectations within 90 days after the date of the locality or special rate supplement adjustment, issue a new rating of record under § 9701.409(b) and adjust the employee’s pay prospectively by making the increase effective on the first day of the first pay period beginning on or after the date the new rating of record is issued; or
(2) Initiate action within 90 days after the date of the locality or special rate supplement adjustment to demote or remove the employee in accordance with the adverse action procedures established in subpart F of this part.
(b) If DHS fails to initiate a removal or demotion action under paragraph (a)(2) of this section within 90 days after the date of a locality or special rate supplement adjustment, the employee becomes entitled to the minimum adjusted rate of his or her band rate range on the first day of the first pay period beginning on or after the 90th day following the date of the locality or special rate supplement adjustment.
Performance-Based Pay
§ 9701.341 General.
Sections 9701.342 through 9701.346 describe various types of performance-based pay adjustments that are part of the pay system established under this subpart. Generally, these within-band pay increases are directly linked to an employee’s rating of record (as assigned under the performance management system described in subpart D of this part). These provisions are designed to provide DHS with the flexibility to allocate available funds based on performance as a means of fostering a high-performance culture that supports mission accomplishment. While performance measures primarily focus on an employee’s contributions (as an individual or as part of a team) in accomplishing work assignments and achieving mission results, performance also may be reflected in the acquisition and demonstration of required competencies.
§ 9701.342 Performance pay increases.
(a) Overview. (1) The DHS pay system provides employees in a Full Performance or higher band with increases in basic pay based on individual performance ratings of record as assigned under a performance management system established under subpart D of this part. The DHS pay system uses pay pool controls to allocate pay increases based on performance points that are directly linked to the employee’s rating of record, as described in this section. Performance pay increases are a function of the amount of money in the performance pay pool, the relative point value placed on ratings, and the distribution of ratings within that performance pay pool.
(2) The rating of record used as the basis for a performance pay increase is the one assigned for the most recently completed appraisal period (subject to the requirements of subpart D of this part), except that if the supervisor or other rating official determines that an employee’s current performance is inconsistent with that rating, the supervisor or other rating official may prepare a more current rating of record, consistent with § 9701.409(b). If an employee does not have a rating of record, DHS will use the modal rating received by other employees covered by the same pay pool during the most recent rating cycle for the purpose of determining the employee’s performance pay increase.
(b) Performance pay pools. (1) DHS will establish pay pools for performance pay increases.
(2) Each pay pool covers a defined group of DHS employees, as determined by DHS.
(3) An authorized agency official(s) may determine the distribution of funds among pay pools and may adjust those amounts based on overall levels of organizational performance or contribution to the Department’s mission.
(4) In allocating the monies to be budgeted for performance pay increases, the Secretary or designee must take into account the average value of within-grade and quality step increases under the General Schedule, as well as amounts that otherwise would have been spent on promotions among positions placed in the same band.
(c) Performance point values. (1) DHS will establish point values that correspond to the performance rating levels established under subpart D of this part, so that a point value is attached to each rating level. For example, in a four-level rating program, the point value pattern could be 4-2-1-0, where 4 points are assigned to the highest (outstanding) rating and 0 points to an unacceptable rating. Performance point values will determine performance pay increases.
(2) DHS will establish a point value pattern for each pay pool. Different pay pools may have different point value patterns.
(3) DHS must assign zero performance points to an unacceptable rating of record.
(d) Performance payout. (1) DHS will determine the value of a performance point, expressed as a percentage of an employee’s rate of basic pay (exclusive of locality or special rate supplements under §§ 9701.332 and 9701.333) or as a fixed dollar amount.
(2) To determine an individual employee’s performance payout, DHS will multiply the point value determined under paragraph (d)(1) of this section by the number of performance points assigned to the rating.
(3) To the extent that the adjustment does not cause the employee’s rate of basic pay to exceed the maximum rate of the employee’s band rate range, DHS will pay the performance payout as an adjustment in the employee’s annual rate of basic pay. Any excess amount may be granted as a lump-sum payment, which may not be considered basic pay for any purpose.
(4) DHS may, after coordination with OPM, determine the effective date of adjustments in basic pay made under paragraph (d)(3) of this section.
(5) For an employee receiving a retained rate under § 9701.356, DHS will issue implementing directives to provide for granting a lump-sum performance payout that may not exceed the amount that may be received by an employee in the same pay pool with the same rating of record whose rate of pay is at the maximum rate of the same band.
(e) Proration of performance payouts. DHS will issue implementing directives regarding the proration of performance payouts for employees who, during the period between performance pay adjustments, are—
(1) Hired or promoted;
(2) In a leave-without-pay status (except as provided in paragraphs (f) and (g) of this section); or
(3) In other circumstances where proration is considered appropriate.
(f) Adjustments for employees returning after performing honorable service in the uniformed services. DHS will issue implementing directives regarding how it sets the rate of basic pay prospectively for an employee who leaves a DHS position to perform service in the uniformed services (as defined in 38 U.S.C. 4303 and 5 CFR 353.102) and returns through the exercise of a reemployment right provided by law, Executive order, or regulation under which accrual of service for seniority-related benefits is protected (e.g., 38 U.S.C. 4316). DHS will credit the employee with intervening rate range adjustments under § 9701.323(a), as well as developmental pay adjustments under § 9701.345 (as determined by DHS in accordance with its implementing directives), and performance pay adjustments under this section based on the employee’s last DHS rating of record. For employees who have no such rating of record, DHS will use the modal rating received by other employees covered by the same pay pool during the most recent rating cycle. An employee returning from qualifying service in the uniformed services will receive the full amount of the performance pay increase associated with his or her rating of record.
(g) Adjustments for employees returning to duty after being in workers’ compensation status. DHS will issue implementing directives regarding how it sets the rate of basic pay prospectively for an employee who returns to duty after a period of receiving injury compensation under 5 U.S.C. chapter 81, subchapter I (in a leave-without-pay status or as a separated employee). DHS will credit the employee with intervening rate range adjustments under § 9701.323(a), as well as developmental pay adjustments under § 9701.345 (as determined by DHS in accordance with its implementing directives), and performance pay adjustments under this section based on the employee’s last DHS rating of record. For employees who have no such rating of record, DHS will use the modal rating received by other employees covered by the same pay pool during the most recent rating cycle. An employee returning to duty after receiving injury compensation will receive the full amount of the performance pay increase associated with his or her rating of record.
§ 9701.343 Within-band reductions.
Subject to the adverse action procedures set forth in subpart F of this part, DHS may reduce an employee’s rate of basic pay within a band for unacceptable performance or conduct. A reduction under this section may not be more than 10 percent or cause an employee’s rate of basic pay to fall below the minimum rate of the employee’s band rate range. Such a reduction may be made effective at any time.
§ 9701.344 Special within-band increases.
DHS may issue implementing directives regarding special within-band basic pay increases for employees within a Full Performance or higher band established under § 9701.212 who possess exceptional skills in critical areas or who make exceptional contributions to mission accomplishment or in other circumstances determined by DHS. Increases under this section are in addition to any performance pay increases made under § 9701.342 and may be made effective at any time. Special within-band increases may not be based on length of service.
§ 9701.345 Developmental pay adjustments.
DHS will issue implementing directives regarding pay adjustments within the Entry/Developmental band. These directives may require employees to meet certain standardized assessment or certification points as part of a formal training/developmental program. In administering Entry/Developmental band pay progression plans, DHS may link pay progression to the demonstration of required knowledge, skills, and abilities (KSAs)/competencies. DHS may set standard timeframes for progression through an Entry/Developmental band while allowing an employee to progress at a slower or faster rate based on his or her performance, demonstration of required competencies, and/or other factors.
§ 9701.346 Pay progression for new supervisors.
DHS will issue implementing directives requiring an employee newly appointed to or selected for a supervisory position to meet certain assessment or certification points as part of a formal training/developmental program. In administering performance pay increases for these employees under § 9701.342, DHS may take into account the employee’s success in completing a formal training/developmental program, as well as his or her performance.
Pay Administration
§ 9701.351 Setting an employee’s starting pay.
DHS will, after coordination with OPM, issue implementing directives regarding the starting rate of pay for an employee, including—
(a) An individual who is newly appointed or reappointed to the Federal service;
(b) An employee transferring to DHS from another Federal agency; and
(c) A DHS employee who moves from a noncovered position to a position already covered by this subpart.
§ 9701.352 Use of highest previous rate.
DHS will issue implementing directives regarding the discretionary use of an individual’s highest previous rate of basic pay received as a Federal employee or as an employee of a Coast Guard nonappropriated fund instrumentality (NAFI) in setting pay upon reemployment, transfer, reassignment, promotion, demotion, placement in a different occupational cluster, or change in type of appointment. For this purpose, basic pay may include a locality-based payment or supplement under circumstances approved by DHS. If an employee in a Coast Guard NAFI position is converted to an appropriated fund position under the pay system established under this subpart, DHS must use the existing NAFI rate to set pay upon conversion.
§ 9701.353 Setting pay upon promotion.
(a) Except as otherwise provided in this section, upon an employee’s promotion, DHS must provide an increase in the employee’s rate of basic pay equal to at least 8 percent. The rate of basic pay after promotion may not be less than the minimum rate of the higher band.
(b) DHS will issue implementing directives providing for an increase other than the amount specified in paragraph (a) of this section in the case of—
(1) An employee promoted from an Entry/Developmental band to a Full Performance band (consistent with the pay progression plan established for the Entry/Developmental band);
(2) An employee who was demoted and is then repromoted back to the higher band; or
(3) Employees in other circumstances specified by DHS implementing directives.
(c) An employee receiving a retained rate (i.e., a rate above the maximum of the band) before promotion is entitled to a rate of basic pay after promotion that is at least 8 percent higher than the maximum rate of the employee’s current band (except in circumstances specified by DHS implementing directives). The rate of basic pay after promotion may not be less than the minimum rate of the employee’s new band rate range or the employee’s existing retained rate of basic pay. If the maximum rate of the employee’s new band rate range is less than the employee’s existing rate of basic pay, the employee will continue to be entitled to the existing rate as a retained rate.
(d) DHS may determine the circumstances under which and the extent to which any locality or special rate supplements are treated as basic pay in applying the promotion increase rules in this section.
§ 9701.354 Setting pay upon demotion.
DHS will issue implementing directives regarding how to set an employee’s pay when he or she is demoted. The directives must distinguish between demotions under adverse action procedures (as defined in subpart F of this part) and other demotions (e.g., due to expiration of a temporary promotion or canceling of a promotion during a new supervisor’s probationary period). A reduction in basic pay upon demotion under adverse action procedures may not exceed 10 percent unless a larger reduction is needed to place the employee at the maximum rate of the lower band.
§ 9701.355 Setting pay upon movement to a different occupational cluster.
DHS will issue implementing directives regarding how to set an employee’s pay when he or she moves voluntarily or involuntarily to a position in a different occupational cluster, including rules for determining whether such a movement is to a higher or lower band for the purpose of setting pay upon promotion or demotion under §§ 9701.353 and 9701.354, respectively.
§ 9701.356 Pay retention.
(a) Subject to the requirements of this section, DHS will, after coordination with OPM, issue implementing directives regarding the application of pay retention. Pay retention prevents a reduction in basic pay that would otherwise occur by preserving the former rate of basic pay within the employee’s new band or by establishing a retained rate that exceeds the maximum rate of the new band.
(b) Pay retention must be based on the employee’s rate of basic pay in effect immediately before the action that would otherwise reduce the employee’s rate. A retained rate must be compared to the range of rates of basic pay applicable to the employee’s position.
(c) In applying § 9701.323 (regarding pay increases provided at the time of a rate range adjustment under § 9701.322), any increase in the rate of basic pay for an employee receiving a retained rate is equal to one-half of the percentage value of any increase in the minimum rate of the employee’s band.
§ 9701.357 Miscellaneous.
(a) Except in the case of an employee who does not receive a pay increase under §§ 9701.323 or 9701.335 because of an unacceptable rating of record, an employee’s rate of basic pay may not be less than the minimum rate of the employee’s band (or the adjusted minimum rate of that band).
(b) Except as provided in § 9701.356, an employee’s rate of basic pay may not exceed the maximum rate of the employee’s band rate range.
(c) DHS must follow the rules for establishing pay periods and computing rates of pay in 5 U.S.C. 5504 and 5505, as applicable. For employees covered by 5 U.S.C. 5504, annual rates of pay must be converted to hourly rates of pay in computing payments received by covered employees.
(d) DHS will issue implementing directives regarding the movement of employees to or from a band with a rate range that is increased by a special rate supplement.
(e) For the purpose of applying the reduction-in-force provisions of 5 CFR part 351, DHS must establish representative rates for all band rate ranges.
(f) If a DHS employee moves from the pay system established under this subpart to a GS position within DHS having a higher level of duties and responsibilities, DHS may issue implementing directives that provide for a special increase prior to the employee’s movement in recognition of the fact that the employee will not be eligible for a promotion increase under the GS system.
Special Payments
§ 9701.361 Special skills payments.
DHS will issue implementing directives regarding additional payments for specializations for which the incumbent is trained and ready to perform at all times. DHS may determine the amount of the payments and the conditions for eligibility, including any performance or service agreement requirements. Payments may be made at the same time as basic pay or in periodic lump-sum payments. Special skills payments are not basic pay for any purpose and may be terminated or reduced at any time without triggering pay retention or adverse action procedures.
§ 9701.362 Special assignment payments.
DHS will issue implementing directives regarding additional payments for employees serving on special assignments in positions placing significantly greater demands on the employee than other assignments within the employee’s band. DHS may determine the amount of the payments and the conditions for eligibility, including any performance or service agreement requirements. Payments may be made at the same time as basic pay or in periodic lump-sum payments. Special assignment payments are not basic pay for any purpose and may be terminated or reduced at any time without triggering pay retention provisions or adverse action procedures.
§ 9701.363 Special staffing payments.
DHS will issue implementing directives regarding additional payments for employees serving in positions for which DHS is experiencing or anticipates significant recruitment and/or retention problems. DHS may determine the amount of the payments and the conditions for eligibility, including any performance or service agreement requirements. Payments may be made at the same time as basic pay or in periodic lump-sum payments. Special staffing payments are not basic pay for any purpose and may be terminated or reduced at any time without triggering pay retention or adverse action procedures.
Transitional Provisions
§ 9701.371 General.
(a) Sections 9701.371 through 9701.374 describe the transitional provisions that apply when DHS employees are converted to a pay system established under this subpart. An affected employee may convert from the GS system, a prevailing rate system, the SL/ST system, or the SES system, as provided in § 9701.302. For the purpose of this section and §§ 9701.372 through 9701.374, the terms “convert,” “converted,” “converting,” and “conversion” refer to employees who become covered by the pay system without a change in position (as a result of a coverage determination made under § 9701.102(b)) and exclude employees who are reassigned or transferred from a noncovered position to a position already covered by the DHS system.
(b) DHS will issue implementing directives prescribing the policies and procedures necessary to implement these transitional provisions.
§ 9701.372 Creating initial pay ranges.
(a) DHS must, after coordination with OPM, set the initial band rate ranges for the DHS pay system established under this subpart. The initial ranges will link to the ranges that apply to converted employees in their previously applicable pay system (taking into account any applicable special rates and locality payments or supplements).
(b) For employees who are law enforcement officers as defined in 5 U.S.C. 5541(3) and who were covered by the GS system immediately before conversion, the initial ranges must provide rates of basic pay that equal or exceed the rates of basic pay these officers received under the GS system (taking into account any applicable special rates and locality payments or supplements).
§ 9701.373 Conversion of employees to the DHS pay system.
(a) When a pay system is established under this subpart and applied to a category of employees, DHS must convert employees to the system without a reduction in their rate of pay (including basic pay and any applicable locality payment under 5 U.S.C. 5304, special rate under 5 U.S.C. 5305, locality rate supplement under § 9701.332, or special rate supplement under § 9701.333).
(b) When an employee receiving a special rate under 5 U.S.C. 5305 before conversion is converted to an equal rate of pay under the DHS pay system that consists of a basic rate and a locality or special rate supplement, the conversion will not be considered as resulting in a reduction in basic pay for the purpose of applying subpart F of this part.
(c) If another personnel action (e.g., promotion, geographic movement) takes effect on the same day as the effective date of an employee’s conversion to the new pay system, DHS must process the other action under the rules pertaining to the employee’s former system before processing the conversion action.
(d) An employee on a temporary promotion at the time of conversion must be returned to his or her official position of record prior to processing the conversion. If the employee is temporarily promoted immediately after the conversion, pay must be set under the rules for promotion increases under the DHS system.
(e) The Secretary has discretion to make one-time pay adjustments for GS and prevailing rate employees when they are converted to the DHS pay system. DHS will issue implementing directives governing any such pay adjustment, including rules governing employee eligibility, pay computations, and the timing of any such pay adjustment.
(f) The Secretary has discretion to convert entry/developmental employees in noncompetitive career ladder paths to the pay progression plan established for the Entry/Developmental band to which the employee is assigned under the DHS pay system. DHS will issue implementing directives governing any such conversion, including rules governing employee eligibility, pay computations, and the timing of any such conversion. As provided in paragraph (a) of this section, DHS must convert employees without a reduction in their rate of pay.
§ 9701.374 Special transition rules for Federal Air Marshal Service.
Notwithstanding any other provision in this subpart, if DHS transfers Federal Air Marshal Service positions from the Transportation Security Administration (TSA) to another organization within DHS, DHS may cover those positions under a pay system that is parallel to the pay system that was applicable to the Federal Air Marshal Service within TSA. DHS may, after coordination with OPM, modify that system. DHS will issue implementing directives on converting Federal Air Marshal Service employees to any new pay system that may subsequently be established under this subpart, consistent with the conversion rules in § 9701.373.
Subpart D—Performance Management
§ 9701.401 Purpose.
(a) This subpart provides for the establishment in the Department of Homeland Security of at least one performance management system as authorized by 5 U.S.C. chapter 97.
(b) The performance management system established under this subpart, working in conjunction with the pay system established under subpart C of this part, is designed to promote and sustain a high-performance culture by incorporating the following features:
(1) Adherence to merit principles set forth in 5 U.S.C. 2301;
(2) A fair, credible, and transparent employee performance appraisal system;
(3) A link between elements of the pay system established in subpart C of this part, the employee performance appraisal system, and the Department’s strategic plan;
(4) Employee involvement in the design and implementation of the system (as provided in § 9701.105);
(5) Adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the performance management system;
(6) Periodic performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period, with specific timetables for review;
(7) Effective safeguards so that the management of the system is fair and equitable and based on employee performance; and
(8) A means for ensuring that adequate resources are allocated for the design, implementation, and administration of the performance management system that supports the pay system established under subpart C of this part.
§ 9701.402 Coverage.
(a) This subpart applies to eligible DHS employees in the categories listed in paragraph (b) of this section, subject to a determination by the Secretary or designee under § 9701.102(b), except as provided in paragraph (c) of this section.
(b) The following employees are eligible for coverage under this subpart:
(1) Employees who would otherwise be covered by 5 U.S.C. chapter 43; and
(2) Employees who were excluded from chapter 43 by OPM under 5 CFR 430.202(d) prior to the date of coverage of this subpart, as determined under § 9701.102(b).
(c) This subpart does not apply to employees who are not expected to be employed longer than a minimum period (as defined in § 9701.404) during a single 12-month period.
§ 9701.403 Waivers.
When a specified category of employees is covered by the performance management system(s) established under this subpart, 5 U.S.C. chapter 43 is waived with respect to that category of employees.
§ 9701.404 Definitions.
In this subpart—
Appraisal means the review and evaluation of an employee’s performance.
Appraisal period means the period of time established under a performance management system for reviewing employee performance.
Competencies means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position.
Contribution means a work product, service, output, or result provided or produced by an employee that supports the Departmental or organizational mission, goals, or objectives.
Minimum period means the period of time established by DHS during which an employee must perform before receiving a rating of record.
Performance means accomplishment of work assignments or responsibilities.
Performance expectations means that which an employee is required to do, as described in § 9701.406, and may include observable or verifiable descriptions of quality, quantity, timeliness, and cost effectiveness.
Performance management means applying the integrated processes of setting and communicating performance expectations, monitoring performance and providing feedback, developing performance and addressing poor performance, and rating and rewarding performance in support of the organization’s goals and objectives.
Performance management system means the policies and requirements established under this subpart, as supplemented by DHS implementing directives, for setting and communicating employee performance expectations, monitoring performance and providing feedback, developing performance and addressing poor performance, and rating and rewarding performance.
Rating of record means a performance appraisal prepared—
(1) At the end of an appraisal period covering an employee’s performance of assigned duties against performance expectations over the applicable period; or
(2) To support a pay determination, including one granted in accordance with subpart C of this part, a within-grade increase granted under 5 CFR 531.404, or a pay determination granted under other applicable rules.
Unacceptable performance means the failure to meet one or more performance expectations.
§ 9701.405 Performance management system requirements.
(a) DHS will issue implementing directives that establish one or more performance management systems for DHS employees, subject to the requirements set forth in this subpart.
(b) Each DHS performance management system must—
(1) Specify the employees covered by the system(s);
(2) Provide for the periodic appraisal of the performance of each employee, generally once a year, based on performance expectations.
(3) Specify the minimum period during which an employee must perform before receiving a rating of record;
(4) Hold supervisors and managers accountable for effectively managing the performance of employees under their supervision as set forth in paragraph (c) of this section;
(5) Include procedures for setting and communicating performance expectations, monitoring performance and providing feedback, and developing, rating, and rewarding performance; and
(6) Specify the criteria and procedures to address the performance of employees who are detailed or transferred and for employees in other special circumstances.
(c) In fulfilling the requirements of paragraph (b) of this section, supervisors and managers are responsible for—
(1) Clearly communicating performance expectations and holding employees responsible for accomplishing them;
(2) Making meaningful distinctions among employees based on performance;
(3) Fostering and rewarding excellent performance; and
(4) Addressing poor performance.
§ 9701.406 Setting and communicating performance expectations.
(a) Performance expectations must align with and support the DHS mission and its strategic goals, organizational program and policy objectives, annual performance plans, and other measures of performance. Such expectations include those general performance expectations that apply to all employees, such as standard operating procedures, handbooks, or other operating instructions and requirements associated with the employee’s job, unit, or function.
(b) Supervisors and managers must communicate performance expectations, including those that may affect an employee’s retention in the job. Performance expectations need not be in writing, but must be communicated to the employee prior to holding the employee accountable for them. However, notwithstanding this requirement, employees are always accountable for demonstrating appropriate standards of conduct, behavior, and professionalism, such as civility and respect for others.
(c) Performance expectations may take the form of—
(1) Goals or objectives that set general or specific performance targets at the individual, team, and/or organizational level;
(2) Organizational, occupational, or other work requirements, such as standard operating procedures, operating instructions, administrative manuals, internal rules and directives, and/or other instructions that are generally applicable and available to the employee;
(3) A particular work assignment, including expectations regarding the quality, quantity, accuracy, timeliness, and/or other expected characteristics of the completed assignment;
(4) Competencies an employee is expected to demonstrate on the job, and/or the contributions an employee is expected to make; or
(5) Any other means, as long as it is reasonable to assume that the employee will understand the performance that is expected.
(d) Supervisors must involve employees, insofar as practicable, in the development of their performance expectations. However, final decisions regarding performance expectations are within the sole and exclusive discretion of management.
§ 9701.407 Monitoring performance and providing feedback.
In applying the requirements of the performance management system and its implementing directives and policies, supervisors must—
(a) Monitor the performance of their employees and the organization; and
(b) Provide timely periodic feedback to employees on their actual performance with respect to their performance expectations, including one or more interim performance reviews during each appraisal period.
§ 9701.408 Developing performance and addressing poor performance.
(a) Subject to budgetary and other organizational constraints, a supervisor must—
(1) Provide employees with the proper tools and technology to do the job; and
(2) Develop employees to enhance their ability to perform.
(b) If during the appraisal period a supervisor determines that an employee’s performance is unacceptable, the supervisor must—
(1) Consider the range of options available to address the performance deficiency, which include but are not limited to remedial training, an improvement period, a reassignment, an oral warning, a letter of counseling, a written reprimand, and/or an adverse action (as defined in subpart F of this part); and
(2) Take appropriate action to address the deficiency, taking into account the circumstances, including the nature and gravity of the unacceptable performance and its consequences.
(c) As specified in subpart G of this part, employees may appeal adverse actions based on unacceptable performance.
§ 9701.409 Rating and rewarding performance.
(a)(1) Except as provided in paragraphs (a)(2) and (3) of this section, each DHS performance management system must establish a single summary rating level of unacceptable performance, a summary rating level of fully successful performance (or equivalent), and at least one summary rating level above fully successful performance.
(2) For employees in an Entry/Developmental band, the DHS performance management system(s) may establish two summary rating levels, i.e., an unacceptable rating level and a rating level of fully successful (or equivalent).
(3) At his or her sole and exclusive discretion, the Secretary or designee may under extraordinary circumstances establish a performance management system with two summary rating levels, i.e., an unacceptable level and a higher rating level, for employees not in an Entry/Developmental band.
(b) A supervisor or other rating official must prepare and issue a rating of record after the completion of the appraisal period. An additional rating of record may be issued to reflect a substantial change in the employee’s performance when appropriate. A rating of record will be used as a basis for determining—
(1) An increase in basic pay under § 9701.324;
(2) A locality or special rate supplement increase under § 9701.336;
(3) A performance pay increase determination under § 9701.342(a);
(4) A within-grade increase determination under 5 CFR 531.404, prior to conversion to the pay system established under subpart C of this part;
(5) A pay determination under any other applicable pay rules;
(6) Awards under any legal authority, including 5 U.S.C. chapter 45, 5 CFR part 451, and a Departmental or organizational awards program;
(7) Eligibility for promotion; or
(8) Such other action that DHS considers appropriate, as specified in the implementing directives.
(c) A rating of record must assess an employee’s performance with respect to his or her performance expectations and/or relative contributions and is considered final when issued to the employee with all appropriate reviews and signatures.
(d) DHS may not impose a forced distribution or quota on any rating level or levels.
(e) A rating of record issued under this subpart is an official rating of record for the purpose of any provision of title 5, Code of Federal Regulations, for which an official rating of record is required.
(f) DHS may not lower the rating of record of an employee on an approved absence from work, including the absence of a disabled veteran to seek medical treatment, as provided in Executive Order 5396.
(g) A rating of record may be grieved by a non-bargaining unit employee (or a bargaining unit employee when no negotiated procedure exists) through an administrative grievance procedure established by DHS. A bargaining unit employee may grieve a rating of record through a negotiated grievance procedure, as provided in subpart E of this part. An arbitrator hearing a grievance is subject to the standards of review set forth in § 9701.521(g)(2). Except as otherwise provided by law, an arbitrator may not conduct an independent evaluation of the employee’s performance or otherwise substitute his or her judgment for that of the supervisor.
(h) A supervisor or other rating official may prepare an additional performance appraisal for the purposes specified in the applicable performance management system (e.g., transfers and details) at any time after the completion of the minimum period. Such an appraisal is not a rating of record.
(i) DHS implementing directives will establish policies and procedures for crediting performance in a reduction in force, including policies for assigning additional retention credit based on performance. Such policies must comply with 5 U.S.C. chapter 35 and 5 CFR 351.504.
§ 9701.410 DHS responsibilities.
In carrying out its performance management system(s), DHS must—
(a) Transfer ratings between subordinate organizations and to other Federal departments or agencies;
(b) Evaluate its performance management system(s) for effectiveness and compliance with this subpart, DHS implementing directives and policies, and the provisions of 5 U.S.C. chapter 23 that set forth the merit system principles and prohibited personnel practices;
(c) Provide OPM with a copy of the implementing directives, policies, and procedures that implement this subpart; and
(d) Comply with 29 CFR 1614.102(a)(5), which requires agencies to review, evaluate, and control managerial and supervisory performance to ensure enforcement of the policy of equal opportunity.
Subpart E—Labor-Management Relations
§ 9701.501 Purpose.
This subpart contains the regulations implementing the provisions of 5 U.S.C. 9701(b) relating to the Department’s labor-management relations system. The Department was created in recognition of the paramount interest in safeguarding the American people, without compromising statutorily protected employee rights. For this reason Congress stressed that personnel systems established by the Department and OPM must be flexible and contemporary, enabling the Department to rapidly respond to threats to our Nation. The labor-management relations regulations in this subpart are designed to meet these compelling concerns and must be interpreted with the Department’s mission foremost in mind. The regulations also recognize the rights of DHS employees to organize and bargain collectively, subject to any exclusion from coverage or limitation on negotiability established by law, including these regulations, applicable Executive orders, and any other legal authority.
§ 9701.502 Rule of construction.
In interpreting this subpart, the rule of construction in § 9701.106(a)(2) must be applied.
§ 9701.503 Waivers.
When a specified category of employees is covered by the labor-management relations system established under this subpart, the provisions of 5 U.S.C. 7101 through 7135 are waived with respect to that category of employees, except as otherwise specified in this part (including § 9701.106).
§ 9701.504 Definitions.
In this subpart:
Authority means the Federal Labor Relations Authority described in 5 U.S.C. 7104(a).
Collective bargaining means the performance of the mutual obligation of a management representative of the Department and an exclusive representative of employees in an appropriate unit in the Department to meet at reasonable times and to consult and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.
Collective bargaining agreement means an agreement entered into as a result of collective bargaining pursuant to the provisions of this subpart.
Component means any organizational subdivision of the Department.
Conditions of employment means personnel policies, practices, and matters affecting working conditions-whether established by rule, regulation, or otherwise—except that such term does not include policies, practices, and matters relating to—
(1) Political activities prohibited under 5 U.S.C. chapter 73, subchapter III;
(2) The classification of any position, including any classification determinations under subpart B of this part;
(3) The pay of any position, including any determinations regarding pay or adjustments thereto under subpart C of this part; or
(4) Any matters specifically provided for by Federal statute.
Confidential employee means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations.
Day means a calendar day.
Dues means dues, fees, and assessments.
Exclusive representative means any labor organization which is recognized as the exclusive representative of employees in an appropriate unit consistent with the Department’s organizational structure, pursuant to 5 U.S.C. 7111 or as otherwise provided by § 9701.514.
Grievance means any complaint—
(1) By any employee concerning any matter relating to the conditions of employment of the employee;
(2) By any labor organization concerning any matter relating to the conditions of employment of any employee; or
(3) By any employee, labor organization, or the Department concerning—
(i) The effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
(ii) Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation issued for the purpose of affecting conditions of employment.
HSLRB means the Homeland Security Labor Relations Board.
Labor organization means an organization composed in whole or in part of Federal employees, in which employees participate and pay dues, and which has as a purpose the dealing with the Department concerning grievances and conditions of employment, but does not include—
(1) An organization which, by its constitution, bylaws, tacit agreement among its members, or otherwise, denies membership because of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;
(2) An organization which advocates the overthrow of the constitutional form of government of the United States;
(3) An organization sponsored by the Department; or
(4) An organization which participates in the conduct of a strike against the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike.
Management official means an individual employed by the Department in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the Department or who has the authority to recommend such action, if the exercise of the authority is not merely routine or clerical in nature, but requires the consistent exercise of independent judgment.
Professional employee has the meaning given that term in 5 U.S.C. 7103(a)(15).
Supervisor means an individual employed by the Department having authority in the interest of the Department to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment.
§ 9701.505 Coverage.
(a) Employees covered. This subpart applies to eligible DHS employees, subject to a determination by the Secretary or designee under § 9701.102(b), except as provided in paragraph (b) of this section. DHS employees who would otherwise be covered by 5 U.S.C. chapter 71 are eligible for coverage under this subpart. In addition, this subpart applies to an employee whose employment has ceased because of an unfair labor practice under § 9701.517 of this subpart and who has not obtained any other regular and substantially equivalent employment.
(b) Employees excluded. This subpart does not apply to—
(1) An alien or noncitizen of the United States who occupies a position outside the United States;
(2) A member of the uniformed services as defined in 5 U.S.C. 2101(3);
(3) A supervisor or a management official;
(4) Any person who participates in a strike in violation of 5 U.S.C. 7311;
(5) Employees of the United States Secret Service, including the United States Secret Service Uniformed Division;
(6) Employees of the Transportation Security Administration; or
(7) Any employee excluded pursuant to § 9701.514 or any other legal authority.
§ 9701.506 Impact on existing agreements.
(a) Any provision of a collective bargaining agreement that is inconsistent with this part and/or its implementing directives is unenforceable on the effective date of coverage under the applicable subpart or directive. In accordance with procedures and time limits established by the HSLRB under § 9701.509, an exclusive representative may appeal to the HSLRB the Department’s determination that a provision is unenforceable. Provisions that are identified by the Department as unenforceable remain unenforceable unless held otherwise by the HSLRB on appeal. The Secretary or designee, in his or her sole and exclusive discretion, may continue all or part of a particular provision(s) with respect to a specific category or categories of employees and may cancel such continued provisions at any time; such determinations are not precedential.
(b) Upon request by an exclusive representative, the parties will have 60 days after the effective date of coverage under the applicable subpart and/or implementing directive to bring into conformance those remaining negotiable terms directly affected by the terms rendered unenforceable by the applicable subpart and/or implementing directive. If the parties fail to reach agreement by that date, they may utilize the negotiation impasse provisions of § 9701.519 to resolve the matter. Agreements reached under this section are subject to approval under § 9701.515(d). Nothing in this paragraph will delay the effective date of an implementing directive.
§ 9701.507 Employee rights.
Each employee has the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee must be protected in the exercise of such right. Except as otherwise provided under this subpart, such right includes the right—
(a) To act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities; and
(b) To engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this subpart.
§ 9701.508 Homeland Security Labor Relations Board.
(a) Composition. (1) The Homeland Security Labor Relations Board is composed of at least three members who will be appointed by the Secretary for terms of 3 years, except that the appointments of the initial HSLRB members will be for terms of 2, 3, and 4 years, respectively. The Secretary may extend the term of any member beyond 3 years when necessary to provide for an orderly transition and/or appoint the member for an additional term. The Secretary, in his or her sole and exclusive discretion, may appoint additional members to the HSLRB; in so doing, he or she will make such appointments to ensure that the HSLRB consists of an odd number of members.
(2) Members of the HSLRB must be independent, distinguished citizens of the United States who are well known for their integrity and impartiality. Members must have expertise in labor relations, law enforcement, or national/homeland or other related security matters. At least one member of the Board must have experience in labor relations. Members must be able to acquire and maintain an appropriate security clearance. Members may be removed by the Secretary on the same grounds as an FLRA member.
(3) An individual chosen to fill a vacancy on the HSLRB will be appointed for the unexpired term of the member who is replaced.
(b) Appointment of the Chair. The Secretary, at his or her sole and exclusive discretion, will appoint one member to serve as Chair of the HSLRB.
(c) Appointment procedures for non-Chair HSLRB members. (1) The appointments of the two non-Chair HSLRB members will be made by the Secretary after he or she considers any lists of nominees submitted by labor organizations that represent employees in the Department of Homeland Security.
(2) The submission of lists of recommended nominees by labor organizations must be in accordance with timelines and requirements set forth by the Secretary, who may provide for additional consultation in order to obtain further information about a recommended nominee. The ability of the Secretary to appoint HSLRB members may not be delayed or otherwise affected by the failure of any labor organization to provide a list of nominees that meets the timeframe and requirements established by the Secretary.
(d) Appointment of additional non-Chair HSLRB members. If the Secretary determines that additional members are needed, he or she may, subject to the criteria set forth in paragraph (a)(2) of this section, appoint the additional members according to the procedures established by paragraph (c) of this section.
(e) Filling a HSLRB vacancy. A HSLRB vacancy will be filled according to the procedure in effect at the time of the appointment.
(f) Procedures of the HSLRB. (1) The HSLRB will establish procedures for the fair, impartial, and expeditious assignment and disposition of cases. To the extent practicable, the HSLRB will use a single, integrated process to address all matters associated with a negotiations dispute, including unfair labor practices, negotiability disputes, and bargaining impasses. The HSLRB may, pursuant to its regulations, use a combination of mediation, factfinding, and any other appropriate dispute resolution method to resolve all such disputes at the earliest practicable time and with a minimum of process. Such proceedings will be conducted by the HSLRB, a HSLRB member, or employee of the HSLRB. Individual HSLRB members may decide a particular dispute. However, at the motion of a party upon its initial request for HSLRB assistance or upon the HSLRB’s own motion at any time, the full HSLRB (or, where the Secretary appoints more than three members, a three-person panel of the HSLRB) may decide a particular dispute involving a matter of first impression or a major policy.
(2) In cases where the full HSLRB acts, a vote of the majority of the HSLRB (or a three-person panel of the HSLRB) will be dispositive. A vacancy on the HSLRB does not impair the right of the remaining members to exercise all of the powers of the HSLRB. The vote of the Chair will be dispositive in the event of a tie.
(g) Finality of HSLRB decisions. Decisions of the HSLRB are final and binding. However, in cases involving unfair labor practices and/or negotiability disputes decided by a single member, a party may seek review of that decision with the full HSLRB, according to rules prescribed by the HSLRB. In such cases the initial decision is stayed pending the final decision by the full HSLRB.
(h) Review of a HSLRB decision. (1) In order to obtain judicial review of a HSLRB decision, a party must request a review of the record of a HSLRB decision by the Authority by filing such a request in writing within 15 days after the issuance of the decision. Within 15 days after the Authority’s receipt of the request for a review of the record, any response must be filed. A party may each submit, and the Authority may grant for good cause shown, a request for a single extension of time not to exceed a maximum of 15 additional days. The Authority will establish, in conjunction with the HSLRB, standards for the sufficiency of the record and other procedures, including notice to the parties. The Authority must defer to findings of fact and interpretations of this part made by the HSLRB and sustain the HSLRB’s decision unless the requesting party shows that the HSLRB’s decision was—
(i) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(ii) Based on error in applying the HSLRB’s procedures that resulted in substantial prejudice to a party affecting the outcome; or
(iii) Unsupported by substantial evidence.
(2) The Authority must complete its review of the record and issue a final decision within 30 days after receiving the party’s timely response to such request for review. This 30-day time limit is mandatory, except that the Authority may extend its time for review by a maximum of 15 additional days if it determines that—
(i) The case is unusually complex; or
(ii) An extension is necessary to prevent any prejudice to the parties that would otherwise result.
(3) No extension beyond that provided by paragraph (h)(2) of this section is permitted.
(4) If the Authority does not issue a final decision within the mandatory time limit established by paragraph (h) of this section, the Authority will be considered to have denied the request for review of the HSLRB’s decision, which will constitute a final decision of the Authority and is subject to judicial review in accordance with 5 U.S.C. 7123.
§ 9701.509 Powers and duties of the HSLRB.
(a) The HSLRB may, to the extent provided in this subpart and in accordance with regulations prescribed by the HSLRB—
(1) Resolve issues relating to the scope of bargaining and the duty to bargain in good faith under § 9701.518 and conduct hearings and resolve complaints of unfair labor practices concerning—
(i) The duty to bargain in good faith; and
(ii) Strikes, work stoppages, slowdowns, and picketing, or condoning such activity by failing to take action to prevent or stop such activity;
(2) Resolve disputes concerning requests for information under § 9701.515(b)(5) and (c);
(3) Resolve exceptions to arbitration awards involving the exercise of management rights, as defined in § 9701.511, and the duty to bargain, as defined in § 9701.518. The HSLRB must conduct any review of an arbitral award in accordance with the same standards set forth in 5 U.S.C. 7122(a), which is not waived for the purpose of this subpart but which is modified to apply to this section and to read “HSLRB” wherever the term “Authority” appears;
(4) Resolve negotiation impasses in accordance with § 9701.519;
(5) Conduct de novo review of legal conclusions involving all matters within the HSLRB’s jurisdiction;
(6) Have discretion to evaluate the evidence presented in the record and reach its own independent conclusions with respect to the matters at issue; and
(7) Assume jurisdiction over any matter concerning Department employees that has been submitted to FLRA pursuant to § 9701.510, if the HSLRB determines that the matter affects homeland security.
(b) The HSLRB may issue binding Department-wide opinions, which may be appealed as if they were decisions of the HSLRB in accordance with § 9701.508(h).
(c) In issuing opinions under paragraph (b) of this section, the HSLRB may elect to consult with the Authority.
(d)(1) In any matter filed with the HSLRB, if the responding party believes that the HSLRB lacks jurisdiction, that party must timely raise the issue with the HSLRB and simultaneously file a copy of its response with the Authority in accordance with regulations established by the HSLRB. The HSLRB’s determination with regard to its jurisdiction in a particular matter is final and not subject to review by the Authority.
(2) If a matter involves one or more issues that are appropriately before the HSLRB and one or more issues that are appropriately before the Authority, the matter must be filed with the HSLRB in accordance with its procedures. The HSLRB will have primary jurisdiction over the matter. The HSLRB will decide those issues within its jurisdiction and will promptly transfer the matter to the Authority for resolution of any remaining issues.
§ 9701.510 Powers and duties of the Federal Labor Relations Authority.
(a) The Federal Labor Relations Authority may, to the extent provided in this subpart and in accordance with regulations prescribed by the Authority, make the following determinations with respect to the Department:
(1) Determine the appropriateness of units pursuant to the provisions of § 9701.514;
(2) Supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit and otherwise administer the provisions of 5 U.S.C. 7111 relating to the according of exclusive recognition to labor organizations, which are not waived for the purpose of this subpart but which are modified to apply to this section;
(3) Conduct hearings and resolve complaints of unfair labor practices under § 9701.517(a)(1) through (4) and (b)(1) through (4), and in accordance with the provisions of 5 U.S.C. 7118, which is not waived for this purpose but which is modified to apply to this section;
(4) Resolve exceptions to arbitrators’ awards otherwise in its jurisdiction and not involving the exercise of management rights under § 9701.511, the duty to bargain, as defined in § 9701.518, and matters under § 9701.521(f); and
(5) Review HSLRB decisions and issue final decisions pursuant to § 9701.508(h).
(b) In any matter filed with the Authority, if the responding party believes that the Authority lacks jurisdiction, that party must timely raise the issue with the Authority and simultaneously file a copy of its response with the HSLRB in accordance with regulations established by the Authority. The Authority must promptly transfer the case to the HSLRB, which will determine whether the matter is within the HSLRB’s jurisdiction. If the HSLRB determines that the matter is not within its jurisdiction, the HSLRB will return the matter to the Authority for appropriate action. The HSLRB’s determination with regard to its jurisdiction in a particular matter is final and not subject to review by the Authority.
(c) Judicial review of any Authority decision is as prescribed in 5 U.S.C. 7123, which is not waived.
§ 9701.511 Management rights.
(a) Subject to paragraphs (b), (c), and (d) of this section, nothing in this subpart may affect the authority of any management official or supervisor of the Department—
(1) To determine the mission, budget, organization, number of employees, and internal security practices of the Department;
(2) To hire, assign, and direct employees in the Department; to assign work, make determinations with respect to contracting out, and to determine the personnel by which Departmental operations may be conducted; to determine the numbers, types, grades, or occupational clusters and bands of employees or positions assigned to any organizational subdivision, work project or tour of duty, and the technology, methods, and means of performing work; to assign and deploy employees to meet any operational demand; and to take whatever other actions may be necessary to carry out the Department’s mission; and
(3) To lay off and retain employees, or to suspend, remove, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source.
(b) Management is prohibited from bargaining over the exercise of any authority under paragraph (a) of this section or the procedures that it will observe in exercising the authorities set forth in paragraphs (a)(1) and (2) of this section.
(c) Notwithstanding paragraph (b) of this section, management will confer with an exclusive representative over the procedures it will observe in exercising the authorities set forth in paragraphs (a)(1) and (2) of this section, in accordance with the process set forth in § 9701.512.
(d) If an obligation exists under § 9701.518 to bargain, confer, or consult regarding the exercise of any authority under paragraph (a) of this section, management must provide notice to the exclusive representative concurrently with the exercise of that authority and an opportunity to present its views and recommendations regarding the exercise of such authority under paragraph (a) of this section. However, nothing in this section prevents management from exercising its discretion to provide notice as far in advance of the exercise of that authority as appropriate. Further, nothing in paragraph (d) of this section establishes an independent right to bargain, confer, or consult.
(e) To the extent otherwise required by § 9701.518 and at the request of an exclusive representative, the parties will bargain at the level of recognition (unless otherwise delegated below that level, at their sole and exclusive discretion) over—
(1) Appropriate arrangements for employees adversely affected by the exercise of any authority under paragraph (a)(3) of this section and procedures which management officials and supervisors will observe in exercising any authority under paragraph (a)(3) of this section; and
(2)(i) Appropriate arrangements for employees adversely affected by the exercise of any authority under paragraph (a)(1) or (2) of this section, provided that the effects of such exercise have a significant and substantial impact on the bargaining unit, or on those employees in that part of the bargaining unit affected by the action or event, and are expected to exceed or have exceeded 60 days. Appropriate arrangements within the duty to bargain include proposals on matters such as—
(A) Personal hardships and safety measures; and
(B) Reimbursement of out-of-pocket expenses incurred by employees as the direct result of the exercise of authorities under this section, to the extent such reimbursement is in accordance with applicable law and governing regulations.
(ii) Appropriate arrangements within the duty to bargain do not include proposals on matters such as—
(A) The routine assignment to specific duties, shifts, or work on a regular or overtime basis; and
(B) Compensation for expenses not actually incurred, or pay or credit for work not actually performed.
(f) Nothing in this section will delay or prevent the Department from exercising its authority. Any agreements reached with respect to paragraph (e)(2) of this section will not be precedential or binding on subsequent acts, or retroactively applied, except at the Department’s sole, exclusive, and unreviewable discretion.
§ 9701.512 Conferring on procedures for the exercise of management rights.
(a) As provided by § 9701.511(c), management, at the level of recognition, will confer with an appropriate exclusive representative to consider its views and recommendations with regard to procedures that management will observe in exercising its rights under § 9701.511(a)(1) and (2). This process is not subject to the requirements established by §§ 9701.517(a)(5) (regarding enforcement of the duty to consult or negotiate), 9701.518 (regarding the duty to bargain and consult), and 9701.519 (regarding impasse procedures). Nothing in this section requires that the parties reach agreement on any covered matter. The parties may, upon mutual agreement, provide for the Federal Mediation and Conciliation Service or another third party to assist in this process. Neither the HSLRB nor the Authority may intervene in this process.
(b) The parties will meet at reasonable times and places but for no longer than 30 days, including any voluntary third party assistance, unless the parties mutually agree to extend this period.
(c) Nothing in the process established under this section will delay the exercise of a management right under § 9701.511(a)(1) and (2).
(d) Management retains the sole, exclusive, and unreviewable discretion to determine the procedures that it will observe in exercising the authorities set forth in § 9701.511(a)(1) and (2) and to deviate from such procedures, as necessary.
§ 9701.513 Exclusive recognition of labor organizations.
The Department must accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit as determined by the Authority, who cast valid ballots in the election.
§ 9701.514 Determination of appropriate units for labor organization representation.
(a) The Authority will determine the appropriateness of any unit. The Authority must determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this subpart, the appropriate unit should be established on a Department, plant, installation, functional, or other basis and will determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the Department, consistent with the Department’s mission and organizational structure.
(b) A unit may not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor may a unit be determined to be appropriate if it includes—
(1) Except as provided under 5 U.S.C. 7135(a)(2), which is not waived for the purpose of this subpart, any management official or supervisor;
(2) A confidential employee;
(3) An employee engaged in personnel work in other than a purely clerical capacity;
(4) An employee engaged in administering the provisions of this subpart;
(5) Both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit;
(6) Any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or
(7) Any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by the Department whose duties directly affect the internal security of the Department, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.
(c) Pursuant to 6 U.S.C. 412(b)(2), a unit to which continued recognition was provided upon transfer to DHS may not include an employee whose primary duty has materially changed to consist of intelligence, counterintelligence, or investigative work directly related to terrorism investigation.
(d) Any employee who is engaged in administering any provision of law or this subpart relating to labor-management relations may not be represented by a labor organization—
(1) Which represents other individuals to whom such provision applies; or
(2) Which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.
(e) Two or more units in the Department for which a labor organization is the exclusive representative may, upon petition by the Department or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority will certify the labor organization as the exclusive representative of the new larger unit.
§ 9701.515 Representation rights and duties.
(a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.
(2) An exclusive representative of an appropriate unit must be given the opportunity to be represented at—
(i) Any formal discussion between Department representative(s) and bargaining unit employees, the purpose of which is to discuss and/or announce new or substantially changed personnel policies, practices, or working conditions. This right does not apply to meetings between Department representative(s) and bargaining unit employees for the purpose of discussing operational matters where any discussion of personnel policies, practices or working conditions—
(A) Constitutes a reiteration or application of existing personnel policies, practices, or working conditions;
(B) Is incidental or otherwise peripheral to the announced purpose of the meeting; or
(C) Does not result in an announcement of a change to, or a promise to change, an existing personnel policy(s), practice(s), or working condition(s);
(ii) Any discussion between one or more Department representatives and one or more bargaining unit employees concerning any grievance;
(iii) Any examination of a bargaining unit employee by a representative of the Department in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests such representation; or
(iv) Any discussion between a representative of the Department and a bargaining unit employee in connection with a formal complaint of discrimination only if the employee, at his or her sole discretion, requests such representation.
(3) Notwithstanding any other provision of this paragraph, if the Supreme Court determines that the definition of “grievance” in 5 U.S.C. 7103(a)(9) includes a formal complaint of discrimination filed by a bargaining unit employee, the definition of grievance in § 9701.504, and its application to this section, will be interpreted and applied consistent with that decision.
(4) The Department must annually inform its employees of their rights under paragraph (a)(2)(iii) of this section.
(5) Except in the case of grievance procedures negotiated under this subpart, the rights of an exclusive representative under this section may not be construed to preclude an employee from—
(i) Being represented by an attorney or other representative of the employee’s own choosing, other than the exclusive representative, in any other grievance or appeal action; or
(ii) Exercising other grievance or appellate rights established by law, rule, or regulation.
(b) The duty of the Department or appropriate component(s) of the Department and an exclusive representative to negotiate in good faith under paragraph (a) of this section includes the obligation—
(1) To approach the negotiations with a sincere resolve to reach a collective bargaining agreement;
(2) To be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on conditions of employment;
(3) To meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;
(4) If agreement is reached, to execute on the request of any party to the negotiation, a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement; and
(5) In the case of the Department or appropriate component(s) of the Department, to furnish information to an exclusive representative, or its authorized representative, when—
(i) Such information exists, is normally maintained, and is reasonably available;
(ii) The exclusive representative has requested such information and demonstrated a particularized need for the information in order to perform its representational functions in grievance proceedings or in negotiations; and
(iii) Disclosure is not prohibited by law.
(c) Disclosure of information in paragraph (b)(5) of this section does not include the following:
(1) Disclosure prohibited by law or regulations, including, but not limited to, the regulations in this part, Governmentwide rules and regulations, Departmental implementing directives and other policies and regulations, and Executive orders;
(2) Disclosure of information if adequate alternative means exist for obtaining the requested information, or if proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without recourse to the information;
(3) Internal Departmental guidance, counsel, advice, or training for managers and supervisors relating to collective bargaining;
(4) Any disclosure that would compromise the Department’s mission, security, or employee safety; and
(5) Home addresses, telephone numbers, email addresses, or any other information not related to an employee’s work.
(d)(1) An agreement between the Department or appropriate component(s) of the Department and the exclusive representative is subject to approval by the Secretary or designee.
(2) The Secretary or designee must approve the agreement within 30 days after the date the agreement is executed if the agreement is in accordance with the provisions of these regulations and any other applicable law, rule, or regulation.
(3) If the Secretary or designee does not approve or disapprove the agreement within the 30-day period specified in paragraph (d)(2) of this section, the agreement must take effect and is binding on the Department or component(s), as appropriate, and the exclusive representative, but only if consistent with law, the regulations in this part, Governmentwide rules and regulations, Departmental implementing directives and other policies and regulations, and Executive orders.
(4) A local agreement subject to a national or other controlling agreement at a higher level may be approved under the procedures of the controlling agreement or, if none, under Departmental regulations. Bargaining will be at the level of recognition except where delegated.
(5) Provisions in existing collective bargaining agreements are unenforceable if an authorized agency official determines that they are contrary to law, the regulations in this part, Governmentwide rules and regulations, Departmental implementing directives (as provided by § 9701.506) and other policies and regulations, or Executive orders.
§ 9701.516 Allotments to representatives.
(a) If the Department has received from an employee in an appropriate unit a written assignment which authorizes the Department to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the Department must honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment must be made at no cost to the exclusive representative or the employee. Except as provided under paragraph (b) of this section, any such assignment may not be revoked for a period of 1 year.
(b) An allotment under paragraph (a) of this section for the deduction of dues with respect to any employee terminates when—
(1) The agreement between the Department or Department component and the exclusive representative involved ceases to be applicable to the employee; or
(2) The employee is suspended or expelled from membership in the exclusive representative.
(c)(1) Subject to paragraph (c)(2) of this section, if a petition has been filed with the Authority by a labor organization alleging that 10 percent of the employees in an appropriate unit in the Department have membership in the labor organization, the Authority must investigate the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the Department has a duty to negotiate with the labor organization solely concerning the deduction of dues of the labor organization from the pay of the members of the labor organization who are employees in the unit and who make a voluntary allotment for such purpose.
(2)(i) The provisions of paragraph (c)(1) of this section do not apply in the case of any appropriate unit for which there is an exclusive representative.
(ii) Any agreement under paragraph (c)(1) of this section between a labor organization and the Department or Department component with respect to an appropriate unit becomes null and void upon the certification of an exclusive representative of the unit.
§ 9701.517 Unfair labor practices.
(a) For the purpose of this subpart, it is an unfair labor practice for the Department—
(1) To interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this subpart;
(2) To encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;
(3) To sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities on an impartial basis to other labor organizations having equivalent status;
(4) To discipline or otherwise discriminate against an employee because the employee has filed a complaint or petition, or has given any information or testimony under this subpart;
(5) To refuse, as determined by the HSLRB, to consult or negotiate in good faith with a labor organization, as required by this subpart;
(6) To fail or refuse, as determined by the HSLRB, to cooperate in impasse procedures and impasse decisions, as required by this subpart; or
(7) To fail or refuse otherwise to comply with any provision of this subpart.
(b) For the purpose of this subpart, it is an unfair labor practice for a labor organization—
(1) To interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this subpart;
(2) To cause or attempt to cause the Department to discriminate against any employee in the exercise by the employee of any right under this subpart;
(3) To coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the member’s duties as an employee;
(4) To discriminate against an employee with regard to the terms and conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;
(5) To refuse, as determined by the HSLRB, to consult or negotiate in good faith with the Department as required by this subpart;
(6) To fail or refuse, as determined by the HSLRB, to cooperate in impasse procedures and impasse decisions as required by this subpart;
(7)(i) To call, or participate in, a strike, work stoppage, or slowdown, or picketing of the Department in a labor-management dispute if such picketing interferes with an agency’s operations; or
(ii) To condone any activity described in paragraph (b)(7)(i) of this section by failing to take action to prevent or stop such activity; or
(8) To otherwise fail or refuse to comply with any provision of this subpart.
(c) Notwithstanding paragraph (b)(7) of this section, informational picketing which does not interfere with the Department’s operations will not be considered an unfair labor practice.
(d) For the purpose of this subpart, it is an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by the labor organization, except for failure to meet reasonable occupational standards uniformly required for admission or to tender dues uniformly required as a condition of acquiring and retaining membership. This does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this subpart.
(e) The HSLRB will not consider any unfair labor practice allegation filed more than 6 months after the alleged unfair labor practice occurred, unless the HSLRB determines, pursuant to its regulations, that there is good cause for the late filing.
(f) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except where an employee has an option of using the negotiated grievance procedure or an appeals procedure in connection with an adverse action under subpart F of this part, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.
(g) The expression of any personal view, argument, opinion, or the making of any statement which publicizes the fact of a representational election and encourages employees to exercise their right to vote in such an election, corrects the record with respect to any false or misleading statement made by any person, or informs employees of the Government’s policy relating to labor-management relations and representation, may not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions—
(1) Constitute an unfair labor practice under any provision of this subpart; or
(2) Constitute grounds for the setting aside of any election conducted under any provision of this subpart.
§ 9701.518 Duty to bargain, confer, and consult.
(a) The Department or appropriate component(s) of the Department and any exclusive representative in any appropriate unit in the Department, through appropriate representatives, must meet and negotiate in good faith as provided by this subpart for the purpose of arriving at a collective bargaining agreement. In addition, the Department or appropriate component(s) of the Department and the exclusive representative may determine appropriate techniques, consistent with the operational rules of the HSLRB, to assist in any negotiation.
(b) If bargaining over an initial collective bargaining agreement or any successor agreement is not completed within 90 days after such bargaining begins, the parties may mutually agree to continue bargaining or mutually agree to refer the matter to an independent mediator/arbitrator for resolution. Alternatively, either party may refer the matter to the HSLRB for resolution in accordance with procedures established by the HSLRB. Either party may refer the matter to the Federal Mediation Conciliation Service (FMCS) for assistance at any time.
(c) If the parties bargain during the term of an existing collective bargaining agreement over a proposed change that is otherwise negotiable, and no agreement is reached within 30 days after such bargaining begins, the parties may mutually agree to continue bargaining or mutually agree to refer the matter to an independent mediator/arbitrator for resolution. Alternatively, either party may refer the matter to the HSLRB for resolution in accordance with procedures established by the HSLRB. Either party may refer the matter to the Federal Mediation Conciliation Service (FMCS) for assistance at any time.
(d)(1) Management may not bargain over any matters that are inconsistent with law or the regulations in this part, Governmentwide rules and regulations, Departmental implementing directives and other policies and regulations, or Executive orders.
(2) In promulgating Departmental policies and regulations that deal with otherwise negotiable subjects, the Department will utilize the process set forth in § 9701.512, except that the Department will confer with those labor organizations that request and have been accorded national consultation rights (NCR) established pursuant to 5 U.S.C. 7113, which is not waived for these purposes, and consult with those organizations on other appropriate matters.
(3) Management has no obligation to bargain over a change to a condition of employment unless the change is otherwise negotiable pursuant to these regulations and is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees in that part of the bargaining unit affected by the change.
(4) Management has no obligation to confer or consult as required by this section unless the change is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees in that part of the bargaining unit affected by the change.
(5) Nothing in paragraphs (b) or (c) of this section prevents or delays management from exercising the rights enumerated in § 9701.511.
(e) If a management official involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the HSLRB in accordance with procedures established by the HSLRB.
§ 9701.519 Negotiation impasses.
(a) If the Department and exclusive representative are unable to reach an agreement under §§ 9701.515 or 9701.518, either party may submit the disputed issues to the HSLRB for resolution.
(b) If the parties do not arrive at a settlement after assistance by the HSLRB, the HSLRB may take whatever action is necessary and not inconsistent with this subpart to resolve the impasse.
(c) Pursuant to §§ 9701.508 and 9701.525, the HSLRB’s regulations will provide for a single, integrated process to address all matters associated with a negotiations dispute, including unfair labor practices, negotiability disputes, and bargaining impasses.
(d) Notice of any final action of the HSLRB under this section must be promptly served upon the parties. The action will be binding on such parties during the term of the agreement, unless the parties agree otherwise.
§ 9701.520 Standards of conduct for labor organizations.
Standards of conduct for labor organizations are those prescribed under 5 U.S.C. 7120, which is not waived.
§ 9701.521 Grievance procedures.
(a)(1) Except as provided in paragraph (a)(2) of this section, any collective bargaining agreement must provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in paragraphs (d), (f), and (g) of this section, the procedures must be the exclusive administrative procedures for grievances which fall within its coverage.
(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.
(b)(1) Any negotiated grievance procedure referred to in paragraph (a) of this section must be fair and simple, provide for expeditious processing, and include procedures that—
(i) Assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
(ii) Assure such an employee the right to present a grievance on the employee’s own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
(iii) Provide that any grievance not satisfactorily settled under the negotiated grievance procedure is subject to binding arbitration, which may be invoked by either the exclusive representative or the Department.
(2) The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (b)(1)(iii) of this section must, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order a stay of any personnel action in a manner similar to the manner described in 5 U.S.C. 1221(c) with respect to the Merit Systems Protection Board and order the Department to take any disciplinary action identified under 5 U.S.C. 1215(a)(3) that is otherwise within the authority of the Department to take.
(3) Any employee who is the subject of any disciplinary action ordered under paragraph (b)(2) of this section may appeal such action to the same extent and in the same manner as if the Department had taken the disciplinary action absent arbitration.
(c) The preceding paragraphs of this section do not apply with respect to any matter concerning—
(1) Any claimed violation of 5 U.S.C. chapter 73, subchapter III (relating to prohibited political activities);
(2) Retirement, life insurance, or health insurance;
(3) A suspension or removal under § 9701.613;
(4) A mandatory removal under § 9701.607;
(5) Any examination, certification, or appointment; and
(6) Any subject not within the definition of grievance in § 9701.504 (e.g., the classification or pay of any position), except for any other adverse action under subpart F of this part which is not otherwise excluded by paragraph (c) of this section.
(d) To the extent not already excluded by existing collective bargaining agreements, the exclusions contained in paragraph (c) of this section apply upon the effective date of this subpart, as determined under § 9701.102(b).
(e)(1) An aggrieved employee affected by a prohibited personnel practice under 5 U.S.C. 2302(b)(1) which also falls under the coverage of the negotiated grievance procedure may raise the matter under the applicable statutory procedures, or the negotiated procedure, but not both.
(2) An employee is deemed to have exercised his or her option under paragraph (e)(1) of this section to raise the matter under the applicable statutory procedures, or the negotiated procedure, at such time as the employee timely initiates an action under the applicable statutory or regulatory procedure or timely files a grievance in writing in accordance with the provisions of the parties’ negotiated grievance procedure, whichever event occurs first.
(f)(1) For matters covered by subpart G of this part (except for mandatory removal offenses under § 9701.707), an aggrieved employee may raise the matter under the appeals procedure of § 9701.706 or under the negotiated grievance procedure, but not both. An employee will be deemed to have exercised his or her option under this section when the employee timely files an appeal under the applicable appellate procedures or a grievance in accordance with the provisions of the parties’ negotiated grievance procedure, whichever occurs first.
(2) An arbitrator hearing a matter appealable under subpart G of this part is bound by the applicable provisions of this part.
(3) Section 7121(f) of title 5, United States Code, is not waived, but is modified to provide that—
(i) Matters covered by subpart G are deemed to be matters covered by 5 U.S.C. 4303 and 7512 for the purpose of obtaining judicial review; and
(ii) Judicial review under 5 U.S.C. 7703 will apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by MSPB under § 9701.706, including the preponderance of the evidence standard.
(4) In order to ensure consistency, the Department and representatives of those labor organizations granted national consultation rights may establish a mutually acceptable panel of arbitrators who have been trained and qualified to hear adverse action grievances under this part.
(g)(1) An employee may grieve a performance rating of record that has not been appealed in connection with an action under subpart G of this part. Once an employee raises a performance rating issue in an appeal under subpart G of this part, any pending grievance or arbitration will be dismissed with prejudice.
(2) An arbitrator may cancel a performance rating upon a finding that management applied the employee’s established performance expectations in violation of applicable law, Department rule or regulation, or provision of collective bargaining agreement in a manner prejudicial to the grievant. An arbitrator who has properly canceled an employee’s appraisal may order management to change the grievant’s rating only when the arbitrator is able to determine the rating that management would have given but for the violation. When an arbitrator is unable to determine what the employee’s rating would have been but for the violation, the arbitrator must remand the case to management for re-evaluation. Except as otherwise provided by law, an arbitrator may not conduct an independent evaluation of the employee’s performance or otherwise substitute his or her judgment for that of the supervisor.
(h)(1) This paragraph applies with respect to a prohibited personnel practice other than a prohibited personnel practice to which paragraph (e) of this section applies.
(2) An aggrieved employee affected by a prohibited personnel practice described in paragraph (h)(1) of this section may elect not more than one of the procedures described in paragraph (h)(3) of this section with respect thereto. A determination as to whether a particular procedure for seeking a remedy has been elected must be made as set forth under paragraph (h)(4) of this section.
(3) The procedures for seeking remedies described in this paragraph are as follows:
(i) An appeal under subpart G of this part;
(ii) A negotiated grievance under this section; and
(iii) Corrective action under 5 U.S.C. chapter 12, subchapters II and III.
(4) For the purpose of this paragraph, an employee is considered to have elected one of the following, whichever election occurs first:
(i) The procedure described in paragraph (h)(3)(i) of this section if such employee has timely filed a notice of appeal under the applicable appellate procedures;
(ii) The procedure described in paragraph (h)(3)(ii) of this section if such employee has timely filed a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure; or
(iii) The procedure described in paragraph (h)(3)(iii) of this section if such employee has sought corrective action from the Office of Special Counsel by making an allegation under 5 U.S.C. 1214(a)(1).
§ 9701.522 Exceptions to arbitration awards.
(a)(1) In the case of awards involving the exercise of management rights or the duty to bargain under §§ 9701.511 and 9701.518, either party to arbitration under this subpart may file with the HSLRB an exception to any arbitrator’s award. The HSLRB may take such action and make such recommendations concerning the award as is consistent with this subpart.
(2) In the case of awards not involving the exercise of management rights or the duty to bargain under §§ 9701.511 and 9701.518, either party may file exceptions to an arbitration award with the Authority pursuant to 5 U.S.C. 7122 (which is not waived for the purpose of this subpart but which is modified to apply to arbitration awards under this section) and the Authority’s regulations.
(3) Notwithstanding paragraph (a)(2) of this section, exceptions to awards relating to a matter described in § 9701.521(f) may not be filed with the Authority.
(b) If no exception to an arbitrator’s award is filed under paragraph (a) of this section during the 30-day period beginning on the date of such award, the award is final and binding. Either party must take the actions required by an arbitrator’s final award. The award may include the payment of back pay (as provided under 5 U.S.C. 5596 and 5 CFR part 550, subpart H).
(c) Nothing in this section prevents the HSLRB from determining its own jurisdiction without regard to whether any party has raised a jurisdictional issue.
§ 9701.523 Official time.
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this subpart must be authorized official time for such purposes, including attendance at impasse proceedings, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this section may not exceed the number of individuals designated as representing the Department for such purposes.
(b) Any activities performed by any employee relating to the internal business of the labor organization, including but not limited to the solicitation of membership, elections of labor organization officials, and collection of dues, must be performed during the time the employee is in a nonduty status.
(c) Except as provided in paragraph (a) of this section, the Authority or the HSLRB, as appropriate, will determine whether an employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority or the HSLRB will be authorized official time for such purpose during the time the employee would otherwise be in a duty status.
(d) Except as provided in the preceding paragraphs of this section, any employee representing an exclusive representative or, in connection with any other matter covered by this subpart, any employee in an appropriate unit represented by an exclusive representative, must be granted official time in any amount the Department and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
§ 9701.524 Compilation and publication of data.
(a) The HSLRB must maintain a file of its proceedings and copies of all available agreements and arbitration decisions and publish the texts of its impasse resolution decisions and the actions taken under § 9701.519.
(b) All files maintained under paragraph (a) of this section must be open to inspection and reproduction in accordance with 5 U.S.C. 552 and 552a. The HSLRB will establish rules in consultation with the Department for maintaining and making available for inspection sensitive information.
§ 9701.525 Regulations of the HSLRB.
The Department may issue initial interim rules for the operation of the HSLRB and will consult with labor organizations granted national consultation rights on the rules. The HSLRB will prescribe and publish rules for its operation in the
§ 9701.526 Continuation of existing laws, recognitions, agreements, and procedures.
(a) Except as otherwise provided by § 9701.506, nothing contained in this subpart precludes the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or an agreement that is otherwise consistent with law and the regulations in this part between the Department or a component thereof and an exclusive representative of its employees, which is entered into before the effective date of this subpart, as determined under § 9701.102(b).
(b) Policies, regulations, and procedures established under, and decisions issued under Executive Orders 11491, 11616, 11636, 11787, and 11838 or any other Executive order, as in effect on the effective date of this subpart (as determined under § 9701.102(b)), will remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of this subpart or by implementing directives or decisions issued pursuant to this subpart.
§ 9701.527 Savings provision.
This subpart does not apply to grievances or other administrative proceedings already pending on the date of coverage of this subpart, as determined under § 9701.102(b). Any remedy that applies after the date of coverage under any provision of this part and that is in conflict with applicable provisions of this part is not enforceable.
Subpart F—Adverse Actions
General
§ 9701.601 Purpose.
This subpart contains regulations prescribing the requirements when employees are furloughed for 30 days or less, suspended, demoted, reduced in pay, or removed. DHS may issue implementing directives to carry out the provisions of this subpart.
§ 9701.602 Waivers.
When a specified category of employees is covered by the adverse action provisions established under this subpart, 5 U.S.C. 7501 through 7514 and 7531 through 7533 are waived with respect to that category of employees. The provisions in 5 U.S.C. 7521 and 7541 through 7543 are not waived.
§ 9701.603 Definitions.
In this subpart:
Adverse action means a furlough for 30 days or less, a suspension, a demotion, a reduction in pay, or a removal.
Band means a work level or pay range within an occupational cluster.
Competencies means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position.
Current continuous service means a period of service immediately preceding an adverse action in the same or similar positions without any break in Federal civilian employment.
Day means a calendar day.
Demotion means a reduction in grade, a reduction to a lower band within the same occupational cluster, or a reduction to a lower band in a different occupational cluster under rules prescribed by DHS pursuant to § 9701.355.
Furlough means the placement of an employee in a temporary status without duties and pay because of lack of work or funds or other non-disciplinary reasons.
Grade means a level of work under a position classification or job grading system.
Indefinite suspension means the placement of an employee in a temporary status without duties and pay pending investigation, inquiry, or further Department action. An indefinite suspension continues for an indeterminate period of time and usually ends with either the employee returning to duty or the completion of any subsequent administrative action.
Initial service period (ISP) means the 1 to 2 years employees must serve after selection (on or after the date this subpart becomes applicable, as determined under § 9701.102(b)) for a designated DHS position in the competitive service for the purpose of providing an employee the opportunity to demonstrate competencies in a specific occupation.
Mandatory removal offense (MRO) means an offense that the Secretary determines, in his or her sole, exclusive, and unreviewable discretion, has a direct and substantial adverse impact on the Department’s homeland security mission.
Mandatory Removal Panel (MRP) means the three-person panel composed of officials appointed by the Secretary for fixed terms to decide appeals of removals based on a mandatory removal offense.
Pay means the rate of basic pay fixed by law or administrative action for the position held by an employee before any deductions and exclusive of additional pay of any kind. For the purpose of this subpart, pay does not include locality-based comparability payments under 5 U.S.C. 5304, locality or special rate supplements under subpart C of this part, or other similar payments.
Probationary period has the meaning given that term in 5 CFR 315.801.
Removal means the involuntary separation of an employee from the Department.
Similar positions means positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications, so that the incumbent could be moved from one position to another without significant training or undue interruption to the work.
Suspension means the temporary placement of an employee, for disciplinary reasons, in a nonduty/nonpay status.
Trial period has the meaning given that term in 5 CFR 316.304.
§ 9701.604 Coverage.
(a) Actions covered. This subpart covers furloughs of 30 days or less, suspensions, demotions, reductions in pay (including reductions in pay within a band), and removals.
(b) Actions excluded. This subpart does not cover—
(1) Any adverse action taken against an employee during a probationary, trial, or initial service period, except for an adverse action taken against a preference eligible employee in the competitive service who has completed the first year of an initial service period;
(2) The demotion of a supervisor or manager under 5 U.S.C. 3321;
(3) An action that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position of equivalent band and pay, if the employee was informed that the promotion was to be of limited duration;
(4) A reduction-in-force action under 5 U.S.C. 3502;
(5) An action under 5 U.S.C. 1215;
(6) An action against an administrative law judge under 5 U.S.C. 7521;
(7) A voluntary action by an employee;
(8) An action taken or directed by OPM based on suitability under 5 CFR part 731;
(9) Termination of appointment on the expiration date specified as a basic condition of employment at the time the appointment was made;
(10) Cancellation of a promotion to a position not classified prior to the promotion;
(11) Placement of an employee serving on an intermittent or seasonal basis in a temporary non-duty, non-pay status in accordance with conditions established at the time of appointment;
(12) Reduction of an employee’s rate of basic pay from a rate that is contrary to law or regulation;
(13) An action taken under a provision of statute, other than one codified in title 5, U.S. Code, which excludes the action from 5 U.S.C. chapter 75 or this subpart;
(14) A classification determination, including a classification determination under subpart B of this part; and
(15) An action that entitles an employee to grade retention under 5 CFR part 536 and an action to terminate this entitlement.
(c) Employees covered. Subject to a determination by the Secretary or designee under § 9701.102(b), this subpart applies to DHS employees, except as excluded by paragraph (d) of this section.
(d) Employees excluded. This subpart does not apply to—
(1) An employee in the competitive service who is serving a probationary, trial, or initial service period, except for a preference eligible employee in the competitive service who has completed the first year of an initial service period;
(2) A preference eligible employee in the excepted service who has not completed 1 year of current continuous service in the same or similar positions in an Executive agency or in the United States Postal Service or Postal Rate Commission;
(3) An employee in the excepted service (other than a preference eligible) who has not completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment of 2 years or less;
(4) A non-preference eligible employee who is serving a time-limited appointment (including a term appointment) of 2 years or less;
(5) Members of the Senior Executive Service;
(6) Administrative law judges;
(7) Employees who are terminated in accordance with terms specified as conditions of employment at the time the appointment was made;
(8) Employees whose appointments are made by and with the advice and consent of the Senate;
(9) Employees whose positions have been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character by—
(i) The President, for a position that the President has excepted from the competitive service;
(ii) OPM, for a position that OPM has excepted from the competitive service; or
(iii) The President or the Secretary for a position excepted from the competitive service by statute;
(10) An employee whose appointment is made by the President;
(11) An employee who is receiving an annuity from the Civil Service Retirement and Disability Fund or the Foreign Service Retirement and Disability Fund based on the service of such employee;
(12) An employee who is an alien or non-citizen occupying a position outside the United States, as described in 5 U.S.C. 5102(c)(11);
(13) Members of the Homeland Security Labor Relations Board or the Mandatory Removal Panel;
(14) Employees against whom an adverse personnel action is taken or imposed under any statute or regulation other than this subpart (e.g., Transportation Security Administration employees); and
(15) Employees appointed and serving under a Schedule B excepted service appointment subject to conversion to career status pursuant to Executive Order 11203.
§ 9701.605 Initial service period.
(a) DHS may establish an initial service period of 1 to 2 years for certain designated occupations in order for employees in such occupations to demonstrate appropriate competencies. DHS will establish standard policies for determining the applicability and the length of the ISP for specific occupations.
(b) Employees must complete an ISP after selection for a designated DHS position in the competitive service before obtaining coverage under this subpart. All relevant prior Federal civilian service (including non-appropriated fund service), as determined by appropriate standards established by DHS, counts toward completion of this requirement.
(c) An employee who is removed during a probationary, trial, or initial service period must be removed in accordance with 5 CFR 315.804 or 315.805, except for a preference eligible employee in the competitive service who has completed the first year of an ISP.
Requirements for Furlough of 30 Days or Less, Suspension, Demotion, Reduction in Pay, or Removal
§ 9701.606 Standard for action.
The Department may take an adverse action under this subpart only for such cause as will promote the efficiency of the service. The standards for mandatory removal offenses and actions taken under the national security provisions are set forth in §§ 9701.607 and 9701.613, respectively.
§ 9701.607 Mandatory removal offenses.
(a) The Secretary has the sole, exclusive, and unreviewable discretion to identify offenses that have a direct and substantial adverse impact on the Department’s homeland security mission. Such offenses will be identified in advance as part of the Department’s implementing directives, publicized via notice in the
(b) When a mandatory removal action is proposed under this section, employees will have the right to advance notice, an opportunity to respond, a written decision, and a review by the Mandatory Removal Panel as set forth in subpart G of this part.
(c) Prior to the issuance of a notice to the employee in question, the Secretary or designee will review and approve a proposed notice of removal on the grounds that the employee has committed a mandatory removal offense.
(d) The Secretary has the sole, exclusive, and unreviewable discretion to mitigate the removal penalty.
(e) Nothing in this section limits the discretion of the Department or any component thereof to remove employees for offenses other than those identified by the Secretary as mandatory removal offenses.
(f) Nothing in this subpart limits the discretion of the Department or any component thereof to remove an employee based on the revocation of that employee’s security clearance.
§ 9701.608 Procedures.
An employee against whom an adverse action is proposed is entitled to the following:
(a) A proposal notice under § 9701.609;
(b) An opportunity to reply under § 9701.610; and
(c) A decision notice under § 9701.611.
§ 9701.609 Proposal notice.
(a) Notice period. The Department must provide at least 15 days advance written notice of a proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department must provide at least 5 days advance written notice.
(b) Contents of notice. (1) The proposal notice must inform the employee of the factual basis for the proposed action in sufficient detail to permit the employee to reply to the notice, and inform the employee of his or her right to review the Department’s evidence supporting the proposed action. The Department may not use evidence that cannot be disclosed to the employee, his or her representative, or designated physician pursuant to 5 CFR 297.204.
(2) When some but not all employees in a given competitive level are being furloughed, the proposal notice must state the basis for selecting a particular employee for furlough, as well as the reasons for the furlough. The notice is not necessary for furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities.
(c) Duty status during notice period. An employee will remain in a duty status in his or her regular position during the notice period. However, when the Department determines that the employee’s continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the Department may elect one or a combination of the following alternatives:
(1) Assign the employee to duties where the Department determines the employee is no longer a threat to safety, the Department’s mission, or Government property;
(2) Allow the employee to take leave, or place him or her in an appropriate leave status (annual leave, sick leave, or leave without pay) or absence without leave if the employee has absented himself or herself from the worksite without approved leave; or
(3) Place the employee in a paid, non-duty status for such time as is necessary to effect the action.
§ 9701.610 Opportunity to reply.
(a) The Department must give employees at least 10 days, which must run concurrently with the notice period, to reply orally and/or in writing to a notice of proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department must give the employee at least 5 days, which must run concurrently with the notice period, to reply orally and/or in writing.
(b) The opportunity to reply orally does not include the right to a formal hearing with examination of witnesses.
(c) During the opportunity to reply, the Department must give the employee a reasonable amount of official time to review the Department’s supporting evidence, and to furnish affidavits and other documentary evidence, if the employee is otherwise in an active duty status.
(d) The Department must designate an official to receive the employee’s written and/or oral response. The official must have authority to make or recommend a final decision on the proposed adverse action.
(e) The employee may be represented by an attorney or other representative of the employee’s choice and at the employee’s expense, subject to paragraph (f) of this section. The employee must provide the Department with a written designation of his or her representative.
(f) The Department may disallow as an employee’s representative—
(1) An individual whose activities as representative would cause a conflict between the interest or position of the representative and that of the Department,
(2) An employee of the Department whose release from his or her official position would give rise to unreasonable costs or whose work assignments preclude his or her release; or
(3) An individual whose activities as representative could compromise security.
(g)(1) An employee who wishes the Department to consider any medical condition that may be relevant to the proposed adverse action must provide medical documentation, as that term is defined at 5 CFR 339.104, during the opportunity to reply, whenever possible.
(2) When considering an employee’s medical documentation, the Department may require or offer a medical examination pursuant to 5 CFR part 339, subpart C.
(3) When considering an employee’s medical condition, the Department is not required to withdraw or delay a proposed adverse action. However, the Department must—
(i) Allow the employee to provide medical documentation during the opportunity to reply;
(ii) Comply with 29 CFR 1614.203 and relevant Equal Employment Opportunity Commission rules; and
(iii) Comply with 5 CFR 831.1205 when issuing a decision to remove.
§ 9701.611 Decision notice.
(a) In arriving at its decision on a proposed adverse action, the Department may not consider any reasons for the action other than those specified in the proposal notice.
(b) The Department must consider any response from the employee and the employee’s representative, if the response is provided to the official designated under § 9701.610(d) during the opportunity to reply, and any medical documentation furnished under § 9701.610(g).
(c) The decision notice must specify in writing the reasons for the decision and advise the employee of any appeal or grievance rights under subparts E or G of this part.
(d) The Department must deliver the notice to the employee on or before the effective date of the action.
§ 9701.612 Departmental record.
(a) Document retention. The Department must keep a record of all relevant documentation concerning the action for a period of time pursuant to the General Records Schedule and the Guide to Personnel Recordkeeping. The record must include the following:
(1) A copy of the proposal notice;
(2) The employee’s written response, if any, to the proposal;
(3) A summary of the employee’s oral response, if any;
(4) A copy of the decision notice; and
(5) Any supporting material that is directly relevant and on which the action was substantially based.
(b) Access to the record. The Department must make the record available for review by the employee and furnish a copy of the record upon the employee’s request or the request of the Merit Systems Protection Board or the MRP.
National Security
§ 9701.613 Suspension and removal.
(a) Notwithstanding other provisions of law or regulation, the Secretary may suspend an employee without pay when she or he considers suspension in the interests of national security. To the extent that the Secretary determines that the interests of national security permit, the suspended employee must be notified of the reasons for the suspension. Within 30 days after the notification, the suspended employee is entitled to submit to the official designated by the Secretary statements or affidavits to show why he or she should be restored to duty.
(b) Subject to paragraph (c) of this section, the Secretary may remove an employee suspended under this section when, after investigation and review as the Secretary considers necessary, the Secretary determines that removal is necessary or advisable in the interests of national security. The determination of the Secretary is final.
(c) An employee suspended under this section who has a permanent or indefinite appointment, has completed his or her initial service period, probationary period, or trial period, and is a citizen of the United States is entitled, after suspension and before removal, to—
(1) A written statement of the charges against the employee within 30 days after suspension, which may be amended within 30 days thereafter, and which must be stated as specifically as security considerations permit;
(2) An opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits;
(3) A hearing, at the request of the employee, by a Department authority duly constituted for this purpose;
(4) A review of his or her case by the Secretary or designee, before a decision adverse to the employee is made final; and
(5) A written decision from the Secretary.
Savings Provision
§ 9701.614 Savings provision.
This subpart does not apply to adverse actions proposed prior to the date of an affected employee’s coverage under this subpart.
Subpart G—Appeals
§ 9701.701 Purpose.
This subpart contains the regulations implementing the provisions of 5 U.S.C. 9701(a) through (c) and (f) concerning the Department’s appeals system for certain adverse actions covered under subpart F of this part. These provisions require that the new appeals regulations provide Department employees fair treatment, are consistent with the protections of due process and, to the maximum extent practicable, provide for the expeditious handling of appeals.
§ 9701.702 Waivers.
When a specified category of employees is covered by an appeals system established under this subpart, the provisions of 5 U.S.C. 7701 are waived with respect to that category of employees to the extent they are inconsistent with the provisions of this subpart. The provisions of 5 U.S.C. 7702 are modified as provided in § 9701.709 to use “MSPB or MRP” wherever the terms “Merit Systems Protection Board” or “Board” occur. The appellate procedures specified herein supersede those of MSPB to the extent MSPB regulations are inconsistent with this subpart. MSPB must follow the provisions in this subpart until conforming regulations are issued by MSPB.
§ 9701.703 Definitions.
In this subpart:
Adjudicating official means an administrative law judge, administrative judge, or other employee designated by MSPB to decide an appeal.
Day means calendar day.
Harmful error means error by the Department in the application of its procedures that is likely to have caused it to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is on the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.
Mandatory removal offense (MRO) means an offense that the Secretary determines in his or her sole, exclusive, and unreviewable discretion has a direct and substantial adverse impact on the Department’s homeland security mission.
Mandatory Removal Panel (MRP) means the three-person panel composed of officials appointed by the Secretary for fixed terms to decide appeals of removals based on a mandatory removal offense.
MSPB means the Merit Systems Protection Board.
Petition for review means a request for review of an initial decision of an adjudicating official.
Preponderance of the evidence means 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.
§ 9701.704 Coverage.
(a) Subject to a determination by the Secretary or designee under § 9701.102(b), this subpart applies to employees who appeal furloughs of 30 days or less, demotions, reductions in pay, suspensions of 15 days or more, or removals, provided such employees are covered by § 9701.604.
(b) Appeals of suspensions shorter than 15 days and other lesser disciplinary measures are not covered under this subpart but may be grieved through a negotiated grievance procedure or an administrative grievance procedure, whichever is applicable.
(c) The appeal rights in 5 CFR 315.806 apply to the removal of an employee while serving a probationary, trial, or initial service period, except for a preference eligible employee in the competitive service who has completed the first year of an initial service period.
(d) Actions taken under § 9701.613 are not appealable to MSPB.
§ 9701.705 Alternative dispute resolution.
The Department and OPM recognize the value of using alternative dispute resolution methods such as mediation, an ombudsman, or interest-based negotiation to address employee-employer disputes arising in the workplace, including those which may involve disciplinary actions. Such methods can result in more efficient and more effective outcomes than traditional, adversarial methods of dispute resolution. The Department will use alternative dispute resolution methods where appropriate. Such methods will be subject to collective bargaining to the extent permitted by subpart E of this part.
§ 9701.706 MSPB appellate procedures.
(a) A covered Department employee may appeal an adverse action identified under § 9701.704(a) to MSPB. Such an employee has a right to be represented by an attorney or other representative, and to a hearing if material facts are in dispute. However, separate procedures apply when the action is taken because of a mandatory removal offense or is in the interest of national security. (See §§ 9701.707 and 9701.613, respectively.)
(b) MSPB may decide any case appealed to it or may refer the case to an administrative law judge appointed under 5 U.S.C. 3105 or other employee of MSPB designated by MSPB to decide such cases. MSPB or an adjudicating official must make a decision at the close of the review and provide a copy of the decision to each party to the appeal and to OPM.
(c)(1) If an employee is the prevailing party in an appeal under this section, the employee must be granted the relief provided in the decision upon issuance of the decision, subject to paragraph (c)(3) of this section, and such relief remains in effect pending the outcome of any petition for review unless—
(i) An adjudicating official determines that the granting of such relief is not appropriate; or
(ii) The relief granted in the decision provides that the employee will return or be present at the place of employment pending the outcome of any petition for review, and the Department, subject to paragraph (c)(2) of this section, determines in its sole, exclusive, and unreviewable discretion, that the return or presence of the employee is unduly disruptive to the work environment.
(2) If the Department makes a determination under paragraph (c)(1)(ii) of this section that prevents the return or presence of an employee at the place of employment, such employee must receive pay, compensation, and all other benefits as terms and conditions of employment pending the outcome of any petition for review.
(3) Nothing in the provisions of this section may be construed to require that any award of back pay or attorney fees be paid before the decision is final.
(d) The decision of the Department must be sustained under paragraph (b) of this section if it is supported by a preponderance of the evidence, unless the employee shows by a preponderance of the evidence—
(1) Harmful error in the application of Department procedures in arriving at the decision;
(2) That the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
(3) That the decision was not in accordance with law.
(e) The Director of OPM may, as a matter of right at any time in the proceeding, intervene or otherwise participate in any proceeding under this section in any case in which the Director believes that an erroneous decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.
(f) Except as provided in § 9701.709, any decision under paragraph (b) of this section is final unless a party to the appeal or the Director of OPM petitions MSPB for review within 30 days after receipt of the decision or MSPB reopens and reconsiders a case on its own motion. The Director may petition MSPB for review only if he or she believes the decision is erroneous and will have a substantial impact on a civil service law, rule, regulation, or policy directive. MSPB, for good cause shown, may extend the filing period.
(g) If MSPB or an adjudicating official is of the opinion that consolidation or joinder could result in more expeditious processing of appeals and would not adversely affect any party, MSPB or an adjudicating official may—
(1) Consolidate appeals filed by two or more appellants; or
(2) Join two or more appeals filed by the same appellant and hear and decide them concurrently.
(h)(1) Except as provided in paragraph (h)(2) of this section or as otherwise provided by law, MSPB or an adjudicating official may require payment by the Department of reasonable attorney fees incurred by an employee if the employee is the prevailing party and MSPB or an adjudicating official determines that payment by the Department is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the Department or any case in which the Department’s action was clearly without merit.
(2) If the employee is the prevailing party and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1), the payment of reasonable attorney fees must be in accordance with the standards prescribed in section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(i)(1) MSPB or an adjudicating official may not require settlement discussions in connection with any appealed action under this section. If either party decides that settlement is not desirable, the matter will proceed to adjudication.
(2) Where the parties agree to engage in settlement discussions before MSPB or an adjudicating official, these discussions will be conducted by an official specifically designated by MSPB for that sole purpose. Nothing prohibits the parties from engaging in settlement discussions on their own.
(j) If an employee has been removed under subpart F of this part, neither the employee’s status under any retirement system established by Federal statute nor any election made by the employee under any such system will affect the employee’s appeal rights.
(k) The following provisions modify MSPB’s appellate procedures applicable to appeals under this subpart:
(1) All appeals, including class appeals, will be filed no later than 20 days after the effective date of the action being appealed, or no later than 20 days after the date of service of the Department’s decision, whichever is later.
(2) Either party may file a motion for representative disqualification at any time during the proceedings.
(3) The parties may seek discovery regarding any matter that is relevant to any of their claims or defenses. However, by motion, either party may seek to limit such discovery because the burden or expense of providing the material outweighs its benefit, or because the material sought is privileged, not relevant, unreasonably cumulative or duplicative, or can be secured from some other source that is more convenient, less burdensome, or less expensive.
(i) Prior to filing a motion to limit discovery, the parties must confer and attempt to resolve any pending objection(s).
(ii) Neither party may submit more than one set of interrogatories, one set of requests for production of documents, and one set of requests for admissions. The number of interrogatories or requests for production or admissions may not exceed 25 per pleading, including subparts; in addition, neither party may conduct/compel more than 2 depositions.
(iii) Either party may file a motion requesting additional discovery. Such motion may be granted only if the party has shown necessity and good cause to warrant such additional discovery.
(4) Requests for case suspensions must be submitted jointly.
(5) When there are no material facts in dispute, the adjudicating official must render summary judgment on the law without a hearing. However, when material facts are in dispute and a hearing is held, a transcript must be kept.
(6) Given the Department’s need to maintain an exceptionally high degree of order and discipline in the workplace, an arbitrator, adjudicating official, or MSPB may not modify the penalty imposed by the Department unless such penalty is so disproportionate to the basis for the action as to be wholly without justification. In cases of multiple charges, the third party’s determination in this regard is based on the justification for the penalty as it relates to the sustained charge(s). When a penalty is mitigated, the maximum justifiable penalty must be applied.
(7) An initial decision must be made no later than 90 days after the date on which the appeal is filed. If that initial decision is appealed to MSPB, MSPB must render its decision no later than 90 days after the close of the record before MSPB on petition for review.
(8) If the Director seeks reconsideration of a final MSPB order, MSPB must render its decision no later than 60 days after receipt of the opposition to OPM’s petition in support of such reconsideration. MSPB must state the reasons for its decision so that the Director can determine whether to seek judicial review and to facilitate expeditious judicial review.
(9) MSPB, in conjunction with the Department and OPM, will develop and issue voluntary expedited appeals procedures for Department cases.
(l) Failure of MSPB to meet the deadlines imposed by paragraphs (k)(7) and (k)(8) of this section in a case will not prejudice any party to the case and will not form the basis for any legal action by any party.
(m) Except as otherwise provided by 5 U.S.C. 7702 with respect to cases involving allegations of discrimination, judicial review of any final MSPB order or decision is as prescribed under 5 U.S.C. 7703.
§ 9701.707 Appeals of mandatory removal actions.
(a) General. Appeals of mandatory removal actions are governed by procedures set forth in this section. An employee may appeal such actions to the Mandatory Removal Panel (MRP) established under § 9701.708.
(b) Procedures. (1) The MRP will establish procedures for the fair, impartial, and expeditious assignment and disposition of cases, consistent with the requirements set forth in § 9701.706(k), as applicable, and for such other matters as may be necessary to ensure the operation of the MRP.
(2) The MRP will conduct a hearing, for which a transcript will be kept, to resolve any factual disputes and other relevant matters. All members will hear a particular appeal and will decide it based on a majority vote of the members. If only two members are serving, the vote of the Chair will be dispositive in the event of a tie.
(3) The appellant has the right to be represented by an attorney or other representative.
(4) The only action available to the MRP is to sustain or overturn a mandatory removal. The MRP does not have authority to mitigate the penalty. Only the Secretary may mitigate the penalty in these cases after the MRP has rendered its decision.
(5) The decision of the Department must be sustained if it is supported by a preponderance of the evidence, unless the employee shows by a preponderance of the evidence—
(i) Harmful error in the application of Department procedures in arriving at the decision;
(ii) That the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
(iii) That the decision was not in accordance with law.
(6)(i) Except as provided in paragraph (b)(6)(ii) of this section or as otherwise provided by law, the MRP may require payment by the Department of reasonable attorney fees incurred by an employee if the employee is the prevailing party and the Panel reviewing the initial appeal determines that payment by the Department is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the Department or any case in which the Department’s action was clearly without merit.
(ii) If the employee is the prevailing party and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1), the payment of reasonable attorney fees must be in accordance with the standards prescribed in § 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(7) The MRP must issue a written decision (including dissenting opinions, where appropriate) in each case and serve each party and OPM with a copy. These decisions are final and binding.
(8) Failure of the MRP to meet applicable deadlines imposed under § 9701.706(k) in a case will not prejudice any party to the case and will not form the basis for any legal action by any party.
(c) MSPB review. (1) In order to obtain judicial review of an MRP decision, an employee, the Department, or OPM must request a review of the record of an MRP decision by MSPB by filing such a request in writing within 15 days after the issuance of the decision. Within 15 days after MSPB’s receipt of the request for a review of the record, any response or OPM intervention must be filed. A party, or OPM, may each submit, and MSPB may grant for good cause shown, a request for a single extension of time not to exceed a maximum of 15 additional days. MSPB will establish, in conjunction with the MRP, standards for the sufficiency of the record and other procedures, including notice to the parties and OPM. MSPB must accept the findings of fact and interpretations of this part made by the MRP and sustain the MRP’s decision unless the employee shows that the MRP’s decision was—
(i) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(ii) Caused by harmful error in the application of the MRP’s procedures in arriving at such decision; or
(iii) Unsupported by substantial evidence.
(2) MSPB must complete its review of the record and issue a final decision within 30 days after receiving the party’s timely response to such request for review or OPM’s intervention brief, whichever is filed later. This 30-day time limit is mandatory, except that MSPB may extend its time for review by a maximum of 15 additional days if it determines that—
(i) The case is unusually complex; or
(ii) An extension is necessary to prevent any prejudice to the parties that would otherwise result.
(3) No extension beyond that provided by paragraph (c)(2) of this section is permitted.
(4) If MSPB does not issue a final decision within the mandatory time limit established by paragraph (c) of this section, MSPB will be considered to have denied the request for review of the MRP’s decision, which will constitute a final decision of MSPB and is subject to judicial review in accordance with 5 U.S.C. 7703.
(d) Subsequent action. (1) If either the MRP or MSPB sustains an employee’s appeal based on a finding that the employee did not commit an MRO, the Department is not precluded from subsequently proposing an adverse action (other than an MRO) based on the same record evidence. Such a proposal must be issued—
(i) In accordance with applicable law and regulation, including the procedures set forth in § 9701.609; and
(ii) Normally within 15 days after the date of MSPB’s decision, unless the Department establishes good cause for exceeding this time limit.
(2) Nothing in this section precludes the Department from taking a subsequent action against an employee based, in part, on additional evidence that was not part of the record in the initial proceeding before the MRP.
(e) Judicial review. Except as otherwise provided by 5 U.S.C. 7702 with respect to cases involving allegations of discrimination, judicial review of any final MSPB order or decision on an MRO is as prescribed under 5 U.S.C. 7703.
(f) OPM intervention. (1) The Director may, as a matter of right at any time in the proceeding before the MRP or MSPB, intervene or otherwise participate in any proceeding under this section in any case in which the Director believes that an erroneous decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.
(2) Except as provided in § 9701.709, any decision under paragraph (c) of this section is final unless the Director petitions MSPB for review within 30 days after receipt of the decision. The Director may petition MSPB for review only if he or she believes the decision is erroneous and will have a substantial impact on a civil service law, rule, regulation, or policy directive. MSPB, for good cause shown, may extend the filing period.
(g) Appeal rights of retirees. If an employee has been removed under subpart F of this part, neither the employee’s status under any retirement system established by Federal statute nor any election made by the employee under any such system will affect the employee’s appeal rights.
§ 9701.708 Mandatory Removal Panel.
(a) Composition. (1) The Mandatory Review Panel is a standing panel composed of three members who will be appointed by the Secretary for terms of 3 years, except that the appointments of the initial MRP members will be for terms of 2, 3, and 4 years, respectively. The Secretary may extend the term of any member beyond 3 years when necessary to provide for an orderly transition and/or appoint the member for an additional term.
(2) Members of the MRP must be independent, distinguished citizens of the United States who are well known for their integrity and impartiality. Members must have expertise in either labor or employee relations or law enforcement/homeland security matters. At least one member of the Board must have experience in labor relations. Members may be removed by the Secretary on the same grounds as an MSPB member.
(3) An individual chosen to fill a vacancy on the MRP will be appointed for the unexpired term of the member who is replaced.
(b) Appointment of the Chair. The Secretary, at his or her sole and exclusive discretion, will appoint one member to serve as Chair of the MRP.
(c) Appointment procedures for non-Chair MRP members. (1) The appointments of the two non-Chair MRP members will be made by the Secretary after he or she considers any lists of nominees submitted by labor organizations that represent employees in the Department of Homeland Security.
(2) The submission of lists of recommended nominees by labor organizations must be in accordance with timelines and requirements set forth by the Secretary, who may provide for additional consultation in order to obtain further information about a recommended nominee. The ability of the Secretary to appoint MRP members may not be delayed or otherwise affected by the failure of any labor organization to provide a list of nominees that meets the timeframe and requirements established by the Secretary.
§ 9701.709 Actions involving discrimination.
Section 7702 of title 5, U.S. Code, is modified to read “MSPB or MRP” wherever the terms “Merit Systems Protection Board” or “Board” are used.
§ 9701.710 Savings provision.
This subpart does not apply to adverse actions proposed prior to the date of an affected employee’s coverage under this subpart.
PARTS 9702-9799 [RESERVED]
CHAPTER XCVIII—COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY
PART 9800—FREEDOM OF INFORMATION ACT REGULATIONS
§ 9800.101 General provisions.
(a) In general. This part contains the rules that the Council of the Inspectors General on Integrity and Efficiency (CIGIE) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read in conjunction with the text of FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under part 9801 as well as under this part.
(b) Centralized system. CIGIE has a centralized system for processing FOIA requests, with one office receiving and coordinating the processing of all FOIA requests made to CIGIE.
(c) Authority to grant or deny requests. The Executive Director of CIGIE, or designee, is authorized to grant or deny any requests for records that are maintained by CIGIE. For purposes of any request for records maintained by the CIGIE Integrity Committee (IC) established under section 11(d) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. (Inspector General Act), the designees are the IC Chairperson and IC Vice Chairperson.
§ 9800.102 Requirements for making FOIA requests.
(a) Requests generally. (1) A request for CIGIE records under FOIA must be made in writing. The request must be sent by:
(i) Regular mail addressed to: FOIA Officer, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW, Suite 825, Washington, DC 20006; or
(ii) By fax sent to the FOIA Officer at (202) 254-0162; or
(iii) By email to [email protected].
(2) For the quickest handling, both the request letter and envelope or any fax cover sheet or email subject line should be clearly marked “FOIA Request.” Whether sent by mail, fax, email, or other prescribed electronic method, a FOIA request will not be considered to have been received by CIGIE until it reaches the FOIA office.
(3) A requester who is making a request for records about himself or herself, as a parent or guardian of a minor, or as the guardian of someone determined by a court to be incompetent, must comply with the verification of identity provisions set forth in part 9801.
(4) 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, CIGIE can require a requester to supply additional information if necessary to verify that a particular individual has consented to disclosure.
(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable CIGIE personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist CIGIE in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before making their requests, requesters may contact CIGIE’s FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records. If after receiving a request CIGIE determines that it does not reasonably describe the records sought, CIGIE will inform the requester what additional information is needed to perfect the request or why the request is otherwise insufficient. CIGIE will toll the processing of the request when it notifies the requester that additional information is needed or that the request is otherwise insufficient. CIGIE may toll one time for this purpose. Requesters who are attempting to reformulate or modify such a request may discuss their request with CIGIE’s FOIA Public Liaison. If the requester does not provide the additional information within 30 days, the request will be closed.
(c) Preferred format. Requests may specify the preferred form or format (including electronic formats) for the records sought. CIGIE will accommodate the request if the record is readily reproducible in that form or format.
(d) Requester contact information. Requesters must provide contact information, such as a telephone number, email address, and/or mailing address, to assist CIGIE in communicating with requester and providing released records.
§ 9800.103 Consultations, referrals, and coordination.
(a) In general. When reviewing records located by CIGIE in response to a request, CIGIE will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under FOIA. As to any such record, CIGIE will proceed in one of the following ways:
(1) Consultation. When records originated with CIGIE, but contain within them information of interest to another agency or office of the Federal Government, CIGIE will typically consult with that other agency prior to making a release determination.
(2) Referral. (i) When CIGIE believes that a different agency of the Federal Government is best able to determine whether to disclose the record, CIGIE typically will refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if CIGIE and the originating agency jointly agree that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever CIGIE refers any part of the responsibility for responding to a request to another agency, it will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if CIGIE, in responding to a request for records on a living third party, locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if CIGIE locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, to avoid harm to an interest protected by an applicable exemption, CIGIE will coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination will then usually be conveyed to the requester by CIGIE.
(b) Timing of responses to received consultations and referrals. All consultations and referrals received by CIGIE will be handled according to the date that the first agency received the perfected FOIA request.
(c) Agreements regarding consultations and referrals. CIGIE may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
(d) Classified information. On receipt of any request involving classified information, CIGIE must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable Executive order concerning the classification of records, CIGIE must refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever CIGIE’s record contains information that has been derivatively classified (for example, when it contains information classified by another agency), CIGIE must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.
§ 9800.104 Timing of responses to requests.
(a) In general. Ordinarily, CIGIE will have 20 days (excepting Saturdays, Sundays, and legal public holidays) from when a request is received to determine whether to grant or deny the request and will respond to requests according to their order of receipt in each track as addressed in paragraph (b) of this section. In determining which records are responsive to a request, CIGIE ordinarily will include only records in its possession as of the date on which it begins its search for them. If any other date is used, CIGIE will inform the requester of that date.
(b) Multitrack processing. (1) CIGIE processes requests using a multitrack processing system. There are four processing tracks: An expedited track, if the request qualifies; a simple track for relatively simple requests; a complex track for more complex and lengthy requests; and a remanded track, when a FOIA appeal is granted. After CIGIE assigns a request to a track for processing, CIGIE will notify the requester of that assignment.
(2) CIGIE may provide requesters in its complex track with an opportunity to limit the scope of their requests to qualify for faster processing within the specified limits of the simple track.
(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” as defined in FOIA, and CIGIE extends the time limit on that basis, CIGIE 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, CIGIE will, as described by FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. CIGIE will make available its designated FOIA contact and its FOIA Public Liaison for this purpose. CIGIE will also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services.
(d) Aggregating requests. For the purposes of satisfying unusual circumstances under FOIA, CIGIE may aggregate requests in cases where it reasonably appears that multiple requests, made either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. CIGIE will not aggregate multiple requests that involve unrelated matters.
(e) Expedited processing. (1) Requests and appeals will be processed on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.
(2) A request for expedited processing may be made at any time.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, CIGIE may waive the formal certification requirement.
(4) CIGIE will notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request will be given priority, placed in the processing track for expedited requests, and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
§ 9800.105 Responses to requests.
(a) In general. CIGIE will, to the extent practicable, communicate with requesters having access to the internet using electronic means, such as email.
(b) Acknowledgments of requests. CIGIE will acknowledge the request in writing and assign it an individualized tracking number if it will take longer than 10 working days to process. CIGIE will include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.
(c) Grants of requests. Once CIGIE makes a determination to grant a request in full or in part, it will notify the requester in writing. CIGIE also will inform the requester of any fees charged under § 9800.109 and will disclose the requested records to the requester promptly upon payment of any applicable fees. CIGIE will inform the requester of the availability of the FOIA Public Liaison to offer assistance.
(d) Adverse determinations of requests. When CIGIE makes an adverse determination denying a request in any respect, it will notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
(e) Content of denial. The denial will include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by CIGIE in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under § 9800.107 and a description of the requirements set forth therein.
(5) A statement notifying the requester of the assistance available from the FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services.
(f) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part will be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted will also be indicated on the record, if technically feasible.
(g) Use of record exclusions. (1) In the event that CIGIE identifies records that may be subject to exclusion from the requirements of FOIA pursuant to 5 U.S.C. 552(c), CIGIE will confer with the Department of Justice Office of Information Policy (OIP) to obtain approval to apply the exclusion.
(2) Should CIGIE invoke an exclusion, it will maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
§ 9800.106 Confidential commercial information.
(a) Definitions—(1) Confidential commercial information means commercial or financial information obtained by CIGIE from a submitter that may be protected from disclosure under Exemption 4 of 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 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, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall 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) CIGIE will promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, CIGIE determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) CIGIE 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 under that exemption or any other applicable exemption.
(2) The notice will either 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, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice requirements of this section will not apply if:
(1) CIGIE determines that the information is exempt under FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, CIGIE will give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) CIGIE will specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide CIGIE a detailed written statement that specifies all grounds for withholding the particular information under any exemption of FOIA. 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 privileged or confidential.
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by CIGIE after the date of any disclosure decision shall not be considered by CIGIE. Any information provided by a submitter under this part may itself be subject to disclosure under FOIA.
(f) Analysis of objections. CIGIE 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 CIGIE decides to disclose information over the objection of a submitter, CIGIE will provide the submitter written notice, which will include:
(1) A statement of the reasons why each of the submitter’s disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, CIGIE will promptly notify the submitter.
(i) Requester notification. CIGIE will notify a 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.
§ 9800.107 Administrative appeals.
(a) Appeals of adverse determinations. A requester may appeal a determination denying a FOIA request in any respect to the CIGIE Chairperson c/o Office of General Counsel, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW, Suite 825, Washington, DC 20006. The appeal must be in writing, and must be submitted either by:
(1) Regular mail sent to the address listed in this subsection, above; or
(2) By fax sent to the FOIA Officer at (202) 254-0162; or
(3) By email to [email protected].
(b) Submission and content. The Office of General Counsel must receive the appeal within 90 calendar days of the date of the letter denying the request. For the quickest possible handling, the appeal letter and envelope or any fax cover sheet or email subject line should be clearly marked “FOIA Appeal.” The appeal letter must clearly identify the CIGIE determination (including the assigned FOIA request number, if known) being appealed.
(c) Adjudication of appeals. (1) The CIGIE Chairperson or designee will act on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, CIGIE will take appropriate action to ensure compliance with applicable classification rules.
(d) Decisions on appeals. Ordinarily, CIGIE will have 20 days (excepting Saturdays, Sundays, and legal public holidays) from receipt of the appeal to issue an appeal decision. 5 U.S.C. 552(a)(6)(A)(ii). CIGIE will provide its decision on an appeal in writing. A decision that upholds CIGIE’s determination in whole or in part will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If CIGIE’s decision is remanded or modified on appeal, CIGIE will notify the requester of that determination in writing. CIGIE will then further process the request in accordance with that appeal determination and will respond directly to the requester.
(e) Engaging in dispute resolution services provided by the Office of Government Information Services. Mediation is a voluntary process. If CIGIE agrees to participate in the mediation services provided by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(f) When appeal is required. Before seeking review by a court of CIGIE’s adverse determination, a requester generally must first submit a timely administrative appeal.
§ 9800.108 Preservation of records.
CIGIE will preserve all correspondence pertaining to the requests that it receives under this part, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code and the relevant approved records retention schedule. Records shall not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under FOIA.
§ 9800.109 Fees.
(a) In general. CIGIE will charge for processing requests under FOIA in accordance with the provisions of this section and with the OMB Guidelines. To resolve any fee issues that arise under this section, CIGIE may contact a requester for additional information. CIGIE will ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. CIGIE ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. CIGIE’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information. CIGIE will notify requester if requester is placed in the commercial use category.
(2) Direct costs are those expenses that an agency incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses, such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
(4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester’s role at the educational institution. CIGIE may seek assurance from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.
(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which 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. CIGIE will notify requester if requester is placed in the noncommercial scientific institution category.
(6) Representative of the news media is any person or entity that actively 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. 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, CIGIE will also consider a requester’s past publication record in making this determination. CIGIE will notify requester if requester is placed in the representative of the news media category.
(7) Review is the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 9800.106, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
(c) Charging fees. In responding to FOIA requests, CIGIE will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, CIGIE will not add any additional costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees will be charged for all other requesters, subject to the restrictions of paragraph (d) of this section. CIGIE may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be as follows: Professional—$10.00; and clerical/administrative—$4.75.
(iii) Requesters will 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 will 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.
(iv) For requests that require the retrieval of records stored by an agency at a Federal records center operated by National Archives and Records Administration, additional costs will be charged in accordance with the Transactional Billing Rate Schedule established by National Archives and Records Administration.
(2) Duplication. Duplication fees will be charged to all requesters, subject to the restrictions of paragraph (d) of this section. CIGIE will honor a requester’s preference for receiving a record in a particular form or format where it is readily reproducible by CIGIE in the form or format requested. Where photocopies are supplied, CIGIE will provide one copy per request at a cost of five cents per page. For copies of records produced on tapes, disks, or other media, CIGIE will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, CIGIE shall charge the direct costs.
(3) Review. Review fees shall be charged to requesters who make commercial use requests. Review fees shall be assessed in connection with the initial review of the record, i.e., the review conducted by CIGIE to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with CIGIE’s re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.
(2) If CIGIE fails to comply with 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 paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section.
(i) If CIGIE has determined that unusual circumstances, as defined by FOIA, apply and CIGIE provided timely written notice to the requester in accordance with FOIA, a failure to comply with the time limit will be excused for an additional 10 days.
(ii) If CIGIE has determined that unusual circumstances as defined by FOIA apply, and more than 5,000 pages are necessary to respond to the request, CIGIE may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken. CIGIE will have provided timely written notice of unusual circumstances to the requester in accordance with FOIA and CIGIE will have 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). If this exception is satisfied, CIGIE may charge all applicable fees incurred in the processing of the request.
(iii) If a court has determined that exceptional circumstances exist, as defined by FOIA, a failure to comply with the time limits will be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, CIGIE will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When CIGIE determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, CIGIE will notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, CIGIE will advise the requester accordingly. If the requester is a noncommercial use requester, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual or estimated fees exceed $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester’s statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. CIGIE is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but CIGIE estimates that the total fee will exceed that amount, CIGIE shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. CIGIE will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) CIGIE will make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester’s needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if CIGIE chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(g) Charging interest. CIGIE may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by CIGIE. CIGIE will follow the provisions of the Debt Collection Act of 1982, Public Law 97-365, 96 Stat. 1749, as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. When CIGIE reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, CIGIE may aggregate those requests and charge accordingly. CIGIE may presume that multiple requests of this type made within a 30-day period have been made to avoid fees. For requests separated by a longer period, CIGIE 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 will not be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraph (i)(2) or (3) of this section, CIGIE will not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.
(2) When CIGIE determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. CIGIE may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to CIGIE or another agency within 30 days of the billing date, CIGIE may require that the requester pay the full amount due, plus any applicable interest on that prior request, and CIGIE may require that the requester make an advance payment of the full amount of any anticipated fee before CIGIE begins to process a new request or continues to process a pending request or any pending appeal. Where CIGIE has a reasonable basis to believe that a requester has misrepresented the requester’s identity to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which CIGIE requires advance payment, the request shall 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 days after the date of CIGIE’s fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, CIGIE shall inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) 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.
(2) CIGIE will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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. In deciding whether this standard is satisfied CIGIE will consider the factors described in paragraphs (k)(2)(i) through (iii) of this section.
(i) 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.
(ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(A) 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.
(B) 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. CIGIE will presume that a representative of the news media will satisfy this consideration.
(iii) 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, CIGIE will consider the following criteria:
(A) CIGIE must 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.
(B) If there is an identified commercial interest, CIGIE 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 (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. CIGIE ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (k)(2)(i) and (ii) 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.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to CIGIE 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.
§ 9800.110 Public reading room.
CIGIE maintains an electronic public reading room on its website, http://www.ignet.gov, which contains the records that FOIA requires be regularly made available for public inspection and copying, as well as additional records of interest to the public. CIGIE is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. CIGIE must ensure that its website of posted records and indices is reviewed and updated on an ongoing basis. CIGIE’s FOIA Public Liaison can assist individuals in locating records at CIGIE.
§ 9800.111 Other rights and services.
Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under FOIA.
PART 9801—PRIVACY ACT REGULATIONS
Subpart A—General Provisions
§ 9801.101 Purpose and scope.
This part contains the regulations of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) implementing the Privacy Act of 1974, 5 U.S.C. 552a. This part sets forth the basic responsibilities of CIGIE with regard to CIGIE’s compliance with the requirements of the Privacy Act and offers guidance to members of the public who wish to exercise any of the rights established by the Privacy Act with regard to records maintained by CIGIE. These regulations should be read in conjunction with the Privacy Act, which explains in more detail individuals’ rights.
§ 9801.102 CIGIE organization.
(a) Centralized program. CIGIE has a centralized Privacy Act program, with one office receiving and coordinating the processing of all Privacy Act requests to CIGIE.
(b) Acceptance of requests and appeals. CIGIE will accept initial requests or appeals regarding CIGIE records.
§ 9801.103 Definitions.
(a) For purposes of this part the terms individual, maintain, record, routine use, and system of records, shall have the meanings set forth in 5 U.S.C. 552a(a).
(b) CIGIE means the Council of the Inspectors General on Integrity and Efficiency and includes its predecessor entities, the Executive Council on Integrity and Efficiency and the President’s Council on Integrity and Efficiency.
(c) Days, unless stated as “calendar days,” are working days and do not include Saturdays, Sundays, or Federal holidays.
(d) IC means the CIGIE Integrity Committee established under section 11(d) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. (Inspector General Act).
(e) Request for access to a record means a request made under Privacy Act subsection (d)(1).
(f) Request for amendment of a record means a request made under Privacy Act subsection (d)(2).
(g) Request for an accounting means a request made under Privacy Act subsection (c)(3).
(h) Requester means an individual who makes a request for access, a request for amendment, or a request for an accounting under the Privacy Act.
(i) PRAC means the Pandemic Response Accountability Committee established under Section 15010 of the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, 134 Stat. 281.
§ 9801.104 Rules for determining if an individual is the subject of a record.
An individual seeking to determine if a specific CIGIE system of records contains a record pertaining to the individual must follow the procedures set forth for access to records in § 9801.201(a), (b)(1) and (2), (c), and (d). A request to determine if an individual is the subject of a record will ordinarily be responded to within 10 days, except when CIGIE determines otherwise, in which case the request will be acknowledged within 10 days and the individual will be informed of the reasons for the delay and an estimated date by which a response will be issued.
§ 9801.105 Employee standards of conduct.
CIGIE will inform its employees involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, of the provisions of the Privacy Act, including the Act’s civil liability and criminal penalty provisions. Unless otherwise permitted by law, an employee of CIGIE shall:
(a) Collect from individuals only the information that is relevant and necessary to discharge the responsibilities of CIGIE;
(b) Collect information about an individual directly from that individual whenever practicable when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether providing it is mandatory or voluntary;
(2) The principal purpose for which CIGIE intends to use the information;
(3) The routine uses CIGIE may make of the information; and
(4) The effects on the individual, if any, of not providing the information;
(d) Maintain no system of records without public notice and notify appropriate CIGIE officials of the existence or development of any system of records that is not the subject of a current or planned public notice;
(e) Maintain all records that are used by CIGIE in making any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the Freedom of Information Act, 5 U.S.C. 552 (FOIA), make reasonable efforts, prior to disseminating any record about an individual, to ensure that the record is accurate, relevant, timely, and complete;
(g) Maintain no record describing how an individual exercises his or her First Amendment rights, unless it is expressly authorized by statute or by the individual about whom the record is maintained, or is pertinent to and within the scope of an authorized law enforcement activity;
(h) When required by the Privacy Act, maintain an accounting in the specified form of all disclosures of records by CIGIE to persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized or inadvertent disclosure of a record to anyone. No record contained in a CIGIE system of records shall be disclosed to another person, or to another agency outside CIGIE, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless the disclosure is otherwise authorized by the Privacy Act; and
(j) Notify the appropriate CIGIE official of any record that contains information that the Privacy Act does not permit CIGIE to maintain.
(a) No denial of right, benefit, or privilege. Individuals may not be denied any right, benefit, or privilege as a result of refusing to provide their social security numbers, unless the collection is required by Federal statute; and
(b) Notification to individual. Individuals requested to provide their social security numbers must be informed of:
(1) Whether providing social security numbers is mandatory or voluntary;
(2) The statutory or regulatory authority that authorizes the collection of social security numbers; and
(3) The uses that will be made of the numbers.
§ 9801.107 Other rights and services.
Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the Privacy Act.
Subpart B—Access to Records and Accounting of Disclosures
§ 9801.201 Requests for access.
(a) How addressed. A requester seeking access to records pertaining to the requester in a CIGIE system of records should submit a written request that includes the words “Privacy Act Request” on both the envelope and at the top of the request letter to the Executive Director, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006.
(b) Description of records sought. (1) A request should contain a specific reference to the CIGIE system of records from which access to the records is sought. Notices of CIGIE systems of records subject to the Privacy Act are published in the
(2) If the written inquiry does not refer to a specific system of records, it must describe the records that are sought in enough detail to enable CIGIE personnel to locate the system of records containing them with a reasonable amount of effort.
(3) The request should state whether the requester wants a copy of the record or wants to examine the record in person.
(c) Verification of identity. A requester seeking access to records pertaining to the requester must verify their identity in their request. The request must state the requester’s full name, current address, and date and place of birth. The requester must sign the request and the signature must either be notarized or state, “Under penalty of perjury, I hereby declare that I am the person named above and I understand that any falsification of this statement is punishable under the provisions of Title 18, United States Code (U.S.C.), Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years, or both; and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of Title 5, U.S.C., Section 552a(i)(3) as a misdemeanor and by a fine of not more than $5,000.” In order to help the identification and location of requested records, the requester may optionally include their social security number. No identification shall be required if the records are required by 5 U.S.C. 552 to be released.
(d) Verification of guardianship. When making a request as the parent or guardian of a minor or as the guardian of someone determined by a court to be incompetent for access to records about that individual, the requester must establish:
(1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at the requester’s option, the social security number of the individual;
(2) The requester’s identity, as required in paragraph (c) of this section;
(3) That the requester is the parent or guardian of that individual, which may be established by providing a copy of the individual’s birth certificate showing the requester’s parentage or by providing a court order establishing the requester’s guardianship; and
(4) That the requester is acting on behalf of that individual in making the request.
§ 9801.202 Response to requests.
A request for access will ordinarily be responded to within 10 days, except when CIGIE determines otherwise, in which case the request will be acknowledged within 10 days and the requester will be informed of the reasons for the delay and an estimated date by which a response will be issued. A response to a request for access should include the following:
(a) A statement that there is a record or records as requested or a statement that there is not a record in the system of records;
(b) The method of access (if a copy of all the records requested is not provided with the response);
(c) The amount of any fees to be charged for copies of records under § 9801.207, if applicable;
(d) The name and title of the official responsible for the response; and
(e) If the request is denied in whole or in part, or no record is found in the system, a statement of the reasons for the denial, or a statement that no record has been found, and notice of the procedures for appealing the denial or no record finding.
§ 9801.203 Granting access.
(a) Means of access. (1) The methods for allowing access to records, when such access has been granted by CIGIE, are:
(i) Examination in person in a designated office during the hours specified by CIGIE; or
(ii) Providing copies of the records.
(2) When a requester has not indicated whether he wants a copy of the record or wants to examine the record in person, CIGIE may choose the means of granting access. However, the means chosen should not unduly impede the requester’s right of access. A requester may elect to receive a copy of the records after having examined them.
(b) Accompanying individual. If the requester is granted in person access to examine the records, the requester may be accompanied by another individual of the requester’s choice during the course of the examination of the records. CIGIE may require the requester to submit a signed statement authorizing the accompanying individual’s access to the records.
(c) Certified copies. CIGIE will not furnish certified copies of records. When copies are to be furnished, they may be provided as determined by CIGIE.
(d) Original records. When the requester seeks to obtain original documentation, CIGIE reserves the right to limit the request to copies of the original records.
§ 9801.204 Special procedures: Medical records.
In the event CIGIE receives a request pursuant to § 9801.201 for access to medical records (including psychological records) whose disclosure CIGIE determines would be harmful to the individual to whom they relate, it may refuse to disclose the records directly to the requester but shall transmit them to a physician designated by the requester.
§ 9801.205 Appeals from denials of requests for access to records.
(a) How addressed. A requester may submit a written appeal of the decision by CIGIE to deny an initial request for access to records or a no record response to the Chairperson, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006. The words “Privacy Act Appeal” should be included on the envelope and at the top of the letter of appeal.
(b) Deadline and content. The appeal must be received by CIGIE within 60 days of the date of the letter denying the access request or reflecting the no record finding and should contain a brief description of the records involved or copies of the relevant correspondence from CIGIE. The appeal should attempt to refute the reasons given by CIGIE in support of its decision to deny the initial request for access or no record finding.
§ 9801.206 Response to appeal of a denial of access.
(a) Access granted. If the Chairperson or the Chairperson’s designee determines that access to the records should be granted, the response will state how access will be provided if the records are not included with the response.
(b) Denial affirmed. Any decision that either partially or fully affirms the initial decision to deny access or no record finding shall inform the requester of the right to seek judicial review of the decision in accordance with the Privacy Act (5 U.S.C. 552a(g)).
(c) When appeal is required. If a requester wishes to seek review by a court of any adverse determination or denial of a request, the requester must first appeal it under § 9801.205.
§ 9801.207 Fees.
(a) No fees for most services. Services for which fees will not be charged:
(1) The search and review time expended by CIGIE to produce a record;
(2) The first copy of the records provided; and
(3) CIGIE making the records available to be personally reviewed by the requester.
(b) Fees for additional copies. When a requester requests additional copies of records, CIGIE will assess the requester a fee of $.20 per page. CIGIE will bill requester in arrears for such fees, except as follows:
(1) If the total fee for additional copies amounts to more than $25.00, the requester will be notified of the fee amount. Except as specified in paragraph (b)(2) of this section, upon requester’s written agreement to pay the assessed fees, CIGIE will provide the additional copies without prepayment of such fees (i.e., payment will be accepted in arrears).
(2) An advance payment before additional copies of the records are made will be required if:
(i) CIGIE determines that the total fee to be assessed under this section exceeds $250.00. When such a determination is made, the requester will be notified of the determination and will be required to submit an advance payment of an amount up to the total fee. The amount of the advanced payment will be at the sole discretion of CIGIE and will be based, in part, on whether requester has a history of prompt payment of Privacy Act fees. If the required advanced payment is an amount less than the total fee, requester will be required to submit a written agreement to pay any fees not paid in advance; or
(ii) The requester has previously failed to pay a previously assessed Privacy Act fee in a timely fashion (i.e., within 30 days of the date of the billing). In such cases, the requester will be required to pay the full amount outstanding plus any applicable interest as provided by paragraph (c) of this section and to make an advance payment of the full amount of the determined fee before CIGIE begins to process a new request for additional copies.
(c) Interest charges. For additional copies provided to requester that result in fees assessed, CIGIE will begin levying interest charges on an unpaid balance starting on the 31st day following the day on which the billing was sent. Interest will be assessed at the rate prescribed under 31 U.S.C. 3717 and will accrue from the date of the billing.
(d) Payment address. Payment of fees should be made by either a personal check, bank draft or a money order that is payable to the Department of the Treasury of the United States and mailed or delivered to: Privacy Officer, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006.
§ 9801.208 Requests for accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures are not required to be kept (as stated in paragraph (b) of this section), a requester may request an accounting of any disclosure that has been made by CIGIE to another person, organization, or agency of any record about the requester. This accounting contains the date, nature, and purpose of each disclosure, as well as the name and address of the person, organization, or agency to which the disclosure was made. A requester seeking an accounting of record disclosures must follow the procedures set forth for access to records in § 9801.201(a), (b)(1) and (2), (c), and (d).
(b) Where accountings are not required. CIGIE is not required to provide accountings to requesters where they relate to:
(1) Disclosures for which accountings are not required to be kept, including disclosures that are made to officers and employees of CIGIE and disclosures that are made under the FOIA. For purposes of this part, officers and employees of CIGIE includes, in part, CIGIE’s membership, as addressed in section 11 of the Inspector General Act, when such members are acting in their capacity as CIGIE members;
(2) Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from those law enforcement agencies specifying the law enforcement activities for which the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that have been exempted from accounting requirements.
Subpart C—Amendment of Records
§ 9801.301 Requests for amendment of record.
(a) How addressed. A requester seeking to amend a record or records pertaining to requester in a CIGIE system of records should submit a written request that includes the words “Privacy Act Amendment Request” on both the envelope and at the top of the request letter to the Executive Director, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006. Records not subject to the Privacy Act will not be amended in accordance with these provisions.
(b) Contents of request. A request to amend a record in a CIGIE system of records must include:
(1) The name of the system of records and a brief description of the record proposed for amendment. In the event the request to amend the record is the result of the requester having gained access to the record in accordance with the provisions concerning access to records as set forth in subpart B of this part, copies of previous correspondence between the requester and CIGIE will serve in lieu of a separate description of the record.
(2) The exact portion of the record the requester seeks to have amended should be indicated clearly. If possible, proposed alternative language should be set forth, or, at a minimum, the reasons why the requester believes the record is not accurate, relevant, timely, or complete should be set forth with enough particularity to permit CIGIE to not only understand the requester’s basis for the request, but also to make an appropriate amendment to the record.
(c) Burden of proof. The requester has the burden of proof when seeking the amendment of a record. The requester must furnish sufficient facts to persuade the appropriate system manager of the inaccuracy, irrelevance, untimeliness, or incompleteness of the record.
(d) Identification requirement. When the requester’s identity has been previously verified pursuant to § 9801.201, further verification of identity is not required as long as the communication does not suggest a need for verification. If the requester’s identity has not been previously verified, the appropriate system manager may require identification validation as described in § 9801.201.
§ 9801.302 Response to requests.
(a) Time limit for acknowledging a request for amendment. To the extent possible, CIGIE will acknowledge receipt of a request to amend a record or records within 10 working days.
(b) Determination on an amendment request. The decision of CIGIE in response to a request for amendment of a record in a system of records may grant in whole or deny any part of the request to amend the record.
(1) If CIGIE grants the request, the appropriate system manager will amend the record(s) and provide a copy of the amended record(s) to the requester. To the extent an accounting of disclosure has been maintained, the system manager shall advise all previous recipients of the record that an amendment has been made and give the substance of the amendment. Where practicable, the system manager shall send a copy of the amended record to previous recipients.
(2) If CIGIE denies the request in whole or in part, the reasons for the denial will be stated in the response letter. In addition, the response letter will state:
(i) The name and address of the official with whom an appeal of the denial may be lodged; and
(ii) A description of any other procedures which may be required of the requester in order to process the appeal.
§ 9801.303 Appeal from adverse determination on amendment.
(a) How addressed. A requester may submit a written appeal of the decision by CIGIE to deny an initial request to amend a record in a CIGIE system of records to the Chairperson, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006. The words “Privacy Act Appeal” should be included on the envelope and at the top of the letter of appeal.
(b) Deadline and content. The appeal must be received by CIGIE within 60 days of the date of the letter denying the request and should contain a brief description of the record(s) involved or copies of the correspondence from CIGIE and the reasons why the requester believes that the disputed information should be amended.
§ 9801.304 Response to appeal of adverse determination on amendment; disagreement statements.
(a) Response timing. The Chairperson should make a final determination in writing not later than 30 days from the date the appeal was received. The 30-day period may be extended for good cause. Notice of the extension and the reasons therefor will be sent to the requester within the 30-day period.
(b) Amendment granted. If the Chairperson determines that the record(s) should be amended in accordance with the requester’s request, the Chairperson will take the necessary steps to advise the requester and to direct the appropriate system manager:
(1) To amend the record(s); and
(2) To notify previous recipients of the record(s) for which there is an accounting of disclosure that the record(s) have been amended.
(c) Denial affirmed. If the appeal decision does not grant in full the request for amendment, the decision letter will notify the requester that the requester may:
(1) Obtain judicial review of the decision in accordance with the terms of the Privacy Act at 5 U.S.C. 552a(g); and
(2) File a statement setting forth their reasons for disagreeing with the decision.
(d) Requester’s disagreement statement. A requester’s disagreement statement must be concise. CIGIE has the authority to determine the “conciseness” of the statement, taking into account the scope of the disagreement and the complexity of the issues.
(e) Provision of requester’s disagreement statement. In any disclosure of information about which an individual has filed a proper statement of disagreement, CIGIE will clearly note any disputed portion(s) of the record(s) and will provide a copy of the statement to persons or other agencies to whom the disputed record or records has been disclosed and for whom an accounting of disclosure has been maintained. A concise statement of the reasons for not making the amendments requested may also be provided.
§ 9801.305 Assistance in preparing request to amend a record or to appeal an initial adverse determination.
Requesters may seek assistance in preparing a request to amend a record or an appeal of an initial adverse determination, or to learn further of the provisions for judicial review, by contacting CIGIE’s Privacy Officer by email at [email protected] or by mail at Privacy Officer, Council of the Inspectors General on Integrity and Efficiency, 1717 H Street NW., Suite 825, Washington, DC 20006.
Subpart D—Exemptions
§ 9801.401 Exemptions.
(a) General policy. Systems of records maintained by CIGIE are authorized to be exempted from certain provisions of the Privacy Act under the general and specific exemptions set forth in the Privacy Act. In utilizing these exemptions, CIGIE is exempting only those portions of systems that are necessary for the proper functioning of CIGIE and that are consistent with the Privacy Act. Where compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, e.g., public source materials, the applicable exemption may be waived, either partially or totally, by CIGIE, at the sole discretion of CIGIE, as appropriate.
(b) Specific system of records exempted under (j)(2), (k)(1), and (k)(2). The system of records maintained in connection with CIGIE’s Integrity Committee, the Integrity Committee Management System (CIGIE-04), is subject to general exemption under 5 U.S.C. 552a(j)(2) and the specific exemptions under 5 U.S.C. 552a(k)(1) and (2). These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2). Where compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, e.g., public source materials, the applicable exemption may be waived, either partially or totally, by CIGIE, at the sole discretion of CIGIE, as appropriate.
(1) Pursuant to the provisions of 5 U.S.C. 552a(j)(2), CIGIE-04 is exempt from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G)-(H), (e)(5), and (e)(8); (f); and (g).
(2) Pursuant to the provisions of 5 U.S.C. 552a(k)(1) and (2), CIGIE-04 is exempt from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1) and (e)(4)(G)-(H); and (f).
(3) Exemptions from the particular subsections are justified for the following reasons:
(i) From subsection (c)(3) because release of disclosure accounting could alert the subjects of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and the fact that they are subjects of the investigation, and reveal investigative interest by not only CIGIE, through the IC, but also by external agencies such as the Public Integrity Section of the Department of Justice. Because release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation, release could result in the destruction of documentary evidence, improper influencing of witnesses, and other activities that could impede or compromise the investigation. In addition, accounting for each disclosure could result in the release of properly classified information which would compromise the national defense or disrupt foreign policy.
(ii) From subsection (c)(4) because this system is exempt from the access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act.
(iii) From the access and amendment provisions of subsection (d) because access to the records contained in this system of records could inform the subjects of an investigation of an actual or potential criminal, civil, or regulatory violation of the existence of that investigation and of the nature and scope of the information and evidence obtained as to their activities. Such awareness by the subjects could prevent the successful completion of an investigation and/or lead to the improper influencing of witnesses, the destruction of evidence, or fabricated testimony. In addition, granting access to such information could disclose security-sensitive or confidential business information or information that would constitute an unwarranted invasion of the personal privacy of third parties. Finally, access to the records could result in the release of classified information which would compromise the national defense or disrupt foreign policy. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated.
(iv) From subsection (e)(1) because the application of this provision could impair investigations and interfere with the law enforcement responsibilities of CIGIE through the IC for the following reasons:
(A) It is not possible to detect relevance or necessity of specific information in the early stages of a civil, criminal, or other law enforcement investigation, case, or matter, including investigations in which use is made of classified information. Relevance and necessity are questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established.
(B) During the course of any investigation, CIGIE, through the IC, may obtain information concerning actual or potential violations of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, CIGIE should retain this information, as it may aid in establishing patterns of criminal activity and can provide valuable leads for Federal and other law enforcement agencies.
(C) In interviewing individuals or obtaining other forms of evidence during an investigation, information may be supplied to an investigator that relates to matters incidental to the primary purpose of the investigation but which may relate also to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated.
(v) From subsection (e)(2) because, in some instances, the application of this provision would present a serious impediment to law enforcement for the following reasons:
(A) The subjects of an investigation would be placed on notice as to the existence of an investigation and would therefore be able to avoid detection or apprehension, to improperly influence witnesses, to destroy evidence, or to fabricate testimony.
(B) In certain circumstances the subjects of an investigation cannot be required to provide information to investigators, and information relating to their illegal acts, violations of rules of conduct, or any other misconduct must be obtained from other sources.
(C) In any investigation it is necessary to obtain evidence from a variety of sources other than the subjects of the investigation.
(vi) From subsection (e)(3) because the application of this provision would provide the subjects of an investigation with substantial information which could impede or compromise the investigation.
(vii) From subsection (e)(4)(G)-(I) because this system of records is exempt from the access provisions of subsection (d).
(viii) From subsection (e)(5) because the application of this provision may prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment it is collected. In the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Material which may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as an investigation progresses. The restrictions of this provision could interfere with the preparation of a complete investigative report, and thereby impede effective law enforcement.
(ix) From subsection (e)(8) because the application of this provision could prematurely reveal an ongoing criminal investigation to the subjects of an investigation and could reveal investigative techniques, procedures, or evidence.
(x) From subsection (f) because CIGIE’s rules are inapplicable to those portions of the system that are exempt and would place the burden on CIGIE of either confirming or denying the existence of a record pertaining to a requesting individual, which might in itself provide an answer to that individual relating to an ongoing investigation. The conduct of a successful investigation leading to the indictment of a criminal offender precludes the applicability of established agency rules relating to verification of record, disclosure of the record to that individual, and record amendment procedures for this record system.
(xi) From subsection (g) to the extent that this system is exempt from the access and amendment provisions of subsection (d) pursuant to subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
(c) Specific system of records exempted under (j)(2), (k)(1), and (k)(2). The system of records maintained in connection with PRAC Accountability Data System (CIGIE-6), is subject to general exemption under 5 U.S.C. 552a(j)(2) and the specific exemptions under 5 U.S.C. 552a(k)(1) and (2). These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and (k)(2). Where compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, e.g., public source materials, the applicable exemption may be waived, either partially or totally, by CIGIE, at the sole discretion of CIGIE, as appropriate.
(1) Pursuant to the provisions of 5 U.S.C. 552a(j)(2), CIGIE-6 is exempt from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G)-(H), (e)(5), and (e)(8); (f); and (g).
(2) Pursuant to the provisions of 5 U.S.C. 552a(k)(1) and (2), CIGIE-6 is exempt from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1) and (e)(4)(G)-(H); and (f).
(3) Exemptions from the particular subsections are justified for the following reasons:
(i) From subsection (c)(3) because release of disclosure accounting could alert the subjects of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and the fact that they are subjects of the investigation, and reveal investigative interest by not only CIGIE, through the PRAC, but also by external agencies such as Federal Offices of Inspector General. Because release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation, release could result in the destruction of documentary evidence, improper influencing of witnesses, and other activities that could impede or compromise the investigation. In addition, accounting for each disclosure could result in the release of properly classified information which would compromise the national defense or disrupt foreign policy.
(ii) From subsection (c)(4) because this system is exempt from the access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act.
(iii) From the access and amendment provisions of subsection (d) because access to the records contained in this system of records could inform the subjects of an investigation of an actual or potential criminal, civil, or regulatory violation of the existence of that investigation and of the nature and scope of the information and evidence obtained as to their activities. Such awareness by the subjects could prevent the successful completion of an investigation and/or lead to the improper influencing of witnesses, the destruction of evidence, or fabricated testimony. In addition, granting access to such information could disclose security-sensitive or confidential business information or information that would constitute an unwarranted invasion of the personal privacy of third parties. Finally, access to the records could result in the release of classified information which would compromise the national defense or disrupt foreign policy. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated.
(iv) From subsection (e)(1) because the application of this provision could impair investigations and interfere with the law enforcement responsibilities of CIGIE through the PRAC for the following reasons:
(A) It is not possible to detect relevance or necessity of specific information in the early stages of a civil, criminal, or other law enforcement investigation, case, or matter, including investigations in which use is made of classified information. Relevance and necessity are questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established.
(B) During the course of any investigation, CIGIE, through the PRAC may obtain information concerning actual or potential violations of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, the PRAC should retain this information, as it may aid in establishing patterns of criminal activity and can provide valuable leads for Federal and other law enforcement agencies.
(C) In interviewing individuals or obtaining other forms of evidence during an investigation, information may be supplied to an investigator that relates to matters incidental to the primary purpose of the investigation but which may relate also to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated.
(v) From subsection (e)(2) because, in some instances, the application of this provision would present a serious impediment to law enforcement for the following reasons:
(A) The subjects of an investigation would be placed on notice as to the existence of an investigation and would therefore be able to avoid detection or apprehension, to improperly influence witnesses, to destroy evidence, or to fabricate testimony.
(B) In certain circumstances the subjects of an investigation cannot be required to provide information to investigators, and information relating to their illegal acts, violations of rules of conduct, or any other misconduct must be obtained from other sources.
(C) In any investigation it is necessary to obtain evidence from a variety of sources other than the subjects of the investigation.
(vi) From subsection (e)(3) because the application of this provision would provide the subjects of an investigation with substantial information which could impede or compromise the investigation.
(vii) From subsection (e)(4)(G)-(I) because this system of records is exempt from the access provisions of subsection (d).
(viii) From subsection (e)(5) because the application of this provision may prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment it is collected. In the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Material which may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as an investigation progresses. The restrictions of this provision could interfere with the preparation of a complete investigative report, and thereby impede effective law enforcement.
(ix) From subsection (e)(8) because the application of this provision could prematurely reveal an ongoing criminal investigation to the subjects of an investigation and could reveal investigative techniques, procedures, or evidence.
(x) From subsection (f) because CIGIE’s rules are inapplicable to those portions of the system that are exempt and would place the burden on CIGIE of either confirming or denying the existence of a record pertaining to a requesting individual, which might in itself provide an answer to that individual relating to an ongoing investigation. The conduct of a successful investigation leading to the indictment of a criminal offender precludes the applicability of established agency rules relating to verification of record, disclosure of the record to that individual, and record amendment procedures for this record system.
(xi) From subsection (g) to the extent that this system is exempt from the access and amendment provisions of subsection (d) pursuant to subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
PARTS 9802-9899 [RESERVED]
CHAPTER XCIX—MILITARY COMPENSATION AND RETIREMENT MODERNIZATION COMMISSION
PART 9901—DISCLOSURE OF RECORDS AND INFORMATION
Freedom of Information Act
§ 9901.1 Authority, purpose, and scope.
(a) Authority. This information is furnished for the guidance of the public and in compliance with the requirements of the Freedom of Information Act (FOIA), 5 U.S.C. 552. This subpart should be read in conjunction with FOIA.
(b) Purpose. (1) The National Defense Authorization Act for Fiscal Year 2013, Public Law 112-239, Subtitle H, 126 Stat. 1632, 1787 (2013) (amended by National Defense Authorization Act for Fiscal Year 2014, Pub. L. 113-66, Sec. 1095, 127 Stat. 672, 878 (2013)), established the Military Compensation and Retirement Modernization Commission (MCRMC). MCRMC’s purpose, pursuant to its enabling statute, is to conduct a review of the military compensation and retirement systems and to make recommendations to modernize those systems to:
(i) Ensure the long-term viability of the All-Volunteer Force by sustaining the required human resources of that force during all levels of conflict and economic conditions;
(ii) Enable the quality of life for members of the Armed Forces and the other uniformed services and their families in a manner that fosters successful recruitment, retention, and careers for members of the Armed Forces and the other uniformed services; and
(iii) Modernize and achieve fiscal sustainability for the compensation and retirement systems for the Armed Forces and the other uniformed services for the 21st century.
(2) The Commission will make its recommendations only after it examines all laws, policies and practices of the Federal Government that result in any direct payment of authorized or appropriated funds to current and former members (veteran and retired) of the uniformed services, including the reserve components of those services, and the spouses, family members, children, survivors, and other persons authorized to receive such payments as a result of their connection to Service members.
(c) Agency. MCRMC is an independent establishment of the Federal government as defined by Sections 104 and 105 of Title 5 of the U.S. Code, and a temporary organization under section 3161 of such title. The Commission is composed of nine members, appointed by the President and Congressional leadership. Members of this Commission are deemed to be Federal employees. MCRMC maintains its headquarters in Arlington, Virginia.
(d) Records on individuals. MCRMC does not maintain any of its own systems of records on individuals. Pursuant to a Memorandum of Understanding between the Department of Defense, Director of Administration & Management and MCRMC, the Department of Defense, Washington Headquarters Services is responsible for MCRMC personnel records management including compliance with the Privacy Act.
§ 9901.2 Proactive disclosure of records.
(a) Proactive disclosure. Subject to the application of FOIA exemptions, 5 U.S.C. 552(b), records that are required by FOIA to be made available for public inspection and copying and records identified by the agency as records of interest to the public, including Commission hearing schedules, testimony, minutes, press releases, and documents provided to the Commission, are available on the MCRMC Web site at http://www.mcrmc.gov.
(b) Final report. The Commission’s final report will be available on its Web site.
(c) Released records. The Commission will post records released in response to FOIA requests on its Web site.
§ 9901.3 Requests for records.
(a) Generally. Many documents are available on the MCRMC Web site and MCRMC encourages requesters to visit the Web site before making a request for records pursuant to this subpart. MCRMC will provide records to individual requesters in response to FOIA requests for records not available on its Web site.
(b) Electronic or written requests required. For records not available on the Web site, requesters wishing to obtain information from MCRMC should submit a request on the MCRMC Web site. If a computer is not available to the requester, a written request may be made to the MCRMC FOIA Officer. Such requests should be addressed to: FOIA Officer, Military Compensation and Retirement Modernization Commission, Post Office Box 13170, Arlington, VA 22209. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 697-8330 or email to [email protected]. MCRMC will communicate with the requester by email unless he or she specifies otherwise.
(c) Contents of request. Requests must include the following:
(1) A statement that the request is being made under FOIA, the requester’s full name and address, a telephone number at which the requester can be reached during normal business hours, and an email address for the requester, if the requester has one;
(2) A description of the records sought in enough detail to allow the records to be located with a reasonable amount of effort. The request must identify/describe the records sought and include information such as date, title or name, author, recipient, and subject matter of the records sought, where possible;
(3) If submitting the request as an educational institution, a non-commercial scientific institution, or a representative of the news media, the request must specifically identify the organization on which the status is based, and if a free-lance representative of the news media, the requester should submit a history of past publications and/or demonstrate a solid basis for expecting publication through a news-media entity;
(4) A fee waiver, if applicable; and
(5) If the request is made by mail, the words “FOIA REQUEST” or “REQUEST FOR RECORDS” must be clearly marked on the cover letter, letter, and envelope.
(d) Perfected requests. MCRMC will process only perfected requests. A perfected request must meet all of the requirements of this subpart.
§ 9901.4 Timing.
(a) Acknowledgment of request. MCRMC will provide an acknowledgment notice with an individualized tracking number and a summary of the records requested to each requester within 10 working days after receiving a request.
(b) Response time. Every effort will be made to respond to the request within 20 days (excluding Saturdays, Sundays, and legal public holidays) of receiving the request.
(c) Appeal. MCRMC will make a decision with respect to an appeal of a denial of a request for records within 20 days (excluding Saturdays, Sundays, and legal public holidays) after receipt of the appeal.
(d) Clarification/Additional information. If a request for records does not reasonably describe the records sought, MCRMC will contact the requester to seek additional information. Requesters may discuss their request with the MCRMC FOIA Public Liaison and modify the request. The MCRMC FOIA Public Liaison may be reached via telephone at (703) 692-2080 or by U.S. Mail at FOIA Public Liaison, Military Compensation and Retirement Modernization Commission, Post Office Box 13170, Arlington, VA 22209. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 697-8330 or email to [email protected]. MCRMC may make one request for clarification/additional information to the requester for information and suspend the 20-day period while awaiting such information. When a requester fails to clarify by providing additional information, MCRMC will notify the requester that the request has not been properly made and that no further action will be taken on the request. The requester may appeal such a decision under the procedures set forth in subpart 9901.7.
(e) Expedited processing. A request for expedited processing must accompany the initial request for records. It must be a written statement of compelling need for expedited processing, stating that the facts are true and correct to the best of the requester’s knowledge and belief. In determining whether processing should be expedited, the FOIA Officer may consider whether:
(1) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to a person’s life or physical safety; or
(2) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about actual or alleged Federal government activity.
(f) Extension for unusual circumstances. If MCRMC determines that unusual circumstances exist, the time limits described in paragraphs (b) and (c) of this subpart may be extended by no more than 10 days (excluding Saturdays, Sunday, and legal public holidays) by providing written notice of the extension to the requester. The time limit may be extended if the request cannot be processed within the time limits of this subpart due to the need to search, collect, and examine a voluminous amount of records, coordinate, or consult with another agency. The requester will be given an opportunity to limit the scope of the request or to arrange with MCRMC an alternative time frame for processing the request. The FOIA Officer shall include with the notice of extension a brief statement of the reason for the extension and the date the FOIA Officer expects to make a determination.
§ 9901.5 Response to requests.
(a) Authority to grant or deny requests. The MCRMC FOIA Officer is authorized to grant or deny any request for MCRMC records.
(b) Grant of request. If the MCRMC FOIA Officer grants a request, in full or in part, the FOIA Officer shall promptly provide the requester written notice of the decision. The requester will be notified whether the request has been assigned to the Standard or Complex track, pursuant to paragraph (d) of subpart 9901.6.
(c) Request denial. If the FOIA Officer denies a fee waiver request or finds there are no responsive records subject to FOIA, the FOIA Officer will notify the requester of that fact. If the FOIA Officer denies the request, in full or part, the FOIA Officer will provide the requester written notice of the denial, which will include a description of the material withheld, the FOIA exemption under which the information was withheld, and the approximate number of pages of information withheld. When a portion of a record is withheld, the amount of information redacted and the claimed exemption will be noted at the place in the record where the redaction was made. The notice will also describe the procedure for filing an appeal.
(d) Referral of records. When a responsive record that originated in another agency is located, the responsive record will be referred to its originating agency for response.
(e) Referral of request. The requester will be notified when all or part of a request is referred to another agency and will be given contact information for the FOIA office of the agency to which the request and responsive record were referred.
§ 9901.6 Production of records.
(a) Generally. MCRMC will apply a presumption of openness when processing FOIA requests and will only withhold exempt information if it reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions or if disclosure is prohibited by law. Before withholding information, MCRMC will conduct a foreseeable harm analysis, which clearly identifies the harm that would occur with disclosure.
(b) Large requests. If a request involves a voluminous amount of material or searches in multiple locations, MCRMC will provide the requester with interim responses, releasing the information on a rolling basis.
(c) Copies. MCRMC will maintain copies of records that have been the subject of any pending or closed request, appeal, or lawsuit under the FOIA, to include all correspondence pertaining to the subject request, until disposition is authorized under the National Archives and Records Administration’s General Records Schedule 14.
(d) Multi-Track processing. (1) MCRMC uses a multi-track system to process FOIA requests. This means that a FOIA request is processed based on its complexity. When MCRMC receives a request it will be assigned to the Standard or Complex track.
(i) Standard Track. Requests that are routine and require little search time, review, or analysis are assigned to the Standard Track. MCRMC will respond to these requests in the order in which they are received and make every effort to respond no later than 20 working days after receipt of the request.
(ii) Complex Track. Requests that are non-routine are assigned to the Complex Track if the response may:
(A) Be voluminous;
(B) Require an unusually high level of effort for search, review, or duplication; or
(C) Cause an undue disruption to the day-to-day activities of MCRMC in carrying out its statutory responsibilities.
(2) The requester will be notified if the request is assigned to the Complex Track and will be given an estimate of the time for response. MCRMC will respond to Complex Track requests as soon as practicable. MCRMC may discuss with the requester the possibility of reformulating the request to reduce processing time.
§ 9901.7 Appeals.
(a) Initiating appeals. Requesters not satisfied with the FOIA Officer’s decision may request review of the decision by the MCRMC FOIA Appellate Authority. The appeal must be received within 60 days of the date of the FOIA Officer’s decision. Appeals may be made through the MCRMC Web site at the FOIA tab or in writing, addressed to: FOIA Appellate Authority, Military Compensation and Retirement Modernization Commission, Post Office Box 13170, Arlington, VA 22209. As there may be delays in mail delivery, it is advisable to send the request via facsimile to (703) 697-8330 or email to [email protected]. The requester may wish to explain why the Appellate Authority should grant the appeal, to the extent that an explanation could assist the Appellate Authority in making a decision on the appeal.
(b) Appeal decisions. MCRMC’s Chief FOIA Officer will decide the appeal within 20 days (except Saturdays, Sundays, and legal public holidays) from the date it receives the appeal. If the appeal is denied, MCRMC will notify the requester in writing of the decision and the provisions for judicial review. If the appeal is granted, the Chief FOIA Officer will notify the requester in writing.
(c) Mediation. A response to an appeal will advise the requester of the 2007 FOIA amendments, which created the Office of Government Information Services (OGIS), which offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. A requester may contact OGIS at: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740; email: [email protected]; telephone: (202) 741-5770; facsimile: (202) 741-5769; toll free telephone: (877) 684-6448.
§ 9901.8 Fees.
(a) Generally. MCRMC may charge reasonable fees that recoup the allowable direct costs incurred in responding to FOIA requests. MCRMC may assess charges for time spent searching for records even if MCRMC is unable to locate the records or if the records are located and determined to be exempt from disclosure.
(1) Timing. MCRMC may toll the response time limit while awaiting information from the requester regarding fee assessment. Time limits resume upon MCRMC’s receipt of a response from the requester.
(b) Definitions. For purposes of this subpart:
(1) All other request means a request from or on behalf of a person who does not qualify as a commercial use requester, an educational institution requester, a non-commercial scientific institution requester, or a representative of the news media requester.
(2) Commercial use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the requester’s or other person’s commercial, trade, or profit interests.
(3) Direct costs means those costs incurred searching for and duplicating (and, in the case of commercial use requests, reviewing) documents in response to a FOIA request. Direct costs include, for example, salaries of employees who perform the work and costs of conducting large-scale computer searches. Direct costs do not include, for example, overhead expenses such as the costs of space, and of heating or lighting a facility.
(4) Duplication means to copy records in response to a FOIA request. Copies can take the form of paper, audio-visual materials, or electronic records, among others.
(5) Educational institution is any school that operates a program of scholarly research. Records requested with the intention of fulfilling credit requirements or completion of individual research goals do not qualify as a request by an educational institution.
(6) Non-commercial scientific institution means an institution that is not operated on a commercial basis and operates solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(7) Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an audience.
(8) Review means to examine a record to determine whether any portion of the record may be withheld, and to process a record for disclosure.
(9) Search means to look for and retrieve records for a FOIA request, to include looking page-by-page or line-by-line to identify responsive material within individual records. Search includes time spent looking for records even if responsive records are not found.
(c) Reduction of fees. (1) MCRMC will not charge fees for any request where the fees would total less than $50.
(2) MCRMC will provide, except for commercial use requesters, without charge, the first 100 pages of duplication (or the cost equivalent for other media) and the first two hours of a search.
(3) MCRMC shall not assess search fees if the agency fails to comply with time limits set forth in subpart 9901.4 if no unusual circumstances, as defined in subpart 9901.4, apply to the processing of the request.
(d) Waiver of fees. MCRMC shall waive all or part of any fee provided for in this subpart where the FOIA Officer determines that disclosure of the 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 the records sought are not primarily in the commercial interest of the requester. Requests for a fee waiver must explain how the information requested contributes to the public interest. In determining whether a fee should be waived, the FOIA Officer shall consider whether the requester has demonstrated that:
(1) The subject matter of the request specifically concerns identifiable operations or activities of the Government;
(2) The information is already in the public domain;
(3) Disclosure is primarily in the commercial interest of the requester; and
(4) Disclosure of the information would significantly enhance the public’s understanding of the subject matter.
(e) Categories of requesters. Subject to the limitations of this subpart, MCRMC will assess fees for categories of requesters as follows:
(1) Commercial use requesters pay for search, review, and duplication.
(2) Educational institutions, noncommercial scientific institutions and representatives of the news media pay only for duplication (excluding charges for the first 100 pages or its cost equivalent).
(3) All other requesters pay for search (excluding the first two hours) and duplication (excluding charges for the first 100 pages or its cost equivalent).
(f) Charges. In responding to FOIA requests, MCRMC will charge the following fees unless a waiver or reduction of fees has been requested and granted under this subpart. The fee amounts provided below account for direct costs.
(1) Search and review. For each quarter hour spent by MCRMC searching for requested records, including electronic searches, or reviewing records, the fee will be $10.77.
(2) Duplication. Duplication fees will be charged to all requesters, subject to the restrictions of this subpart. MCRMC will honor a requester’s preference for receiving a record in a particular format where it is readily reproducible in that form or format. Where photocopies are supplied, MCRMC will provide one copy per request at a cost of five cents per page. For copies of records produced on tapes, disks, or other electronic media, MCRMC will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, MCRMC will charge the direct costs.
(3) Special charges. MCRMC shall recover the full cost of providing special services, such as sending records by an overnight delivery service, to the extent that MCRMC elects to provide them, as special services are not required by FOIA.
(4) Aggregating requests. When the FOIA Officer reasonably believes that a requester or a group of requesters acting in concert is/are attempting to divide a request into a series of requests for the purpose of avoiding fees, the FOIA Officer may aggregate those requests and charge fees accordingly.
(5) Advance payment. When a requester has previously failed to pay fees in a timely fashion or MCRMC has determined that the fee will exceed $250, MCRMC may require advance payment of fees.
(6) Remittances. Payment shall be made in the form of check or money order made payable to the Treasury of the United States. At the time the FOIA Officer notifies a requester of the applicable fees, the FOIA Officer shall inform the requester of where to send the payment.
PARTS 9902-9999 [RESERVED]
CHAPTER C—NATIONAL COUNCIL ON DISABILITY
PART 10000—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT
§ 10000.1 Purpose and scope.
The regulations in this part implement the provisions of the FOIA.
§ 10000.2 Definitions.
The following definitions apply to this part:
Chairperson means the Chairperson of the Council, as appointed by the President, or any person to whom the Council has delegated authority for the matter concerned.
Chief FOIA Officer means the senior official to whom the Council delegated responsibility for efficient and appropriate compliance with the FOIA, currently delegated to the General Counsel.
Commercial use request means a FOIA request from or on behalf of a requester that seeks information for a use or purpose that furthers their commercial, trade, or profit interests, including pursuit of those interests through litigation.
Confidential business information means trade secrets or confidential or privileged commercial or financial information submitted to the Council by a person that may be protected from disclosure under Exemption 4 of the FOIA.
Council means the National Council on Disability, established by the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-128) in 2014.
Direct costs are those expenses that an agency incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
Educational institution means a preschool, a public or private elementary or secondary school, an institution of undergraduate or graduate higher education, an institution of professional education, or an institution of vocational education, which operates a program or programs of scholarly research. A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research. To fall within this fee category, the request must serve the scholarly research goals of the institution rather than an individual research goal.
(1) Example 1. A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution.
(2) Example 2. A request from the same professor of geology seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.
(3) Example 3. A student who makes a request in furtherance of the completion of a course of instruction would be presumed to be carrying out an individual research goal, rather than a scholarly research goal of the institution and would not qualify as part of this fee category.
Fee waiver means the waiver or reduction of fees if a requester can demonstrate meeting the statutory standard that the 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.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended. The FOIA applies to requests for agency records.
FOIA Officer means the individual to whom the Council has delegated authority to carry out the Council’s day-to-day FOIA administration, currently delegated to the Council’s Attorney Advisor.
FOIA Public Liaison means the individual designated by the Chairperson to assist FOIA requesters with concerns about the Council’s processing of their FOIA request, including assistance in resolving disputes, currently delegated to the Council’s Attorney Advisor.
Non-commercial scientific institution means an organization operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any product or research, and not operated on a commercial basis.
Person includes an individual, partnership, corporation, association, or public or private organization other than an agency.
Record means any writing, drawing, map, recording, diskette, DVD, CD-ROM, tape, film, photograph, or other documentary material, regardless of medium, by which information is preserved, including documentary material stored electronically.
Redact means delete or mark over.
Representative of the news media is any person or entity organized and operated to publish or broadcast news to the public that actively 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. 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 shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, components shall also consider a requester’s past publication record in making this determination.
Requester category means one of the three categories defined by the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Fee Guidelines) in which requesters will be placed for the purpose of determining what if any fees for search, review, or duplication may be assessed. They are:
(1) Commercial requesters;
(2) Non-commercial scientific or educational institutions or representatives of the news media; and
(3) All other requesters.
Submitter means any person or entity from whom the Council obtains confidential or privileged business information, directly or indirectly.
Unusual circumstances exist when:
(1) The need to search for and collect the requested records from physically separate facilities;
(2) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request.
§ 10000.3 Availability of records.
Records that are required by the FOIA to be made available for public inspection and copying may be accessed through the Agency’s Web site at www.ncd.gov. The Council is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Council shall ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. The Council’s FOIA Public Liaison can assist individuals in locating records particular to a component.
§ 10000.4 Categories of exemptions.
(a) The FOIA does not require disclosure of matters that are:
(1) Specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are, in fact, properly classified under executive order;
(2) Related solely to the internal personnel rules and practices of the Council;
(3) Specifically exempted from disclosure by statute (other than the Government in the Sunshine Act, 5 U.S.C. 552b, as amended), provided that such statute:
(i)(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(ii) If enacted after October 28, 2009, specifically cites to Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3);
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters, which would not be available at law to a party other than an agency in litigation with the Council;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of a right to a fair trial or impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
§ 10000.5 Request for records.
(a) You may request copies of records under this part by email to [email protected] or in writing addressed to FOIA Officer, National Council on Disability, 1331 F Street NW., Suite 850, Washington, DC 20004.
(b) Your request shall reasonably describe the records sought with sufficient specificity, and when possible, include names, dates, and subject matter, in order to permit the FOIA Officer to locate the records with a reasonable amount of effort. If the FOIA Officer cannot locate responsive records based on your written description, you will be notified and advised that further identifying information is necessary before the request can be fulfilled. Although requests are considered either FOIA or Privacy Act requests, the Council processes requests for records in accordance with both laws so as to provide the greatest degree of lawful access while safeguarding an individual’s personal privacy.
(c) Your request should specify your preferred form or format (including electronic formats) for the records you seek. We will accommodate your request if the record is readily available in that form or format. When you do not specify the form or format of the response, we will provide responsive records in the form or format most convenient to us.
§ 10000.6 Responsibility for responding to requests.
(a) In general. The Council delegates authority to grant or deny FOIA requests in whole or in part to the Chief FOIA Officer. When conducting a search for responsive records, the FOIA Officer generally will search for records in existence on the date of the search. If another date is used, the FOIA Officer shall inform the requester of the date used.
(b) Responses. The Chief FOIA Officer will notify you of his or her determination to grant or deny your FOIA request in the time frame stated in § 10000.8. The Council will release reasonably segregable non-exempt information. For any adverse determination, including those regarding any disputed fee matter; a denial of a request for a fee waiver; or a determination to withhold a record, in whole or in part, that a record does not exist or cannot be located; or to deny a request for expedited processing; the notice shall include the following information:
(1) FOIA case number and date of the original request;
(2) The name(s) of any person responsible for the determination to deny the request in whole or in part;
(3) A brief statement of the reason(s) for the denial, including any FOIA exemption applied in denying the request. The Chief FOIA Officer will indicate, if technically feasible, the amount of information deleted and the exemption under which a deletion is made on the released portion of the record, unless including that indication would harm an interest protected by the exemption;
(4) An estimate of the volume of information withheld, if applicable. This estimate does not need to be provided if it is ascertainable based on redactions in partially disclosed records or if the disclosure of the estimate would harm an interest protected by an applicable FOIA exemption; and
(5) A statement of the right to seek dispute resolution services from NCD’s FOIA Public Liaison and the Office of Government Information Services.
(c) Consultation, referral, and coordination. When reviewing records located by the Council in response to a request, the Council shall determine whether another agency of the Federal Government or entity is better able to determine whether the record is exempt from disclosure under the FOIA and, if so, whether it should be released as a matter of discretion. As to any such record, the Council shall proceed in one of the following ways:
(1) Consultation. When records originated with the Council, but contain within them information of interest to another agency, the Council should typically consult with that other agency prior to making a release determination.
(2) Referral. (i) When the Council believes that a different agency is best able to determine whether to disclose the record, the Council typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to an agency that is subject to the FOIA. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the Council and the originating agency jointly agree that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever the Council refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if the Council responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if the Council locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Council should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the Council.
§ 10000.7 Administrative appeals.
(a) You may appeal an adverse determination related to your FOIA request, or the Council’s failure to respond to your FOIA request within the prescribed time limits, by email at [email protected], or write
(b) Your appeal must be in writing and must be postmarked or electronically received by the Executive Director within 90 days of the date of the letter denying your request, in whole or in part.
For the most expeditious handling, your appeal letter and envelope should be marked “Freedom of Information Act Appeal” and reference the request number.
(c) The Executive Director shall respond to all administrative appeals in writing and within the time frame stated in § 10000.8(d). If the decision affirms, in whole or in part, the Chief FOIA Officer’s determination, the letter shall contain a statement of the reasons for the affirmance, including any FOIA exemption(s) applied, and will inform you of the FOIA’s provisions for court review. If the Executive Director reverses or modifies the Chief FOIA Officer’s determination, in whole or in part, you will be notified in writing and your request will be reprocessed in accordance with that decision. The Council may work with Office of Government Information Services (OGIS) to resolve disputes between FOIA requestors and the Council. A requester may also seek dispute resolution services from NCD’s FOIA Public Liaison and OGIS. Facsimile is also available at 202-741-5769.
§ 10000.8 Timeframe for Council’s response to a FOIA request or administrative appeal.
(a) In general. The Council ordinarily shall respond to requests according to their order of receipt.
(b) Multi-track processing. (1) The Council may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request, including through limits based on the number of pages involved. If the Council does so, it shall advise requesters in its slower track(s) of the limits of its faster track(s).
(2) Using multitrack processing, the Council may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the Council’s faster track(s). In doing so, the Council will contact the requester by telephone, letter, or email, whichever is more efficient in each case.
(c) Initial decisions. The Council shall determine whether to comply with a FOIA request within 20 working days after our receipt of the request, unless the time frame for response is extended due to unusual circumstances as further described in paragraph (f) of this section. A request is received by the Council, for purposes of commencing the 20-day timeframe for its response, on the day it is properly received by the FOIA Officer. The request must meet all requirements described by these regulations and the FOIA before the 20-day timeframe commences.
(d) Administrative appeals. The Executive Director shall determine whether to affirm or overturn a decision subject to administrative appeal within 20 working days after receipt of the appeal, unless the time frame for response is extended in accordance with paragraph (e) of this section.
(e) Tolling timelines. We may toll the 20-day timeframe set forth in paragraph (c) or (d) of this section:
(1) One time to await information that we reasonably requested from you, as permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
(2) As necessary to clarify with you any fee-related issue.
(3) If we toll the time frame for response under paragraphs (e)(1) or (2) of this section, the tolling period ends upon our receipt of your response.
(f) Unusual circumstances. In the event of unusual circumstances, we may extend the time frame for response provided in paragraph (c) or (d) of this section by providing you with written notice of the unusual circumstances and the date on which a determination is expected to be made. Where the extension is for more than ten working days, we will provide you with an opportunity either to modify your request so that it may be processed within the statutorily-prescribed time limits or to arrange an alternative time period for processing your request or modified request.
(g) Aggregating requests. When we reasonably believe that multiple requests submitted by a requester, or by a group of requesters acting in concert, involving clearly related matters, can be viewed as a single request that involves unusual circumstances, we may aggregate the requests for the purposes of fees and processing activities.
(h) Expedited processing. You may request that the Council expedite processing of your FOIA request. To receive expedited processing, you must demonstrate a compelling need for such processing.
(1) For requests for expedited processing, a “compelling need” involves:
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) A request made by a person primarily engaged in disseminating information, with a time urgency to inform the public of actual or alleged federal government activity.
(2) Your request for expedited processing must be in writing and may be made at the time of the initial FOIA request or at any later time.
(3) Your request for expedited processing must include a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for requesting expedited processing. If you are a person primarily engaged in disseminating information, you must establish a particular urgency to inform the public about the federal government activity involved in the request.
(4) The Chief FOIA Officer will decide whether to grant or deny your request for expedited processing and notify the requester within ten calendar days of receipt. You will be notified in writing of the determination. Appeals of adverse decisions regarding expedited processing shall be processed expeditiously.
§ 10000.9 Business information.
(a) Designation of confidential business information. In the event a FOIA request is made for confidential business information previously submitted to the Government by a commercial entity or on behalf of it (hereinafter “submitter”), the regulations in this section apply. When submitting confidential business information, you must use a good-faith effort to designate, by use of appropriate markings, at the time of submission or at a reasonable time thereafter, any portions of your submission that you consider to be exempt from disclosure under FOIA Exemption 4, 5 U.S.C. 552(b)(4). Your designation will expire ten years after the date of submission unless you request, and provide justification for, a longer designation period.
(b) Notice to submitters. (1) Whenever you designate confidential business information as provided in paragraph (a) of this section, or the Council has reason to believe that your submission may contain confidential business information, we will provide you with prompt written notice of a FOIA request that seeks your business information. The notice shall:
(i) Give you an opportunity to object to disclosure of your information, in whole or in part;
(ii) Describe the business information requested or include copies of the requested records or record portions containing the information; and
(iii) Inform you of the time frame in which you must respond to the notice.
(2) In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(c) Opportunity to object to disclosure. The Council shall allow you a reasonable time to respond to the notice described in paragraph (b) of this section. If you object to the disclosure of your information, in whole or in part, you must provide us with a detailed written statement of your objection. The statement must specify all grounds for withholding any portion of the information under any FOIA exemption and, when relying on FOIA Exemption 4, it must explain why the information is a trade secret or commercial or financial information that is privileged and confidential. If you fail to respond within the time frame specified in the notice, the Council will conclude that you have no objection to disclosure of your information. The Council will only consider information that we receive within the time frame specified in the notice.
(d) Notice of intent to disclose. The Council will consider your objection and specific grounds for non-disclosure in deciding whether to disclose business information. Whenever the Council decides to disclose business information over your objection, we will provide you with written notice that includes:
(1) A statement of the reasons why each of your bases for withholding were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time after the notice.
(e) Exceptions to the notice requirement. The notice requirements of paragraphs (c) and
(d) of this section shall not apply if:
(1) The Council determines that the information is exempt under the FOIA;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600;
(4) The designation made by the submitter under paragraph (a) of this section appears obviously frivolous, except that, in such a case, the Council shall, within a reasonable time prior to the date the disclosure will be made, give the submitter written notice of the final decision to disclose the information.
(f) Requester notification. The Council shall notify a 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.
§ 10000.10 Fees.
(a) We will charge fees that recoup the full allowable direct costs we incur in processing your FOIA request. Fees may be charged for search, review or duplication. We will use the most efficient and least costly methods to comply with your request.
(b) With regard to manual searches for records, we will charge the salary rate(s) (calculated as the basic rate of pay plus 16 percent of that basic rate to cover benefits) of the employee(s) performing the search.
(c) In calculating charges for computer searches for records, we will charge at the actual direct cost of providing the service, including the cost of operating the central processing unit directly attributable to searching for records potentially responsive to your FOIA request and the portion of the salary of the operators/programmers performing the search.
(d) Review fees shall be charged for requesters who make commercial use requests. Review fees shall be assessed only for the initial review—that is the review undertaken the first time we analyze the applicability of a specific exemption 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. We may assess the costs for such subsequent review. Review fees are charged at the same rates as those charged for a search.
(e) Notice of anticipated fees in excess of $25.00:
(1) When the Council determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Council shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Council shall advise the requester accordingly. If the requester is a noncommercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication or equivalent at no charge. For example, 100 pages burned to a single CD would be considered equivalent to 100 pages of duplication. And, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester’s statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Council is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the Council estimates that the total fee will exceed that amount, the Council shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Council shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) The Council shall make available its FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester’s needs at a lower cost.
(f) We will charge you the full costs of providing you with the following services:
(1) Certifying that records are true copies; or
(2) Sending records by special methods such as express or certified mail.
(g) We may assess interest charges on an unpaid bill starting on the 31st calendar day following the day on which the billing was sent. Interest shall be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the billing.
(h) We will not charge a search fee for requests by educational institutions, non-commercial scientific institutions, or representatives of the news media. A search fee will be charged for a commercial use requests.
(i) Except for a commercial use request, we will not charge you for the first 100 pages of duplication and the first two hours of search.
(j) If the Council fails to comply with the time limits in which to respond to a request, and if no unusual or exceptional circumstances, as those terms are defined by the FOIA, apply to the processing of the request, it may not charge search fees, or, in the instances of requests from requesters requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media, may not charge duplication fees.
(k) After processing, actual fees must be equal to or exceed $25, for the Council to require payment of fees.
(l) You may not file multiple requests, each seeking portions of a document or documents, solely for the purpose of avoiding payment of fees. When the Council reasonably believes that a requester, or a group of requesters acting in concert, has submitted requests that constitute a single request involving clearly related matters, we may aggregate those requests and charge accordingly.
(m) We may not require you to make payment before we begin work to satisfy the request or to continue work on a request, unless:
(1) We estimate or determine that the allowable charges that you may be required to pay are likely to exceed $250; or
(2) You have previously failed to pay a fee charged within 30 days of the date of billing.
(n) Upon written request, we may waive or reduce fees that are otherwise chargeable under this part. If you request a waiver or reduction in fees, you must demonstrate that a waiver or reduction in fees is in the public interest because disclosure of the requested records is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in your commercial interest.
(1) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, the Council shall consider all four of the following factors:
(i) 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.
(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those 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 contribute to such understanding where nothing new would be added to the public’s understanding.
(iii) 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 shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public’s understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, components shall not make value judgments about whether the information at issue is “important” enough to be made public.
(2) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Council shall consider the following factors:
(i) The Council shall identify any commercial interest of the requester, as defined in § 10000.2, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. The Council ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component 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 10001—IMPLEMENTATION OF THE PRIVACY ACT OF 1974
§ 10001.1 Purpose and scope.
The regulations in this part implement the provisions of the Privacy Act.
§ 10001.2 Definitions.
The following terms used in this part are defined in the Privacy Act: Individual, maintain, record, routine use, statistical record, system of records. The following definitions also apply in this part:
Chairperson means the Chairperson of the Council, as appointed by the President, or any person to whom the Council has delegated authority for the matter concerned.
Council means the National Council on Disability, established by the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-128) in 2014.
General Counsel means the Council’s principal legal advisor, or his or her designee.
Privacy Act means the Privacy Act of 1974, 5 U.S.C. 552a, as amended.
Privacy Act Officer means the person designated by the Council to be responsible for the day-to-day administration of the Privacy Act, currently delegated to the Council’s Management Analyst.
§ 10001.3 Privacy Act requests.
(a) Requests to determine if you are the subject of a record. You may request that the Council inform you if we maintain a system of records that contains records about you. Your request must follow the procedures described in paragraph (b) of this section.
(b) Requests for access. You may request access to a Council record about you in writing or by appearing in person. You should direct your request to the Privacy Act Officer. Written requests may be sent to: Privacy Act Officer, National Council on Disability, 1331 F Street NW., Suite 850, Washington, DC 20004. Your request should include the following information:
(1) Your name, address, and telephone number;
(2) The system(s) of records in which the requested information is contained; and
(3) At your option, authorization for copying expenses.
(4) Written requests. In addition to the information described in paragraphs (b)(1) through (3) of this section, written requests must include a statement affirming your identity, signed by you and witnessed by two persons (including witnesses’ addresses) or notarized.
(i) Witnessed. If your statement is witnessed, it must include a sentence above the witnesses’ signatures attesting that they personally know you or that you have provided satisfactory proof of your identity.
(ii) Notarized. If your statement is notarized, you must provide the notary with adequate proof of your identity in the form of a drivers’ license, passport, or other identification acceptable to the notary.
(iii) The Council, in its discretion, may require additional proof of identification depending on the nature and sensitivity of the records in the system of records(iv) For the quickest possible handling, your letter and envelope should be marked “Privacy Act Request.”
(5) In person requests. In addition to the information described in paragraphs (b)(1) through (3) of this section, if you make your request in person, you must provide adequate proof of identification at the time of your request. Adequate proof of identification includes a valid drivers’ license, valid passport, or other current identification that includes your address and photograph.
(c) Requests for amendment or correction of records. You may request an amendment to or correction of a record about you in person or by writing to the Privacy Act Officer following the procedures described in paragraph (b) of this section. Your request for amendment or correction should identify each particular record at issue, state the amendment or correction sought, and describe why the record is not accurate, relevant, timely, or complete.
(d) Requests for an accounting of disclosures. Except for those disclosures for which the Privacy Act does not require an accounting, you may request an accounting of any disclosure by the Council of a record about you. Your request for an accounting of disclosures must be made in writing following the procedures described in paragraph (b) of this section.
(e) Requests for access on behalf of someone else. (1) If you are making a request on behalf of someone else, your request must include a statement from that individual verifying his or her identity, as provided in paragraph (b)(4) of this section. Your request also must include a statement certifying that individual’s agreement that records about him or her may be released to you.
(2) If you are the parent or guardian of the individual to whom the requested record pertains, or the individual to whom the record pertains has been deemed incompetent by a court, your request for access to records about that individual must include:
(i) The identity of the individual who is the subject of the record, including his or her name, current address, and date and place of birth;
(ii) Verification of your identity in accordance with paragraph (b)(4) of this section;
(iii) Verification that you are the subject’s parent or guardian, which may be established by a copy of the subject’s birth certificate identifying you as his or her parent, or a court order establishing you as guardian; and
(iv) A statement certifying that you are making the request on the subject’s behalf.
§ 10001.4 Responses to Privacy Act requests.
(a) Acknowledgement. The Privacy Act Officer shall provide you with a written acknowledgment of your written request under section 3 within ten business days of our receipt of your request.
(b) Grants of requests. If you make your request in person, the Privacy Act Officer shall respond to your request directly, either by granting you access to the requested records, upon payment of any applicable fee and with a written record of the grant of your request and receipt of the records, or by informing you when a response may be expected. If you are accompanied by another person, you must authorize in writing any discussion of the records in the presence of the third person. If your request is in writing, the Privacy Act Officer shall provide you with written notice of the Council’s decision to grant your request and the amount of any applicable fee. The Privacy Act Officer shall disclose the records to you promptly, upon payment of any applicable fee.
(c) Denials of requests in whole or in part. The Privacy Act Officer shall notify you in writing of his or her determination to deny, in whole or in part, your request. This writing shall include the following information:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reason for the denial(s), including any applicable Privacy Act exemption;
(3) A statement that you may appeal the denial and a brief description of the requirements for appeal under § 10001.5.
(d) Request for records not covered by the Privacy Act or subject to Privacy Act exemption. If the Privacy Act Officer determines that a requested record is not subject to the Privacy Act or the records are subject to Privacy Act exemption, your request will be processed in accordance with the Council’s Freedom of Information Act procedures at 5 CFR part 10000.
§ 10001.5 Administrative appeals.
(a) Appeal procedures. (1) You may appeal any decision by the Council to deny, in whole or in part, your request under § 10001.3 no later than 60 days after the decision is rendered.
(2) Your appeal must be in writing, sent to the General Counsel at the address specified in § 10001.3(b) and contain the following information:
(i) Your name;
(ii) Description of the record(s) at issue;
(iii) The system of records in which the record(s) is contained;
(iv) A statement of why your request should be granted.
(3) The General Counsel shall determine whether to uphold or reverse the initial determination within 30 working days of our receipt of your appeal. The General Counsel shall notify you of his or her decision, including a brief statement of the reasons for the decision, in writing. The General Counsel’s decision will be the final action of the Council.
(b) Statement of disagreement. If your appeal of our determination related to your request for amendment or correction is denied in whole or in part, you may file a Statement of Disagreement that states the basis for your disagreement with the denial. Statements of Disagreement must be concise and must clearly identify each part of any record that is disputed. The Privacy Act Officer will place your Statement of Disagreement in the system of records in which the disputed record is maintained and shall mark the disputed record to indicate that a Statement of Disagreement has been filed and where it may be found.
(c) Notification of amendment, correction, or disagreement. Within 30 working days of the amendment or correction of a record, the Privacy Act Officer shall notify all persons, organizations, or agencies to which the Council previously disclosed the record, if an accounting of that disclosure was made, that the record has been corrected or amended. If you filed a Statement of Disagreement, the Privacy Act Officer shall append a copy of it to the disputed record whenever it is disclosed and also may append a concise statement of its reason(s) for denying the request to amend or correct the record.
§ 10001.6 Fees.
We will not charge a fee for search or review of records requested under this part, or for the correction of records. If you request copies of records, we may charge a fee of $.10 per page.
§ 10001.7 Penalties.
Any person who makes a false statement in connection with any request for a record or an amendment or correction thereto under this part is subject to the penalties prescribed in 18 U.S.C. 494 and 495 and 5 U.S.C. 552a(i)(3).
PART 10002—IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT
§ 10002.1 Purpose and scope.
(a) The regulations in this part implement the provisions of the Sunshine Act.
(b) Requests for all records other than those described in § 10002.9, shall be governed by the Council’s Freedom of Information Act procedures at 5 CFR part 10001.
§ 10002.2 Definitions.
The following definitions apply in this part:
Chairperson means the Chairperson of the Council, as appointed by the President, or any person to whom the Council has delegated authority for the matter concerned.
Council means the National Council on Disability, established by the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-128) in 2014.
General Counsel means the Council’s principal legal advisor, or his or her designee.
Meeting means the deliberations of five or more Council members that determine or result in the joint conduct or disposition of official Council business. A meeting does not include:
(1) Notational voting or similar consideration of business for the purpose of recording votes, whether by circulation of material to members’ individually in writing or by a polling of the members individually by phone or email.
(2) Action by five or more members to:
(i) Open or close a meeting or to release or withhold information pursuant to § 10002.6;
(ii) Set an agenda for a proposed meeting;
(iii) Call a meeting on less than seven days’ notice, as permitted by § 10002.4; or
(iv) Change the subject matter or the determination to open or to close a publicly announced meeting under § 10002.7.
(3) A session attended by five or more members for the purpose of having the Council’s staff or expert consultants, another federal agency, or other persons or organizations brief or otherwise provide information to the Council concerning any matters within the purview of the Council, provided that the members do not engage in deliberations that determine or result in the joint conduct or disposition of official business on such matters.
(4) A gathering of members for the purpose of holding informal, preliminary discussions or exchanges of views which do not effectively predetermine official action.
Member means an individual duly appointed and confirmed to the Council.
Public observation means attendance by the public at a meeting of the Council, but does not include public participation.
Public participation means the presentation or discussion of information, raising of questions, or other manner of involvement in a meeting of the Council by the public in a manner that contributes to the disposition of official Council business.
Sunshine Act means the Government in the Sunshine Act, 5 U.S.C. 552b.
§ 10002.3 Open meetings.
(a) Except as otherwise provided in this part, every portion of a Council meeting shall be open to public observation.
(b) Council meetings, or portions thereof, shall be open to public participation when an announcement to that effect is published under § 10002.4. Public participation shall be conducted in an orderly, non-disruptive manner and in accordance with any procedures the Chairperson may establish. Public participation may be terminated for good cause as determined by the Council upon the advice of the General Counsel based on unanticipated developments.
§ 10002.4 Procedures for public announcement of meetings.
(a) Except as otherwise provided in this section, the Council shall make a public announcement at least seven days prior to a meeting. The public announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open, closed, or portions of a meeting will be closed;
(4) Whether public participation will be allowed;
(5) The name and telephone number of the person who will respond to requests for information about the meeting;
(b) The seven-day prior notice required by paragraph (a) of this section may be reduced only if:
(1) A majority of all members determine by recorded vote that Council business requires that such meeting be scheduled in less than seven days; and
(2) The public announcement required by this section is made at the earliest practicable time.
(c) If public notice is provided by means other than publication in the
§ 10002.5 Grounds on which meetings may be closed or information withheld.
A meeting, or portion thereof, may be closed and information pertinent to such meeting withheld if the Council determines that the meeting or release of information is likely to disclose matters that are:
(a) Specifically authorized under criteria established by an executive order to be kept secret in the interests of national defense or foreign policy; and, in fact, are properly classified pursuant to such executive order. In making the determination that this exemption applies, the Council shall rely on the classification assigned to the document or assigned to the information from the federal agency from which the document was received.
(b) Related solely to the internal personnel rules and practices of the Council;
(c) Specifically exempt from disclosure by statute (other than 5 U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(e) Involved with accusing any person of a crime or formally censuring any person;
(f) Of a personal nature, if disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Either investigatory records compiled for law enforcement purposes or information which, if written, would be contained in such records, but only to the extent that the production of records or information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to either a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source or sources and, in the case of a record compiled either by a criminal law enforcement authority or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source(s);
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Contained in or relating to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
(i) If prematurely disclosed, likely to significantly frustrate implementation of a proposed action of the Council, except that this subsection shall not apply in any instance where the Council has already disclosed to the public the content or nature of its proposed action or is required by law to make such disclosure on its own initiative prior to taking final action on such proposal; and
(j) Specifically concerned with the Council’s issuance of a subpoena, or its participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the Council of a particular case or formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.
§ 10002.6 Procedures for closing meetings or withholding information, and requests by affected persons to close a meeting.
(a) A meeting or portion of a meeting may be closed and information pertaining to a meeting withheld under § 10002.5 only by vote of a majority of members.
(b) A separate vote of the members shall be taken with respect to each meeting or portion of a meeting proposed to be closed and with respect to information which is proposed to be withheld. A single vote may be taken with respect to a series of meetings or portions of a meeting that are proposed to be closed, so long as each meeting or portion thereof in the series involves the same particular matter and is scheduled to be held no more than 30 days after the initial meeting in the series. The vote of each member shall be recorded and no proxies shall be allowed.
(c) A person whose interests may be directly affected by a portion of a meeting may request in writing that the Council close that portion for any of the reasons referred to in § 10002.5(e) through (g). Upon the request of a member, a recorded vote shall be taken whether to close such meeting or portion thereof.
(d) For every meeting closed, the General Counsel shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant basis for closing the meeting. If the General Counsel invokes the bases set forth in § 10002.5(a) or (c), he or she shall rely upon the classification or designation assigned to the information by the originating agency. A copy of such certification, together with a statement by the presiding officer setting forth the time and place of the meeting and the persons present, shall be retained by the Council as part of the transcript, recording, or minutes required by § 10002.8.
§ 10002.7 Changes following public announcement.
(a) The time or place of a meeting may be changed following the public announcement described in § 10002.4. The Council must publicly announce such change at the earliest practicable time.
(b) The subject matter of a meeting or the determination of the Council to open or close a meeting, or a portion thereof, to the public may be changed following public announcement only if:
(1) A majority of all members determine by recorded vote that Council business so requires and that no earlier announcement of the change was possible; and
(2) The Council publicly announces such change and the vote of each member thereon at the earliest practicable time.
§ 10002.8 Transcripts, recordings, or minutes of closed meetings.
Along with the General Counsel’s certification and presiding officer’s statement referred to in § 10002.6(d), the Council shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or a portion thereof, closed to the public. Alternatively, for any meeting closed pursuant to § 10002.5(h) or (j), the Council may maintain a set of minutes adequate to record fully the proceedings, including a description of each of the views expressed on any item and the record of any roll call vote.
§ 10002.9 Public availability and retention of transcripts, recordings, and minutes, and applicable fees.
(a) The Council shall make available, in a place easily accessible, such as www.ncd.gov, to the public the transcript, electronic recording, or minutes of a meeting, except for items of discussion or testimony related to matters the Council determines may be withheld under § 10002.6.
(b) Copies of the nonexempt portions of the transcripts or minutes shall be provided upon receipt of the actual costs of the transcription or duplication.
(c) The Council shall maintain meeting transcripts, recordings, or minutes of each meeting closed to the public for a period ending at the later of two years following the date of the meeting, or one year after the conclusion of any Council proceeding with respect to the closed meeting.
PARTS 10003-10049 [RESERVED]
CHAPTER CI—NATIONAL MEDIATION BOARD
PART 10101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL MEDIATION BOARD
§ 10101.101 General.
Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply all employees of the National Mediation Board (NMB) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR 2635.
§ 10101.102 Prior approval for outside employment.
(a) General Requirement. Before engaging in compensated or uncompensated outside employment, all National Mediation Board employees must obtain written approval from the Board or its designee.
(b) Procedure for requesting approval. (1) The approval by the Board or its designee shall be requested in writing in advance of engaging in outside employment.
(2) Upon a significant change in the nature of scope of the outside employment or in the employee’s official position, the employee shall submit a revised request for approval within 30 calendar days.
(c) Standard for approval. (1) Approval shall be granted unless the Board or its designee determines that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(2) As part of the approval process, the Board or its designee shall provide the request to the Designated Agency Ethics Official (DAEO) in order for the employee to receive written ethics guidance. In the event, the DAEO is the Board’s designee, the DAEO shall provide written ethics guidance upon receiving the request. This written ethics guidance shall be appended to the written approval.
(d) Definition of employment. For purposes of this section, “employment” means any form of non-Federal employment or business relationship, compensated or uncompensated, involving the provision of personal services by the employee. It includes, but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organization, unless such activities are for compensation other than reimbursement of expenses; such activities involve the provision of professional services or advice; or the organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E).
CHAPTER CII—U.S. OFFICE OF SPECIAL COUNSEL
PART 10201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE U.S. OFFICE OF SPECIAL COUNSEL
§ 10201.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the U.S. Office of Special Counsel (OSC) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635.
(b) Other regulations, guidance, and procedures. In addition to the standards in 5 CFR part 2635 and this part, all OSC employees are required to comply with implementing guidance and procedures issued by OSC in accordance with 5 CFR 2635.105(c). OSC employees are also subject to all other government-wide regulations concerning executive branch ethics including without limitation, financial disclosure regulations contained in 5 CFR part 2634, regulations concerning financial interests contained in 5 CFR part 2640, post-employment conflict of interest restrictions contained in 5 CFR part 2641, outside earned income limitations and employment and affiliation restrictions applicable to certain noncareer employees contained in 5 CFR part 2636, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735.
§ 10201.102 Prior approval for outside employment or activity.
(a) General requirement. Before engaging in any outside employment or activity, whether or not for compensation, an OSC employee must obtain written approval from the Designated Agency Ethics Official (DAEO) or the Alternate Designated Agency Ethics Official (ADAEO), except to the extent that OSC has issued an internal instruction pursuant to paragraph (d) of this section exempting certain employment or activities from this requirement.
18 U.S.C. 203(d) and 205(e) require special approval for certain representational activities in claims against the Federal Government and other matters affecting the interests of the government.
(b) Definition of “outside employment or activity”. For purposes of this section, “outside employment or activity” means any form of non-Federal employment or business relationship involving the provision of services by the employee, whether for compensation or not for compensation. It includes, but is not limited to, serving as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, or teacher. The definition does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization unless such activities involve the provision of professional services or advice, or are for compensation other than reimbursement of expenses.
Employees who wish to engage in compensated speaking or writing in a personal capacity are subject to, among other things, the provisions of 5 CFR 2635.703 (concerning use of nonpublic information) and 5 CFR 2635.807 (concerning receipt of compensation for teaching, speaking, and writing related to one’s duties), and are encouraged to seek guidance from an agency ethics official before engaging in such activities. Certain covered non-career employees are also subject to further restrictions on receipt of outside compensation pursuant to section 502 of the Ethics in Government Act (5 U.S.C. app.). In addition, OSC attorneys should consult their applicable state bar rules of professional conduct.
(c) Standard for approval. Approval shall be granted by the DAEO or ADAEO upon a determination that the outside employment or activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(d) Implementation guidance. The DAEO or ADAEO may issue internal instructions governing the submission of requests for approval of outside employment or activity. The instructions may exempt categories of employment or activities from the prior approval requirement of this section based on a determination that those categories generally would be approved and are not likely to involve prohibited conduct or create an appearance of lack of impartiality.
CHAPTER CIII—FEDERAL MEDIATION AND CONCILIATION SERVICE
PART 10300—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE
§ 10300.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Federal Mediation and Conciliation Service (FMCS), other than special government employees as defined in 5 CFR 2635.102(l), and supplement the Standards of Ethical Conduct for Employees of the Executive Branch in 5 CFR part 2635 (Office of Government Ethics (OGE) Standards).
(b) Cross-references. In addition to the standards in 5 CFR part 2635 and this part, FMCS employees are required to comply with implementing guidance and procedures issued by the FMCS in accordance with 5 CFR 2635.105(c). FMCS employees are also subject to the regulations concerning executive branch financial disclosures contained in 5 CFR part 2634, the regulations concerning executive branch financial interests contained in 5 CFR part 2640, regulations concerning post-employment restrictions contained in 5 CFR part 2641, and the regulations concerning executive branch employee responsibilities and conduct contained in 5 CFR part 735. Employees should contact an FMCS ethics official if they have questions about any provision of this regulation or other ethics-related matters.
§ 10300.102 Definitions.
For purposes of this part:
Outside employment or activity means any form of non-Federal employment or business relationship, compensated or uncompensated, involving the provision of personal services by the employee. It includes, but is not limited to:
(1) Personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, professor, speaker, or writer.
(2) Active participation, including voluntary participation as defined in 5 CFR 2635.502(b)(1)(v), with a prohibited source.
(3) It does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless such activities are for compensation other than reimbursement of expenses; such activities involve the provision of professional services or advice; or the organization’s activities are devoted substantially to matters relating to the employee’s official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E).
There is a special approval requirement set out in both 18 U.S.C. 203(d) and 205(e) for certain representational activities otherwise covered by the conflict-of-interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. Thus, an employee who wishes to act as an agent or attorney for, or otherwise represent the employee’s parents, spouse, child, or any person for whom, or any estate for which, the employee is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters, must obtain the approval required by law of the government official responsible for the employee’s appointment, in addition to the regulatory approval required in this section.
§ 10300.103 Prior approval for outside employment and outside activities.
(a) General requirement. Before engaging in any outside employment or outside activity, as it is defined in § 10300.102, an employee of the FMCS, other than a special government employee, must obtain written approval.
(b) Procedure for requesting approval. The employee must first obtain written approval from the employee’s immediate supervisor and then the Designated Agency Ethics Official (DAEO). If the employee does not obtain written approval from the employee’s immediate supervisor, the employee may request review by the DAEO. Decisions by the DAEO are final and non-appealable.
(c) Standard for approval. Approval shall be granted only upon a determination that the outside employment or outside activity is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.
(d) Revised requests. Upon a significant change in the nature or scope of the outside employment or outside activity or in the employee’s official position with the FMCS, the employee must, within 7 calendar days of the change, submit a revised request for approval. If there are no significant changes in the nature or scope of the outside employment or outside activity or in the employee’s official position with the FMCS, the employee does not need to reapply after the FMCS’ initial approval.
(e) Implementation guidance. The DAEO may issue instructions or manual issuances governing the submission of requests for approval of outside employment or outside activities. The instructions or manual issuances may exempt categories of employment and activities from the prior approval requirement of this section based on a determination that employment or activity within those categories of employment or activities would generally be approved and is not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The DAEO may include in these instructions or issuances examples of outside employment and activities that are permissible or impermissible consistent with this part and 5 CFR part 2635.
Chapter CIV—Office of the Intellectual Property Enforcement Coordinator
PART 10400—PUBLIC AVAILABILITY OF INFORMATION
Subpart A—Freedom of Information Act Policies and Procedures
§ 10400.1 Purpose and scope.
The regulations in this part prescribe procedures by which individuals may obtain access to agency records of the Office of the Intellectual Property Enforcement Coordinator (IPEC) under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, as well as the procedures IPEC must follow in response to requests for records under the FOIA. The regulations should be read together with the FOIA and the “Uniform Freedom of Information Fee Schedule and Guidelines” issued by the Office of Management and Budget. All requests for access to information contained within a system of records pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, shall be processed in accordance with these regulations. Nothing in this part shall be construed to entitle any person to any service or to the disclosure of any record to which such person is not entitled under the FOIA or the Privacy Act.
§ 10400.2 The Office of the Intellectual Property Enforcement Coordinator—organization and functions.
The Office of the Intellectual Property Enforcement Coordinator was created by Title III of the Pro IP Act of 2008, 15 U.S.C. 8111 et seq. The mission of IPEC is to advise the President and coordinate with Cabinet departments and agencies on the development of the United States’ overall intellectual property policy and strategy, to promote innovation and creativity, and to ensure effective intellectual property protection and enforcement, domestically and abroad. IPEC is headed by the Intellectual Property Enforcement Coordinator.
§ 10400.3 Definitions.
For the purpose of this part, all the terms defined in the Freedom of Information Act apply.
Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. IPEC’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information. IPEC will notify requesters of their placement in this category.
Direct costs means the expenses (excluding overhead) actually expended for searching, reviewing (for commercial-use requests), or duplicating in response to a FOIA request. Direct costs include 116% of the salary of the employee performing work (i.e., the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners.
Disclose and disclosure refer to making records available, upon request, for examination and copying, or furnishing a copy of records.
Duplicate and duplication mean the process of making a copy of a document. Such copies may take the form of paper, microform, audio-visual materials, or machine-readable documentation.
Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester’s role at the educational institution. IPEC may seek verification from the requester that the request furthers scholarly research, and IPEC will advise requesters of their placement in this category.
Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied, including that the information is in the public interest and is not primarily in the commercial interest of the requester.
FOIA public liaison means a supervisory agency official who assists requesters in reducing processing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
Noncommercial scientific institution is an institution that is not operated on a “commercial” basis and that is operated solely for the purpose of conducting scientific research the results of which 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. IPEC will advise requesters of their placement in this category.
OGIS means the Office of Government Information Services of the National Archives and Records Administration. OGIS offers FOIA dispute resolution services, which is a voluntary process. If IPEC agrees to participate in the dispute resolution services provided by OGIS, IPEC will actively engage as a partner to the process in an attempt to resolve the dispute.
Records and any other terms used in this part in reference to information includes any information that would be an agency record subject to the requirements of this part when maintained in any format, including electronic format.
Representative of the news media and news media requester is 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 distinct work, and distributes that work to an audience. The term “news” means information that is about current events or information that would be of 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; IPEC can also consider a requester’s past publication record in making this determination. IPEC will advise requesters of their placement in this category.
Request means a letter or other written communication seeking records or information under FOIA.
Requester category means one of the four categories that IPEC will place requesters in for the purpose of determining whether a requester will be charged fees for search, review, and duplication. The categories are: commercial use requests; requests by non-commercial scientific or educational institutions; news media requesters; and all other requesters.
Review means the process of examining documents that are located during a search to determine if any portion should lawfully be withheld. It is the process of determining disclosability. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 10400.18, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
Search is the process of looking for, manually or by automated means, agency records for the purpose of locating those records responsive to a request.
Working day means a Federal working day, and thus does not include Saturdays, Sundays, and legal public holidays.
§ 10400.4 Access to information.
The Office of the Intellectual Property Enforcement Coordinator makes available information pertaining to matters issued, adopted, or promulgated by IPEC, that are within the scope of 5 U.S.C. 552(a)(2). Such “reading room” information is located at https://www.whitehouse.gov/ipec. Included in that information are IPEC’s proactive disclosures. Proactive disclosures are records that have been requested three or more times, or that have been released to a requester and that IPEC determines have become, or are likely to become, the subject of subsequent requests for substantially the same records.
§ 10400.5 Records requiring consultation, referral, and coordination.
Requests for records that are in IPEC’s custody, and for which other agencies (or other Federal Government offices) have an interest, shall be reviewed by IPEC. IPEC will then either consult with the other agencies or offices regarding the records; refer the records to the other agencies for further processing; or coordinate with the other agencies when a referral is not appropriate.
(a) Consultation. When records originated with IPEC, and contain within them information of interest to another agency or other Federal Government office, IPEC will consult with that agency or office prior to making a release determination.
(b) Referral—(1) Determination. When IPEC believes that a different agency is best able to determine whether to disclose the record, IPEC will refer to that agency the responsibility for responding to the request regarding that record. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if IPEC and the originating agency jointly agree that IPEC is in the best position to respond regarding the record, then the record may be handled as a consultation.
(2) Documentation. Whenever IPEC refers any part of the responsibility for responding to a request to another agency, IPEC must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In order to avoid harm to an interest protected by an applicable exemption, IPEC will coordinate with the originating agency to seek its views on the disclosability of the record. IPEC will convey, to the requester, the release determination for the record.
(c) Classified information. On receipt of any request involving classified information, IPEC must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, IPEC will refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever a record contains information that has been derivatively classified (for example, when it contains information classified by another agency), IPEC will refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.
(d) Timing of responses to consultations and referrals. IPEC will handle all consultations and referrals received by IPEC according to the date that the (consulting or referring) agency received the perfected FOIA request.
(e) Agreements regarding consultations and referrals. IPEC may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
§ 10400.6 How to request records—form and content.
(a) A request for records must describe the records that it seeks in sufficient detail and in writing to enable IPEC to locate the records with a reasonable amount of effort. To the extent possible, each request must reasonably describe the record(s) sought, including by referencing the type of document; a specific event or action; the title or name, author, recipient, subject matter, date or time period, and/or location of the record; and any other pertinent data that would assist in identifying the record(s) sought. If after receiving a request IPEC determines that the request does not reasonably describe the record(s) sought, IPEC will inform the requester what additional information is needed or why the request is otherwise insufficient. Before or after submitting their requests, requesters may contact IPEC’s FOIA contact or FOIA Public Liaison to discuss the record(s) they seek and for assistance in describing the record(s).
(b)(1) If an individual is making a request for records that are about the individual, the requester must comply with the verification of identity provision set forth in § 10400.21(f).
(2) If a request for records pertains to a third party, the requester may receive greater access by submitting either a notarized authorization signed by that individual or an unsworn declaration under 26 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester. As an exercise of administrative discretion, IPEC may require the requester to provide additional information if necessary in order to verify that a particular individual has consented to disclosure. If the records that are requested pertain to an individual who is deceased, the requester should submit proof of death such as a copy of the death certificate or an obituary.
(c) Requesters may specify the preferred form or format (including electronic formats) for the records they seek. IPEC will accommodate formatting requests if the record is readily reproducible in that form or format.
(d) Whenever it is appropriate to do so, IPEC automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. IPEC processes a request under both the FOIA and Privacy Act so that requesters will receive the maximum amount of information available by law.
(e) Requests must be received by IPEC through methods specified on the FOIA page of IPEC’s website: https://www.whitehouse.gov/ipec. Requests may be emailed at any time to [email protected] or mailed to Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, Washington, DC 20503, Attn: FOIA Officer. Emailed requests are strongly preferred.
(f) The words “FOIA REQUEST” or “REQUEST FOR RECORDS” should be clearly marked on all FOIA request communications.
(g) The requester must provide contact information, such as the requester’s phone number, email address or mailing address, so that IPEC will be able to communicate with the requester about the request and provide released records. If IPEC cannot contact the requester, or the requester does not respond within 30 working days to our request for clarification, IPEC will close the request.
(h) To protect our computer systems, IPEC reserves the right to not open attachments to emailed requests. Please include the request within the body of the email, along with such additional information that is relevant, such as information in support of a request for expedited processing, for a fee categorization, or for a fee waiver. If after receiving a request IPEC determines that it does not include sufficient information on which to grant, or deny, a request for expedited process, a fee categorization, or a fee waiver, IPEC will so inform the requester and provide the requester an opportunity to submit additional information in support of such request.
§ 10400.7 Responses—form and content.
(a) Determinations. (1) In determining which records are responsive to a request, IPEC will include only records that were in its possession as of the date of the search. If any other date is used, IPEC will inform the requester of that date.
(2) Under the FOIA, an agency is to make an initial determination acknowledging and granting, partially granting, or denying a request for records within 20 working days after the agency receives a FOIA request (an agency may extend this period for “unusual circumstances”; see § 10400.9). The FOIA Officer or designee will determine whether to grant the request and will provide written notification to the person making the request. The notification shall also advise the person making the request of any fees assessed under §§ 10400.11 through 10400.16. IPEC will inform the requester of the availability of its FOIA Public Liaison.
(b) Tracking number. IPEC will assign a request an individualized tracking number if it will take longer than 10 working days to process the request. IPEC may assign, at our discretion, such a tracking number for a request that will take less than 10 working days to process.
(c) Estimated dates of completion and interim responses. Upon request, IPEC will provide an estimated date by which IPEC expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, IPEC may provide interim responses, including on a rolling basis.
(d) Use of record exclusions. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request. In the event that IPEC identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), IPEC will confer with the Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion, and IPEC will maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
(e) Adverse determinations. If IPEC makes an adverse determination denying a request in any respect, it must notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
(f) Content of denial. The denial must be signed by the FOIA Officer or designee and must include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the agency in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;
(4) A statement that the denial may be appealed to the FOIA Appeals Officer (the IPEC Legal Advisor or a designee) within 90 calendar days of the date of the response (the requirements for making an appeal are specified in § 10400.10); and
(5) A statement notifying the requester of the assistance available from the IPEC’s FOIA Public Liaison and the dispute resolution services offered by OGIS.
§ 10400.8 Expedited and multi-track processing, and aggregation of requests for processing.
(a) Expedited processing. (1) A request for expedited processing may be made at any time. IPEC must process requests and appeals on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, beyond the public’s right to know about government activity generally, and the request is made by a person primarily engaged in disseminating information.
(2) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for requesting expedited processing. For example, under paragraph (a)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person who is primarily engaged in information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. The formality of certification may be waived as a matter of administrative discretion.
(3) Within 10 calendar days of IPEC’s receipt of a request for expedited processing, IPEC will decide whether to grant it and will notify the requester of the decision. If a request for expedited processing is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
(b) Multi-track processing. IPEC will ordinarily respond to requests in order of their receipt. However, IPEC may use multi-track processing in responding to requests. Multi-track processing means placing requests in a track based on the estimated amount of work or time involved in processing the request. Thus, simple requests that require a limited review would be placed in one processing track, and more voluminous and complex requests would be placed in other processing tracks. Requests in each track are processed on a first-in, first-out basis and, if a request is placed in a track, IPEC will inform the requester of the track placement. Track one is for requests that have received expedited processing under this section. Track two is for requests of simple-to-moderate complexity that do not involve voluminous records and do not require consultation or coordination with other entities or submitter review under § 10400.18. Track three is for complex requests that involve voluminous records, require lengthy or numerous consultations or coordination, raise unique or novel legal questions, or require submitter review under § 10400.18. In the case of requests in tracks two and three, IPEC may provide requesters the opportunity to limit the scope of their requests in order to qualify for faster processing. IPEC will do so by contacting the requester by letter, telephone, email, or facsimile (whichever is more efficient in each case). When providing a requester with the opportunity to limit the scope of a request, IPEC shall also advise the requester of IPEC’s FOIA Public Liaison to aid in the resolution of any dispute arising between the requester and IPEC as well as the requester’s right to seek dispute resolution services from the Office of Government Information Services.
(c) Aggregating requests. IPEC may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, involve related matters and constitute a single request that otherwise would involve “unusual circumstances” under § 10400.9. For example, IPEC may aggregate multiple requests for similar information filed by a single requester within a short period of time. In addition, as discussed in § 10400.16, IPEC may aggregate requests for fee purposes.
§ 10400.9 Extension of time.
(a) In unusual circumstances, IPEC may extend the time limits prescribed in §§ 10400.7 and 10400.8 by written notice to the FOIA requester. The notice will state the reasons for the extension.
(b) The phrase “unusual circumstances” means:
(1) The requested records are located in establishments that are separated from the office processing the request;
(2) A single request seeks a voluminous amount of separate and distinct records; or
(3) Another agency has a substantial interest in the determination of the request.
(c) Whenever IPEC cannot meet the 20 working-day time limit under § 10400.7 for processing a request because of “unusual circumstances,” and IPEC extends the time limit on that basis, IPEC shall promptly notify the requester (before the expiration of the 20 working-day period) in writing of the unusual circumstances involved, that an extension of 10 working days has been made, and of the date by which IPEC estimates that it will complete the processing of the request (if completion is not estimated to occur within the 10 working-day extension period). For those requests for which the extension exceeds 10 working days, IPEC will provide the requester an opportunity to modify the request (so that it may be processed within an extension of 10 working days) or arrange an alternative time period for processing the original or modified request. IPEC will make available its designated FOIA contact or its FOIA Public Liaison for this purpose. IPEC will also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.
§ 10400.10 Appeal procedures.
(a) An appeal to the IPEC must explain the reasoning and factual basis for the appeal. It must be received by email at [email protected] or another method specified on the FOIA page of IPEC’s website within 90 calendar days of the date of the response. The appeal must be in writing, addressed to the FOIA Appeals Officer, Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, Washington, DC 20503, Attn: Legal Advisor. The communication should clearly be labeled as a “Freedom of Information Act Appeal.”
(b) The FOIA Appeals Officer (the Legal Advisor or a designee) will decide the appeal within 20 working days. If the FOIA Appeals Officer denies an appeal in whole or in part, the written determination will contain the reason for the denial, the name and title of the person responsible for the denial, any FOIA exemptions applied, and the provisions for judicial review of the denial and ruling on appeal provided in 5 U.S.C. 552(a)(4). The denial will also inform the requestor of the dispute resolution services offered by OGIS as a non-exclusive alternate to litigation. If IPEC agrees to participate in voluntary dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
§ 10400.11 Fees to be charged—general.
IPEC will assess a fee to process FOIA requests in accordance with the provisions of this section and the “Uniform Freedom of Information Fee Schedule and Guidelines” issued by the Office of Management and Budget. IPEC shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. IPEC will charge the following fees unless a waiver or reduction of fees is granted under § 10400.15, or the total fee to be charged is less than $25.00. IPEC will notify the requester if IPEC estimates that charges will exceed $25.00 including a breakdown of the fees for search, review, or duplication and whether applicable entitlements to duplication and search at no charge have been provided. IPEC will not process the request until the requester either commits in writing to pay the actual or estimated total fee, or designates some amount of fees that it is willing to pay.
(a) Search for records. IPEC will charge $77.00 per hour, which is a blended hourly rate for all personnel that respond to FOIA requests plus 16 percent of that rate to cover benefits.
(b) Review of records. IPEC will charge $77.00 per hour, which is a blended hourly rate for all personnel that responded to FOIA requests plus 16 percent of that rate to cover benefits. Records or portions of records withheld under an exemption subsequently determined not to apply may be reviewed to determine the applicability of exemptions not considered. The cost for a subsequent review is assessable.
(c) Duplication of records. IPEC will charge duplication fees to all requesters. IPEC will honor a requester’s preference for receiving a record in a particular format if IPEC can readily reproduce it in the form or format requested. If IPEC provides photocopies, IPEC will make one copy per request at the cost of $.10 per page. For copies of records produced on tapes, disks or other media, IPEC will charge the direct costs of producing the copy, including operator time. Where IPEC must scan paper documents in order to comply with a requester’s preference to receive the records in an electronic format, IPEC will charge the direct costs associated with scanning those materials. For other forms of duplication, IPEC will charge the direct costs. IPEC will provide the first 100 pages of duplication (or the cost equivalent for other media) without charge except for requesters seeking records for a commercial use.
(d) Other charges. IPEC will recover the costs of providing other services such as certifying records or sending records by special methods.
§ 10400.12 Fees to be charged—miscellaneous provisions.
(a) Payment for FOIA services may be made by check or money order made payable to the Treasury of the United States. IPEC will provide the requester with instructions on how to make the payment. IPEC will provide a receipt for fees paid upon request. IPEC will not refund fees paid for services actually rendered.
(b) IPEC may require advance payment (or a satisfactory written assurance of full payment) where the estimated fee exceeds $250, or a requester previously failed to pay within 30 calendar days of the billing date. IPEC will not process the request until the requester either makes the advance payment or provides a satisfactory written assurance.
(c) IPEC may assess interest charges beginning the 31st day of billing. Interest will be at the rate prescribed in section 3717 of Title 31, United States Code, and will accrue from the date of the billing.
(d) IPEC may assess search charges where records are not located or where records are exempt from disclosure.
§ 10400.13 Fees to be charged—categories of requesters.
(a) For fees, there are four categories of FOIA requesters: commercial use requests; educational and non-commercial scientific institution requests; requests from representatives of the news media; and all other requesters.
(b) The specific levels of fees for each of these categories are:
(1) Commercial use request. IPEC will recover the full direct cost of providing search, review, and duplication services. Commercial use requests will not receive free search-time or free duplication of documents.
(2) Educational and non-commercial scientific institution requests. IPEC will charge the cost of duplication, excluding charges for the first 100 pages. Requesters must demonstrate the request is authorized by and under the auspices of a qualifying institution and that the records are sought for scholarly or scientific research not a commercial use.
(3) Requests from representatives of the news media. IPEC will charge the cost of duplication, excluding charges for the first 100 pages. Requesters must meet the criteria in § 10400.3, and the request must not be made for a commercial use. A request that supports the news dissemination function of the requester shall not be considered a commercial use.
(4) All other requesters. IPEC will recover the full direct cost of the search and the duplication of records, excluding the first 100 pages of duplication and the first two hours of search time.
§ 10400.14 Restrictions on charging fees.
(a) No search fees will be charged for requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.
(b) If IPEC 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 § 10400.13(b)(2) and (3), may not charge duplication fees, except as described in paragraphs (c), (d), and (e) of this section.
(c) If IPEC determines that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(d) If IPEC determines that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees, or, in the case of requesters described in § 10400.13(b)(2) and (3), may charge duplication fees if the following steps are taken. IPEC must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the agency must have 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). If this exception is satisfied, IPEC may charge all applicable fees incurred in the processing of the request.
(e) If a court has determined 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.
(f) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(g) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
§ 10400.15 Waiver or reduction of fees.
Requirements for waiver or reduction of fees:
(a) 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) IPEC must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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. In deciding whether this standard is satisfied the agency must consider the factors described in paragraphs (b)(1) through (3) of this section:
(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 would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when 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. IPEC 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, IPEC will consider the following criteria:
(i) IPEC must 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, IPEC must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraph (a) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. IPEC ordinarily will presume that when a news media requester has satisfied the requirements of paragraph (a) 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) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(d) Requests for a waiver or reduction of fees should be made when the request is first submitted to IPEC 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.
§ 10400.16 Aggregation of requests for fees.
When IPEC reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, IPEC may aggregate those requests and charge accordingly. IPEC 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, IPEC 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 cannot be aggregated.
§ 10400.17 Markings on released documents.
When requested records contain matters that are exempted under 5 U.S.C. 552(b), but such exempted matters can be reasonably segregated from the remainder of the records, the records shall be disclosed by IPEC with the necessary redactions. If records are disclosed in part, IPEC will mark them to show the amount and location of information redacted and the exemption(s) under which the redactions were made unless doing so would harm an interest protected by an applicable exemption.
§ 10400.18 Confidential commercial information.
(a) Definitions—Confidential commercial information means commercial or financial information obtained by IPEC from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
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. 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) IPEC must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if IPEC determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) IPEC 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 must either 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, IPEC 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) IPEC 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 a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, IPEC must 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) IPEC must specify a reasonable time period within which the submitter must respond to the notice referenced above.
(2) If a submitter has any objections to disclosure, it should provide IPEC 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 the basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. IPEC is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. IPEC must 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 IPEC decides to disclose information over the objection of a submitter, IPEC must provide the submitter written notice, which must include:
(1) A statement of the reasons why each of the submitter’s disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of the records as IPEC intends to release them; and
(3) A specified disclosure date, which must be a reasonable time after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, IPEC must promptly notify the submitter.
(i) Requester notification. IPEC must 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.
(j) No right or benefit. In accordance with Executive Order 12600, the related requirements in this section, such as notification, do not create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, its officers, or any person.
Subpart B—Privacy Act Policies and Procedures
§ 10400.19 Definitions.
For purposes of this subpart:
Access means making a record available to a subject individual.
Amendment means any correction, addition to, or deletion of information in a record.
Individual means a natural person who either is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence.
Maintain includes the term “maintain”, collect, use, or disseminate.
Privacy Act Office means the IPEC officials who are authorized to respond to requests and to process requests for amendment of records IPEC maintains under the Privacy Act.
Record means any item, collection or grouping of information about an individual that IPEC maintains within a system of records and contains the individual’s name or the identifying number, symbol or other identifying particular assigned to the individual, such as a finger or voice print or photograph.
System of records means a group of records IPEC maintains or controls from which information is retrieved by the name of an individual or by some identifying number, symbol or other identifying particular assigned to the individual.
§ 10400.20 Purpose and scope.
This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal law that requires Federal agencies to protect private information about individuals that the agencies collect or maintain. It establishes IPEC’s rules for access to records in systems of records we maintain that are retrieved by an individual’s name or another personal identifier. It describes the procedures by which individuals may request access to records, request amendment or correction of those records, and request an accounting of disclosures of those records by IPEC. Whenever it is appropriate to do so, IPEC automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. IPEC processes a request under both the Privacy Act and the FOIA so you will receive the maximum amount of information available to you by law.
§ 10400.21 How do I make a Privacy Act request?
(a) In general. You can make a Privacy Act request for records about yourself. You also can make a request on behalf of another individual as the parent or legal guardian of a minor, or as the legal guardian of someone determined by a court to be incompetent.
(b) How do I make a request?—(1) Where do I send my written request? To make a request for access to a record, you should write directly to our FOIA Officer. Heightened security delays mail delivery. To avoid mail delivery delays, we strongly suggest that you email your request to [email protected]. Our mailing address is: Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, Washington, DC 20503, Attn: FOIA Officer. To make sure that the FOIA Officer receives your request without delay, you should include the notation “Privacy Act Request” in the subject line of your email or on the front of your envelope and also at the beginning of your request.
(2) Security concerns. To protect our computer systems, we reserve the right not to open attachments to emailed requests. We request that you include your request within the body of the email.
(c) What should my request include? You must describe the record that you seek in enough detail to enable IPEC to locate the system of records containing the record with a reasonable amount of effort. Include specific information about each record sought, such as the time period in which you believe it was compiled, the name or identifying number of each system of records in which you believe it is kept, and the date, title or name, author, recipient, or subject matter of the record. As a general rule, the more specific you are about the record that you seek, the more likely we will be able to locate it in response to your request.
(d) How do I request amendment of a record? If you are requesting an amendment of an IPEC record, you must identify each particular record in question and the system of records in which the record is located, describe the amendment that you seek, and state why you believe that the record is not accurate, relevant, timely or complete. You may submit any documentation that you think would be helpful, including an annotated copy of the record.
(e) How do I request an accounting of record disclosures? If you are requesting an accounting of disclosures made by IPEC to another person, organization or Federal agency, you must identify each system of records in question. An accounting generally includes the date, nature and purpose of each disclosure, as well as the name and address of the person, organization, or Federal agency to which the disclosure was made.
(f) Verification of identity. When making a Privacy Act request, you must verify your identity in accordance with these procedures to protect your privacy or the privacy of the individual on whose behalf you are acting. If you make a Privacy Act request and you do not follow these identity verification procedures, IPEC cannot process your request.
(1) How do I verify my own identity? You must include in your request your full name, current address, and date and place of birth. We may request additional information to verify your identity. To verify your own identity, you must provide an unsworn declaration under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury. To fulfill this requirement, you must include the following statement just before the signature on your request:
(2) How do I verify parentage or guardianship? If you make a request as the parent or legal guardian of a minor, or as the legal guardian of someone determined by a court to be incompetent, for access to records or information about that individual, you must establish:
(i) The identity of the individual who is the subject of the record, by stating the individual’s name, current address, and date and place of birth;
(ii) Your own identity, as required in paragraph (f)(1) of this section;
(iii) That you are the parent or legal guardian of the individual, which you may prove by providing a copy of the individual’s birth certificate showing your parentage or a court order establishing your guardianship; and
(iv) That you are acting on behalf of the individual in making the request.
§ 10400.22 How will IPEC respond to my Privacy Act request?
(a) When will we respond to your request? We will search to determine if the requested records exist in a system of records IPEC owns or controls. The FOIA Officer will respond to you in writing within 20 days after we receive your request and/or within 10 working days after we receive your request for an amendment, if it meets the requirements of this subpart. We may extend the response time in unusual circumstances, such as the need to consult with another agency about a record or to retrieve a record that is in storage.
(b) What will our response include? (1) Our written response will include our determination whether to grant or deny your request in whole or in part, a brief explanation of the reasons for the determination, and the amount of the fee charged, if any, under § 10400.24. If you requested access to records, we will make the records, if any, available to you. If you requested amendment of a record, the response will describe any amendments made and advise you of your right to obtain a copy of the amended record.
(2) We will also notify the individual who is subject to the record in writing, if, based on your request, any system of records contains a record pertaining to him or her.
(3) If IPEC makes an adverse determination with respect to your request, our written response will identify the name and address of the person responsible for the adverse determination, that the adverse determination is not a final agency action, and describe the procedures by which you may appeal the adverse determination under § 10400.23.
(4) An adverse determination is a response to a Privacy Act request that:
(i) Withholds any requested record in whole or in part;
(ii) Denies a request to amend a record in whole or in part;
(iii) Declines to provide an accounting of disclosures;
(iv) Advises that a requested record does not exist or cannot be located;
(v) Finds that what you requested is not a record subject to the Privacy Act; or
(vi) Advises on any disputed fee matter.
§ 10400.23 What can I do if I am dissatisfied with IPEC’s response to my Privacy Act request?
(a) What can I appeal? You can appeal any adverse determination in writing to the Privacy Act Appeals Officer (the Legal Advisor or a designee) within ninety calendar days after the date of our response. We provide a list of adverse determinations in § 10400.22(b)(4).
(b) How do I make an appeal?—(1) What should I include? You may appeal by submitting a written statement giving the reasons why you believe the Privacy Act Appeals Officer should overturn the adverse determination. Your written appeal may include as much or as little related information as you wish to provide, as long as it clearly identifies the determination (including the request number, if known) that you are appealing.
(2) Where do I send my appeal? You should mark both your letter and the envelope, or the subject of your email, “Privacy Act Appeal.” To avoid mail delivery delays caused by heightened security, we strongly suggest that you email any appeal to [email protected]. Our mailing address is: Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, Washington, DC 20503, Attn: Privacy Act Appeals Officer.
(c) Who will decide your appeal? (1) The Privacy Act Appeals Officer will act on all appeals under this section.
(2) We ordinarily will not adjudicate an appeal if the request becomes a matter of litigation.
(3) On receipt of any appeal involving classified information, the Privacy Act Appeals Officer must take appropriate action to ensure compliance with applicable classification rules.
(d) When will we respond to your appeal? The Privacy Act Appeals Officer will notify you of its appeal decision in writing within 30 days from the date it receives an appeal that meets the requirements of paragraph (b) of this section. We may extend the response time in unusual circumstances, such as the need to consult with another agency about a record or to retrieve a record shipped offsite for storage.
(e) What will our response include? The written response will include the Privacy Act Appeals Officer’s determination whether to grant or deny your appeal in whole or in part, a brief explanation of the reasons for the determination, and information about the Privacy Act provisions for court review of the determination.
(1) Appeals concerning access to records. If your appeal concerns a request for access to records and the appeal is granted in whole or in part, we will make the records, if any, available to you.
(2) Appeals concerning amendments. If your appeal concerns amendment of a record, the response will describe any amendment made and advise you of your right to obtain a copy of the amended record. We will notify all persons, organizations or Federal agencies to which we previously disclosed the record, if an accounting of that disclosure was made, that the record has been amended. Whenever the record is subsequently disclosed, the record will be disclosed as amended. If our response denies your request for an amendment to a record, we will advise you of your right to file a statement of disagreement under paragraph (f) of this section.
(f) Statements of disagreement—(1) What is a statement of disagreement? A statement of disagreement is a concise written statement in which you clearly identify each part of any record that you dispute and explain your reason(s) for disagreeing with our denial in whole or in part of your appeal requesting amendment.
(2) How do I file a statement of disagreement? You should mark both your letter and the envelope, or the subject of your email, “Privacy Act Statement of Disagreement.” To avoid mail delivery delays caused by heightened security, we strongly suggest that you email a statement of disagreement to [email protected]. Our mailing address is: Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, Washington, DC 20503, Attn: Privacy Act Appeals Officer.
(3) What will we do with your statement of disagreement? We shall clearly note any portion of the record that is disputed and provide copies of the statement and, if we deem appropriate, copies of our statement that denied your request for an appeal for amendment, to persons or other agencies to whom the disputed record has been disclosed.
(g) When appeal is required. Under this section, you generally first must submit a timely administrative appeal, before seeking review of an adverse determination or denial request by a court.
§ 10400.24 What does it cost to get records under the Privacy Act?
(a) Agreement to pay fees. Your request is an agreement to pay fees. We consider your Privacy Act request as your agreement to pay all applicable fees unless you specify a limit on the amount of fees you agree to pay. We will not exceed the specified limit without your written agreement.
(b) How do we calculate fees? We will charge a fee for duplication of a record under the Privacy Act in the same way we charge for duplication of records under the FOIA in § 10400.11(c). There are no fees to search for or review records requested under the Privacy Act.