December 31, 2001 CODE OF FEDERAL REGULATIONS 5Part 1200 to End Revised as of January 1, 2002 Administrative Personnel6 (Reserved) Containing a codification of documents of general applicability and future effect As of January 1, 2002 With Ancillaries

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 Table of Contents Page Explanation vii Title 5: Chapter II—Merit Systems Protection Board 5 Chapter III—Office of Management and Budget 99 Chapter V—The International Organizations Employees Loyalty Board 167 Chapter VI—Federal Retirement Thrift Investment Board 173 Chapter VII—Advisory Commission on Intergovernmental Relations 299 Chapter VIII—Office of Special Counsel 321 Chapter IX—Appalachian Regional Commission 337 Chapter XI—Armed Forces Retirement Home 341 Chapter XIV—Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses Panel 349 Chapter XV—Office of Administration, Executive Office of the President 447 Chapter XVI—Office of Government Ethics 467 Chapter XXI—Department of the Treasury 659 Chapter XXII—Federal Deposit Insurance Corporation 669 Chapter XXIII—Department of Energy 679 Chapter XXIV—Federal Energy Regulatory Commission 683 Chapter XXV—Department of the Interior 687 Chapter XXVI—Department of Defense 695 Chapter XXVIII—Department of Justice 701 Chapter XXIX—Federal Communications Commission 707 Chapter XXX—Farm Credit System Insurance Corporation 711 Chapter XXXI—Farm Credit Administration 717 Chapter XXXIII—Overseas Private Investment Corporation 723 Chapter XXXV—Office of Personnel Management 727 Chapter XL—Interstate Commerce Commission 731 Chapter XLI—Commodity Futures Trading Commission 735 Chapter XLII—Department of Labor 739 Chapter XLIII—National Science Foundation 745 Chapter XLV—Department of Health and Human Services 751 Chapter XLVI—Postal Rate Commission 761 Chapter XLVII—Federal Trade Commission 765 Chapter XLVIII—Nuclear Regulatory Commission 769 Chapter L—Department of Transportation 775 Chapter LII—Export-Import Bank of the United States 779 Chapter LIII—Department of Education 785 Chapter LIV—Environmental Protection Agency 789 Chapter LVII—General Services Administration 795 Chapter LVIII—Board of Governors of the Federal Reserve System 801 Chapter LIX—National Aeronautics and Space Administration 807 Chapter LX—United States Postal Service 813 Chapter LXI—National Labor Relations Board 817 Chapter LXII—Equal Employment Opportunity Commission 821 Chapter LXIII—Inter-American Foundation 825 Chapter LXV—Department of Housing and Urban Development 829 Chapter LXVI—National Archives and Records Administration 837 Chapter LXIX—Tennessee Valley Authority 841 Chapter LXXI—Consumer Product Safety Commission 845 Chapter LXXIII—Department of Agriculture 849 Chapter LXXIV—Federal Mine Safety and Health Review Commission 855 Chapter LXXVI—Federal Retirement Thrift Investment Board 859 Chapter LXXVII—Office of Management and Budget 863 Title 6—[Reserved] Finding Aids: Table of CFR Titles and Chapters 871 Alphabetical List of Agencies Appearing in the CFR 889 Redesignation Tables 899 List of CFR Sections Affected 907

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To cite the regulations in this volume use title, part and section number. Thus, 5 CFR 1200.1 refers to title 5, part 1200, section 1. Explanation

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Title 5—Administrative Personnel is composed of three volumes. The parts in these volumes are arranged in the following order: parts 1-699, 700-1199 and part 1200-end. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2002.

Redesignation tables appear in the Finding Aids section of the volumes containing parts 700-1199 and part 1200-End.

CFRORDR.FRM <LRH>5 CFR Ch. II (1-1-02 Edition)</LRH> <RRH>Merit Systems Protection Board</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 5—Administrative Personnel</HD> <P>(This book contains part 1200 to End)</P> </TITLEHD> <CFRTOC> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Title 5 of the United States Code was revised and enacted into positive law by Pub. L. 89-554, Sept. 6, 1966. New citations for obsolete references to sections of 5 U.S.C. appearing in this volume may be found in a redesignation table under Title 5, Government Organization and Employees, United States Code.</P> </EDNOTE> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—Merit Systems Protection Board</SUBJECT> <PG>1200</PG> <SUBJECT> <E T="04">chapter iii</E>—Office of Management and Budget</SUBJECT> <PG>1300</PG> <SUBJECT> <E T="04">chapter v</E>—The International Organizations Employees Loyalty Board</SUBJECT> <PG>1501</PG> <SUBJECT> <E T="04">chapter vi</E>—Federal Retirement Thrift Investment Board</SUBJECT> <PG>1600</PG> <SUBJECT> <E T="04">chapter vii</E>—Advisory Commission on Intergovernmental Relations</SUBJECT> <PG>1700</PG> <SUBJECT> <E T="04">chapter viii</E>—Office of Special Counsel</SUBJECT> <PG>1800</PG> <SUBJECT> <E T="04">chapter ix</E>—Appalachian Regional Commission</SUBJECT> <PG>1900</PG> <SUBJECT> <E T="04">chapter xi</E>—Armed Forces Retirement Home</SUBJECT> <PG>2100</PG> <SUBJECT> <E T="04">chapter xiv</E>—Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses Panel</SUBJECT> <PG>2411</PG> </CHAPTI> <APP>Appendix A to 5 CFR Chapter XIV—Current Addresses and Geographic Jurisdictions.</APP> <APP>Appendix B to 5 CFR Chapter XIV—Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority.</APP> <CHAPTI> <PRTPAGE P="2"/> <SUBJECT> <E T="04">chapter xv</E>—Office of Administration, Executive Office of the President</SUBJECT> <PG>2500</PG> <SUBJECT> <E T="04">chapter xvi</E>—Office of Government Ethics</SUBJECT> <PG>2600</PG> <SUBJECT> <E T="04">chapter xxi</E>—Department of the Treasury</SUBJECT> <PG>3101</PG> <SUBJECT> <E T="04">chapter xxii</E>—Federal Deposit Insurance Corporation</SUBJECT> <PG>3201</PG> <SUBJECT> <E T="04">chapter xxiii</E>—Department of Energy</SUBJECT> <PG>3301</PG> <SUBJECT> <E T="04">chapter xxiv</E>—Federal Energy Regulatory Commission</SUBJECT> <PG>3401</PG> <SUBJECT> <E T="04">chapter xxv</E>—Department of the Interior</SUBJECT> <PG>3501</PG> <SUBJECT> <E T="04">chapter xxvi</E>—Department of Defense</SUBJECT> <PG>3601</PG> <SUBJECT> <E T="04">chapter xxvii</E>—Department of Justice</SUBJECT> <PG>3801</PG> <SUBJECT> <E T="04">chapter xxix</E>—Federal Communications Commission</SUBJECT> <PG>3901</PG> <SUBJECT> <E T="04">chapter xxx</E>—Farm Credit System Insurance Corporation</SUBJECT> <PG>4001</PG> <SUBJECT> <E T="04">chapter xxxi</E>—Farm Credit Administration</SUBJECT> <PG>4101</PG> <SUBJECT> <E T="04">chapter xxxiii</E>—Overseas Private Investment Corporation</SUBJECT> <PG>4301</PG> <SUBJECT> <E T="04">chapter xxxv</E>—Office of Personnel Management</SUBJECT> <PG>4501</PG> <SUBJECT> <E T="04">chapter xl</E>—Interstate Commerce Commission</SUBJECT> <PG>5001</PG> <SUBJECT> <E T="04">chapter xli</E>—Commodity Futures Trading Commission</SUBJECT> <PG>5101</PG> <SUBJECT> <E T="04">chapter xlii</E>—Department of Labor</SUBJECT> <PG>5201</PG> <SUBJECT> <E T="04">chapter xliii</E>—National Science Foundation</SUBJECT> <PG>5301</PG> <SUBJECT> <E T="04">chapter xlv</E>—Department of Health and Human Services</SUBJECT> <PG>5501</PG> <SUBJECT> <E T="04">chapter xlvi</E>—Postal Rate Commission</SUBJECT> <PG>5601</PG> <SUBJECT> <E T="04">chapter xlvii</E>—Federal Trade Commission</SUBJECT> <PG>5701</PG> <SUBJECT> <E T="04">chapter xlviii</E>—Nuclear Regulatory Commission</SUBJECT> <PG>5801</PG> <SUBJECT> <E T="04">chapter l</E>—Department of Transportation</SUBJECT> <PG>6001</PG> <SUBJECT> <E T="04">chapter lii</E>—Export-Import Bank of the United States</SUBJECT> <PG>6201</PG> <SUBJECT> <E T="04">chapter liii</E>—Department of Education</SUBJECT> <PG>6301</PG> <SUBJECT> <E T="04">chapter liv</E>—Environmental Protection Agency</SUBJECT> <PG>6401</PG> <SUBJECT> <E T="04">chapter lvii</E>—General Services Administration</SUBJECT> <PG>6701</PG> <SUBJECT> <E T="04">chapter lviii</E>—Board of Governors of the Federal Reserve System</SUBJECT> <PG>6801</PG> <SUBJECT> <E T="04">chapter lix</E>—National Aeronautics and Space Administration</SUBJECT> <PG>6901</PG> <SUBJECT> <E T="04">chapter lx</E>—United States Postal Service</SUBJECT> <PG>7001</PG> <SUBJECT> <E T="04">chapter lxi</E>—National Labor Relations Board</SUBJECT> <PG>7101</PG> <SUBJECT> <E T="04">chapter lxii</E>—Equal Employment Opportunity Commission</SUBJECT> <PG>7201</PG> <SUBJECT> <E T="04">chapter lxiii</E>—Inter-American Foundation</SUBJECT> <PG>7301<PRTPAGE P="3"/> </PG> <SUBJECT> <E T="04">chapter lxv</E>—Department of Housing and Urban Development</SUBJECT> <PG>7501</PG> <SUBJECT> <E T="04">chapter lxvi</E>—National Archives and Records Administration</SUBJECT> <PG>7601</PG> <SUBJECT> <E T="04">chapter lxix</E>—Tennessee Valley Authority</SUBJECT> <PG>7901</PG> <SUBJECT> <E T="04">chapter lxxi</E>—Consumer Product Safety Commission</SUBJECT> <PG>8101</PG> <SUBJECT> <E T="03">chapter lxxiii</E>—Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture</SUBJECT> <PG>8301</PG> <SUBJECT> <E T="04">chapter lxxiv</E>—Federal Mine Safety and Health Review Commission</SUBJECT> <PG>8401</PG> <SUBJECT> <E T="04">chapter lxxvi</E>—Federal Retirement Thrift Investment Board</SUBJECT> <PG>8601</PG> <SUBJECT> <E T="04">chapter lxxvii</E>—Office of Management and Budget</SUBJECT> <PG>8701</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">CHAPTER II—MERIT SYSTEMS PROTECTION BOARD</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1200</PT> <SUBJECT>Board organization</SUBJECT> <PG>7</PG> <PT>1201</PT> <SUBJECT>Practices and procedures</SUBJECT> <PG>9</PG> <PT>1202</PT> <SUBJECT>Statutory Review Board</SUBJECT> <PG>59</PG> <PT>1203</PT> <SUBJECT>Procedures for review of rules and regulations of the Office of Personnel Management</SUBJECT> <PG>59</PG> <PT>1204</PT> <SUBJECT>Availability of official information</SUBJECT> <PG>63</PG> <PT>1205</PT> <SUBJECT>Privacy Act regulations</SUBJECT> <PG>69</PG> <PT>1206</PT> <SUBJECT>Open meetings</SUBJECT> <PG>73</PG> <PT>1207</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Merit Systems Protection Board</SUBJECT> <PG>76</PG> <PT>1208</PT> <SUBJECT>Practices and procedures for appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act</SUBJECT> <PG>82</PG> <PT>1209</PT> <SUBJECT>Practices and procedures for appeals and stay requests of personnel actions allegedly based on whistleblowing</SUBJECT> <PG>86</PG> <PT>1210</PT> <SUBJECT>Debt management</SUBJECT> <PG>91</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="7"/> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> <PART> <EAR>Pt. 1200</EAR> <HD SOURCE="HED">PART 1200—BOARD ORGANIZATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1200.1</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <SECTNO>1200.2</SECTNO> <SUBJECT>Board members and duties.</SUBJECT> <SECTNO>1200.3</SECTNO> <SUBJECT>How the Board members make decisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Offices of the Board</HD> <SECTNO>1200.10</SECTNO> <SUBJECT>Staff organization and functions.</SUBJECT> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 41747, Aug. 23, 1991, unless otherwise noted.</P> </SOURCE> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1201 <E T="03">et seq.</E> </P> </AUTH> <SECTION> <SECTNO>§ 1200.1</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <P>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.</P> <CITA>[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.2</SECTNO> <SUBJECT>Board members and duties.</SUBJECT> <P>(a) The Board has three members whom the President appoints and the Senate confirms. Members of the Board serve seven-year terms.</P> <P>(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.</P> <CITA>[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.3</SECTNO> <SUBJECT>How the Board members make decisions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Decisions and orders issued pursuant to paragraphs (b) and (c) of this section shall not be precedential.</P> <P>(e) This section applies only when at least two Board members are in office.</P> <CITA>[59 FR 39937, Aug. 5, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Offices of the Board</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204 (h) and (j).</P> </AUTH> <SECTION> <SECTNO>§ 1200.10</SECTNO> <SUBJECT>Staff organization and functions.</SUBJECT> <P>(a) The Board's headquarters staff is organized into the following offices and divisions:</P> <P>(1) Office of Regional Operations.</P> <P>(2) Office of the Administrative Law Judge.</P> <P>(3) Office of Appeals Counsel.</P> <P>(4) Office of the Clerk of the Board.</P> <P>(5) Office of the General Counsel.</P> <P>(6) Office of Policy and Evaluation.</P> <P>(7) Office of Equal Employment Opportunity.<PRTPAGE P="8"/> </P> <P>(8) Financial and Administrative Management Division.</P> <P>(9) Information Resources Management Division.</P> <P>(b) The principal functions of the Board's headquarters offices are as follows:</P> <P>(1) <E T="03">Office of Regional Operations.</E> The Director, Office of Regional Operations, manages the adjudicatory and administrative functions of the MSPB regional and field offices.</P> <P>(2) <E T="03">Office of the Administrative Law Judge.</E> 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.</P> <P>(3) <E T="03">Office of Appeals Counsel.</E> 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.</P> <P>(4) <E T="03">Office of the Clerk of the Board.</E> 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:</P> <P>(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;</P> <P>(ii) Manages the Board's records, reports, legal research, and correspondence control programs; and</P> <P>(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.</P> <P>(5) <E T="03">Office of the General Counsel.</E> 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.</P> <P>(6) <E T="03">Office of Policy and Evaluation.</E> 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.</P> <P>(7) <E T="03">Office of Equal Employment Opportunity.</E> The Director, Office of Equal Employment Opportunity, manages the Board's equal employment programs.</P> <P>(8) <E T="03">Financial and Administrative Management Division.</E> The Financial and Administrative Management Division administers the budget, procurement, property management, physical security, and general services functions of the Board. It 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 Agriculture's National Finance Center for accounting, payroll, and personnel action processing services and with the U.S. Department of Agriculture's APHIS Business Services for most human resources management services.</P> <P>(9) <E T="03">Information Resources Management Division.</E> The Information Resources Management Division develops, implements, and maintains the Board's automated information systems.</P> <P>(c) <E T="03">Regional and Field Offices.</E> 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 <PRTPAGE P="9"/>and decide initial appeals and other assigned cases as provided for in the Board's regulations.</P> <CITA>[62 FR 49589, Sept. 23, 1997, as amended at 64 FR 15916, Apr. 2, 1999]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1201</EAR> <HD SOURCE="HED">PART 1201—PRACTICES AND PROCEDURES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1201.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1201.2</SECTNO> <SUBJECT>Original jurisdiction.</SUBJECT> <SECTNO>1201.3</SECTNO> <SUBJECT>Appellate jurisdiction.</SUBJECT> <SECTNO>1201.4</SECTNO> <SUBJECT>General definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Appellate Cases</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1201.11</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <SECTNO>1201.12</SECTNO> <SUBJECT>Revocation, amendment, or waiver of rules.</SUBJECT> <SECTNO>1201.13</SECTNO> <SUBJECT>Appeals by Board employees.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal of Agency Action; Pleadings</HD> <SECTNO>1201.21</SECTNO> <SUBJECT>Notice of appeal rights.</SUBJECT> <SECTNO>1201.22</SECTNO> <SUBJECT>Filing an appeal and responses to appeals.</SUBJECT> <SECTNO>1201.23</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>1201.24</SECTNO> <SUBJECT>Content of an appeal; right to hearing.</SUBJECT> <SECTNO>1201.25</SECTNO> <SUBJECT>Content of agency response.</SUBJECT> <SECTNO>1201.26</SECTNO> <SUBJECT>Number of pleadings, service, and response.</SUBJECT> <SECTNO>1201.27</SECTNO> <SUBJECT>Class appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parties, Representatives, and Witnesses</HD> <SECTNO>1201.31</SECTNO> <SUBJECT>Representatives.</SUBJECT> <SECTNO>1201.32</SECTNO> <SUBJECT>Witnesses; right to representation.</SUBJECT> <SECTNO>1201.33</SECTNO> <SUBJECT>Federal witnesses.</SUBJECT> <SECTNO>1201.34</SECTNO> <SUBJECT>Intervenors and amicus curiae.</SUBJECT> <SECTNO>1201.35</SECTNO> <SUBJECT>Substituting parties.</SUBJECT> <SECTNO>1201.36</SECTNO> <SUBJECT>Consolidating and joining appeals.</SUBJECT> <SECTNO>1201.37</SECTNO> <SUBJECT>Witness fees.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Judges</HD> <SECTNO>1201.41</SECTNO> <SUBJECT>Judges.</SUBJECT> <SECTNO>1201.42</SECTNO> <SUBJECT>Disqualifying a judge.</SUBJECT> <SECTNO>1201.43</SECTNO> <SUBJECT>Sanctions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTNO>1201.51</SECTNO> <SUBJECT>Scheduling the hearing.</SUBJECT> <SECTNO>1201.52</SECTNO> <SUBJECT>Public hearings.</SUBJECT> <SECTNO>1201.53</SECTNO> <SUBJECT>Record of proceedings.</SUBJECT> <SECTNO>1201.55</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>1201.56</SECTNO> <SUBJECT>Burden and degree of proof; affirmative defenses.</SUBJECT> <SECTNO>1201.57</SECTNO> <SUBJECT>Order of hearing.</SUBJECT> <SECTNO>1201.58</SECTNO> <SUBJECT>Closing the record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence</HD> <SECTNO>1201.61</SECTNO> <SUBJECT>Exclusion of evidence and testimony.</SUBJECT> <SECTNO>1201.62</SECTNO> <SUBJECT>Producing prior statements.</SUBJECT> <SECTNO>1201.63</SECTNO> <SUBJECT>Stipulations.</SUBJECT> <SECTNO>1201.64</SECTNO> <SUBJECT>Official notice.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTNO>1201.71</SECTNO> <SUBJECT>Purpose of discovery.</SUBJECT> <SECTNO>1201.72</SECTNO> <SUBJECT>Explanation and scope of discovery.</SUBJECT> <SECTNO>1201.73</SECTNO> <SUBJECT>Discovery procedures.</SUBJECT> <SECTNO>1201.74</SECTNO> <SUBJECT>Orders for discovery.</SUBJECT> <SECTNO>1201.75</SECTNO> <SUBJECT>Taking depositions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Subpoenas</HD> <SECTNO>1201.81</SECTNO> <SUBJECT>Requests for subpoenas.</SUBJECT> <SECTNO>1201.82</SECTNO> <SUBJECT>Motions to quash subpoenas.</SUBJECT> <SECTNO>1201.83</SECTNO> <SUBJECT>Serving subpoenas.</SUBJECT> <SECTNO>1201.84</SECTNO> <SUBJECT>Proof of service.</SUBJECT> <SECTNO>1201.85</SECTNO> <SUBJECT>Enforcing subpoenas.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Interlocutory Appeals</HD> <SECTNO>1201.91</SECTNO> <SUBJECT>Explanation.</SUBJECT> <SECTNO>1201.92</SECTNO> <SUBJECT>Criteria for certifying interlocutory appeals.</SUBJECT> <SECTNO>1201.93</SECTNO> <SUBJECT>Procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ex Parte Communications</HD> <SECTNO>1201.101</SECTNO> <SUBJECT>Explanation and definitions.</SUBJECT> <SECTNO>1201.102</SECTNO> <SUBJECT>Prohibition on ex parte communications.</SUBJECT> <SECTNO>1201.103</SECTNO> <SUBJECT>Placing communications in the record; sanctions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Final Decisions</HD> <SECTNO>1201.111</SECTNO> <SUBJECT>Initial decision by judge.</SUBJECT> <SECTNO>1201.112</SECTNO> <SUBJECT>Jurisdiction of judge.</SUBJECT> <SECTNO>1201.113</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Petitions for Review of Initial Decisions</HD> <SECTNO>1201.114</SECTNO> <SUBJECT>Filing petition and cross petition for review.</SUBJECT> <SECTNO>1201.115</SECTNO> <SUBJECT>Contents of petition for review.</SUBJECT> <SECTNO>1201.116</SECTNO> <SUBJECT>Appellant requests for enforcement of interim relief.</SUBJECT> <SECTNO>1201.117</SECTNO> <SUBJECT>Procedures for review or reopening.</SUBJECT> <SECTNO>1201.118</SECTNO> <SUBJECT>Board reopening of case and reconsideration of initial decision.</SUBJECT> <SECTNO>1201.119</SECTNO> <SUBJECT>OPM petition for reconsideration.</SUBJECT> <SECTNO>1201.120</SECTNO> <SUBJECT>Judicial review.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Original Jurisdiction Cases</HD> <HD SOURCE="HD1">GENERAL</HD> <SECTNO>1201.121</SECTNO> <SUBJECT>Scope of jurisdiction; application of subparts B, F, and H.</SUBJECT> <HD SOURCE="HD1">Special Counsel Disciplinary Actions</HD> <SECTNO>1201.122</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.123</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.124</SECTNO> <SUBJECT>Rights; answer to complaint.<PRTPAGE P="10"/> </SUBJECT> <SECTNO>1201.125</SECTNO> <SUBJECT>Administrative law judge.</SUBJECT> <SECTNO>1201.126</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <SECTNO>1201.127</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <HD SOURCE="HD1">Special Counsel Corrective Actions</HD> <SECTNO>1201.128</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.129</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.130</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <SECTNO>1201.131</SECTNO> <SUBJECT>Judge.</SUBJECT> <SECTNO>1201.132</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <SECTNO>1201.133</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <HD SOURCE="HD1">Special Counsel Requests for Stays</HD> <SECTNO>1201.134</SECTNO> <SUBJECT>Deciding official; filing stay request; serving documents on parties.</SUBJECT> <SECTNO>1201.135</SECTNO> <SUBJECT>Contents of stay request.</SUBJECT> <SECTNO>1201.136</SECTNO> <SUBJECT>Action on stay request.</SUBJECT> <HD SOURCE="HD1">Actions Against Administrative Law Judges</HD> <SECTNO>1201.137</SECTNO> <SUBJECT>Covered actions; filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.138</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.139</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <SECTNO>1201.140</SECTNO> <SUBJECT>Judge; requirement for finding of good cause.</SUBJECT> <SECTNO>1201.141</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>1201.142</SECTNO> <SUBJECT>Actions filed by administrative law judges.</SUBJECT> <HD SOURCE="HD1">Removal From the Senior Executive Service</HD> <SECTNO>1201.143</SECTNO> <SUBJECT>Right to hearing; filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.144</SECTNO> <SUBJECT>Hearing procedures; referring the record.</SUBJECT> <SECTNO>1201.145</SECTNO> <SUBJECT>No appeal.</SUBJECT> <HD SOURCE="HD1">Requests for Protective Orders</HD> <SECTNO>1201.146</SECTNO> <SUBJECT>Requests for protective orders by the Special Counsel.</SUBJECT> <SECTNO>1201.147</SECTNO> <SUBJECT>Requests for protective orders by persons other than the Special Counsel.</SUBJECT> <SECTNO>1201.148</SECTNO> <SUBJECT>Enforcement of protective orders.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Procedures for Cases Involving Allegations of Discrimination</HD> <SECTNO>1201.151</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <SECTNO>1201.152</SECTNO> <SUBJECT>Compliance with subpart B procedures.</SUBJECT> <SECTNO>1201.153</SECTNO> <SUBJECT>Contents of appeal.</SUBJECT> <SECTNO>1201.154</SECTNO> <SUBJECT>Time for filing appeal; closing record in cases involving grievance decisions.</SUBJECT> <SECTNO>1201.155</SECTNO> <SUBJECT>Remand of allegations of discrimination.</SUBJECT> <SECTNO>1201.156</SECTNO> <SUBJECT>Time for processing appeals involving allegations of discrimination.</SUBJECT> <SECTNO>1201.157</SECTNO> <SUBJECT>Notice of right to judicial review.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Review of Board Decision</HD> <SECTNO>1201.161</SECTNO> <SUBJECT>Action by the Equal Employment Opportunity Commission; judicial review.</SUBJECT> <SECTNO>1201.162</SECTNO> <SUBJECT>Board action on the Commission decision; judicial review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Panel</HD> <SECTNO>1201.171</SECTNO> <SUBJECT>Referral of case to Special Panel.</SUBJECT> <SECTNO>1201.172</SECTNO> <SUBJECT>Organization of Special Panel; designation of members.</SUBJECT> <SECTNO>1201.173</SECTNO> <SUBJECT>Practices and procedures of Special Panel.</SUBJECT> <SECTNO>1201.174</SECTNO> <SUBJECT>Enforcing the Special Panel decision.</SUBJECT> <SECTNO>1201.175</SECTNO> <SUBJECT>Judicial review of cases decided under 5 U.S.C. 7702.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Enforcement of Final Decisions and Orders</HD> <SECTNO>1201.181</SECTNO> <SUBJECT>Authority and explanation.</SUBJECT> <SECTNO>1201.182</SECTNO> <SUBJECT>Petition for enforcement.</SUBJECT> <SECTNO>1201.183</SECTNO> <SUBJECT>Procedures for processing petitions for enforcement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Savings Provisions</HD> <SECTNO>1201.191</SECTNO> <SUBJECT>Savings provisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable), Consequential Damages, and Compensatory Damages</HD> <SECTNO>1201.201</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <SECTNO>1201.202</SECTNO> <SUBJECT>Authority for awards.</SUBJECT> <SECTNO>1201.203</SECTNO> <SUBJECT>Proceedings for attorney fees.</SUBJECT> <SECTNO>1201.204</SECTNO> <SUBJECT>Proceedings for consequential damages and compensatory damages..</SUBJECT> <SECTNO>1201.205</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <APP>Appendix I to Part 1201—Merit Systems Protection Board Appeal Form</APP> <APP>Appendix II to Part 1201—Appropriate Regional or Field Office for Filing Appeals</APP> <APP>Appendix III to Part 1201—Approved Hearing Locations by Regional Office</APP> <APP>Appendix IV to Part 1201—Sample Declaration Under 28 U.S.C. 1746</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204 and 7701.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 53504, Dec. 29, 1989, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1201.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>The Board has two types of jurisdiction, original and appellate.</P> </SECTION> <SECTION> <SECTNO>§ 1201.2</SECTNO> <SUBJECT>Original jurisdiction.</SUBJECT> <P>The Board's original jurisdiction includes the following cases:<PRTPAGE P="11"/> </P> <P>(a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 1215, and 1216;</P> <P>(b) Requests, by persons removed from the Senior Executive Service for performance deficiencies, for informal hearings; and</P> <P>(c) Actions taken against administrative law judges under 5 U.S.C. 7521.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.3</SECTNO> <SUBJECT>Appellate jurisdiction.</SUBJECT> <P>(a) <E T="03">Generally.</E> The Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or regulation. These include appeals from the following actions:</P> <P>(1) Reduction in grade or removal for unacceptable performance (5 CFR part 432; 5 U.S.C. 4303(e));</P> <P>(2) Removal, reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service. (5 CFR part 752, subparts C and D; 5 U.S.C. 7512);</P> <P>(3) Removal, or suspension for more than 14 days, of a career appointee in the Senior Executive Service (5 CFR part 752, subparts E and F; 5 U.S.C. 7541-7543);</P> <P>(4) Reduction-in-force action affecting a career appointee in the Senior Executive Service (5 U.S.C. 3595);</P> <P>(5) Reconsideration decision sustaining a negative determination of competence for a general schedule employee (5 CFR 531.410; 5 U.S.C. 5335(c));</P> <P>(6) Determinations affecting the rights or interests of an individual or of the United States under the Civil Service Retirement System or the Federal Employees’ Retirement System (5 CFR parts 831, 839, 842, 844, and 846; 5 U.S.C. 8347(d)(1)-(2) and 8461 (e)(1); and 5 U.S.C. 8331 note, Federal Erroneous Retirement Coverage Corrections Act)</P> <P>(7) Disqualification of an employee or applicant because of a suitability determination (5 CFR 731.501);</P> <P>(8) Termination of employment during probation or the first year of a veterans readjustment appointment when:</P> <P>(i) The employee alleges discrimination because of partisan political reasons or marital status; <E T="03">or</E> </P> <P>(ii) The termination was based on conditions arising before appointment and the employee alleges that the action is procedurally improper (5 CFR 315.806, 38 U.S.C. 4214(b)(1)(E));</P> <P>(9) Termination of appointment during a managerial or supervisory probationary period when the employee alleges discrimination because of partisan political affiliation or marital status (5 CFR 315.908(b));</P> <P>(10) Separation, demotion, or furlough for more than 30 days, when the action was effected because of a reduction in force (5 CFR 351.901);</P> <P>(11) Furlough of a career appointee in the Senior Executive Service (5 CFR 359.805);</P> <P>(12) Failure to restore, improper restoration of, or failure to return following a leave of absence an employee or former employee of an agency in the executive branch (including the U.S. Postal Service and the Postal Rate Commission) following partial or full recovery from a compensable injury (5 CFR 353.304);</P> <P>(13) Employment of another applicant when the person who wishes to appeal to the Board is entitled to priority employment consideration after a reduction-in-force action, or after partial or full recovery from a compensable injury (5 CFR 302.501, 5 CFR 330.209);</P> <P>(14) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);</P> <P>(15) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209);</P> <P>(16) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313);</P> <P>(17) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707);</P> <P>(18) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807);</P> <P>(19) 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);</P> <P>(20) Removal of a career appointee from the Senior Executive Service for <PRTPAGE P="12"/>failure to be recertified (5 U.S.C. 3592(a)(3), 5 CFR 359.304); and</P> <P>(21) Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (22 U.S.C. 4011).</P> <P>(b)(1) <E T="03">Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act.</E> Appeals filed under the Uniformed Services Employment and Reemployment Rights Act (Public Law 103-353), as amended, and the Veterans EmploymentOpportunities 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.</P> <P>(2) <E T="03">Appeals involving an allegation that the action was based on appellant's “whistleblowing.”</E> 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” [a violation of the prohibited personnel practice described in 5 U.S.C. 2302(b)(8)), 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 and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.</P> <P>(c) <E T="03">Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures:</E> </P> <P>(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:</P> <P>(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;</P> <P>(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:</P> <P>(A) The Board's appellate procedures;</P> <P>(B) The negotiated grievance procedures; or</P> <P>(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.</P> <P>(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.</P> <P>(2) <E T="03">Choice of procedure.</E> 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.</P> <P>(3) <E T="03">Review of discrimination grievances.</E> 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 <PRTPAGE P="13"/>the Clerk of the Board in accordance with § 1201.154.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.4</SECTNO> <SUBJECT>General definitions.</SUBJECT> <P>(a) <E T="03">Judge.</E> Any person authorized by the Board to hold a hearing or to decide a case without a hearing, including an attorney-examiner, an administrative judge, an administrative law judge, the Board, or any member of the Board.</P> <P>(b) <E T="03">Pleading.</E> Written submission setting out claims, allegations, arguments, or evidence. Pleadings include briefs, motions, petitions, attachments, and responses.</P> <P>(c) <E T="03">Motion.</E> A request that a judge take a particular action.</P> <P>(d) <E T="03">Appropriate regional or field office.</E> 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.</P> <P>(e) <E T="03">Party.</E> 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.</P> <P>(f) <E T="03">Appeal.</E> A request for review of an agency action.</P> <P>(g) <E T="03">Petition for review.</E> A request for review of an initial decision of a judge.</P> <P>(h) <E T="03">Day.</E> Calendar day.</P> <P>(i) <E T="03">Service.</E> The process of furnishing a copy of any pleading to Board officials, other parties, or both, either by mail, by facsimile, by personal delivery, or by commercial overnight delivery.</P> <P>(j) <E T="03">Date of service.</E> The date on which documents are served on other parties.</P> <P>(k) <E T="03">Certificate of Service.</E> A document certifying that a party has served copies of pleadings on the other parties.</P> <P>(l) <E T="03">Date of filing.</E> 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 overnight delivery is the date the document was delivered to the commercial overnight delivery service.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Appellate Cases</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1201.11</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <P>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, with due regard to the rights of all parties.</P> </SECTION> <SECTION> <SECTNO>§ 1201.12</SECTNO> <SUBJECT>Revocation, amendment, or waiver of rules.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="14"/> <SECTNO>§ 1201.13</SECTNO> <SUBJECT>Appeals by Board employees.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal of Agency Action; Pleadings</HD> <SECTION> <SECTNO>§ 1201.21</SECTNO> <SUBJECT>Notice of appeal rights.</SUBJECT> <P>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:</P> <P>(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;</P> <P>(b) A copy, or access to a copy, of the Board's regulations;</P> <P>(c) A copy of the appeal form in appendix I of this part; and</P> <P>(d) Notice of any right the employee has to file a grievance, including:</P> <P>(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;</P> <P>(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; and</P> <P>(3) Whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.154(d).</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 25624, May 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.22</SECTNO> <SUBJECT>Filing an appeal and responses to appeals.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> Appeals, and responses to those appeals, must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this part.</P> <P>(b) <E T="03">Time of filing.</E> (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 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.</P> <P>(2) The time limit prescribed by paragraph (b)(1) 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 ReemploymentRights Act (Public Law 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 (Public Law 105-339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests.</P> <P>(c) <E T="03">Timeliness of appeals.</E> 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.<PRTPAGE P="15"/> </P> <P>(d) <E T="03">Method of filing.</E> Filing must be made with the appropriate Board office by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 59992, Nov. 6, 1997; 62 FR 66814, Dec. 22, 1997; 64 FR 27899, May 24, 1999; 64 FR 54508, Oct. 7, 1999; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.23</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>In computing the number of days allowed for filing a submission, 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. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>If an employee receives a decision notice that is effective on July 1, the 30-day period for filing an appeal starts to run on July 2. The filing ordinarily would be timely only if it is made by July 31. If July 31 is a Saturday, however, the last day for filing would be Monday, August 2.</P> </EXAMPLE> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.24</SECTNO> <SUBJECT>Content of an appeal; right to hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> 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, but they must contain the following:</P> <P>(1) The name, address, and telephone number of the appellant, and the name and address of the agency that took the action;</P> <P>(2) A description of the action the agency took and its effective date;</P> <P>(3) A request for hearing if the appellant wants one;</P> <P>(4) A statement of the reasons why the appellant believes the agency action is wrong;</P> <P>(5) A statement of the action the appellant would like the judge to order;</P> <P>(6) The name, address, and telephone number of the appellant's representative, if the appellant has a representative;</P> <P>(7) The notice of the decision to take the action being appealed, along with any relevant documents;</P> <P>(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</P> <P>(9) The signature of the appellant or, if the appellant has a representative, of the representative.</P> <P>(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.</P> <P>(c) <E T="03">Use of Board form.</E> An appellant may comply with paragraph (a) of this section, and with § 1201.31 of this part, by completing the form in Appendix I of this part.</P> <P>(d) <E T="03">Right to hearing.</E> Under 5 U.S.C. 7701, an appellant has a right to a hearing.</P> <P>(e) <E T="03">Timely request.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.25</SECTNO> <SUBJECT>Content of agency response.</SUBJECT> <P>The agency response to an appeal must contain the following:</P> <P>(a) The name of the appellant and of the agency whose action the appellant is appealing;</P> <P>(b) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action;</P> <P>(c) All documents contained in the agency record of the action;</P> <P>(d) Designation of and signature by the authorized agency representative; and</P> <P>(e) Any other documents or responses requested by the Board.</P> </SECTION> <SECTION> <PRTPAGE P="16"/> <SECTNO>§ 1201.26</SECTNO> <SUBJECT>Number of pleadings, service, and response.</SUBJECT> <P>(a) <E T="03">Number.</E> The appellant must file two copies of both the appeal and all attachments with the appropriate Board office.</P> <P>(b) <E T="03">Service—</E>(1) <E T="03">Service by the Board.</E> The appropriate office of the Board will mail a copy of the appeal to each party to the proceeding other than the appellant. It will attach to each copy a service list, consisting of a list of the names and addresses of the parties to the proceeding or their designated representatives.</P> <P>(2) <E T="03">Service by the parties.</E> 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 initial appeal. They may do so by mail, by facsimile, by personal delivery, or by commercial overnight delivery to each party and to each representative. A certificate of service stating how and when service was made must accompany each pleading. The parties must notify the appropriate Board office and one another, in writing, of any changes in the names or addresses on the service list.</P> <P>(c) <E T="03">Paper size.</E> Pleadings and attachments must be filed on 8 1/2 by 11-inch paper, except for good cause shown. This requirement enables the Board to comply with standards established for U.S. courts.</P> <CITA>[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58 FR 36345, July 7, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.27</SECTNO> <SUBJECT>Class appeals.</SUBJECT> <P>(a) <E T="03">Appeal.</E> 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.</P> <P>(b) <E T="03">Procedure.</E> 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.</P> <P>(c) <E T="03">Standards.</E> 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parties, Representatives, and Witnesses</HD> <SECTION> <SECTNO>§ 1201.31</SECTNO> <SUBJECT>Representatives.</SUBJECT> <P>(a) A party to an appeal may be represented in any matter related to the appeal. The parties must designate their representatives, if any, in writing. Any change in representation, and any revocation of a designation of representative, also must be in writing. Notice of the change must be filed and served on the other parties in accordance with § 1201.26 of this part.</P> <P>(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. 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 <PRTPAGE P="17"/>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.</P> <P>(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.</P> <P>(d)(1) A judge may exclude a party, a representative, or other person from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice.</P> <P>(2) When a judge determines that a person should be excluded from participation in a proceeding, the judge shall inform the person of this determination through issuance of an order to show cause why he or she should not be excluded. The show cause order shall be delivered to the person by the most expeditious means of delivery available, including issuance of an oral order on the record where the determination to exclude the person is made during a hearing. The person must respond to the judge's show cause order within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the order, unless the judge provides a different time limit, or forfeit the right to seek certification of a subsequent exclusion order as an interlocutory appeal to the Board under paragraph (d)(3) of this section.</P> <P>(3) When, after consideration of the person's response to the show cause order, or in the absence of a response to the show cause order, the judge determines that the person should be excluded from participation in the proceeding, the judge shall issue an order that documents the reasons for the exclusion. The person may obtain review of the judge's ruling by filing, within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the ruling, a motion that the ruling be certified to the Board as an interlocutory appeal. The judge shall certify an interlocutory appeal to the Board within one day (excluding Saturdays, Sundays, and Federal holidays) of receipt of such a motion. Only the provisions of this paragraph apply to interlocutory appeals of rulings excluding a person from a proceeding; the provisions of §§ 1201.91 through 1201.93 of this part shall not apply.</P> <P>(4) A proceeding will not be delayed because the judge excludes a person from the proceeding, except that:</P> <P>(i) Where the judge excludes a party's representative, the judge will give the party a reasonable time to obtain another representative; and</P> <P>(ii) Where the judge certifies an interlocutory appeal of an exclusion ruling to the Board, the judge or the Board may stay the proceeding <E T="03">sua sponte</E> or on the motion of a party for a stay of the proceeding.</P> <P>(5) The Board, when considering a petition for review of a judge's initial decision under subpart C of this part, will not be bound by any decision of the judge to exclude a person from the proceeding below.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 62 FR 66815, Dec. 22, 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.32</SECTNO> <SUBJECT>Witnesses; right to representation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.33</SECTNO> <SUBJECT>Federal witnesses.</SUBJECT> <P>(a) Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or appearing 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).</P> <P>(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.<PRTPAGE P="18"/> </P> <P>(c) An order obtained under paragraph (b) of this section may be enforced as provided under subpart F of this part.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.34</SECTNO> <SUBJECT>Intervenors and amicus curiae.</SUBJECT> <P>(a) <E T="03">Explanation of Intervention.</E> 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.</P> <P>(b) <E T="03">Intervenors as a matter of right.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Permissive intervenors.</E> (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.</P> <P>(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.</P> <P>(d) <E T="03">Role of intervenors.</E> Intervenors have the same rights and duties as parties, with the following two exceptions:</P> <P>(1) Intervenors do not have an independent right to a hearing; and</P> <P>(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.</P> <P>(e) <E T="03">Amicus curiae.</E> An amicus curiae is a person or organization that, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may, in the discretion of the judge, be granted permission to file an amicus curiae brief.</P> </SECTION> <SECTION> <SECTNO>§ 1201.35</SECTNO> <SUBJECT>Substituting parties.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.36</SECTNO> <SUBJECT>Consolidating and joining appeals.</SUBJECT> <P>(a) <E T="03">Explanation.</E> (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.</P> <P>(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 <PRTPAGE P="19"/>pending appeal challenging a subsequent dismissal if the same appellant filed both appeals.</P> <P>(b) <E T="03">Action by judge.</E> A judge may consolidate or join cases on his or her own motion or on the motion of a party if doing so would:</P> <P>(1) Expedite processing of the cases; and</P> <P>(2) Not adversely affect the interests of the parties.</P> <P>(c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion.</P> </SECTION> <SECTION> <SECTNO>§ 1201.37</SECTNO> <SUBJECT>Witness fees.</SUBJECT> <P>(a) <E T="03">Federal employees.</E> 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.</P> <P>(b) <E T="03">Other witnesses.</E> 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.</P> <P>(c) <E T="03">Payment of witness fees and travel costs.</E> 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Judges</HD> <SECTION> <SECTNO>§ 1201.41</SECTNO> <SUBJECT>Judges.</SUBJECT> <P>(a) <E T="03">Exercise of authority.</E> 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.</P> <P>(b) <E T="03">Authority.</E> Judges will conduct fair and impartial hearings and will take all necessary action to avoid delay in all proceedings. 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:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas under § 1201.81 of this part;</P> <P>(3) Rule on offers of proof and receive relevant evidence;</P> <P>(4) Rule on discovery motions under § 1201.73 of this part;</P> <P>(5) After notice to the parties, order a hearing on his or her own initiative if the judge determines that a hearing is necessary:</P> <P>(i) To resolve an important issue of credibility;</P> <P>(ii) To ensure that the record on significant issues is fully developed; or</P> <P>(iii) To otherwise ensure a fair and just adjudication of the case;</P> <P>(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;</P> <P>(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;</P> <P>(8) Rule on all motions, witness and exhibit lists, and proposed findings;</P> <P>(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;</P> <P>(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;</P> <P>(11) Impose sanctions as provided under § 1201.43 of this part;</P> <P>(12) Hold prehearing conferences for the settlement and simplification of issues;</P> <P>(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;</P> <P>(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;</P> <P>(15) Issue initial decisions; and</P> <P>(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.<PRTPAGE P="20"/> </P> <P>(c) <E T="03">Settlement—</E>(1) <E T="03">Settlement discussion.</E> The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against <E T="03">ex parte</E> communications during settlement discussions, and they may agree to any limits on the waiver.</P> <P>(2) <E T="03">Agreement.</E> 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.</P> <P>(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.</P> <P>(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.42</SECTNO> <SUBJECT>Disqualifying a judge.</SUBJECT> <P>(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 immediately notify the Board of the withdrawal.</P> <P>(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.)</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.43</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>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), and (c) of this section.</P> <P>(a) <E T="03">Failure to comply with an order.</E> When a party fails to comply with an order, the judge may:</P> <P>(1) Draw an inference in favor of the requesting party with regard to the information sought;</P> <P>(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;</P> <P>(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and</P> <P>(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.</P> <P>(b) <E T="03">Failure to prosecute or defend appeal.</E> 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.</P> <P>(c) <E T="03">Failure to make timely filing.</E> The judge may refuse to consider any motion or other pleading that is not filed in a timely fashion in compliance with this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTION> <SECTNO>§ 1201.51</SECTNO> <SUBJECT>Scheduling the hearing.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The Board has established certain approved hearing locations, which are published as a Notice in the <E T="04">Federal Register.</E> See appendix III. Parties, for <PRTPAGE P="21"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.52</SECTNO> <SUBJECT>Public hearings.</SUBJECT> <P>Hearings are open to the public. The judge may order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.53</SECTNO> <SUBJECT>Record of proceedings.</SUBJECT> <P>(a) <E T="03">Preparation.</E> A word-for-word record of the hearing is made under the judge's guidance. It is kept in the Board's copy of the appeal file and it is the official record of the hearing. Only hearing tape recordings or written transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. When the judge assigned to the case tape records a hearing (for example, a telephonic hearing in a retirement appeal), the judge is the “official hearing reporter” under this section.</P> <P>(b) <E T="03">Copies</E>. When requested and when costs are paid, a copy of the official record of the hearing will be provided to a party. A party must send a request for a copy of a hearing tape recording or written transcript to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. A request for a copy of a hearing tape recording or written transcript sent by a non-party is controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests for hearing tape recordings or written transcripts under the Freedom of Information Act must be sent 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.</P> <P>(c)<E T="03"> Exceptions to payment of costs.</E> A party may not have to pay for a hearing tape recording or written transcript if he has a good reason. If a party believes he has a good reason and the request is made before the judge issues and initial decision, the party must sent the request for an exception to the judge. If the request is made after the judge issues an initial decision, the request must be sent to the Clerk of the Board. The party must clearly state the reason for the request in an affidavit or sworn statement.</P> <P>(d) <E T="03">Corrections to written transcript.</E> Corrections to the official written transcript may be made on motion by a party or on the judge's own motion. Motions for corrections must be filed within 10 days after the receipt of a written transcript. Corrections of the official written transcript will be made only when substantive errors are found and only with the judge's approval.</P> <P>(e) <E T="03">Official record.</E> Exhibits, the official hearing record, if a hearing is held, all papers filed, and all orders and decisions of the judge and the Board, make up the official record of the case.</P> <CITA>[65 FR 19293, Apr. 11, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.55</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(a) <E T="03">Form.</E> 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.</P> <P>(b) <E T="03">Objection.</E> 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.</P> <P>(c) <E T="03">Motions for extension of time.</E> Motions for extension of time will be granted only on a showing of good cause.<PRTPAGE P="22"/> </P> <P>(d) <E T="03">Motions for protective orders.</E> 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.56</SECTNO> <SUBJECT>Burden and degree of proof; affirmative defenses.</SUBJECT> <P>(a) <E T="03">Burden and degree of proof</E>—(1) <E T="03">Agency:</E> Under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in paragraph (b) of this section, the agency action must be sustained if:</P> <P>(i) It is brought under 5 U.S.C. 3592(a)(3), 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence; or</P> <P>(ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence.</P> <P>(2) <E T="03">Appellant.</E> The appellant has the burden of proof, by a preponderance of the evidence, with respect to:</P> <P>(i) Issues of jurisdiction;</P> <P>(ii) The timeliness of the appeal; and</P> <P>(iii) Affirmative defenses.</P> <FP>In appeals from reconsideration decisions of the Office of Personnel Management involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence, entitlement to the benefits. An appellant who has received an overpayment from the Civil Service Retirement and Disability Fund has the burden of proving, by substantial evidence, eligibility for waiver or adjustment.</FP> <P>(b) <E T="03">Affirmative defenses of the appellant.</E> Under 5 U.S.C. 7701(c)(2), the Board is required to overturn the action of the agency, even where the agency has met the evidentiary standard stated in paragraph (a) of this section, if the appellant:</P> <P>(1) Shows harmful error in the application of the agency's procedures in arriving at its decision;</P> <P>(2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or</P> <P>(3) Shows that the decision was not in accordance with law.</P> <P>(c) <E T="03">Definitions.</E> The following definitions apply to this part:</P> <P>(1) <E T="03">Substantial evidence.</E> 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.</P> <P>(2) <E T="03">Preponderance of the evidence.</E> 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.</P> <P>(3) <E T="03">Harmful error.</E> 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.57</SECTNO> <SUBJECT>Order of hearing.</SUBJECT> <P>(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.</P> <P>(b) The appellant will proceed first at hearings convened on the issues of:</P> <P>(1) Jurisdiction;</P> <P>(2) Timeliness; or</P> <P>(3) Office of Personnel Management disallowance of retirement benefits, when the appellant applied for those benefits.</P> <P>(c) The judge may vary the normal order of presenting evidence.</P> </SECTION> <SECTION> <SECTNO>§ 1201.58</SECTNO> <SUBJECT>Closing the record.</SUBJECT> <P>(a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge <PRTPAGE P="23"/>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.</P> <P>(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.</P> <P>(c) 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. The judge will include in the record, however, any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence</HD> <SECTION> <SECTNO>§ 1201.61</SECTNO> <SUBJECT>Exclusion of evidence and testimony.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.62</SECTNO> <SUBJECT>Producing prior statements.</SUBJECT> <P>After an individual has given evidence in a proceeding, any party may request a copy of any prior signed statement made by that individual that is relevant to the evidence given. If the party refuses to furnish the statement, the judge may exclude the evidence given.</P> </SECTION> <SECTION> <SECTNO>§ 1201.63</SECTNO> <SUBJECT>Stipulations.</SUBJECT> <P>The parties may stipulate to any matter of fact. The stipulation will satisfy a party's burden of proving the fact alleged.</P> </SECTION> <SECTION> <SECTNO>§ 1201.64</SECTNO> <SUBJECT>Official notice.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTION> <SECTNO>§ 1201.71</SECTNO> <SUBJECT>Purpose of discovery.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.72</SECTNO> <SUBJECT>Explanation and scope of discovery.</SUBJECT> <P>(a) <E T="03">Explanation.</E> 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.</P> <P>(b) <E T="03">Scope.</E> 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.</P> <P>(c) <E T="03">Methods.</E> Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. <PRTPAGE P="24"/>These methods include written interrogatories, depositions, requests for production of documents or things for inspection or copying, and requests for admission.</P> </SECTION> <SECTION> <SECTNO>§ 1201.73</SECTNO> <SUBJECT>Discovery procedures.</SUBJECT> <P>(a) <E T="03">Discovery from a party.</E> A party seeking discovery from another party must start the process by serving a request for discovery on the representative of the other party or the party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in § 1201.73(d), and must specify the time and place of the taking of the deposition, if applicable.</P> <P>When a party directs a request for discovery to an officer 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.</P> <P>(b) <E T="03">Discovery from a nonparty, including a nonparty Federal agency.</E> Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly. If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of the particular information sought. If the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the Board will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any Board-approved discovery request and subpoena on the individual or entity, or for arranging for their service.</P> <P>(c) <E T="03">Responses to discovery requests.</E> (1) A party, or a Federal agency that is not a party, 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 or testimony 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.</P> <P>(2) If a party fails or refuses to respond in full to a discovery request, or if a nonparty fails or refuses to respond in full to a Board-approved discovery order, the requesting party may file a motion to compel discovery. The requesting party must file the motion with the judge, and must serve a copy of the motion on the other party and on any nonparty entity or person from whom the discovery was sought. The motion must be accompanied by:</P> <P>(i) A copy of the original request and a statement showing that the information sought is relevant and material; and</P> <P>(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.)</P> <P>(3) The other party and any other entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (d)(4) of this section.</P> <P>(d) <E T="03">Time limits.</E> (1) Parties who wish to make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.</P> <P>(2) A party or nonparty must file a response to a discovery request promptly, but not later than 20 days after the date of service of the request <PRTPAGE P="25"/>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. 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.</P> <P>(3) Any motion to depose a nonparty (along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (d)(1) of this section or as the judge otherwise directs.</P> <P>(4) Any motion for an order to compel discovery 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 discovery must be filed with the judge within 10 days of the date of service of the motion.</P> <P>(5) Discovery must be completed within the time the judge designates.</P> </SECTION> <SECTION> <SECTNO>§ 1201.74</SECTNO> <SUBJECT>Orders for discovery.</SUBJECT> <P>(a) <E T="03">Motion for an order compelling discovery.</E> Motions for orders compelling discovery and motions for the appearance of nonparties must be filed with the judge in accordance with § 1201.73(c)(2) and (d)(4).</P> <P>(b) <E T="03">Content of order.</E> Any order issued will include, where appropriate:</P> <P>(1) A provision that the person to be deposed must be notified of the time and place of the deposition;</P> <P>(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;</P> <P>(3) Limits on the time for conducting depositions, answering written interrogatories, or producing documentary evidence; and</P> <P>(4) Other restrictions upon the discovery process that the judge sets.</P> <P>(c) <E T="03">Noncompliance.</E> The judge may impose sanctions under § 1201.43 of this part for failure to comply with an order compelling discovery.</P> </SECTION> <SECTION> <SECTNO>§ 1201.75</SECTNO> <SUBJECT>Taking depositions.</SUBJECT> <P>Depositions may be taken by any method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Subpoenas</HD> <SECTION> <SECTNO>§ 1201.81</SECTNO> <SUBJECT>Requests for subpoenas.</SUBJECT> <P>(a) <E T="03">Request.</E> 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. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses.</P> <P>(b) <E T="03">Form.</E> Parties requesting subpoenas must file their requests, in writing, with the judge. Each request must identify specifically the books, papers, or testimony desired.</P> <P>(c) <E T="03">Relevance.</E> The request must be supported by a showing that the evidence sought is relevant and that the scope of the request is reasonable.</P> <P>(d) <E T="03">Rulings.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.82</SECTNO> <SUBJECT>Motions to quash subpoenas.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.83</SECTNO> <SUBJECT>Serving subpoenas.</SUBJECT> <P>(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 <PRTPAGE P="26"/>subpoena has been issued, is responsible for serving the subpoena.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.84</SECTNO> <SUBJECT>Proof of service.</SUBJECT> <P>The person who has served the subpoena must certify that he or she did so:</P> <P>(a) By delivering it to the witness in person,</P> <P>(b) By registered or certified mail, or</P> <P>(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.</P> <FP>The document in which the party makes this certification also must include a statement that the prescribed fees have been paid or offered.</FP> </SECTION> <SECTION> <SECTNO>§ 1201.85</SECTNO> <SUBJECT>Enforcing subpoenas.</SUBJECT> <P>(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.</P> <P>(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).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Interlocutory Appeals</HD> <SECTION> <SECTNO>§ 1201.91</SECTNO> <SUBJECT>Explanation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.92</SECTNO> <SUBJECT>Criteria for certifying interlocutory appeals.</SUBJECT> <P>The judge will certify a ruling for review only if the record shows that:</P> <P>(a) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.93</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(a) <E T="03">Motion for certification.</E> 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.</P> <P>(b) <E T="03">Certification and review.</E> 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 <PRTPAGE P="27"/>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.</P> <P>(c) <E T="03">Stay of hearing.</E> The judge has the authority to proceed with or to stay the hearing while an interlocutory appeal is pending with the Board. Despite this authority, however, the Board may stay a hearing on its own motion while an interlocutory appeal is pending with it.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ex Parte Communications</HD> <SECTION> <SECTNO>§ 1201.101</SECTNO> <SUBJECT>Explanation and definitions.</SUBJECT> <P>(a) <E T="03">Explanation.</E> 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.</P> <P>(b) <E T="03">Definitions for purposes of this section.</E> </P> <P>(1) <E T="03">Interested party</E> includes:</P> <P>(i) Any party or representative of a party involved in a proceeding before the Board; and</P> <P>(ii) Any other person who might be affected by the outcome of a proceeding before the Board.</P> <P>(2) <E T="03">Decision-making official</E> means any judge, officer or other employee of the Board designated to hear and decide cases.</P> </SECTION> <SECTION> <SECTNO>§ 1201.102</SECTNO> <SUBJECT>Prohibition on ex parte communications.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.103</SECTNO> <SUBJECT>Placing communications in the record; sanctions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The following sanctions are available:</P> <P>(1) <E T="03">Parties.</E> 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.</P> <P>(2) <E T="03">Board personnel.</E> Offending Board personnel will be treated in accordance with the Board's standards of conduct.</P> <P>(3) <E T="03">Other persons.</E> The Board may invoke appropriate sanctions against other offending parties.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Final Decisions</HD> <SECTION> <SECTNO>§ 1201.111</SECTNO> <SUBJECT>Initial decision by judge.</SUBJECT> <P>(a) The judge will prepare an initial decision after the record closes, and will serve that decision on the Clerk of the Board, on the Director of the Office of Personnel Management, and on all parties to the appeal, including named parties, permissive intervenors, and intervenors of right.</P> <P>(b) Each initial decision will contain:</P> <P>(1) Findings of fact and conclusions of law upon all the material issues of fact and law presented on the record;<PRTPAGE P="28"/> </P> <P>(2) The reasons or bases for those findings and conclusions;</P> <P>(3) An order making final disposition of the case, including appropriate relief;</P> <P>(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;</P> <P>(5) The date upon which the decision will become final (a date that, for purposes of this section, is 35 days after issuance); and</P> <P>(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.</P> <P>(c) <E T="03">Interim relief.</E> (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.</P> <P>(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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997; 63 FR 41179, Aug. 3, 1998; 64 FR 27900, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.112</SECTNO> <SUBJECT>Jurisdiction of judge.</SUBJECT> <P>(a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to:</P> <P>(1) Correct the transcript, when one is obtained;</P> <P>(2) Rule on motions for exception to the requirement that a party seeking a transcript must pay for it;</P> <P>(3) Rule on a request by the appellant for attorney fees, consequential damages, or compensatory damages under subpart H of this part;</P> <P>(4) Process any petition for enforcement filed under subpart F of this part;</P> <P>(5) Vacate an initial decision before that decision becomes final under § 1201.113 in order to accept a settlement agreement into the record.</P> <P>(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.</P> <CITA>[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.113</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> <P>The initial decision of the judge will become final 35 days after issuance. Initial decisions are not precedential.</P> <P>(a) <E T="03">Exceptions.</E> The initial decision will not become final if any party files a petition for review within the time limit for filing specified in § 1201.114 of this part, or if the Board reopens the case on its own motion.</P> <P>(b) <E T="03">Petition for review denied.</E> 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.</P> <P>(c) <E T="03">Petition for review granted or case reopened.</E> 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.</P> <P>(d) <E T="03">Extensions.</E> The Board may extend the time limit for filing a petition for good cause shown as specified in § 1201.114 of this part.<PRTPAGE P="29"/> </P> <P>(e) <E T="03">Exhaustion.</E> Administrative remedies are exhausted when a decision becomes final in accordance with this section.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Petitions for Review of Initial Decisions</HD> <SECTION> <SECTNO>§ 1201.114</SECTNO> <SUBJECT>Filing petition and cross petition for review.</SUBJECT> <P>(a) <E T="03">Who may file.</E> Any party to the proceeding, the Director of the Office of Personnel Management (OPM), or the Special Counsel may file a 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.</P> <P>(b) <E T="03">Cross petition for review.</E> If a party, the Director of OPM, or the Special Counsel files a timely petition for review, any other party, the Director of OPM, or the Special Counsel may file a timely cross petition for review. The Board normally will consider only issues raised in a timely filed petition for review or in a timely filed cross petition for review.</P> <P>(c) <E T="03">Place for filing.</E> A petition for review, cross petition for review, responses to those petitions, and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <P>(d) <E T="03">Time for filing.</E> 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. 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 for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition.</P> <P>(e) <E T="03">Extension of time to file.</E> The Board will grant a motion for extension of time to file a petition for review, a cross petition, or a response only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board 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.</P> <P>(f) <E T="03">Late filings.</E> Any petition for review, cross petition for review, or response 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 (e) 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:</P> <P>(1) The reasons for failing to request an extension before the deadline for the submission; and</P> <P>(2) A specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence.</P> <FP>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 (d) 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 <PRTPAGE P="30"/>provide the party that submitted the document with an opportunity to show why it should not be dismissed or excluded as untimely.</FP> <P>(g) <E T="03">Intervention—</E>(1) <E T="03">By Director of OPM.</E> 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.</P> <P>(2) <E T="03">By Special Counsel.</E> (i) Under 5 U.S.C. 1212(c), the Special Counsel may intervene as a matter of right, except as provided in paragraph (g)(2)(ii) of this section. 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 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.</P> <P>(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.</P> <P>(3) <E T="03">Permissive intervenors.</E> 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.</P> <P>(h) <E T="03">Service.</E> A party submitting a pleading must serve a copy of it on each party and on each representative as provided in § 1201.26(b)(2).</P> <P>(i) <E T="03">Closing the record.</E> The record closes on expiration of the period for filing the response to the petition for review, or to the cross petition 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.115</SECTNO> <SUBJECT>Contents of petition for review.</SUBJECT> <P>(a) The petition for review must state objections to the initial decision that are supported by references to applicable laws or regulations and by specific references to the record.</P> <P>(b)(1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review 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).</P> <P>(2) 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.</P> <P>(3) 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 <PRTPAGE P="31"/>has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).</P> <P>(4) Failure by an agency to provide the certification required by paragraph (b)(1) 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 paragraph (b)(2) or (b)(3) of this section, may result in the dismissal of the agency's petition or cross petition for review.</P> <P>(c) Nothing in paragraph (b) of 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.</P> <P>(d) The Board, after providing the other parties with an opportunity to respond, may grant a petition for review when it is established that:</P> <P>(1) New and material evidence is available that, despite due diligence, was not available when the record closed; or</P> <P>(2) The decision of the judge is based on an erroneous interpretation of statute or regulation.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 30863, June 16, 1994; 62 FR 43631, Aug. 15, 1997; 64 FR 27900, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.116</SECTNO> <SUBJECT>Appellant requests for enforcement of interim relief.</SUBJECT> <P>(a) <E T="03">Before a final decision is issued.</E> If the agency files a petition for review or a cross petition for review and has not provided 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.</P> <P>(b) <E T="03">After a final decision is issued.</E> If the appellant is not the prevailing party in the final Board order, and if 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. 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, 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.</P> <CITA>[59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.117</SECTNO> <SUBJECT>Procedures for review or reopening.</SUBJECT> <P>(a) In any case that is reopened or reviewed, the Board may:</P> <P>(1) Issue a single decision that denies or grants a petition for review, reopens the appeal, and decides the case;</P> <P>(2) Hear oral arguments;</P> <P>(3) Require that briefs be filed;</P> <P>(4) Remand the appeal so that the judge may take further testimony or evidence or make further findings or conclusions; or</P> <P>(5) Take any other action necessary for final disposition of the case.</P> <P>(b) The Board may affirm, reverse, modify, or vacate the decision of the judge, in whole or in part. Where appropriate, the Board will issue a final decision and order a date for compliance with that decision.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.118</SECTNO> <SUBJECT>Board reopening of case and reconsideration of initial decision.</SUBJECT> <P>The Board may reopen an appeal and reconsider a decision of a judge on its own motion at any time, regardless of any other provisions of this part.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.119</SECTNO> <SUBJECT>OPM petition for reconsideration.</SUBJECT> <P>(a) <E T="03">Criteria.</E> 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 order if he or she determines:<PRTPAGE P="32"/> </P> <P>(1) That the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management, and</P> <P>(2) That the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.</P> <P>(b) <E T="03">Time limit.</E> The Director must file the petition for reconsideration within 35 days after the date of service of the Board's final order.</P> <P>(c) <E T="03">Briefs.</E> 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.</P> <P>(d) <E T="03">Stays.</E> If the Director of OPM files a petition for reconsideration, he or she also may ask the Board to stay its final order. An application for a stay, with a supporting memorandum, must be filed at the same time as the petition for reconsideration.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.120</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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 in the United States Court of Appeals for the Federal Circuit. 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Original Jurisdiction Cases</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 48451, Sept. 16, 1997, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1201.121</SECTNO> <SUBJECT>Scope of jurisdiction; application of subparts B, F, and H.</SUBJECT> <P>(a) <E T="03">Scope.</E> 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.</P> <P>(b) <E T="03">Application of subparts B, F, and H.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="33"/> <HD SOURCE="HED">Special Counsel Disciplinary Actions</HD> <SECTION> <SECTNO>§ 1201.122</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> 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.</P> <P>(b) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies 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 or the party's representative, as shown on the certificate of service.</P> <P>(c) <E T="03">Subsequent filings and service.</E> 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.</P> <P>(d) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§ 1201.123</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(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.</P> <P>(1) Action to discipline an employee alleged to have committed a prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);</P> <P>(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);</P> <P>(3) Action to discipline a State or local government employee for an alleged violation involving prohibited political activity, 5 U.S.C. 1505; or</P> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§1201.124</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Responsibilities of Clerk of the Board.</E> 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.</P> <P>(b) <E T="03">Rights.</E> 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:</P> <P>(1) To file an answer, supported by affidavits and documentary evidence;</P> <P>(2) To be represented;</P> <P>(3) To a hearing on the record before an administrative law judge;</P> <P>(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</P> <P>(5) To a copy of the administrative law judge's decision and subsequent final decision by the Board, if any.<PRTPAGE P="34"/> </P> <P>(c) <E T="03">Filing and default.</E> 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.</P> <P>(d) <E T="03">Content.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§1201.125</SECTNO> <SUBJECT>Administrative law judge.</SUBJECT> <P>(a) An administrative law judge will hear a disciplinary action complaint brought by the Special Counsel.</P> <P>(b) Except as provided in paragraph (c)(1) of this section, 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.</P> <P>(c)(1) In a Special Counsel complaint seeking disciplinary action against a Federal or District of Columbia government employee for a violation of 5 U.S.C. 7324, where the administrative law judge finds that the violation does not warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with 5 U.S.C. 557.</P> <P>(2) The parties may file with the Clerk of the Board any exceptions they may have to the recommended decision of the administrative law judge. Those exceptions must be filed within 35 days after the date of service of the recommended decision or, if the filing party shows that the recommended decision was received more than 5 days after the date of service, within 30 days after the date the filing party received the recommended decision.</P> <P>(3) The parties may file replies to exceptions within 25 days after the date of service of the exceptions, as that date is determined by the certificate of service.</P> <P>(4) No additional evidence will be accepted with a party's exceptions or with a reply to exceptions unless the party submitting it shows that the evidence was not readily available before the administrative law judge closed the record.</P> <P>(5) The Board will consider the recommended decision of the administrative law judge, together with any exceptions and replies to exceptions filed by the parties, and will issue a final written decision.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§1201.126</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <P>(a) In any action to discipline an employee, except as provided in paragraphs (b) or (c) 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 civil penalty not to exceed $1,100. 5 U.S.C. 1215(a)(3).</P> <P>(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.</P> <P>(c) In any Hatch Act action in which the administrative law judge, or the <PRTPAGE P="35"/>Board on petition for review, finds that a Federal or District of Columbia government employee has violated 5 U.S.C. 7324 and that the violation warrants removal, the administrative law judge, or the Board on petition for review, will issue a written decision ordering the employee's removal. If the administrative law judge determines that removal is not warranted, the judge will issue a recommended decision under §1201.125(c)(1) of this part. If the Board finds by unanimous vote that the violation does not warrant removal, it will impose instead a penalty of not less than 30 days suspension without pay. If the Board finds by majority vote that the violation warrants removal, it will order the employee's removal.</P> </SECTION> <SECTION> <SECTNO>§1201.127</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>(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).</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Counsel Corrective Actions</HD> <SECTION> <SECTNO>§1201.128</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> 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.</P> <P>(b) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies 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. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative, and each person on whose behalf the corrective action is brought. The Special Counsel must serve a copy of the complaint on the agency or its representative, and each person on whose behalf the corrective action is brought, as shown on the certificate of service.</P> <P>(c) <E T="03">Subsequent filings and service.</E> 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.</P> <P>(d) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the office determined under paragraph (a) of this section. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.129</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(c) The judge to whom the complaint is assigned may order the Special <PRTPAGE P="36"/>Counsel and the respondent agency to file briefs, memoranda, or both in any corrective action complaint the Special Counsel brings before the Board.</P> </SECTION> <SECTION> <SECTNO>§1201.130</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Rights.</E> (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.</P> <P>(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).</P> <P>(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).</P> <P>(b) <E T="03">Filing and default.</E> 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.</P> <P>(c) <E T="03">Content.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§1201.131</SECTNO> <SUBJECT>Judge.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§1201.132</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <P>(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).</P> <P>(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), the judge, or the Board on petition for review, will order appropriate corrective action if the Special Counsel demonstrates that a disclosure described under 5 U.S.C. 2302(b)(8) was a contributing factor in the personnel action that was taken or will be taken against the individual.</P> <P>(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. 5 U.S.C. 1214(b)(4)(B).</P> </SECTION> <SECTION> <SECTNO>§1201.133</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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 in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. 1214(c).</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="37"/> <HD SOURCE="HED">Special Counsel Requests for Stays</HD> <SECTION> <SECTNO>§1201.134</SECTNO> <SUBJECT>Deciding official; filing stay request; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Request to stay personnel action.</E> 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.</P> <P>(b) <E T="03">Deciding official.</E> 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.</P> <P>(c) <E T="03">Place of filing.</E> A Special Counsel stay request must be filed with the Clerk of the Board.</P> <P>(d) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies 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.</P> <P>(e) <E T="03">Subsequent filings and service.</E> 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.</P> <P>(f) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§1201.135</SECTNO> <SUBJECT>Contents of stay request.</SUBJECT> <P>The Special Counsel, or that official's representative, must sign each stay request, and must include the following information in the request:</P> <P>(a) The names of the parties;</P> <P>(b) The agency and officials involved;</P> <P>(c) The nature of the action to be stayed;</P> <P>(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</P> <P>(e) The laws or regulations that were violated, or that will be violated if the stay is not issued.</P> </SECTION> <SECTION> <SECTNO>§1201.136</SECTNO> <SUBJECT>Action on stay request.</SUBJECT> <P>(a) <E T="03">Initial stay.</E> 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.</P> <P>(b) <E T="03">Extension of stay.</E> 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.</P> <P>(c) <E T="03">Evidence of compliance with a stay.</E> 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.<PRTPAGE P="38"/> </P> <P>(d) <E T="03">Termination of stay.</E> A stay may be terminated at any time, except that a stay may not be terminated:</P> <P>(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</P> <P>(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).</P> <P>(e) <E T="03">Additional information.</E> 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.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Actions Against Administrative Law Judges</HD> <SECTION> <SECTNO>§1201.137</SECTNO> <SUBJECT>Covered actions; filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Covered actions.</E> 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:</P> <P>(1) Removal;</P> <P>(2) Suspension;</P> <P>(3) Reduction in grade;</P> <P>(4) Reduction in pay; and</P> <P>(5) Furlough of 30 days or less.</P> <P>(b) <E T="03">Place of filing.</E> To initiate an action against an administrative law judge under this subpart, an agency must file a complaint with the Clerk of the Board.</P> <P>(c) <E T="03">Initial filing and service.</E> The agency must file two copies 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.</P> <P>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 or the party's representative, as shown on the certificate of service.</P> <P>(d) <E T="03">Subsequent filings and service.</E> 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.</P> <P>(e) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.138</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>A complaint filed under this section must describe with particularity the facts that support the proposed agency action.</P> </SECTION> <SECTION> <SECTNO>§1201.139</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Responsibilities of Clerk of the Board.</E> 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.</P> <P>(b) <E T="03">Rights.</E> 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:</P> <P>(1) To file an answer, supported by affidavits and documentary evidence;</P> <P>(2) To be represented;</P> <P>(3) To a hearing on the record before an administrative law judge;<PRTPAGE P="39"/> </P> <P>(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</P> <P>(5) To a copy of the administrative law judge's decision and subsequent final decision by the Board, if any.</P> <P>(c) <E T="03">Filing and default.</E> 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.</P> <P>(d) <E T="03">Content.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§1201.140</SECTNO> <SUBJECT>Judge; requirement for finding of good cause.</SUBJECT> <P>(a) <E T="03">Judge.</E> (1) An administrative law judge will hear an action brought by an employing agency under this subpart against a respondent administrative law judge.</P> <P>(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.</P> <P>(b) <E T="03">Requirement for finding of good cause.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§1201.141</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§1201.142</SECTNO> <SUBJECT>Actions filed by administrative law judges.</SUBJECT> <P>An administrative law judge who alleges that an agency has interfered with the judge's qualified decisional independence so as to constitute an unauthorized action under 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The filing and service requirements of § 1201.137 apply. Such complaints shall be adjudicated in the same manner as agency complaints under this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Removal From the Senior Executive Service</HD> <SECTION> <SECTNO>§1201.143</SECTNO> <SUBJECT>Right to hearing; filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Right to hearing.</E> 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.</P> <P>(b) <E T="03">Place of filing.</E> 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.</P> <P>(c) <E T="03">Initial filing and service.</E> 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 <PRTPAGE P="40"/>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.</P> <P>(d) <E T="03">Subsequent filings and service.</E> 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.</P> <P>(e) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the office determined under paragraph (b) of this section. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.144</SECTNO> <SUBJECT>Hearing procedures; referring the record.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§1201.145</SECTNO> <SUBJECT>No appeal.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Requests for Protective Orders</HD> <SECTION> <SECTNO>§1201.146</SECTNO> <SUBJECT>Requests for protective orders by the Special Counsel.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§1201.147</SECTNO> <SUBJECT>Requests for protective orders by persons other than the Special Counsel.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§1201.148</SECTNO> <SUBJECT>Enforcement of protective orders.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="41"/> <HD SOURCE="HED">Subpart E—Procedures for Cases Involving Allegations of Discrimination</HD> <SECTION> <SECTNO>§ 1201.151</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <P>(a) <E T="03">Scope.</E> (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.</P> <P>(2) “Prohibited discrimination,” as that term is used in this subpart, means discrimination prohibited by:</P> <P>(i) Section 717 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(a));</P> <P>(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d));</P> <P>(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791);</P> <P>(iv) Sections 12 and 15 of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 631, 633a); or</P> <P>(v) Any rule, regulation, or policy directive prescribed under any provision of law described in paragraphs (a)(2) (i) through (iv) of this section.</P> <P>(b) <E T="03">Policy.</E> The Board's policy is to adjudicate impartially, thoroughly, and fairly all issues raised under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1201.152</SECTNO> <SUBJECT>Compliance with subpart B procedures.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.153</SECTNO> <SUBJECT>Contents of appeal.</SUBJECT> <P>(a) <E T="03">Contents.</E> An appeal raising issues of prohibited discrimination must comply with § 1201.24 of this part, with the following exceptions:</P> <P>(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</P> <P>(2) The appeal must state whether the appellant has filed a formal discrimination complaint or a grievance with any agency. 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.</P> <P>(b) <E T="03">Use of form.</E> Completing the form in appendix I of these regulations constitutes compliance with paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1201.154</SECTNO> <SUBJECT>Time for filing appeal; closing record in cases involving grievance decisions.</SUBJECT> <P>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:</P> <P>(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 receipt of the agency's decision on the appealable action, whichever is later.</P> <P>(b) If the appellant has filed a timely formal complaint of discrimination with the agency:</P> <P>(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or</P> <P>(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.</P> <P>(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.</P> <P>(d) This paragraph does not apply to employees of the Postal Service or to other employees excluded from the coverage of the federal labor-management relations laws at chapter 71 of title 5, United States Code. If the appellant has filed a grievance with the agency under a negotiated grievance <PRTPAGE P="42"/>procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. 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 the decision was received more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain:</P> <P>(1) A statement of the grounds on which review is requested;</P> <P>(2) References to evidence of record or rulings related to the issues before the Board;</P> <P>(3) Arguments in support of the stated grounds that refer specifically to relevant documents, and that include relevant citations of authority; and</P> <P>(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 tape recording of the hearing.</P> <P>(e) The record will close upon expiration of the period for filing the response to the petition 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 65 FR 25624, May 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.155</SECTNO> <SUBJECT>Remand of allegations of discrimination.</SUBJECT> <P>If the parties file a written agreement that the discrimination issue should be remanded to the agency for consideration, and if the judge determines that action would be in the interest of justice, the judge may take that action. The remand order will specify a time period within which the agency action must be completed. In no instance will that time period exceed 120 days. While the issue is pending with the agency, the judge will retain jurisdiction over the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1201.156</SECTNO> <SUBJECT>Time for processing appeals involving allegations of discrimination.</SUBJECT> <P>(a) <E T="03">Issue raised in appeal.</E> 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.</P> <P>(b) <E T="03">Issue not raised in appeal.</E> 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.</P> <P>(c) <E T="03">Discrimination issue remanded to agency.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.157</SECTNO> <SUBJECT>Notice of right to judicial review.</SUBJECT> <P>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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Review of Board Decision</HD> <SECTION> <SECTNO>§ 1201.161</SECTNO> <SUBJECT>Action by the Equal Employment Opportunity Commission; judicial review.</SUBJECT> <P>(a) <E T="03">Time limit for determination.</E> In cases in which an appellant petitions <PRTPAGE P="43"/>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.</P> <P>(b) <E T="03">Judicial review.</E> The Board's decision will become judicially reviewable on:</P> <P>(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</P> <P>(2) The date of the Commission's decision that it will not consider the petition filed under 5 U.S.C. 7702(b)(2).</P> <P>(c) <E T="03">Commission processing and time limits.</E> 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:</P> <P>(1) Concur in the decision of the Board; or</P> <P>(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:</P> <P>(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</P> <P>(ii) The evidence in the record as a whole does not support the decision involving that provision.</P> <P>(d) <E T="03">Transmittal of record.</E> The Board will transmit a copy of its record to the Commission upon request.</P> <P>(e) <E T="03">Development of additional evidence.</E> 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.</P> <P>(f) <E T="03">Commission concurrence in Board decision.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.162</SECTNO> <SUBJECT>Board action on the Commission decision; judicial review.</SUBJECT> <P>(a) <E T="03">Board decision.</E> Within 30 days after receipt of a decision of the Commission issued under 1201.161(c)(2), the Board shall consider the decision and:</P> <P>(1) Concur and adopt in whole the decision of the Commission; or</P> <P>(2) To the extent that the Board finds that, as a matter of law:</P> <P>(i) The Commission decision is based on an incorrect interpretation of any provision of any civil service law, rule, regulation, or policy directive, or</P> <P>(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.</P> <P>(b) <E T="03">Judicial review.</E> 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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Panel</HD> <SECTION> <SECTNO>§ 1201.171</SECTNO> <SUBJECT>Referral of case to Special Panel.</SUBJECT> <P>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:</P> <P>(a) The factual record compiled under this section, which will include a transcript of any hearing;</P> <P>(b) The decisions issued by the Board and the Commission under 5 U.S.C. 7702; and</P> <P>(c) A transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.</P> </SECTION> <SECTION> <SECTNO>§ 1201.172</SECTNO> <SUBJECT>Organization of Special Panel; designation of members.</SUBJECT> <P>(a) A Special Panel is composed of:<PRTPAGE P="44"/> </P> <P>(1) A Chairman, appointed by the President with the advice and consent of the Senate, whose term is six (6) years;</P> <P>(2) One member of the Board, designated by the Chairman of the Board each time a Panel is convened;</P> <P>(3) One member of the Commission, designated by the Chairman of the Commission each time a Panel is convened.</P> <P>(b) <E T="03">Designation of Special Panel members—</E>(1) <E T="03">Time of designation.</E> 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.</P> <P>(2) <E T="03">Manner of designation.</E> Letters designating the Panel members will be served on the Chairman of the Panel and on the parties to the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1201.173</SECTNO> <SUBJECT>Practices and procedures of Special Panel.</SUBJECT> <P>(a) <E T="03">Scope.</E> The rules in this subpart apply to proceedings before a Special Panel.</P> <P>(b) <E T="03">Suspension of rules.</E> 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.</P> <P>(c) <E T="03">Time limit for proceedings.</E> 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.</P> <P>(d) <E T="03">Administrative assistance to the Special Panel.</E> (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.</P> <P>(2) Assistance will include, but is not limited to, processing vouchers for pay and travel expenses.</P> <P>(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.</P> <P>(e) <E T="03">Maintaining the official record.</E> 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.</P> <P>(f) <E T="03">Filing and service of pleadings.</E> (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.</P> <P>(2) A certificate of service specifying how and when service was made must accompany all submissions of the parties.</P> <P>(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.</P> <P>(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.</P> <P>(g) <E T="03">Briefs and responsive pleadings.</E> 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.</P> <P>(h) <E T="03">Oral argument.</E> 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.<PRTPAGE P="45"/> </P> <P>(i) <E T="03">Postargument submission.</E> 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.</P> <P>(j) <E T="03">Procedural matters.</E> Any procedural matters not addressed in these regulations will be resolved by written order of the Chairman of the Special Panel.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.174</SECTNO> <SUBJECT>Enforcing the Special Panel decision.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.175</SECTNO> <SUBJECT>Judicial review of cases decided under 5 U.S.C. 7702.</SUBJECT> <P>(a) <E T="03">Place and type of review.</E> 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)).</P> <P>(b) <E T="03">Time for filing request.</E> 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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Enforcement of Final Decisions and Orders</HD> <SECTION> <SECTNO>§ 1201.181</SECTNO> <SUBJECT>Authority and explanation.</SUBJECT> <P>(a) 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 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. The Board's decisions and orders will contain a notice of the Board's enforcement authority.</P> <P>(b) In order to avoid unnecessary petitions under this subpart, the agency must inform the appellant promptly of the actions it takes to comply, and it must tell the appellant when it believes it has completed its compliance. The appellant must provide all necessary information that the agency requests in order to comply, and, if not otherwise notified, he or she should, from time to time, ask the agency about its progress.</P> </SECTION> <SECTION> <SECTNO>§ 1201.182</SECTNO> <SUBJECT>Petition for enforcement.</SUBJECT> <P>(a) <E T="03">Appellate jurisdiction.</E> Any party may petition the Board for enforcement of a final decision or order issued 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.</P> <P>(b) <E T="03">Original jurisdiction.</E> Any party seeking enforcement of a final Board decision or order 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.</P> <P>(c) <E T="03">Petition by an employee other than a party.</E> (1) Under 5 U.S.C. 1204(e)(2)(B), any employee who is aggrieved by the <PRTPAGE P="46"/>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.</P> <P>(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.</P> <P>(3) 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.</P> <P>(4) A petition for enforcement under paragraph (c)(1), (c)(2), or (c)(3) 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994; 62 FR 48935, Sept. 18, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.183</SECTNO> <SUBJECT>Procedures for processing petitions for enforcement.</SUBJECT> <P>(a) <E T="03">Initial Processing.</E> (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:</P> <P>(i) Evidence of compliance, including a narrative explanation of the calculation of back pay and other benefits, and supporting documents;</P> <P>(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</P> <P>(iii) A statement showing good cause for the failure to comply completely with the decision of the Board.</P> <FP>The party that filed the petition may respond to that submission within 10 days after the date of service of the submission. The parties must serve copies of their pleadings on each other as required under § 1201.26(b)(2) of this part.</FP> <P>(2) If the agency is the alleged noncomplying party, it shall submit the name and address of the agency official charged with complying with the Board's order, even if the agency asserts it has fully complied. 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.</P> <P>(3) The judge may convene a hearing if one is necessary to resolve matters at issue.</P> <P>(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.</P> <P>(5) If the judge finds that:</P> <P>(i) The alleged noncomplying party has not taken, or has not made a good faith effort to take, any action required to be in compliance with the final decision, or</P> <P>(ii) The party has taken or made a good faith effort to take one or more, but not all, actions required to be in compliance with the final decision; he or she will issue a recommendation containing his or her findings, a statement of the actions required by the party to be in compliance with the <PRTPAGE P="47"/>final decision, and a recommendation that the Board enforce the final decision.</P> <P>(6) If a recommendation described under paragraph (a)(5) of this section is issued, the alleged noncomplying party must do one of the following:</P> <P>(i) If it decides to take the actions required by the recommendation, it must submit to the Clerk of the Board, within 15 days after the issuance of the recommendation, evidence that it has taken those actions.</P> <P>(ii) If it decides not to take any of the actions required by the recommendation, it must file a brief supporting its nonconcurrence in the recommendation. The brief must be filed with the Clerk of the Board within 30 days after the recommendation is issued and, if it is filed by the agency, it must identify by name, title, and grade the agency official responsible for the failure to take the actions required by the recommendation for compliance.</P> <P>(iii) If the party decides to take one or more, but not all, actions required by the recommendation, it must submit both evidence of the actions it has taken and, with respect to the actions that it has not taken, a brief supporting its disagreement with the recommendation. The evidence and brief must be filed with the Clerk of the Board within 30 days after issuance of the recommendation and, if it is filed by the agency, it must contain the identifying information required by paragraph (a)(6)(ii) of this section.</P> <P>(7) The petitioner may file a brief that responds to the submission described in paragraph (a)(6) of this section, and that asks the Board to review any finding in the recommendation, made under paragraph (a)(5)(ii) of this section, that the other party is in partial compliance with the final decision. The petitioner must file this brief with the Clerk of the Board within 20 days of the date of service of the submission described in paragraph (a)(6) of this section.</P> <P>(b) <E T="03">Consideration by the Board.</E> (1) The Board will consider the recommendation, along with the submissions of the parties, promptly. When appropriate, the Board may require the alleged noncomplying party, or that party's representative, 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 party or its representative to make this showing in writing, or to make it both personally and in writing.</P> <P>(2) The Board may hold a hearing on an order to show cause, or it may issue a decision without a hearing.</P> <P>(3) The Board's final decision on the issues of compliance is subject to judicial review under § 1201.120 of this part.</P> <P>(c) <E T="03">Certification to the Comptroller General.</E> 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.</P> <P>(d) <E T="03">Effect of Special Counsel's action or failure to act.</E> 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.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Savings Provisions</HD> <SECTION> <SECTNO>§ 1201.191</SECTNO> <SUBJECT>Savings provisions.</SUBJECT> <P>(a) <E T="03">Civil Service Reform Act of 1978 (Pub.L. 95-454)—</E>(1) <E T="03">Scope.</E> 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 effectand 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.</P> <P>(2) <E T="03">Administrative proceedings and appeals therefrom.</E> 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 <PRTPAGE P="48"/>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.</P> <P>(3) <E T="03">Explanation.</E> 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.</P> <P>(b) <E T="03">Whistleblower Protection Act of 1989 (Pub. L. 101-12)—</E>(1) <E T="03">Scope.</E> 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.</P> <P>(2) <E T="03">Administrative proceedings and appeals therefrom.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable), Consequential Damages, and Compensatory Damages</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 41179, Aug. 3, 1998, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1201.201</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <P>(a) This subpart governs Board proceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, and compensatory damages.</P> <P>(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.</P> <P>(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.</P> <P>(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. 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.</P> </SECTION> <SECTION> <PRTPAGE P="49"/> <SECTNO>§ 1201.202</SECTNO> <SUBJECT>Authority for awards.</SUBJECT> <P>(a) <E T="03">Awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable)</E>. 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:</P> <P>(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;</P> <P>(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);</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(6) 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;</P> <P>(7) 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</P> <P>(8) Attorney fees, expert witness fees, and other litigation expenses, as authorized by the Veterans Employment Opportunities Act; 5 U.S.C. 3330c(b).</P> <P>(b) <E T="03">Awards of consequential damages.</E> The Board may order payment of consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages:</P> <P>(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</P> <P>(2) 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.</P> <P>(c) <E T="03">Awards of compensatory damages.</E> 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. 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.</P> <P>(d) <E T="03">Definitions.</E> For purposes of this subpart:</P> <P>(1) A <E T="03">proceeding on the merits</E> 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.</P> <P>(2) An <E T="03">addendum proceeding</E> 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.</P> <CITA>[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="50"/> <SECTNO>§ 1201.203</SECTNO> <SUBJECT>Proceedings for attorney fees.</SUBJECT> <P>(a) <E T="03">Form and content of request.</E> 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:</P> <P>(1) Accurate and current time records;</P> <P>(2) A copy of the terms of the fee agreement (if any);</P> <P>(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</P> <P>(4) An established attorney-client relationship.</P> <P>(b) <E T="03">Addendum proceeding.</E> A request for attorney fees will be decided in an addendum proceeding.</P> <P>(c)<E T="03"> Place of filing.</E> 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.</P> <P>(d) <E T="03">Time of filing.</E> 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.</P> <P>(e)<E T="03"> Service.</E> 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.</P> <P>(f)<E T="03"> Hearing; applicability of subpart B.</E> 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.</P> <P>(g) <E T="03">Initial decision; review by the Board.</E> 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.</P> <CITA>[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.204</SECTNO> <SUBJECT>Proceedings for consequential damages and compensatory damages.</SUBJECT> <P>(a) <E T="03">Time for making request.</E> (1) A request for consequential damages 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.</P> <P>(2) The judge or the Board, as applicable, may waive the time limit for making a request for consequential damages 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.</P> <P>(b)<E T="03"> Form and content of request.</E> A request for consequential damages 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.</P> <P>(c)<E T="03"> Service.</E> A copy of a request for consequential damages or compensatory damages must be served on the other parties or their representatives when the request is made.</P> <P>A party may file a pleading responding to the request within the time limit established by the judge or the Board, as applicable.</P> <P>(d)<E T="03"> Addendum proceeding.</E> (1) A request for consequential damages or compensatory damages will be decided in an addendum proceeding.</P> <P>(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.</P> <P>(e) <E T="03">Initiation of addendum proceeding.</E> (1) A motion for initiation of an addendum proceeding to decide a request for <PRTPAGE P="51"/>consequential damages 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.</P> <P>(2) A copy of a motion for initiation of an addendum proceeding to decide a request for consequential damages 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.</P> <P>(f) <E T="03">Hearing; applicability of subpart B.</E> The judge may hold a hearing on a request for consequential damages or compensatory damages and may apply appropriate provisions of subpart B of this part to the addendum proceeding.</P> <P>(g)<E T="03"> Initial decision; review by the Board.</E> 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.</P> <P>(h)<E T="03"> Request for damages first made in proceeding before the Board.</E> Where a request for consequential damages 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 3-member Board, including, for compensatory damages only, a request to review an arbitration decision under 5 U.S.C. 7121(d), the Board may:</P> <P>(1) Consider both the merits and the request for damages and issue a final decision;</P> <P>(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</P> <P>(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.</P> <P>(i)<E T="03"> EEOC review of decision on compensatory damages.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1201.205</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>A final Board decision under this subpart is subject to judicial review as provided under 5 U.S.C. 7703.<PRTPAGE P="52"/> </P> </SECTION> <APPENDIX> <EAR>Pt. 1201, App. I</EAR> <WHED>Appendix I to Part 1201—Merit Systems Protection Board Appeal Form</WHED> <GPH DEEP="452" SPAN="2"> <GID>ER07JN01.007</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="53"/> <GID>ER07JN01.008</GID> </GPH> <GPH DEEP="429" SPAN="2"> <PRTPAGE P="54"/> <GID>ER07JN01.009</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="55"/> <GID>ER07JN01.010</GID> </GPH> <GPH DEEP="427" SPAN="2"> <PRTPAGE P="56"/> <GID>ER07JN01.011</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="57"/> <GID>ER07JN01.012</GID> </GPH> <CITA TYPE="W">[66 FR 30635, June 7, 2001]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. II</EAR> <HD SOURCE="HED">Appendix II to Part 1201—Appropriate Regional or Field Office for Filing Appeals</HD> <P>All submissions shall be addressed to the Regional Director, if submitted to a regional office, or the Chief Administrative Judge, if submitted to a field office, Merit Systems Protection Board, at the addresses listed below, according to geographic region of the employing agency or as required by § 1201.4(d) of this part. The facsimile numbers listed below are TDD-capable; however, calls will be answered by voice before being connected to the TDD. Address of Appropriate Regional or Field Office and Area Served: <PRTPAGE P="58"/> </P> <FP SOURCE="FP-1">1. Atlanta Regional Office, 401 West Peachtree Street, N.W., 10th floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, (Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee).</FP> <FP SOURCE="FP-1">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).</FP> <FP SOURCE="FP-1">2a. Dallas Field Office, 1100 Commerce Street, Room 6F20, Dallas, Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas, Louisiana, Oklahoma, and Texas).</FP> <FP SOURCE="FP-1">3. Northeastern Regional Office, U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, Pennsylvania 19106-2987, Facsimile No.: (215) 597-3456, (Delaware; Maryland—except the counties of Montgomery and Prince George's; New Jersey—except the counties of Bergen, Essex, Hudson, and Union; Pennsylvania; and West Virginia).</FP> <FP SOURCE="FP-1">3a. Boston Field Office, 99 Summer Street, Suite 1810, Boston, Massachusetts 02110-1200, Facsimile No.: (617) 424-5708, (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont).</FP> <FP SOURCE="FP-1">3b. New York Field Office, 26 Federal Plaza, Room 3137-A, New York, New York 10278-0022, Facsimile No.: (212) 264-1417, (New Jersey—counties of Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and Virgin Islands).</FP> <FP SOURCE="FP-1">4. Washington Regional Office, 1800 Diagonal Road, Alexandria, Virginia 22314, 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).</FP> <FP SOURCE="FP-1">5. Western Regional Office, 250 Montgomery Street, Suite 400, 4th floor, San Francisco, California 94104-3401, Facsimile No.: (415) 705-2945, (California and Nevada).</FP> <FP SOURCE="FP-1">5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228-2009, Facsimile No.: (303) 969-5109, (Arizona, Colorado, Kansas—except Kansas City, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and Wyoming).</FP> <FP SOURCE="FP-1">5b. Seattle Field Office, 915 Second Avenue, Suite 1840, Seattle, Washington 98174-1056, Facsimile No.: (206) 220-7982, (Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas).</FP> <CITA>[61 FR 4586, Feb. 7, 1996, as amended at 65 FR 58902, Oct. 3, 2000; 66 FR 57841, Nov. 19, 2001]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. III</EAR> <HD SOURCE="HED">Appendix III to Part 1201—Approved Hearing Locations By Regional Office</HD> <HD SOURCE="HD2">Atlanta Regional Office</HD> <FP SOURCE="FP-1">Birmingham, Alabama</FP> <FP SOURCE="FP-1">Huntsville, Alabama</FP> <FP SOURCE="FP-1">Mobile, Alabama</FP> <FP SOURCE="FP-1">Montgomery, Alabama</FP> <FP SOURCE="FP-1">Jacksonville, Florida</FP> <FP SOURCE="FP-1">Miami, Florida</FP> <FP SOURCE="FP-1">Orlando, Florida</FP> <FP SOURCE="FP-1">Pensacola, Florida</FP> <FP SOURCE="FP-1">Tallahassee, Florida</FP> <FP SOURCE="FP-1">Tampa/St. Petersburg, Florida</FP> <FP SOURCE="FP-1">Atlanta, Georgia</FP> <FP SOURCE="FP-1">Augusta, Georgia</FP> <FP SOURCE="FP-1">Macon, Georgia</FP> <FP SOURCE="FP-1">Savannah, Georgia</FP> <FP SOURCE="FP-1">Jackson, Mississippi</FP> <FP SOURCE="FP-1">Charleston, South Carolina</FP> <FP SOURCE="FP-1">Columbia, South Carolina</FP> <FP SOURCE="FP-1">Chattanooga, Tennessee</FP> <FP SOURCE="FP-1">Knoxville, Tennessee</FP> <FP SOURCE="FP-1">Memphis, Tennessee</FP> <FP SOURCE="FP-1">Nashville, Tennessee</FP> <HD SOURCE="HD2">Central Regional Office</HD> <FP SOURCE="FP-1">Chicago, Illinois</FP> <FP SOURCE="FP-1">Indianapolis, Indiana</FP> <FP SOURCE="FP-1">Davenport, Iowa/Rock Island, Illinois</FP> <FP SOURCE="FP-1">Des Moines, Iowa</FP> <FP SOURCE="FP-1">Lexington, Kentucky</FP> <FP SOURCE="FP-1">Louisville, Kentucky</FP> <FP SOURCE="FP-1">Detroit, Michigan</FP> <FP SOURCE="FP-1">Minneapolis/St. Paul, Minnesota</FP> <FP SOURCE="FP-1">Kansas City, Missouri</FP> <FP SOURCE="FP-1">Springfield, Missouri</FP> <FP SOURCE="FP-1">St. Louis, Missouri</FP> <FP SOURCE="FP-1">Cleveland, Ohio</FP> <FP SOURCE="FP-1">Cincinnati, Ohio</FP> <FP SOURCE="FP-1">Columbus, Ohio</FP> <FP SOURCE="FP-1">Dayton, Ohio</FP> <FP SOURCE="FP-1">Milwaukee, Wisconsin</FP> <HD SOURCE="HD2">Dallas Field Office</HD> <FP SOURCE="FP-1">Little Rock, Arkansas</FP> <FP SOURCE="FP-1">Alexandria, Louisiana</FP> <FP SOURCE="FP-1">New Orleans, Louisiana</FP> <FP SOURCE="FP-1">Oklahoma City, Oklahoma</FP> <FP SOURCE="FP-1">Tulsa, Oklahoma</FP> <FP SOURCE="FP-1">Corpus Christi, Texas</FP> <FP SOURCE="FP-1">Dallas, Texas</FP> <FP SOURCE="FP-1">El Paso, Texas</FP> <FP SOURCE="FP-1">Houston, Texas</FP> <FP SOURCE="FP-1">San Antonio, Texas</FP> <FP SOURCE="FP-1">Temple, Texas</FP> <FP SOURCE="FP-1">Texarkana, Texas</FP> <HD SOURCE="HD2">Northeastern Regional Office</HD> <FP SOURCE="FP-1">Dover, Delaware</FP> <FP SOURCE="FP-1">Baltimore, Maryland</FP> <FP SOURCE="FP-1">Trenton, New Jersey</FP> <FP SOURCE="FP-1">Harrisburg, Pennsylvania</FP> <FP SOURCE="FP-1">Philadelphia, Pennsylvania</FP> <FP SOURCE="FP-1">Pittsburgh, Pennsylvania</FP> <FP SOURCE="FP-1">Wilkes-Barre, Pennsylvania</FP> <FP SOURCE="FP-1">Charleston, West Virginia</FP> <FP SOURCE="FP-1">Morgantown, West Virginia</FP> <HD SOURCE="HD2">Boston Field Office</HD> <FP SOURCE="FP-1">Hartford, Connecticut<PRTPAGE P="59"/> </FP> <FP SOURCE="FP-1">New Haven, Connecticut</FP> <FP SOURCE="FP-1">Bangor, Maine</FP> <FP SOURCE="FP-1">Portland, Maine</FP> <FP SOURCE="FP-1">Boston, Massachusetts</FP> <FP SOURCE="FP-1">Manchester, New Hampshire</FP> <FP SOURCE="FP-1">Portsmouth, New Hampshire</FP> <FP SOURCE="FP-1">Providence, Rhode Island</FP> <FP SOURCE="FP-1">Burlington, Vermont</FP> <HD SOURCE="HD2">New York Field Office</HD> <FP SOURCE="FP-1">Newark, New Jersey</FP> <FP SOURCE="FP-1">Albany, New York</FP> <FP SOURCE="FP-1">Buffalo, New York</FP> <FP SOURCE="FP-1">New York, New York</FP> <FP SOURCE="FP-1">Syracuse, New York</FP> <FP SOURCE="FP-1">San Juan, Puerto Rico</FP> <HD SOURCE="HD2">Washington Regional Office</HD> <FP SOURCE="FP-1">Washington, DC</FP> <FP SOURCE="FP-1">Asheville, North Carolina</FP> <FP SOURCE="FP-1">Charlotte, North Carolina</FP> <FP SOURCE="FP-1">Raleigh, North Carolina</FP> <FP SOURCE="FP-1">Jacksonville, North Carolina</FP> <FP SOURCE="FP-1">Bailey's Crossroads, Falls Church, Virginia</FP> <FP SOURCE="FP-1">Norfolk, Virginia</FP> <FP SOURCE="FP-1">Richmond, Virginia</FP> <FP SOURCE="FP-1">Roanoke, Virginia</FP> <HD SOURCE="HD2">Western Regional Office</HD> <FP SOURCE="FP-1">Fresno, California</FP> <FP SOURCE="FP-1">Los Angeles, California</FP> <FP SOURCE="FP-1">Sacramento, California</FP> <FP SOURCE="FP-1">San Diego, California</FP> <FP SOURCE="FP-1">San Francisco, California</FP> <FP SOURCE="FP-1">Santa Barbara, California</FP> <FP SOURCE="FP-1">Las Vegas, Nevada</FP> <FP SOURCE="FP-1">Reno, Nevada</FP> <HD SOURCE="HD2">Denver Field Office</HD> <FP SOURCE="FP-1">Phoenix, Arizona</FP> <FP SOURCE="FP-1">Tucson, Arizona</FP> <FP SOURCE="FP-1">Denver, Colorado</FP> <FP SOURCE="FP-1">Grand Junction, Colorado</FP> <FP SOURCE="FP-1">Pueblo, Colorado</FP> <FP SOURCE="FP-1">Wichita, Kansas</FP> <FP SOURCE="FP-1">Billings, Montana</FP> <FP SOURCE="FP-1">Great Falls, Montana</FP> <FP SOURCE="FP-1">Missoula, Montana</FP> <FP SOURCE="FP-1">Omaha, Nebraska</FP> <FP SOURCE="FP-1">Albuquerque, New Mexico</FP> <FP SOURCE="FP-1">Bismarck, North Dakota</FP> <FP SOURCE="FP-1">Fargo, North Dakota</FP> <FP SOURCE="FP-1">Rapid City, South Dakota</FP> <FP SOURCE="FP-1">Sioux Falls, South Dakota</FP> <FP SOURCE="FP-1">Salt Lake City, Utah</FP> <FP SOURCE="FP-1">Casper, Wyoming</FP> <HD SOURCE="HD2">Seattle Field Office</HD> <FP SOURCE="FP-1">Anchorage, Alaska</FP> <FP SOURCE="FP-1">Honolulu, Hawaii</FP> <FP SOURCE="FP-1">Boise, Idaho</FP> <FP SOURCE="FP-1">Pocatello, Idaho</FP> <FP SOURCE="FP-1">Medford, Oregon</FP> <FP SOURCE="FP-1">Portland, Oregon</FP> <FP SOURCE="FP-1">Seattle, Washington</FP> <FP SOURCE="FP-1">Spokane, Washington</FP> <FP SOURCE="FP-1">Richland, Kennewick, and Pasco, Washington</FP> <CITA>[61 FR 4586, Feb. 7, 1996]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. IV</EAR> <HD SOURCE="HED">Appendix IV to Part 1201—Sample Declaration Under 28 U.S.C.1746</HD> <HD SOURCE="HD3">Declaration</HD> <P>I, <E T="72">____________</E>, do hereby declare:</P> <P>I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.</P> <FP>Executed on</FP> <FP SOURCE="FP-DASH"/> <FP>Date</FP> <FP SOURCE="FP-DASH"/> <FP>Signature</FP> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 1202</EAR> <HD SOURCE="HED">PART 1202—STATUTORY REVIEW BOARD</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204.</P> </AUTH> <SECTION> <SECTNO>§ 1202.1</SECTNO> <SUBJECT>Designating Chairman of Statutory Review Board.</SUBJECT> <P>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.</P> <CITA>[54 FR 28658, July 6, 1989]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1203</EAR> <HD SOURCE="HED">PART 1203—PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECHD>Sec.</SECHD> <SECTNO>1203.1</SECTNO> <SUBJECT>Scope; application of part 1201, subpart B.</SUBJECT> <SECTNO>1203.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Review</HD> <SECTNO>1203.11</SECTNO> <SUBJECT>Request for regulation review.</SUBJECT> <SECTNO>1203.12</SECTNO> <SUBJECT>Granting or denying the request for regulation review.</SUBJECT> <SECTNO>1203.13</SECTNO> <SUBJECT>Filing pleadings.</SUBJECT> <SECTNO>1203.14</SECTNO> <SUBJECT>Serving documents.</SUBJECT> <SECTNO>1203.15</SECTNO> <SUBJECT>Review of regulations on the Board's own motion.</SUBJECT> <SECTNO>1203.16</SECTNO> <SUBJECT>Proceedings.</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="60"/> <HD SOURCE="HED">Order of the Board</HD> <SECTNO>1203.21</SECTNO> <SUBJECT>Final order of the Board.</SUBJECT> <SECTNO>1203.22</SECTNO> <SUBJECT>Enforcement of order.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204(a), 1204(f), and 1204(h).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 23632, June 2, 1989, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1203.1</SECTNO> <SUBJECT>Scope; application of part 1201, subpart B.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Application of 5 CFR part 1201, subparts B and C.</E> (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.</P> <P>(2) The following provisions of 5 CFR part 1201, subparts B and C do not apply to proceedings conducted under this part:</P> <P>(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</P> <P>(ii) Sections 1201.111 through 1201.119 which concern final decisions of presiding officials, and petitions for Board review of those decisions.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Invalid regulation</E> 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.</P> <P>(b) <E T="03">Invalidly implemented regulation</E> 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.</P> <P>(c) <E T="03">Merit system principles</E> are the principles stated in 5 U.S.C. 2301(b)(1) through 2301(b)(9).</P> <P>(d) <E T="03">Pleadings</E> 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.</P> <P>(e) <E T="03">Prohibited personnel practices</E> are the impermissible actions described in 5 U.S.C. 2302(b)(1) through 2302(b)(11).</P> <P>(f) <E T="03">Regulation review</E> 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 regualtions require any employee to commit a prohibited personnel practice.</P> <P>(g) <E T="03">Request for regulation review</E> means a request that the Board review a regulation issued by OPM.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Review</HD> <SECTION> <SECTNO>§ 1203.11</SECTNO> <SUBJECT>Request for regulation review.</SUBJECT> <P>(a) An interested person or the Special Counsel may submit a request for regulation review.</P> <P>(b) Contents of request. (1) Each request for regulation review must include the following information:</P> <P>(i) The name, address, and signature of the requester's representative or, if the requester has no representative, of the requester;</P> <P>(ii) A citation identifying the regulation being challenged;</P> <P>(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;</P> <P>(iv) Specific identification of the prohibited personnel practice at issue; and</P> <P>(v) A description of the action the requester would like the Board to take.<PRTPAGE P="61"/> </P> <P>(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:</P> <P>(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</P> <P>(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.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 65 FR 57939, Sept. 27, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.12</SECTNO> <SUBJECT>Granting or denying the request for regulation review.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) A citation identifying the regulation being challenged;</P> <P>(2) A description of the issues to be addressed;</P> <P>(3) The docket number assigned to the proceedings; and</P> <P>(4) Instructions covering the review proceedings, including information regarding the time limits for filing submissions related to the request.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.13</SECTNO> <SUBJECT>Filing pleadings.</SUBJECT> <P>(a) <E T="03">Place to file and number of copies.</E> 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.</P> <P>(b) <E T="03">Time limits.</E> (1) A request for regulation review may be filed any time after the effective date of the regulation.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(5) Submissions opposing motions must be filed within five days after the opposing party receives the motion.</P> <P>(c) <E T="03">Additional pleadings.</E> 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.</P> <P>(d) <E T="03">Method and date of filing.</E> Documents may be filed with the Office of the Clerk either by mail, by personal delivery, by facsimile, or by commercial overnight delivery. 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 overnight delivery, the date of filing is the date it was delivered to the commercial overnight delivery service.<PRTPAGE P="62"/> </P> <P>(e) <E T="03">Extensions of time.</E> The Board will grant a request for extension of time only when good cause is shown.</P> <CITA>[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.14</SECTNO> <SUBJECT>Serving documents.</SUBJECT> <P>(a) <E T="03">Parties.</E> 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.</P> <P>(b) <E T="03">Method of serving documents.</E> Pleadings may be served on parties by mail, by personal delivery, by facsimile, or by commercial overnight 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 overnight 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 overnight delivery) by which service was accomplished, and must be signed by the person responsible for accomplishing service.</P> <CITA>[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.15</SECTNO> <SUBJECT>Review of regulations on the Board's own motion.</SUBJECT> <P>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 <E T="04">Federal Register.</E> </P> <CITA>[54 FR 28658, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.16</SECTNO> <SUBJECT>Proceedings.</SUBJECT> <P>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:</P> <P>(a) Additional written comments;</P> <P>(b) Oral argument;</P> <P>(c) Evidence presented at a hearing; and/or</P> <P>(d) Evidence gathered through any other appropriate procedures that are conducted in accordance with law.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Order of the Board</HD> <SECTION> <SECTNO>§ 1203.21</SECTNO> <SUBJECT>Final order of the Board.</SUBJECT> <P>(a) <E T="03">Invalid regulation</E>. 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.</P> <P>(b) <E T="03">Invalidly implemented regulation.</E> 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.</P> <P>(c) <E T="03">Corrective action.</E> 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:</P> <P>(1) Cancellation of any personnel action related to the prohibited personnel practice;</P> <P>(2) Rescission of any action related to the cancelled personnel action;</P> <P>(3) Removal of any reference, record, or document within an employee's official personnel folder that is related to the prohibited personnel practice;</P> <P>(4) Award of back pay and benefits;</P> <P>(5) Award of attorney fees;<PRTPAGE P="63"/> </P> <P>(6) Other remedial measures to reverse the effects of a prohibited personnel practice; and</P> <P>(7) The agency's submission of a verified report of its compliance with the Board's order.</P> </SECTION> <SECTION> <SECTNO>§ 1203.22</SECTNO> <SUBJECT>Enforcement of order.</SUBJECT> <P>(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 petition must include specific reasons why the petitioning party believes that there has been a failure to comply with the Board's order.</P> <P>(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.</P> <P>(c) Where appropriate, the Board may initiate the enforcement procedures described in 5 CFR 1201.183(c).</P> </SECTION> </SUBJGRP> </PART> <PART> <EAR>Pt. 1204</EAR> <HD SOURCE="HED">PART 1204—AVAILABILITY OF OFFICIAL INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Scope</HD> <SECHD>Sec.</SECHD> <SECTNO>1204.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1204.2</SECTNO> <SUBJECT>Scope.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records Under the Freedom of Information Act</HD> <SECTNO>1204.11</SECTNO> <SUBJECT>Requests for access to Board records.</SUBJECT> <SECTNO>1204.12</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1204.13</SECTNO> <SUBJECT>Denials.</SUBJECT> <SECTNO>1204.14</SECTNO> <SUBJECT>Requests for access to confidential commercial information.</SUBJECT> <SECTNO>1204.15</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Appeals</HD> <SECTNO>1204.21</SECTNO> <SUBJECT>Submission.</SUBJECT> <SECTNO>1204.22</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-231, and E.O. 12600.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 51039, Sept. 21, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Scope</HD> <SECTION> <SECTNO>§ 1204.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1204.2</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) For the purpose of this part, the term <E T="03">record</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="64"/>policy and interpretations adopted by the Board and that are not published in the <E T="04">Federal Register</E>, administrative staff manuals and instructions to staff that affect a member of the public, and agency records processed and disclosed in response to a FOIA request that the Board determines have been or are likely to become the subject of additional requests for basically the same records and a general index of those records, are available for public review and copying in the Board's Headquarters’ Library, 1615 M Street, NW., Washington, DC 20419-0001, and on the Board's World Wide Web site at http://www.mspb.gov.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records Under the Freedom of Information Act</HD> <SECTION> <SECTNO>§ 1204.11</SECTNO> <SUBJECT>Request for access to Board records.</SUBJECT> <P>(a) <E T="03">Sending a request.</E> 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.</P> <P>(b) <E T="03">Description.</E> 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.</P> <P>(c) <E T="03">Time limits and decisions.</E> 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.</P> <P>(1) <E T="03">Extension of time.</E> 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:</P> <P>(i) To limit the request so that it may be processed within the time limit, or</P> <P>(ii) To arrange with the Board a different time frame for processing the request or a changed request.</P> <P>(2) <E T="03">Expedited processing.</E> 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 <PRTPAGE P="65"/>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.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1204.12</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Definitions.</E> (1) The term <E T="03">direct costs</E> 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.</P> <P>(2) The term <E T="03">search</E>, 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.</P> <P>(3) The term <E T="03">duplication</E> 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.</P> <P>(4) The term <E T="03">review</E> 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.</P> <P>(5) The term <E T="03">commercial use request</E> 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.</P> <P>(6) The term <E T="03">educational institution</E> means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, <PRTPAGE P="66"/>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.</P> <P>(7) The term <E T="03">noncommercial scientific institution</E> 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.</P> <P>(8) The term <E T="03">representative of the news media</E> means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> means information that concerns current events or that would be of current interest to the public.</P> <P>(c) <E T="03">Categories of requesters.</E> 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.</P> <P>(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).</P> <P>(1) When the Board receives a request:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Fee schedule.</E> (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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="67"/>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.</P> <P>(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.</P> <P>(f) <E T="03">Fee waivers.</E> (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:</P> <P>(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government;</P> <P>(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;</P> <P>(iii) Whether disclosure of the requested information is likely to contribute to public understanding of the subject of the disclosure; and</P> <P>(iv) The significance of the contribution the disclosure would make to public understanding of government operations or activities.</P> <P>(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:</P> <P>(i) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1204.13</SECTNO> <SUBJECT>Denials</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1204.14</SECTNO> <SUBJECT>Requests for access to confidential commercial information.</SUBJECT> <P>(a) <E T="03">General.</E> Confidential commercial information provided to the Board by a <PRTPAGE P="68"/>business submitter will not be disclosed in response to a FOIA request except as required by this section.</P> <P>(b) <E T="03">Definitions.</E> (1) The term <E T="03">confidential commercial information</E> 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.</P> <P>(2) The term <E T="03">submitter</E> means any person or organization that provides confidential commercial information to the government. The term <E T="03">submitter</E> includes, but is not limited to, corporations, state governments, and foreign governments.</P> <P>(c) <E T="03">Notice to business submitters.</E> 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.</P> <P>(d) <E T="03">When initial notice is required.</E> (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:</P> <P>(i) The information is less than 10 years old; or</P> <P>(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.</P> <P>(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:</P> <P>(i) The business submitter has designated the information in good faith as commercially or financially sensitive information; or</P> <P>(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.</P> <P>(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.</P> <P>(e) <E T="03">Opportunity to object to disclosure.</E> 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.</P> <P>(f) <E T="03">Notice of intent to release information.</E> 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:</P> <P>(1) A statement of the reasons for which the business submitter's objections to the release were not sufficient;</P> <P>(2) A description of the confidential commercial information to be released; and</P> <P>(3) <E T="03">A specified release date.</E> 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 <PRTPAGE P="69"/>which release is expected. It will forward a copy of the release notice to the requester at the same time.</P> <P>(g) <E T="03">Notice of Freedom of Information Act lawsuit.</E> 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.</P> <P>(h) <E T="03">Exceptions to notice requirements.</E> The notice requirements of this section do not apply when:</P> <P>(1) The Board decides that the information should not be released;</P> <P>(2) The information lawfully has been published or otherwise made available to the public;</P> <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or</P> <P>(4) The disclosure is required by an agency rule that:</P> <P>(i) Was adopted after notice and public comment;</P> <P>(ii) Specifies narrow classes of records submitted to the agency that are to be released under the FOIA; or</P> <P>(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.</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1204.15</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Appeals</HD> <SECTION> <SECTNO>§ 1204.21</SECTNO> <SUBJECT>Submission.</SUBJECT> <P>(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:</P> <P>(1) A denial of access to agency records;</P> <P>(2) A denial of a request for a waiver or reduced fees;</P> <P>(3) A decision that it is technically not possible to reproduce electronically maintained information in the requester's preferred format;</P> <P>(4) A denial of a request for expedited processing of information under this part; or</P> <P>(5) A failure to decide a request for expedited processing within 10 workdays from the date of the request.</P> <P>(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.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1204.22</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1205</EAR> <HD SOURCE="HED">PART 1205—PRIVACY ACT REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>1205.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1205.2</SECTNO> <SUBJECT>Policy and scope.<PRTPAGE P="70"/> </SUBJECT> <SECTNO>1205.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1205.4</SECTNO> <SUBJECT>Disclosure of Privacy Act records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records</HD> <SECTNO>1205.11</SECTNO> <SUBJECT>Access to Board records.</SUBJECT> <SECTNO>1205.12</SECTNO> <SUBJECT>Time limits and determinations.</SUBJECT> <SECTNO>1205.13</SECTNO> <SUBJECT>Identification.</SUBJECT> <SECTNO>1205.14</SECTNO> <SUBJECT>Granting access.</SUBJECT> <SECTNO>1205.15</SECTNO> <SUBJECT>Denying access.</SUBJECT> <SECTNO>1205.16</SECTNO> <SUBJECT>Fees.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Amendment of Records</HD> <SECTNO>1205.21</SECTNO> <SUBJECT>Request for amendment.</SUBJECT> <SECTNO>1205.22</SECTNO> <SUBJECT>Action on request.</SUBJECT> <SECTNO>1205.23</SECTNO> <SUBJECT>Time limits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Appeals</HD> <SECTNO>1205.31</SECTNO> <SUBJECT>Submitting appeal.</SUBJECT> <SECTNO>1205.32</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a and 1204.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 51043, Sept. 21, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 1205.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1205.2</SECTNO> <SUBJECT>Policy and scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1205.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The definitions of 5 U.S.C. 552a apply to this part. In addition, as used in this part:</P> <P>(a) <E T="03">Inquiry</E> means a request by an individual regarding whether the Board has a record that refers to that individual.</P> <P>(b) <E T="03">Request for access</E> means a request by an individual to look at or copy a record.</P> <P>(c) <E T="03">Request for amendment</E> means a request by an individual to change the substance of a particular record by addition, deletion, or other correction.</P> <P>(d) <E T="03">Requester</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1205.4</SECTNO> <SUBJECT>Disclosure of Privacy Act records.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records</HD> <SECTION> <SECTNO>§ 1205.11</SECTNO> <SUBJECT>Access to Board records.</SUBJECT> <P>(a) <E T="03">Submission of request.</E> 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 <PRTPAGE P="71"/>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.</P> <P>(b) <E T="03">Form.</E> Each submission must contain the following information:</P> <P>(1) The name, address, and telephone number of the individual to whom the record refers;</P> <P>(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:</P> <P>(i) The birth certificate of the minor child, and</P> <P>(ii) The court document appointing the individual legal guardian, or</P> <P>(iii) An agreement for representation signed by the individual to whom the record refers;</P> <P>(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;</P> <P>(4) The date of the inquiry or request;</P> <P>(5) The inquirer's or requester's signature; and</P> <P>(6) A conspicuous indication, both on the envelope and the letter, that the inquiry is a “PRIVACY ACT REQUEST”.</P> <P>(c) <E T="03">Identification.</E> Each submission must follow the identification requirements stated in § 1205.13 of this part.</P> <P>(d) <E T="03">Payment.</E> Records usually will not be released until fees have been received.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.12</SECTNO> <SUBJECT>Time limits and determinations.</SUBJECT> <P>(a) <E T="03">Board determinations.</E> 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:</P> <P>(1) When the Board needs to obtain the records from other Board offices or a Federal Records Center;</P> <P>(2) When it needs to obtain and examine a large number of records;</P> <P>(3) When it needs to consult with another agency that has a substantial interest in the records requested; or</P> <P>(4) When other extenuating circumstances prevent the Board from processing the request within the 20-day period.</P> <P>(b) <E T="03">Time extensions.</E> 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.</P> <P>(c) <E T="03">Improper request.</E> 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.</P> <P>(d) <E T="03">Determining officials.</E> The Clerk of the Board, a Regional Director, or a Chief Administrative Judge will make determinations on requests.</P> <CITA>[64 FR 51043, Sept. 21, 1999; 64 FR 71267, Dec. 21, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.13</SECTNO> <SUBJECT>Identification.</SUBJECT> <P>(a) <E T="03">In person.</E> 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:</P> <P>(1) A document showing the requester's photograph;</P> <P>(2) A document showing the requester's signature; or</P> <P>(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).<PRTPAGE P="72"/> </P> <P>(b) <E T="03">By mail.</E> 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.</P> <P>(c) <E T="03">Parents of minors, legal guardians, and representatives.</E> 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:</P> <P>(1) The minor's birth certificate, and</P> <P>(2) The court order of guardianship, or</P> <P>(3) The agreement of representation, where appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 1205.14</SECTNO> <SUBJECT>Granting access.</SUBJECT> <P>(a) The Board may allow a requester to inspect records through either of the following methods:</P> <P>(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</P> <P>(2) It may mail copies of the records to the requester.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1205.15</SECTNO> <SUBJECT>Denying access.</SUBJECT> <P>(a) <E T="03">Basis.</E> 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.</P> <P>(b) <E T="03">Form.</E> All denials of access under this section will be made in writing and will notify the requester of the right to judicial review.</P> </SECTION> <SECTION> <SECTNO>§ 1205.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) No fees will be charged except for making copies of records.</P> <P>(b) Photocopies of records duplicated by the Board will be subject to a charge of 20 cents a page.</P> <P>(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.</P> <P>(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.</P> <P>(1) Audio tapes will be provided at a charge not to exceed $15 for each cassette tape.</P> <P>(2) Computer printouts will be provided at a charge of 10 cents a page.</P> <P>(3) Records reproduced on computer tapes, computer diskettes, or other electronic media, will be provided at the actual cost to the Board.</P> <P>(e) The Board will provide one copy of the amended parts of any record it amends free of charge as evidence of the amendment.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Amendment of Records</HD> <SECTION> <SECTNO>§ 1205.21</SECTNO> <SUBJECT>Request for amendment.</SUBJECT> <P>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:</P> <P>(a) An identification of the record to be amended;</P> <P>(b) A description of the amendment requested; and</P> <P>(c) A statement of the basis for the amendment, along with supporting documentation, if any.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="73"/> <SECTNO>§ 1205.22</SECTNO> <SUBJECT>Action on request.</SUBJECT> <P>(a) <E T="03">Amendment granted.</E> If the Board grants the request for amendment, it will notify the requester and provide him or her with a copy of the amendment.</P> <P>(b) <E T="03">Amendment denied.</E> 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:</P> <P>(1) The basis for the denial; and</P> <P>(2) The procedures for appealing the denial.</P> </SECTION> <SECTION> <SECTNO>§ 1205.23</SECTNO> <SUBJECT>Time limits.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Appeals</HD> <SECTION> <SECTNO>§ 1205.31</SECTNO> <SUBJECT>Submitting appeal.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) A copy of the original request for amendment of the record;</P> <P>(2) A copy of the denial; and</P> <P>(3) A statement of the reasons why the original denial should be overruled.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.32</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) The basis for the denial;</P> <P>(2) The right to judicial review of the decision under 5 U.S.C. 552a(g)(1)(A); and</P> <P>(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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1206</EAR> <HD SOURCE="HED">PART 1206—OPEN MEETINGS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Policy</HD> <SECHD>Sec.</SECHD> <SECTNO>1206.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1206.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1206.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures</HD> <SECTNO>1206.4</SECTNO> <SUBJECT>Notice of meeting.</SUBJECT> <SECTNO>1206.5</SECTNO> <SUBJECT>Change in meeting plans after notice.</SUBJECT> <SECTNO>1206.6</SECTNO> <SUBJECT>Decision to close meeting.</SUBJECT> <SECTNO>1206.7</SECTNO> <SUBJECT>Record of meetings.</SUBJECT> <SECTNO>1206.8</SECTNO> <SUBJECT>Providing information to the public.</SUBJECT> <SECTNO>1206.9</SECTNO> <SUBJECT>Procedures for expedited closing of meetings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Conduct of Meetings</HD> <SECTNO>1206.11</SECTNO> <SUBJECT>Meeting place.</SUBJECT> <SECTNO>1206.12</SECTNO> <SUBJECT>Role of observers.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552b.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 20367, May 11, 1989, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Policy</HD> <SECTION> <SECTNO>§ 1206.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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”).</P> </SECTION> <SECTION> <PRTPAGE P="74"/> <SECTNO>§ 1206.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1206.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The following definitions apply to this part:</P> <P>(a) <E T="03">Meeting</E> means deliberations of at least two Board members that determine or result in the joint conduct of official Board business.</P> <P>(b) <E T="03">Member</E> means one of the members of the Merit Systems Protection Board.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures</HD> <SECTION> <SECTNO>§ 1206.4</SECTNO> <SUBJECT>Notice of meeting.</SUBJECT> <P>(a) Notice of a Board meeting will be published in the <E T="04">Federal Register</E> at least one week before the meeting. Each notice will include the following information:</P> <P>(1) The time of the meeting;</P> <P>(2) The place where the meeting will be held;</P> <P>(3) The subject and agenda of the meeting;</P> <P>(4) Whether the meeting is to be open to the public or closed; and</P> <P>(5) The name and telephone number of a Board official responsible for receiving inquiries regarding the meeting.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1206.5</SECTNO> <SUBJECT>Change in meeting plans after notice.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(2) Notice of the change, and of the individual Board members’ vote, is published in the <E T="04">Federal Register</E> at the earliest practicable time.</P> </SECTION> <SECTION> <SECTNO>§ 1206.6</SECTNO> <SUBJECT>Decision to close meeting.</SUBJECT> <P>(a) <E T="03">Basis.</E> 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.</P> <P>(b) <E T="03">General Counsel certification.</E> 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.</P> <P>(c) <E T="03">Vote.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1206.7</SECTNO> <SUBJECT>Record of meetings.</SUBJECT> <P>(a) <E T="03">Closed Meeting.</E> When the Board has decided to close a meeting in whole or in part, it will maintain the following record:</P> <P>(1) A transcript or recording of the proceeding;</P> <P>(2) A copy of the General Counsel's certification under § 1206.6(b) of this part;</P> <P>(3) A statement from the presiding official specifying the time and place of <PRTPAGE P="75"/>the meeting and naming the persons present; and</P> <P>(4) A record (which may be part of the transcript) of all votes and all documents considered at the meeting.</P> <P>(b) <E T="03">Open meeting.</E> 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.</P> <CITA>[54 FR 20367, May 11, 1989, as amended at 54 FR 28664, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1206.8</SECTNO> <SUBJECT>Providing information to the public.</SUBJECT> <P>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.</P> <CITA>[54 FR 20367, May 11, 1989, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1206.9</SECTNO> <SUBJECT>Procedures for expedited closing of meetings.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Finding.</E> (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).</P> <P>(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.</P> <P>(b) <E T="03">Announcement.</E> 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.</P> <P>(c) <E T="03">Procedure for closing meetings under this section.</E> 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.</P> <P>(d) <E T="03">Record Availability.</E> 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:</P> <P>(1) A written record reflecting the vote of each participating member of the Board with respect to closing the meeting; and</P> <P>(2) The General Counsel certification under § 1206.6(b).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Conduct of Meetings</HD> <SECTION> <SECTNO>§ 1206.11</SECTNO> <SUBJECT>Meeting place.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1206.12</SECTNO> <SUBJECT>Role of observers.</SUBJECT> <P>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 <PRTPAGE P="76"/>meeting room when they are asked to do so.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1207</EAR> <HD SOURCE="HED">PART 1207—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1207.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1207.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1207.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1207.104—1207.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>1207.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>1207.112—1207.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>1207.131—1207.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>1207.141—1207.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>1207.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>1207.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>1207.152—1207.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1207.161—1207.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>1207.171—1207.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 25881 and 25885, July 8, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1207.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 handicap in programs or activities conducted by Executive agencies or the United States Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 1207.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This regulation (§§ 1207.101-1207.170) 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.</P> </SECTION> <SECTION> <SECTNO>§ 1207.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this regulation, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> 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.</P> <P> <E T="03">Complete complaint</E> 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.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P> <P> <E T="03">Historic properties</E> 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.</P> <P> <E T="03">Individual with handicaps</E> 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.<PRTPAGE P="77"/> </P> <P>As used in this definition, the phrase:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(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</P> <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> 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.</P> <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> 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.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P> <P>(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;</P> <P>(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</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified individual with handicaps</E> means—</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(4) <E T="03">Qualified handicapped person</E> as that term is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this regulation by § 1207.140.</P> <P> <E T="03">Section 504</E> 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.</P> <P> <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.104—1207.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.<PRTPAGE P="78"/> </P> <P>(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).</P> <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P> <P>(1) A description of areas examined and any problems identified; and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 1207.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.112—1207.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(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.</P> <P>(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—</P> <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(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;</P> <P>(iii) Provide a qualified individual with handicaps 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;</P> <P>(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;</P> <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P> <P>(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.</P> <P>(2) The agency may not deny a qualified individual with handicaps 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.</P> <P>(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—</P> <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(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</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(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.<PRTPAGE P="79"/> </P> <P>(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 regulation.</P> <P>(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 regulation.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.131—1207.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>No qualified individual with handicaps shall, on the basis of handicap, 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 1613, shall apply to employment in federally conducted programs or activities.</P> </SECTION> <SECTION> <SECTNO>§ 1207.141—1207.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>Except as otherwise provided in § 1207.150, 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.</P> </SECTION> <SECTION> <SECTNO>§ 1207.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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—</P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P> <P>(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</P> <P>(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 handicaps receive the benefits and services of the program or activity.</P> <P>(b) <E T="03">Methods</E>—(1) <E T="03">General</E>. 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, <PRTPAGE P="80"/>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.</P> <P>(2) <E T="03">Historic preservation programs.</E> 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 handicaps. 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—</P> <P>(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;</P> <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P> <P>(iii) Adopting other innovative methods.</P> <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by November 7, 1988, except that where structural changes in facilities are undertaken, such changes shall be made by September 6, 1991, but in any event as expeditiously as possible.</P> <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by March 6, 1989, 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—</P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(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</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 1207.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.152—1207.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(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.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall <PRTPAGE P="81"/>give primary consideration to the requests of the individual with handicaps.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 handicaps receive the benefits and services of the program or activity.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.161—1207.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(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.</P> <P>(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 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P> <P>(c) The Equal Employment Officer shall be responsible for coordinating implementation of this section. Complaints may be sent to the Equal Employment Office, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found; and</P> <P>(3) A notice of the right to appeal.<PRTPAGE P="82"/> </P> <P>(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 § 1207.170(g). The agency may extend this time for good cause.</P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(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.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(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.</P> <CITA>[53 FR 25881 and 25885, July 8, 1988, as amended at 53 FR 25881, July 8, 1988; 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1207.171—1207.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> <PART> <EAR>Pt. 1208</EAR> <HD SOURCE="HED">PART 1208—PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1208.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1208.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>1208.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <SECTNO>1208.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—USERRA Appeals</HD> <SECTNO>1208.11</SECTNO> <SUBJECT>Choice of procedure under USERRA; exhaustion requirement.</SUBJECT> <SECTNO>1208.12</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1208.13</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <SECTNO>1208.14</SECTNO> <SUBJECT>Representation by Special Counsel.</SUBJECT> <SECTNO>1208.15</SECTNO> <SUBJECT>Remedies.</SUBJECT> <SECTNO>1208.16</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—VEOA Appeals</HD> <SECTNO>1208.21</SECTNO> <SUBJECT>VEOA exhaustion requirement.</SUBJECT> <SECTNO>1208.22</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1208.23</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <SECTNO>1208.24</SECTNO> <SUBJECT>Election to terminate MSPB proceeding.</SUBJECT> <SECTNO>1208.25</SECTNO> <SUBJECT>Remedies.</SUBJECT> <SECTNO>1208.26</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 5412, Feb. 4, 2000, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1208.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1208.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>(a) <E T="03">USERRA</E>. 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 <PRTPAGE P="83"/>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.</P> <P>(b) <E T="03">VEOA</E>. 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.</P> </SECTION> <SECTION> <SECTNO>§ 1208.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <P>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, and Litigation Expenses, Where Applicable), Consequential Damages, and CompensatoryDamages) of 5 CFR part 1201 regarding awards of attorney fees to appeals governed by this part.</P> </SECTION> <SECTION> <SECTNO>§ 1208.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Appeal</E>. “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).</P> <P>(b) <E T="03">Preference eligible.</E> “Preference eligible” is defined in 5 U.S.C. 2108.</P> <P>(c) <E T="03">USERRA appeal.</E> “USERRA appeal” means an appeal filed under 38 U.S.C. 4324, as enacted by the Uniformed ServicesEmployment 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.</P> <P>(d) <E T="03">VEOA appeal.</E> “VEOA appeal” means an appeal filed under 5 U.S.C. 3330a, as enacted by the Veterans EmploymentOpportunities Act of 1998 (Public Law 105-339).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—USERRA Appeals</HD> <SECTION> <SECTNO>§ 1208.11</SECTNO> <SUBJECT>Choice of procedure under USERRA; exhaustion requirement.</SUBJECT> <P>(a) <E T="03">Choice of procedure.</E> An appellant may file a USERRA appeal directly with the Board under this subpart <E T="03">or</E> may file a complaint with the Secretary of Labor under 38 U.S.C. 4322.</P> <P>(b) <E T="03">Exhaustion requirement.</E> 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.</P> <P>(c) <E T="03">Appeals after exhaustion of Department of Labor procedure.</E> 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.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.12</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>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 <PRTPAGE P="84"/>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.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.13</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> A USERRA appeal may be in any format, including letter form, but must contain the following:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);</P> <P>(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;</P> <P>(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.</P> <P>(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</P> <P>(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).</P> <P>(b) <E T="03">Request for hearing.</E> 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)).</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.14</SECTNO> <SUBJECT>Representation by Special Counsel.</SUBJECT> <P>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).</P> <CITA>[65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.15</SECTNO> <SUBJECT>Remedies.</SUBJECT> <P>(a) <E T="03">Order for compliance.</E> If the Board determines that a Federal agency employer or the Office of Personnel</P> <P>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 PersonnelManagement, 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.<PRTPAGE P="85"/> </P> <P>(b) <E T="03">Attorney fees and expenses.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1208.16</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> <P>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)).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—VEOA Appeals</HD> <SECTION> <SECTNO>§ 1208.21</SECTNO> <SUBJECT>VEOA exhaustion requirement.</SUBJECT> <P>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 and allow the Secretary at least 60 days from the date the complaint is filed to attempt to resolve the complaint.</P> </SECTION> <SECTION> <SECTNO>§ 1208.22</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.23</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> A VEOA appeal may be in any format, including letter form, but must contain the following:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);</P> <P>(2) Evidence or argument that the appellant is a preference eligible;</P> <P>(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;</P> <P>(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</P> <P>(5)(i) Evidence that the Secretary has notified the appellant in accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have not resolved the complaint (a copy of the Secretary's notice satisfies this requirement); or</P> <P>(ii) Evidence that the appellant has provided written notice to the Secretary of the appellant's intent to appeal to the Board, as required by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to the Secretary satisfies this requirement).</P> <P>(b) <E T="03">Request for hearing.</E> 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)).</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.24</SECTNO> <SUBJECT>Election to terminate MSPB proceeding.</SUBJECT> <P>(a) <E T="03">Election to terminate.</E> 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 <PRTPAGE P="86"/>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 UnitedStates district court. Such election must be in writing, 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.</P> <P>(b) <E T="03">Termination order.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1208.25</SECTNO> <SUBJECT>Remedies.</SUBJECT> <P>(a) <E T="03">Order for compliance.</E> 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.</P> <P>(b) <E T="03">Attorney fees and expenses.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1208.26</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> <P>(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)).</P> <P>(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).</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1209</EAR> <HD SOURCE="HED">PART 1209—PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1209.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1209.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>1209.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <SECTNO>1209.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Appeals</HD> <SECTNO>1209.5</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1209.6</SECTNO> <SUBJECT>Content of appeal; right to hearing.</SUBJECT> <SECTNO>1209.7</SECTNO> <SUBJECT>Burden and degree of proof.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Stay Requests</HD> <SECTNO>1209.8</SECTNO> <SUBJECT>Filing a request for a stay.</SUBJECT> <SECTNO>1209.9</SECTNO> <SUBJECT>Content of stay request and response.</SUBJECT> <SECTNO>1209.10</SECTNO> <SUBJECT>Hearing and order ruling on stay request.</SUBJECT> <SECTNO>1209.11</SECTNO> <SUBJECT>Duration of stay; interim compliance.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Reports on Applications for Transfers</HD> <SECTNO>1209.12</SECTNO> <SUBJECT>Filing of agency reports.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Referrals to the Special Counsel</HD> <SECTNO>§ 1209.13</SECTNO> <SUBJECT>Referral of findings to the Special Counsel.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.</P> </AUTH> <SOURCE> <PRTPAGE P="87"/> <HD SOURCE="HED">Source:</HD> <P>55 FR 28592, July 12, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1209.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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 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 activities, and requests for stays of personnel actions allegedly based on whistleblowing.</P> </SECTION> <SECTION> <SECTNO>§ 1209.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>(a) Under 5 U.S.C. 1214(a)(3), 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 activities.</P> <P>(b) The Board exercises jurisdiction over:</P> <P>(1) <E T="03">Individual right of action appeals.</E> 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 activities. 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. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because of his whistleblowing activities. Because a performance evaluation is not an otherwise appealable action, Mr. X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Mr. X appeals the evaluation to the Board after the Special Counsel proceeding is terminated or exhausted, his appeal is an individual right of action appeal.</P> </EXAMPLE> <P>(2) <E T="03">Otherwise appealable action appeals.</E> 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 activities. The appellant may choose either to seek corrective action from the Special Counsel before appealing to the Board or to appeal directly to the Board. (Examples of such otherwise appealable actions are listed in 5 CFR 1201.3 (a)(1) through (a)(19).) </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>Agency B removes Ms. Y for alleged misconduct under 5 U.S.C. 7513. Ms. Y believes that the agency removed her because of her whistleblowing activities. Because the removal action is appealable to the Board under some law, rule or regulation other than 5 U.S.C. 1221(a), Ms. Y may choose to file an appeal with the Board without first seeking corrective action from the Special Counsel or to seek corrective action from the Special Counsel and then appeal to the Board.</P> </EXAMPLE> <P>(3) <E T="03">Stays.</E> Where the appellant alleges that a personnel action was or will be based on whistleblowing, the Board may, upon the appellant's request, order an agency to suspend that action.</P> </SECTION> <SECTION> <SECTNO>§ 1209.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <P>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 and consequential damages under 5 U.S.C. 1221(g) to appeals governed by this part.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Personnel action</E> means, as to individuals and agencies covered by 5 U.S.C. 2302:</P> <P>(1) An appointment;</P> <P>(2) A promotion;</P> <P>(3) An adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;</P> <P>(4) A detail, transfer, or reassignment;</P> <P>(5) A reinstatement;</P> <P>(6) A restoration;<PRTPAGE P="88"/> </P> <P>(7) A reemployment;</P> <P>(8) A performance evaluation under chapter 43 of title 5, United States Code;</P> <P>(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;</P> <P>(10) A decision to order psychiatric testing or examination; or</P> <P>(11) Any other significant change in duties, responsibilities, or working conditions.</P> <P>(b) <E T="03">Whistleblowing</E> is the disclosure of information by an employee, former employee, or applicant that the individual reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or 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 the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.</P> <P>(c) <E T="03">Contributing factor</E> 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.</P> <P>(d) <E T="03">Clear and convincing evidence</E> 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).</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Appeals</HD> <SECTION> <SECTNO>§ 1209.5</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>(a) <E T="03">Individual right of action appeals.</E> The appellant must seek corrective action from the Special Counsel before appealing to the Board. 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:</P> <P>(1) No later than 65 days after the date of issuance of the Office of 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,</P> <P>(2) If the Office of 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, at any time after the expiration of 120 days.</P> <P>(b) <E T="03">Otherwise appealable action appeals.</E> The appellant may choose either to seek corrective action from the Special Counsel before appealing to the Board or to file the appeal directly with the Board. If the appellant seeks corrective action from the Special Counsel, the time limit for appealing is governed by paragraph (a) of this section. If the appellant appeals directly to the Board, the time limit for filing is governed by 5 CFR 1201.22(b).</P> <P>(c) <E T="03">Appeals after a stay request.</E> 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.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 62 FR 59993, Nov. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.6</SECTNO> <SUBJECT>Content of appeal; right to hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> 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:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24 (a)(1) through (a)(9);<PRTPAGE P="89"/> </P> <P>(2) Where the appellant first sought corrective action from the Special Counsel, evidence that the appeal is timely filed;</P> <P>(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);</P> <P>(4) A description of each disclosure evidencing whistleblowing as defined in § 1209.4(b) of this part; and</P> <P>(5) Evidence or argument that:</P> <P>(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</P> <P>(ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure, as described in § 1209.4(b) of this part.</P> <P>(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 <E T="03">Part 2: Reprisal For Whistleblowing</E> of the complaint form submitted to the Office of Special Counsel (Form OSC-11, <E T="03">Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity,</E> 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.</P> <P>(b) <E T="03">Right to hearing.</E> An appellant has a right to a hearing.</P> <P>(c) <E T="03">Timely request.</E> 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.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.7</SECTNO> <SUBJECT>Burden and degree of proof.</SUBJECT> <P>(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), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that a disclosure described under 5 U.S.C. 2302(b)(8) was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Stay Requests</HD> <SECTION> <SECTNO>§ 1209.8</SECTNO> <SUBJECT>Filing a request for a stay.</SUBJECT> <P>(a) <E T="03">Time of filing.</E> 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. It may be filed prior to, simultaneous with, or after the filing of an appeal.</P> <P>(b) <E T="03">Place of filing.</E> Requests must be filed with the appropriate Board regional or field office as set forth in 5 CFR 1201.4(d).</P> <P>(c) <E T="03">Service of stay request.</E> 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.</P> <P>(d) <E T="03">Method of filing.</E> A stay request must be filed with the appropriate Board regional or field office by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.9</SECTNO> <SUBJECT>Content of stay request and response.</SUBJECT> <P>(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 <PRTPAGE P="90"/>may be in any format, and must contain the following:</P> <P>(1) The name, address, and telephone number of the appellant, and the name and address of the acting agency;</P> <P>(2) The name, address, and telephone number of the appellant's representative, if any;</P> <P>(3) The signature of the appellant or, if the appellant has a representative, of the representative;</P> <P>(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;</P> <P>(5) Where the appellant first sought corrective action from the Special Counsel, evidence that the stay request is timely filed;</P> <P>(6) Evidence and/or argument showing that:</P> <P>(i) The action threatened, proposed, taken, or not taken is a personnel action, as defined in § 1209.4(a) of this part;</P> <P>(ii) The action complained of was based on whistleblowing, as defined in § 1209.4(b) of this part; and</P> <P>(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal;</P> <P>(7) Evidence and/or argument addressing how long the stay should remain in effect; and</P> <P>(8) Any documentary evidence that supports the stay request.</P> <P>(b) An appellant may provide evidence and/or argument addressing the question of whether a stay would impose extreme hardship on the agency.</P> <P>(c) <E T="03">Agency response.</E> (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.</P> <P>(2) The agency's response must contain the following:</P> <P>(i) Evidence and/or argument addressing whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal;</P> <P>(ii) Evidence and/or argument addressing whether the grant of a stay would result in extreme hardship to the agency; and</P> <P>(iii) Any documentation relevant to the agency's position on these issues.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.10</SECTNO> <SUBJECT>Hearing and order ruling on stay request.</SUBJECT> <P>(a) <E T="03">Hearing.</E> The judge may hold a hearing on the stay request.</P> <P>(b) <E T="03">Order ruling on stay request.</E> (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.</P> <P>(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.</P> <P>(3) If the judge grants a stay, the order must specify the effective date and duration of the stay.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.11</SECTNO> <SUBJECT>Duration of stay; interim compliance.</SUBJECT> <P>(a) <E T="03">Duration of stay.</E> 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.</P> <P>(b) <E T="03">Interim compliance.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Reports on Applications for Transfers</HD> <SECTION> <SECTNO>§ 1209.12</SECTNO> <SUBJECT>Filing of agency reports.</SUBJECT> <P>When an employee who has applied for a transfer to another position in an Executive agency under 5 U.S.C. 3352 <PRTPAGE P="91"/>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Referrals to the Special Counsel</HD> <SECTION> <SECTNO>§ 1209.13</SECTNO> <SUBJECT>Referral of findings to the Special Counsel.</SUBJECT> <P>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), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215.</P> <CITA>[62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1210</EAR> <HD SOURCE="HED">PART 1210—DEBT MANAGEMENT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Salary Offset</HD> <SECHD>Sec.</SECHD> <SECTNO>1210.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1210.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1210.4</SECTNO> <SUBJECT>Notice requirements.</SUBJECT> <SECTNO>1210.5</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>1210.6</SECTNO> <SUBJECT>Written decision.</SUBJECT> <SECTNO>1210.7</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <SECTNO>1210.8</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>1210.9</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>1210.10</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <SECTNO>1210.11</SECTNO> <SUBJECT>Nonwaiver of rights.</SUBJECT> <SECTNO>1210.12</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Collection</HD> <SECTNO>1210.21</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1210.22</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1210.23</SECTNO> <SUBJECT>Other remedies.</SUBJECT> <SECTNO>1210.24</SECTNO> <SUBJECT>Claims involving criminal activity or misconduct.</SUBJECT> <SECTNO>1210.25</SECTNO> <SUBJECT>Collection.</SUBJECT> <SECTNO>1210.26</SECTNO> <SUBJECT>Notices to debtor.</SUBJECT> <SECTNO>1210.27</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <SECTNO>1210.28</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <SECTNO>1210.29</SECTNO> <SUBJECT>Use of credit reporting agencies.</SUBJECT> <SECTNO>1210.30</SECTNO> <SUBJECT>Collection services.</SUBJECT> <SECTNO>1210.31</SECTNO> <SUBJECT>Referral to the Department of Justice or the General Accounting Office.</SUBJECT> <SECTNO>1210.32</SECTNO> <SUBJECT>Compromise, suspension and termination.</SUBJECT> <SECTNO>1210.33</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 50603, Dec. 8, 1989, unless otherwise noted.</P> </SOURCE> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Salary Offset</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 5514, Executive Order 11809 (redesignated Executive Order 12107), and 5 CFR 550 subpart K.</P> </AUTH> <SECTION> <SECTNO>§ 1210.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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.</P> <P>(b) This regulation does not apply to debts or claims arising under:</P> <P>(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 <E T="03">et seq.;</E> </P> <P>(2) The Social Security Act, 42 U.S.C. 301 <E T="03">et seq.;</E> </P> <P>(3) The tariff laws of the United States; or</P> <P>(4) Any case where a collection of a debt by salary offset is explicitly provided for or prohibited by another statute.</P> <P>(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.</P> <P>(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 <E T="03">et seq.</E> 4 CFR parts 101 through 105; 5 CFR part 1210.</P> <P>(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 <PRTPAGE P="92"/>pursuant to other statutory provisions applicable to the particular debt being collected.</P> <P>(f) Matters not addressed in these regulations should be reviewed in accordance with the Federal Claims Collection Standards at 4 CFR 101.1 <E T="03">et seq.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1210.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Agency.</E> 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.</P> <P>(b) <E T="03">Chairman.</E> The Chairman of the MSPB or the Chairman's designee.</P> <P>(c) <E T="03">Creditor agency.</E> The agency to which the debt is owed.</P> <P>(d) <E T="03">Debt.</E> 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.</P> <P>(e) <E T="03">Disposable pay.</E> 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.</P> <P>(f) <E T="03">Hearing official.</E> 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.</P> <P>(g) <E T="03">Paying Agency.</E> The agency that employs the individual who owes the debt and authorizes the payment of his/her current pay.</P> <P>(h) <E T="03">Salary offset.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) These regulations are to be followed when:</P> <P>(1) The MSPB is owed a debt by an individual currently employed by another Federal agency;</P> <P>(2) The MSPB is owed a debt by an individual who is a current employee of the MSPB; or</P> <P>(3) The MSPB employs an individual who owes a debt to another Federal agency.</P> </SECTION> <SECTION> <SECTNO>§ 1210.4</SECTNO> <SUBJECT>Notice requirements.</SUBJECT> <P>(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.</P> <P>(b) The written notice shall contain:</P> <P>(1) A statement that the debt is owed and an explanation of its nature, and amount;</P> <P>(2) The agency's intention to collect the debt by deducting from the employee's current disposable pay account;</P> <P>(3) The amount, frequency proposed beginning date, and duration of the intended deduction(s);</P> <P>(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 <E T="03">et seq.;</E> </P> <P>(5) The employee's right to inspect, request, or receive a copy of government records relating to the debt;</P> <P>(6) The opportunity to establish a written schedule for the voluntary repayment of the debt;</P> <P>(7) The right to a hearing conducted by an impartial hearing official;</P> <P>(8) The methods and time period for petitioning for hearings;</P> <P>(9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection proceedings;</P> <P>(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 <PRTPAGE P="93"/>employee requests and the hearing official grants a delay in the proceedings;</P> <P>(11) A statement that knowingly false or frivolous statements, representations, or evidence may subject the employee to appropriate disciplinary procedures;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.5</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) <E T="03">Request for hearing</E>. (1) An employee must file a petition for a hearing in accordance with the instructions outlined in the agency's notice to offset.</P> <P>(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.</P> <P>(b) <E T="03">Hearing procedures</E>. (1) The hearing will be presided over by an impartial hearing official.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.6</SECTNO> <SUBJECT>Written decision.</SUBJECT> <P>(a) The hearing official shall issue a written opinion no later than 60 days after the hearing.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.7</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <P>(a) <E T="03">The MSPB as the creditor agency</E>. (1) When the Chairman determines that an employee of a Federal agency owes a delinquent debt to the MSPB, the Chairman shall as appropriate:</P> <P>(i) Arrange for a hearing upon the proper petitioning by the employee;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">MSPB as the paying agency</E>. (1) Upon receipt of a properly certified <PRTPAGE P="94"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.8</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>(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 § 1210.4. 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.9</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Unless required by law, refunds under this subsection shall not bear interest.</P> </SECTION> <SECTION> <SECTNO>§ 1210.10</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.11</SECTNO> <SUBJECT>Nonwaiver of rights.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.12</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Collection</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>The authority for this part is the Federal Claims Collection Act of 1966, as amended, 31 U.S.C. 3711 and 3716-3719; the Federal Claims Collection Standards at 4 CFR parts 101-105, as amended by 49 FR 8889, 5 U.S.C. 552a, and Office of Management and Budget Circular A-129.</P> </AUTH> <SECTION> <SECTNO>§ 1210.21</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part prescribes standards and procedures for officers and employees of the MSPB who are responsible for the collection and disposition of debts <PRTPAGE P="95"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.22</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Claim</E> or <E T="03">debt.</E> 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 § 1210.26) or if the debtor fails to satisfy his or her obligation under a repayment agreement.</P> <P>(b) <E T="03">Debtor.</E> 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.</P> <P>(c) <E T="03">MSPB.</E> The Merit Systems Protection Board.</P> <P>(d) <E T="03">Administrative offset.</E> Satisfying a debt by withholding money payable by the United States to or held by the United States for a debtor.</P> </SECTION> <SECTION> <SECTNO>§ 1210.23</SECTNO> <SUBJECT>Other remedies.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.24</SECTNO> <SUBJECT>Claims involving criminal activity or misconduct.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.25</SECTNO> <SUBJECT>Collection.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.26</SECTNO> <SUBJECT>Notices to debtor.</SUBJECT> <P>The first written demand for payment must inform the debtor of the following:</P> <P>(a) The amount and nature of the debt;</P> <P>(b) The date payment is due, which will generally be 30 days from the date the notice was mailed;</P> <P>(c) The assessment of interest under § 1210.27 from the date the notice was <PRTPAGE P="96"/>mailed if payment is not received within the 30 days;</P> <P>(d) The right to dispute the debt;</P> <P>(e) The office, address and telephone number that the debtor should contact to discuss repayment and reconsideration of the debt; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.27</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <P>(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 <E T="04">Federal Register</E> and the Treasury Financial Manual Bulletins.</P> <P>(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.</P> <P>(c) The MSPB shall charge debtors for administrative costs incurred in handling overdue debts.</P> <P>(d) Interest will not be charged on administrative costs.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.28</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <P>(a) The MSPB may collect debts owed by administrative offset if:</P> <P>(1) The debt is certain in amount;</P> <P>(2) Efforts to obtain direct payment have been, or would most likely be unsuccessful, or the MSPB and the debtor agree to the offset;</P> <P>(3) Offset is cost effective or has significant deterrent value; and</P> <P>(4) Offset is best suited to further and protect the Government's interest.</P> <P>(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;</P> <P>(c) Prior to initiating administrative offset, the MSPB will send the debtor written notice of the following:</P> <P>(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;</P> <P>(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</P> <P>(3) The applicable interest.</P> <P>(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:</P> <P>(1) Failure of offset would substantially prejudice the Government's ability to collect the debt; and</P> <P>(2) The time before the payment is to be made does not reasonably permit completion of those procedures.</P> </SECTION> <SECTION> <SECTNO>§ 1210.29</SECTNO> <SUBJECT>Use of credit reporting agencies.</SUBJECT> <P>(a) The MSPB may report delinquent accounts to credit reporting agencies <PRTPAGE P="97"/>consistent with the notice requirements contained in the § 1210.26. 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.30</SECTNO> <SUBJECT>Collection services.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.31</SECTNO> <SUBJECT>Referral to the Department of Justice or the General Accounting Office.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1210.32</SECTNO> <SUBJECT>Compromise, suspension and termination.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The Chairman of the MSPB will refer to the General Accounting Office (GAO) debts arising from GAO audit exceptions.</P> </SECTION> <SECTION> <SECTNO>§ 1210.33</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <P>Failure to comply with any provisions of this rule may not serve as a defense to any debtor.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. III (1-1-02 Edition)</LRH> <RRH>Office of Management and Budget</RRH> <TOC> <TOCHD> <PRTPAGE P="99"/> <HD SOURCE="HED">CHAPTER III—OFFICE OF MANAGEMENT AND BUDGET</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ADMINISTRATIVE PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1300</PT> <SUBJECT>Standards of conduct</SUBJECT> <PG>100</PG> <PT>1302</PT> <SUBJECT>Privacy Act procedures</SUBJECT> <PG>100</PG> <PT>1303</PT> <SUBJECT>Public information provisions of the Administrative Procedures Act</SUBJECT> <PG>106</PG> <PT>1304</PT> <SUBJECT>Post employment conflict of interest</SUBJECT> <PG>113</PG> <PT>1305</PT> <SUBJECT>Release of official information, and testimony by OMB personnel as witnesses, in litigation</SUBJECT> <PG>116</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—OMB DIRECTIVES</HD> </SUBCHAP> <CHAPTI> <PT>1310</PT> <SUBJECT>OMB circulars</SUBJECT> <PG>118</PG> <PT>1312</PT> <SUBJECT>Classification, downgrading, declassification and safeguarding of national security information</SUBJECT> <PG>119</PG> <PT>1315</PT> <SUBJECT>Prompt payment</SUBJECT> <PG>131</PG> <PT>1320</PT> <SUBJECT>Controlling paperwork burdens on the public</SUBJECT> <PG>145</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="P"> <PRTPAGE P="100"/> <HD SOURCE="HED">SUBCHAPTER A—ADMINISTRATIVE PROCEDURES</HD> <PART> <EAR>Pt. 1300</EAR> <HD SOURCE="HED">PART 1300—STANDARDS OF CONDUCT</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301.</P> </AUTH> <SECTION> <SECTNO>§ 1300.1</SECTNO> <SUBJECT>Cross-reference to employees ethical conduct standards and financial disclosure regulations.</SUBJECT> <P>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.</P> <CITA>[60 FR 12397, Mar. 7, 1995]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1302</EAR> <HD SOURCE="HED">PART 1302—PRIVACY ACT PROCEDURES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1302.1</SECTNO> <SUBJECT>Rules for determining if an individual is the subject of a record.</SUBJECT> <SECTNO>1302.2</SECTNO> <SUBJECT>Requests for access.</SUBJECT> <SECTNO>1302.3</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <SECTNO>1302.4</SECTNO> <SUBJECT>Requests to amend records.</SUBJECT> <SECTNO>1302.5</SECTNO> <SUBJECT>Request for review.</SUBJECT> <SECTNO>1302.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Pub. L. 93-579, 88 Stat. 1896, 5 USC 552a(f).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>41 FR 38491, Sept. 10, 1976, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1302.1</SECTNO> <SUBJECT>Rules for determining if an individual is the subject of a record.</SUBJECT> <P>(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 <E T="04">Federal Register</E> and copies of the notices will be available upon request to the Assistant to the Director for Administration when so published. A compilation of such notices will also be made and published by the Office of Federal Register, in accordance with section 5 U.S.C. 552a(f).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1302.2</SECTNO> <SUBJECT>Requests for access.</SUBJECT> <P>(a) <E T="03">Requirement for written requests.</E> 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 <PRTPAGE P="101"/>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.</P> <P>(b) <E T="03">Procedures—</E>(1) <E T="03">Content of the Request.</E> (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.</P> <P>(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.</P> <P>(iii) If the individual specifically desires a copy of the record, the request should so specify.</P> <P>(2) <E T="03">OMB action on request.</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(iv) The amount of fees charged, if any (see § 1302.6 of this part). (Fees are applicable only to requests for copies.);</P> <P>(v) The name, title, and telephone number of the OMB official having operational control over the record; and</P> <P>(vi) The documentation required by OMB to verify the identity of the requester. At a minimum, OMB's verification standards include the following:</P> <P>(A) <E T="03">Current or former OMB employees.</E> 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 <PRTPAGE P="102"/>record are examples of acceptable identification validation.</P> <P>(B) <E T="03">Other than current or former OMB employees.</E> 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).</P> <P>(C) <E T="03">Access granted by mail.</E> 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.</P> <P>(D) <E T="03">Unavailability of identification documentation.</E> 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.</P> <P>(E) <E T="03">Access by the parent of a minor, or legal guardian.</E> 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.</P> <P>(F) <E T="03">Granting access when accompanied by another individual.</E> 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.</P> <P>(G) <E T="03">Denial of access for inadequate identification documentation.</E> 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.</P> <P>(H) <E T="03">Review of decision to deny access.</E> 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.</P> <P>(vii) <E T="03">Exceptions.</E> Nothing in these regulations shall be construed to entitle an individual the right to access to any <PRTPAGE P="103"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1302.3</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1302.4</SECTNO> <SUBJECT>Requests to amend records.</SUBJECT> <P>(a) <E T="03">Requirement for written requests.</E> 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.</P> <P>(b) <E T="03">Procedures.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(v) Incomplete or inaccurate requests will not be rejected categorically. The individual will be asked to clarify the request as needed.</P> <P>(2) <E T="03">OMB action on the request.</E> 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:</P> <P>(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.</P> <P>(ii) The reasons for the determination for any portion of the request which is denied.</P> <P>(iii) The name and address of the official with whom an appeal of the denial may be lodged.<PRTPAGE P="104"/> </P> <P>(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.</P> <P>(v) A description of the review of the appeal within OMB (see § 1302.5 of this part).</P> <P>(vi) A description of any other procedures which may be required of the individual in order to process the appeal.</P> <FP>If the nature of the request or the system of records precludes a decision within 10 days, the individual making the request will be informed within 10 days of the expected date for a decision. Such a decision will be issued as soon as it is reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal Federal holidays) unless unusual circumstances preclude completing action within that time. If the expected completion date for the decision indicated cannot be met, the individual will be advised of that delay and of a revised date when the decision may be expected to be completed.</FP> </SECTION> <SECTION> <SECTNO>§ 1302.5</SECTNO> <SUBJECT>Request for review.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The request for review should be addressed to the Assistant to the Director for Administration.</P> <P>(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.</P> <P>(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:</P> <P>(1) Deputy Director;</P> <P>(2) Assistant to the Director for Administration;</P> <P>(3) General Counsel;</P> <P>(4) Assistant Director for Budget Review;</P> <P>(5) Assistant Director for Legislative Reference;</P> <P>(6) Assistant to the Director for Public Affairs;</P> <P>(7) Deputy Associate Director for Information Systems;<PRTPAGE P="105"/> </P> <P>(8) Deputy Associate Director for Statistical Policy;</P> <P>(9) Deputy Associate Director for National Security;</P> <P>(10) Budget and Management Officer;</P> <P>(11) Personnel Officer.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1302.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>(a) <E T="03">Prohibitions against charging fees.</E> Individuals will not be charged for:</P> <P>(1) The search and review of the record,</P> <P>(2) Any copies of the record produced as a necessary part of the process of making the record available for access, or</P> <P>(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.</P> <P>(b) <E T="03">Waiver.</E> 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.</P> <P>(c) <E T="03">Fee schedule and method of payment.</E> Fees will be charged as provided below except as provided in paragraphs (a) and (b) of this section.</P> <P>(1) <E T="03">Duplication of records.</E> 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.</P> <P>(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 <PRTPAGE P="106"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(5) A receipt for fees paid will be given upon request.</P> </SECTION> </PART> <PART> <EAR>Pt. 1303</EAR> <HD SOURCE="HED">PART 1303—PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">Organization</HD> <SECHD>Sec.</SECHD> <SECTNO>1303.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1303.2</SECTNO> <SUBJECT>Authority and functions.</SUBJECT> <SECTNO>1303.3</SECTNO> <SUBJECT>Organization.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTNO>1303.10</SECTNO> <SUBJECT>Access to information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Availability of Information</HD> <SECTNO>1303.20</SECTNO> <SUBJECT>Inspection and copying.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTNO>1303.30</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1303.40</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <SECTNO>1303.50</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <SECTNO>1303.60</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <SECTNO>1303.70</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 33483, Aug. 3, 1982, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Organization</HD> <SECTION> <SECTNO>§ 1303.1</SECTNO> <SUBJECT>General</SUBJECT> <P>This information is furnished for the guidance of the public and in compliance with the requirements of section 552 of title 5, United States Code, as amended.</P> </SECTION> <SECTION> <SECTNO>§ 1303.2</SECTNO> <SUBJECT>Authority and functions.</SUBJECT> <P>The general functions of the Office of Management and Budget, as provided by statute and executive order, are to develop and execute the budget, oversee implementation of Administration policies and programs, advise and assist the President, and develop and implement management policies for the government.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.3</SECTNO> <SUBJECT>Organization.</SUBJECT> <P>(a) The brief description of the central organization of the Office of Management and Budget follows:</P> <P>(1) The Director's Office includes the Director, the Deputy Director, the Deputy Director for Management, and the Executive Associate Director.</P> <P>(2) Staff Offices include General Counsel, Legislative Affairs, Communications, Administration, and Economic Policy.</P> <P>(3) Offices that provide OMB-wide support include the Legislative Reference and Budget Review Divisions.</P> <P>(4) Resource Management Offices. These offices develop and support the President's management and budget agenda in the areas of Natural Resources, Energy and Science, National Security and International Affairs, Health and Personnel, Human Resources, and General Government and Finance.</P> <P>(5) Statutory offices include the Office of Federal Financial Management, Office of Federal Procurement Policy, and the Office of Information and Regulatory Affairs.</P> <P>(b) The Office of Management and Budget is located in Washington, DC, and has no field offices. Staff are housed in either the Old Executive Office Building, 17th Street and Pennsylvania Ave, NW., or the New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Persons desiring to visit offices or employees of the Office of Management and Budget, in either building, must write or telephone ahead to make an appointment. Security in both buildings prevents visitors <PRTPAGE P="107"/>from entering the building without an appointment.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTION> <SECTNO>§ 1303.10</SECTNO> <SUBJECT>Access to information.</SUBJECT> <P>(a) The Office of Management and Budget makes available information pertaining to matters issued, adopted, or promulgated by OMB, that are within the scope of 5 U.S.C. 552(a)(2). A public reading area is located in the Executive Office of the President Library, Room G-102, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-5715. Some of these materials are also available from the Executive Office of the President's Publications Office, Room 2200 New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-7332. OMB issuances are also available via fax-on-demand at (202) 395-9068, and are available electronically from the OMB homepage at http:/www.whitehouse.gov/WH/EOP/omb. In addition, OMB maintains the Office of Information and Regulatory Affairs (OIRA) Docket Library, Room 10102, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-6880. The Docket Library contains records related to information collections sponsored by the Federal government and reviewed by OIRA under the Paperwork Reduction Act of 1995. The Docket Library also maintains records related to proposed Federal agency regulatory actions reviewed by OIRA under Executive Order 12866 “Regulatory Planning and Review”. Telephone logs and materials from meetings with the public attended by the OIRA Administrator are also available in the Docket Library.</P> <P>(b) The FOIA Officer is responsible for acting on all initial requests. Individuals wishing to file a request under the Freedom of Information Act (FOIA) should address their request in writing to the FOIA Officer, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Phone (202) 395-5715. Requests for information shall be as specific as possible.</P> <P>(c) Upon receipt of any request for information or records, the FOIA Officer will determine within 20 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 provide written notification to the person making the request. If the request is denied, the written notification to the person making the request shall include the names of the individuals who participated in the determination, the reasons for the denial, and a notice that an appeal may be lodged within the Office of Management and Budget. (Receipt of a request as used herein means the date the request is received in the office of the FOIA Officer.)</P> <P>(d) <E T="03">Expedited processing.</E> (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:</P> <P>(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;</P> <P>(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;</P> <P>(iii) The loss of substantial due process rights; or</P> <P>(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which effect public confidence.</P> <P>(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.</P> <P>(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (d)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requester within the category (d)(1)(ii) of this section also must establish a particular urgency to inform <PRTPAGE P="108"/>the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of administrative discretion.</P> <P>(4) Within ten days of its receipt of a request for expedited processing, OMB will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment 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.</P> <P>(e) Appeals shall be set forth in writing within 30 days of receipt of a denial and addressed to the FOIA Officer at the address specified in paragraph (b) of this section. The appeal shall 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 days (excepting Saturdays, Sundays, and legal public holidays). If, on appeal, the denial is in whole or in part upheld, the written determination will also contain a notification of the provisions for judicial review and the names of the persons who participated in the determination.</P> <P>(f) In unusual circumstances, the time limits prescribed in paragraphs (c) and (e) of this section may be extended for not more than 10 days (excepting Saturdays, Sundays, or legal public holidays). Extensions may be granted by the FOIA Officer. The extension period may be split between the initial request and the appeal but in no instance may the total period exceed 10 working days. Extensions will be by written notice to the persons making the request and will set forth the reasons for the extension and the date the determination is expected.</P> <P>(g) With respect to a request for which a written notice under paragraph (f) of this section extends the time limits prescribed under paragraph (c) of this section, the agency shall notify the person making the request if the request cannot be processed within the time limit specified in paragraph (f) of this section and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of 5 U.S.C. 552 (a)(6)(C). When OMB reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, OMB may aggregate those requests for purposes of this paragraph. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.</P> <P>(h) As used herein, but only to the extent reasonably necessary to the proper processing of the particular request, the term “unusual circumstances” means:</P> <P>(1) The need to search for and collect the requested records from establishments that are separated from the office processing the request;</P> <P>(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</P> <P>(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 which have a substantial subject matter interest therein.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Availability of Information</HD> <SECTION> <SECTNO>§ 1303.20</SECTNO> <SUBJECT>Inspection and copying.</SUBJECT> <P>When a request for information has been approved pursuant to § 1303.10, the person making the request may make an appointment to inspect or copy the materials requested during regular business hours by writing or telephoning the FOIA Officer at the address or telephone number listed in § 1303.10(b). Such materials may be copied and reasonable facilities will be made available for that purpose. Copies <PRTPAGE P="109"/>of individual pages of such materials will be made available at the price per page specified in § 1303.40(d); however, the right is reserved to limit to a reasonable quantity the copies of such materials which may be made available in this manner when copies also are offered for sale by the Superintendent of Documents.</P> <CITA>[63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTION> <SECTNO>§ 1303.30</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of these regulations:</P> <P>(a) All the terms defined in the Freedom of Information Act apply.</P> <P>(b) A <E T="03">statute specifically providing for setting the level of fees for particular types of records</E> (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set the level of fees for particular types of records, in order to:</P> <P>(1) Serve both the general public and private sector organizations by conveniently making available government information;</P> <P>(2) Ensure that groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public;</P> <P>(3) Operate an information dissemination activity on a self-sustaining basis to the maximum extent possible; or</P> <P>(4) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information.</P> <FP>Statutes, such as the User Fee Statute, which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents do not supersede the Freedom of Information Act under section (a)(4)(A)(vi) of that statute.</FP> <P>(c) The term <E T="03">direct costs</E> 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. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating 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.</P> <P>(d) The term <E T="03">search</E> 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. OMB employees should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. 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 (see paragraph (f) of this section).</P> <P>(e) The term <E T="03">duplication</E> means the making of a copy of a document, or of the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others. The requester's specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format.</P> <P>(f) The term <E T="03">review</E> refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (g) 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 T="03">e.g.,</E> 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.<PRTPAGE P="110"/> </P> <P>(g) The term <E T="03">‘commercial use’ request</E> 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, OMB must determine the use to which a requester will put the documents requested. Moreover, where an OMB employee 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 employee should seek additional clarification before assigning the request to a specific category.</P> <P>(h) The term <E T="03">educational institution</E> refers to 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.</P> <P>(i) The term <E T="03">non-commercial scientific institution</E> refers to an institution that is not operated on a <E T="03">commercial</E> basis (as that term is referenced in paragraph (g) 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.</P> <P>(j) The term <E T="03">representative of the news media</E> refers to any peson actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> 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 in those instances when they can qualify as disseminators of <E T="03">news</E>) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (<E T="03">e.g.,</E> electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of <E T="03">freelance</E> journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but OMB may also look to the past publication record of a requester in making this determination.</P> <CITA>[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.40</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <P>OMB should charge fees that recoup the full allowable direct costs it incurs. Moreover, it shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in Sections 1303.30(b)), such as the NTIS, OMB should inform requesters of the steps necessary to obtain records from those sources.</P> <P>(a) <E T="03">Manual searches for records.</E> OMB will charge at the salary rate(s) (<E T="03">i.e.,</E> basic pay plus 16 percent) of the employee(s) making the search.</P> <P>(b) <E T="03">Computer searches for records.</E> OMB will charge at 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 apportionable to the search.</P> <P>(c) <E T="03">Review of records.</E> 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; <E T="03">i.e.,</E> the review undertaken the first time OMB analyzes 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 <PRTPAGE P="111"/>be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review is assessable.</P> <P>(d) <E T="03">Duplication of records.</E> Records will be duplicated at a rate of $.15 per page. For copies prepared by computer, such as tapes or printouts, OMB shall 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). If OMB estimates that 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 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 object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(e) <E T="03">Other charges.</E> OMB will recover the full costs of providing services such as those enumerated below when it elects to provide them:</P> <P>(1) Certifying that records are true copies;</P> <P>(2) Sending records by special methods such as express mail.</P> <P>(f) 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 to the FOIA Officer, Office of Management and Budget, Washington, DC 20503.</P> <P>(g) A receipt for fees paid will be given upon request. Refund of fees paid for services actually rendered will not be made.</P> <P>(h) <E T="03">Restrictions on assessing fees.</E> With the exception of requesters seeking documents for a commercial use, OMB will provide the first 100 pages of duplication and the first two hours of search time without charge. Moreover, OMB will 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.</P> <P>(1) The elements to be considered in determining the “cost of collecting a fee” are the administrative costs of receiving and recording a requester's remittance, and processing the fee for deposit in the Treasury Department's special account.</P> <P>(2) For purposes of these restrictions on assessment of fees, the word “pages” refers to paper copies of “8<FR>1/2</FR> × 11” or “11 × 14.” Thus, requesters are not entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout, does meet the terms of the restriction.</P> <P>(3) Similarly, the term “search time” in this context has as its basis, manual search. To apply this term to searches made by computer, OMB will determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, <E T="03">i.e.,</E> the operator, OMB will begin assessing charges for computer search.</P> <CITA>[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.50</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Commercial use requesters.</E> When OMB receive 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. Requesters must reasonably describe the records 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 § 1303.60(b)).</P> <P>(b) <E T="03">Educational and non-commercial scientific institution requesters.</E> OMB shall provide documents to requesters <PRTPAGE P="112"/>in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying 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. Requesters must reasonably describe the records sought.</P> <P>(c) <E T="03">Requesters who are representatives of the news media.</E> OMB shall 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 § 1303.10(j), and his or her request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought.</P> <P>(d) <E T="03">All other requesters.</E> OMB shall 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 shall 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. Requesters must reasonably describe the records sought.</P> <CITA>[52 FR 49154, Dec. 30, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.60</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <P>(a) <E T="03">Charging interest—notice and rate.</E> OMB may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. The fact that the fee has been received by OMB within the thirty day grace period, even if not processed, will suffice to stay the accrual of interest. 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.</P> <P>(b) <E T="03">Charges for unsuccessful search.</E> OMB may assess charges for time spent searching, even if it fails to locate the records or if records located are determined to be exempt from disclosure. If OMB estimates that search 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 willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(c) <E T="03">Aggregating requests.</E> A requester 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 OMB reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, OMB may aggregate those requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.</P> <P>(d) <E T="03">Advance payments.</E> OMB may not require a requester to make an advance payment, <E T="03">i.e.,</E> payment before work is commenced or continued on a request, unless:</P> <P>(1) OMB estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then, OMB 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</P> <P>(2) A requester has previously failed to pay a fee charged in a timely fashion (<E T="03">i.e.,</E> within 30 days of the date of the billing). Then, OMB may require the requester to pay the full amount owed plus any applicable interest as provided above or demonstrate that he or she has, in fact, paid the fee, and to make <PRTPAGE P="113"/>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.</P> <P>(3) When OMB acts under paragraph (d)(1) or (2) of this section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20 working days from 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 OMB has received fee payments described in paragraphs (d)(1) and (2) of this section.</P> <P>(e) <E T="03">Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).</E> OMB should comply with provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.</P> <CITA>[52 FR 49154, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.70</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> <P>Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where it is determined 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 and is not primarily in the commercial interest of the requester.</P> <CITA>[52 FR 49155, Dec. 30, 1987]</CITA> </SECTION> </SUBJGRP> </PART> <PART> <EAR>Pt. 1304</EAR> <HD SOURCE="HED">PART 1304—POST EMPLOYMENT CONFLICT OF INTEREST</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1304.4601</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1304.4604</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1304.4605</SECTNO> <SUBJECT>Post-employment restrictions.</SUBJECT> <SECTNO>1304.4606</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1304.4607</SECTNO> <SUBJECT>Advice to former Government employees.</SUBJECT> <SECTNO>1304.4608</SECTNO> <SUBJECT>Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Title V, Section 501(a), Pub. L. 95-521, as amended, 92 Stat. 1864; and Sections 1 and 2, Pub. L. 96-28, 93 Stat. 76 [18 U.S.C. 207]; 5 CFR 737.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 84007, Dec. 22, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1304.4601</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) These regulations do not incorporate possible additional restrictions contained in a professional code of conduct to which an employee may also be subject.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4604</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Government Employee</E> 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.</P> <P>(b) <E T="03">Former Government Employee</E> means one who was, and no longer is, a Government employee.</P> <P>(c) <E T="03">Special Government Employee</E> 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 <PRTPAGE P="114"/>Special Government Employee is compensated or not.</P> <P>(d) <E T="03">Senior Employee</E> 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.)</P> </SECTION> <SECTION> <SECTNO>§ 1304.4605</SECTNO> <SUBJECT>Post-employment restrictions.</SUBJECT> <P>(a) General Restrictions Applicable to All Former Government Employees:</P> <P>(1) <E T="03">Permanent Bar.</E> 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.</P> <P>(2) <E T="03">Two-Year Bar.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) Restrictions Applicable Only to Former Senior Employees:</P> <P>(1) <E T="03">Two-Year Bar on Assisting in Representing.</E> (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.</P> <P>(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.</P> <P>(2) <E T="03">One-Year Bar on Attempts to Influence Former Agency.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(c) OFPP is a separate agency for purposes of the foregoing restrictions on post-employment activities.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4606</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) <E T="03">General.</E> (1) Communications made solely to furnish scientific or technological information are exempt from these prohibitions.</P> <P>(2) A former Government employee may be exempted from the restrictions on post-employment practices if the <PRTPAGE P="115"/>Deputy Director of OMB, in consultation with the Director of the Office of Government Ethics, executes a certification that is published in the <E T="04">Federal Register</E>. The certification shall state that the former Government employee has outstanding qualifications in a scientific, technological or other technical discipline; is acting with respect to a particular matter which requires such qualifications; and the national interest would be served by his participation.</P> <P>(b) <E T="03">Specific.</E> The one-year bar shall not apply to a former Senior Employee's representation on new matters if the former Senior Employee is:</P> <P>(1) An elected State or local government official, who is acting on behalf of such government; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4607</SECTNO> <SUBJECT>Advice to former Government employees.</SUBJECT> <P>The Office of General Counsel, OMB, has the responsibility for providing assistance promptly to former Government employees who seek advice on specific problems.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4608</SECTNO> <SUBJECT>Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Notice.</E> 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.</P> <P>(f) <E T="03">Hearing.</E> A hearing may be obtained by submitting a written request to the Office of General Counsel.</P> <P>(g) <E T="03">Examiner.</E> 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.</P> <P>(h) <E T="03">Time, Date and Place.</E> 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 <PRTPAGE P="116"/>for an expeditious resolution of allegations that may be damaging to his reputation.</P> <P>(i) <E T="03">Hearing Rights.</E> 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.</P> <P>(j) <E T="03">Burden of Proof.</E> OMB has the burden of proof and must establish substantial evidence of a violation.</P> <P>(k) <E T="03">Decision.</E> 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.</P> <P>(l) <E T="03">Appeal within OMB.</E> 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.</P> <P>(m) <E T="03">Administrative Sanctions.</E> 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)).</P> <P>(n) <E T="03">Judicial Review.</E> 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.</P> </SECTION> </PART> <PART> <EAR>Pt. 1305</EAR> <HD SOURCE="HED">PART 1305—RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB PERSONNEL AS WITNESSES, IN LITIGATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1305.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1305.2</SECTNO> <SUBJECT>Production prohibited unless approved.</SUBJECT> <SECTNO>1305.3</SECTNO> <SUBJECT>Procedures in the event of a demand for disclosure.</SUBJECT> <SECTNO>1305.4</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <SECTNO>1305.5</SECTNO> <SUBJECT>No private right of action.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 502.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 29285, May 30, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1305.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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:</P> <P>(a) Any material contained in the files of OMB;</P> <P>(b) Any information relating to materials contained in the files of OMB; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1305.2</SECTNO> <SUBJECT>Production prohibited unless approved.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1305.3</SECTNO> <SUBJECT>Procedures in the event of a demand for disclosure.</SUBJECT> <P>(a) Whenever a demand is made upon an employee or former employee of <PRTPAGE P="117"/>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.</P> <P>(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.</P> <P>(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. </P> <APPRO>(Approved by the Office of Management and Budget under control number 0348-0056)</APPRO> </SECTION> <SECTION> <SECTNO>§ 1305.4</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <P>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. <E T="03">Touhy</E> v. <E T="03">Ragen</E>, 340 U.S. 462 (1951)). </P> <APPRO>(Approved by the Office of Management and Budget under control number 0348-0056)</APPRO> </SECTION> <SECTION> <SECTNO>§ 1305.5</SECTNO> <SUBJECT>No private right of action.</SUBJECT> <P>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.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="118"/> <HD SOURCE="HED">SUBCHAPTER B—OMB DIRECTIVES</HD> <PART> <EAR>Pt. 1310</EAR> <HD SOURCE="HED">PART 1310—OMB CIRCULARS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1310.1</SECTNO> <SUBJECT>Policy guidelines.</SUBJECT> <SECTNO>1310.3</SECTNO> <SUBJECT>Availability of circulars.</SUBJECT> <SECTNO>1310.5</SECTNO> <SUBJECT>List of current circulars.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 501-06.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 70311, Dec. 21, 1998, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1310.1</SECTNO> <SUBJECT>Policy guidelines.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1310.3</SECTNO> <SUBJECT>Availability of circulars.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1310.5</SECTNO> <SUBJECT>List of current circulars.</SUBJECT> <P>The following list includes all circulars in effect as of December 1, 1998.</P> <FP> <E T="03">No. and Title</E> </FP> <FP SOURCE="FP-2">A-1—“System of Circulars and Bulletins to Executive Departments and Establishments”</FP> <FP SOURCE="FP-2">A-11—“Preparation and Submission of Budget Estimates” (Part 1)</FP> <FP SOURCE="FP1-2">“Preparation and Submission of Strategic Plans and Annual Performance Plans” (Part 2)</FP> <FP SOURCE="FP1-2">“Planning, Budgeting, and Acquisition of Capital Assets” (Part 3)</FP> <FP SOURCE="FP1-2">“Capital Programming Guide” (Supplement to Part 3)</FP> <FP SOURCE="FP-2">A-16—“Coordination of Surveying, Mapping, and Related Spatial Data Activities”</FP> <FP SOURCE="FP-2">A-19—“Legislative Coordination and Clearance”</FP> <FP SOURCE="FP-2">A-21—“Cost Principles for Educational Institutions”</FP> <FP SOURCE="FP-2">A-25—“User Charges”</FP> <FP SOURCE="FP-2">A-34—“Instructions on Budget Execution”</FP> <FP SOURCE="FP-2">A-45—“Rental and Construction of Government Quarters”</FP> <FP SOURCE="FP-2">A-50—“Audit Followup”</FP> <FP SOURCE="FP-2">A-76—“Performance of Commercial Activities”</FP> <FP SOURCE="FP-2">A-87—“Cost Principles for State, Local, and Indian Tribal Governments”</FP> <FP SOURCE="FP-2">A-89—“Federal Domestic Assistance Program Information”</FP> <FP SOURCE="FP-2">A-94—“Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs”</FP> <FP SOURCE="FP-2">A-97—“Rules and regulations permitting Federal agencies to provide specialized or technical services to State and local units of government under Title III of the Intergovernmental Cooperation Act of 1968”</FP> <FP SOURCE="FP-2">A-102—“Grants and Cooperative Agreements With State and Local Governments”</FP> <FP SOURCE="FP-2">A-109—“Major System Acquisitions”</FP> <FP SOURCE="FP-2">A-110—“Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-119—“Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities”</FP> <FP SOURCE="FP-2">A-122—“Cost Principles for Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-123—“Management Accountability and Control”</FP> <FP SOURCE="FP-2">A-125—“Prompt Payment”</FP> <FP SOURCE="FP-2">A-126—“Improving the Management and Use of Government Aircraft”</FP> <FP SOURCE="FP-2">A-127—“Financial Management Systems”</FP> <FP SOURCE="FP-2">A-129—“Policies for Federal Credit Programs and Non-Tax Receivables “</FP> <FP SOURCE="FP-2">A-130—“Management of Federal Information Resources”</FP> <FP SOURCE="FP-2">A-131—“Value Engineering”</FP> <FP SOURCE="FP-2">A-133—“Audits of States, Local Governments, and Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-134—“Financial Accounting Principles and Standards”<PRTPAGE P="119"/> </FP> <FP SOURCE="FP-2">A-135—“Management of Federal Advisory Committees”</FP> </SECTION> </PART> <PART> <EAR>Pt. 1312</EAR> <HD SOURCE="HED">PART 1312—CLASSIFICATION, DOWNGRADING, DECLASSIFICATION AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Classification and Declassification of National Security Information</HD> <SECHD>Sec.</SECHD> <SECTNO>1312.1</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.2</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1312.3</SECTNO> <SUBJECT>Classification requirements.</SUBJECT> <SECTNO>1312.4</SECTNO> <SUBJECT>Classified designations.</SUBJECT> <SECTNO>1312.5</SECTNO> <SUBJECT>Authority to classify</SUBJECT> <SECTNO>1312.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <SECTNO>1312.7</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <SECTNO>1312.8</SECTNO> <SUBJECT>Standard identification and markings.</SUBJECT> <SECTNO>1312.9</SECTNO> <SUBJECT>Downgrading and declassification.</SUBJECT> <SECTNO>1312.10</SECTNO> <SUBJECT>Systematic review guidelines.</SUBJECT> <SECTNO>1312.11</SECTNO> <SUBJECT>Challenges to classifications.</SUBJECT> <SECTNO>1312.12</SECTNO> <SUBJECT>Security Program Review Committee.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Control and Accountability of Classified Information</HD> <SECTNO>1312.21</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.22</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1312.23</SECTNO> <SUBJECT>Access to classified information.</SUBJECT> <SECTNO>1312.24</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <SECTNO>1312.25</SECTNO> <SUBJECT>Storage.</SUBJECT> <SECTNO>1312.26</SECTNO> <SUBJECT>Control of secret and confidential material.</SUBJECT> <SECTNO>1312.27</SECTNO> <SUBJECT>Top secret control.</SUBJECT> <SECTNO>1312.28</SECTNO> <SUBJECT>Transmission of classified material.</SUBJECT> <SECTNO>1312.29</SECTNO> <SUBJECT>Destruction.</SUBJECT> <SECTNO>1312.30</SECTNO> <SUBJECT>Loss or possible compromise.</SUBJECT> <SECTNO>1312.31</SECTNO> <SUBJECT>Security violations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Mandatory Declassification Review</HD> <SECTNO>1312.32</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.33</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <SECTNO>1312.34</SECTNO> <SUBJECT>Information in the custody of OMB.</SUBJECT> <SECTNO>1312.35</SECTNO> <SUBJECT>Information classified by another agency.</SUBJECT> <SECTNO>1312.36</SECTNO> <SUBJECT>Appeal procedure.</SUBJECT> <SECTNO>1312.37</SECTNO> <SUBJECT>Fees.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Executive Order 12958, April 20, 1995, 3 CFR, 1995 Comp., p. 333.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 25426, May 9, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Classification and Declassification of National Security Information</HD> <SECTION> <SECTNO>§ 1312.1</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.2</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>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.</P> <P>(a) <E T="03">EOP Security Officer.</E> 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:</P> <P>(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.<PRTPAGE P="120"/> </P> <P>(2) Issues and keeps current such classification guides and guidelines for review for declassification as are required by the Order.</P> <P>(3) Conducts periodic reviews of classified documents produced and provides assistance and guidance where necessary.</P> <P>(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.</P> <P>(b) <E T="03">Heads of divisions or offices.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.3</SECTNO> <SUBJECT>Classification requirements.</SUBJECT> <P>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.</P> <P>(a) Information shall be considered for classification if it concerns:</P> <P>(1) Military plans, weapons systems, or operations;</P> <P>(2) Foreign government information;</P> <P>(3) Intelligence activities (including special activities), intelligence sources or methods, or cryptology;</P> <P>(4) Foreign relations or foreign activities of the United States, including confidential sources;</P> <P>(5) Scientific, technological, or economic matters relating to the national security;</P> <P>(6) United States Government programs for safeguarding nuclear materials or facilities; or</P> <P>(7) Vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.4</SECTNO> <SUBJECT>Classified designations.</SUBJECT> <P>(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:</P> <P>(1) <E T="03">Top Secret.</E> 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.</P> <P>(2) <E T="03">Secret.</E> 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.</P> <P>(3) <E T="03">Confidential.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.5</SECTNO> <SUBJECT>Authority to classify.</SUBJECT> <P>(a) The authority to originally classify information or material under this part shall be limited to those officials <PRTPAGE P="121"/>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:</P> <P>(1) Top Secret and below:</P> <P>(i) Deputy Director.</P> <P>(ii) Deputy Director for Management.</P> <P>(iii) Associate Director for National Security and International Affairs.</P> <P>(iv) Associate Director for Natural Resources, Energy and Science.</P> <P>(2) Secret and below:</P> <P>(i) Deputy Associate Director for National Security.</P> <P>(ii) Deputy Associate Director for International Affairs.</P> <P>(iii) Deputy Associate Director for Energy and Science.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) When extending the duration of classification, the original classification authority must:</P> <P>(1) Be an original classification authority with jurisdiction over the information.</P> <P>(2) Ensure that the information continues to meet the standards for classification under the Executive Order.</P> <P>(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:</P> <P>(i) Be declassified by a declassification authority as defined in Section 3.1 of the Executive Order.</P> <P>(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.</P> <P>(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 <PRTPAGE P="122"/>from the date of its original classification.</P> </SECTION> <SECTION> <SECTNO>§ 1312.7</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <P>A <E T="03">derivative classification</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.8</SECTNO> <SUBJECT>Standard identification and markings.</SUBJECT> <P>(a) <E T="03">Original Classification.</E> 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:</P> <P>(1) <E T="03">Classification Authority.</E> The name/personal identifier, and position title of the original classifier shall appear on the “Classified By” line.</P> <P>(2) <E T="03">Agency and Office of Origin.</E> If not otherwise evident, the agency and office of origin shall be identified and placed below the name on the “Classified By” line.</P> <P>(3) <E T="03">Reasons for Classification.</E> 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.</P> <P>(4) <E T="03">Declassification instructions.</E> These instructions shall indicate the following:</P> <P>(i) The duration of the original classification decision shall be placed on the “Declassify On” line.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="123"/> </P> <P>(b) <E T="03">Derivative Classification.</E> Information classified derivatively on the basis of source documents shall carry the following markings on those documents:</P> <P>(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”.</P> <P>(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.</P> <P>(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”.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(7) The derivatively classified document shall be conspicuously marked with the highest level of classification of information.</P> <P>(8) Each portion of a derivatively classified document shall be marked in accordance with its source.</P> <P>(9) Each office shall, consistent with Section 3.8 of the Executive Order, establish and maintain a database of information that has been declassified.</P> <P>(c) <E T="03">Additional Requirements.</E> (1) Markings other than “Top Secret”, “Secret”, and “Confidential” shall not be used to identify classified national security information.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Released by the originator outside the originating activity;</P> <P>(ii) Retained more than 180 days from the date of origin;</P> <P>(iii) Filed permanently.</P> <P>(6) Information contained in unmarked records, or Presidential or related materials, and which pertain to <PRTPAGE P="124"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.9</SECTNO> <SUBJECT>Downgrading and declassification.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Transferred material.</E> 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.</P> <P>(b) <E T="03">Periodic review of classified material.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.10</SECTNO> <SUBJECT>Systematic review guidelines.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.11</SECTNO> <SUBJECT>Challenges to classifications.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.12</SECTNO> <SUBJECT>Security Program Review Committee.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Control and Accountability of Classified Information</HD> <SECTION> <SECTNO>§ 1312.21</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.22</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>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 <PRTPAGE P="125"/>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.</P> <P>(a) <E T="03">EOP Security Officer.</E> In cooperation with the Associate Director (or Assistant Director) for Administration, the EOP Security Officer supervises the administration of this section. Specifically, he/she:</P> <P>(1) Promotes the correct understanding of this section and insures that initial and annual briefings about security procedures are given to all new employees.</P> <P>(2) Provides for periodic inspections of office areas and reviews of produced documents to ensure full compliance with OMB regulations and procedures.</P> <P>(3) Takes prompt action to investigate alleged violations of security, and recommends appropriate administrative action with respect to violators.</P> <P>(4) Supervises the annual inventories of Top Secret material.</P> <P>(5) Ensures that containers used to store classified material meet the appropriate security standards and that combinations to security containers are changed as required.</P> <P>(b) <E T="03">Heads of Offices.</E> The head of each division or office is responsible for the administration of this section in his/her area. These responsibilities include:</P> <P>(1) The appointment of accountability control clerks as prescribed in § 1312.26.</P> <P>(2) The maintenance of the prescribed control and accountability records for classified information within the office.</P> <P>(3) Establishing internal procedures to ensure that classified material is properly safeguarded at all times.</P> </SECTION> <SECTION> <SECTNO>§ 1312.23</SECTNO> <SUBJECT>Access to classified information.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.24</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <P>(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:</P> <P>(1) Determines in writing that access is consistent with the interest of national security;</P> <P>(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</P> <P>(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.</P> <P>(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 <PRTPAGE P="126"/>by the division/office of primary interest to ensure that access is granted only to material over which OMB has classification jurisdiction.</P> </SECTION> <SECTION> <SECTNO>§ 1312.25</SECTNO> <SUBJECT>Storage.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.26</SECTNO> <SUBJECT>Control of secret and confidential material.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Accountability Control Clerks.</E> 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.</P> <P>(b) <E T="03">OMB Form 87.</E> 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.</P> <P>(c) <E T="03">Working papers and drafts.</E> 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.</P> <P>(d) <E T="03">Typewriter ribbons.</E> 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.</P> <P>(e) <E T="03">Reproduction.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.27</SECTNO> <SUBJECT>Top secret control.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Procedures.</E> 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 <PRTPAGE P="127"/>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.</P> <P>(b) <E T="03">Inventory.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.28</SECTNO> <SUBJECT>Transmission of classified material.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Transmittal of Top Secret Material.</E> 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.</P> <P>(b) <E T="03">Transmittal of Secret Material.</E> The transmittal of Secret material shall be as follows:</P> <P>(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.</P> <P>(2) Other Areas. Use the same means authorized for Top Secret, or transmit by U.S. registered mail through Military Postal Service facilities.</P> <P>(c) <E T="03">Transmittal of Confidential Material.</E> 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.</P> <P>(d) <E T="03">Transmittal between OMB offices and within the EOP complex.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="128"/> <SECTNO>§ 1312.29</SECTNO> <SUBJECT>Destruction.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Shredding.</E> 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.</P> <P>(b) <E T="03">Burn Bag.</E> 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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Technical Guidance.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.30</SECTNO> <SUBJECT>Loss or possible compromise.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.31</SECTNO> <SUBJECT>Security violations.</SUBJECT> <P>(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:</P> <P>(1) Preparation of a Record of Security Violation form;</P> <P>(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</P> <P>(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 <PRTPAGE P="129"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(ii) Provide any assistance needed for the inquiry conducted by the office/division involved in the alleged violation.</P> <P>(iii) Upon receipt of the report of inquiry from the responsible office/division, the EOP Security Officer will:</P> <P>(A) Consult with the OMB Associate Director (or Assistant Director) for Administration and the General Counsel;</P> <P>(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</P> <P>(C) Forward the report with a recommendation to the OMB General Counsel.</P> <P>(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:</P> <P>(i) Whether an actual security violation occurred;</P> <P>(ii) The identity of the person(s) responsible; and</P> <P>(iii) The probability of unauthorized access.</P> <P>(3) Deputy Associate Directors (or the equivalent) will:</P> <P>(i) Review and concur or comment on the written report; and</P> <P>(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.</P> <P>(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.</P> <P>(1) First violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file; and</P> <P>(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.</P> <P>(2) Second violation:<PRTPAGE P="130"/> </P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(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</P> <P>(iii) A letter of Warning will be placed in the Disciplinary Action file maintained by the Office of Administration, Human Resources Management Division.</P> <P>(3) Third violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(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</P> <P>(iii) A Letter of Reprimand will be placed in the Disciplinary Action file maintained by the OA/HRMD.</P> <P>(4) Fourth violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(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;</P> <P>(iii) The responsible individual may receive a suspension without pay for a period not to exceed 14 days; and</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Mandatory Declassification Review</HD> <SECTION> <SECTNO>§ 1312.32</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 1312.33</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.34</SECTNO> <SUBJECT>Information in the custody of OMB.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="131"/> <SECTNO>§ 1312.35</SECTNO> <SUBJECT>Information classified by another agency.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.36</SECTNO> <SUBJECT>Appeal procedure.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1312.37</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>There will normally be no fees charged for the mandatory review of classified material for declassification under this section.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1315</EAR> <HD SOURCE="HED">PART 1315—PROMPT PAYMENT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1315.1</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1315.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1315.3</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1315.4</SECTNO> <SUBJECT>Prompt payment standards and required notices to vendors.</SUBJECT> <SECTNO>1315.5</SECTNO> <SUBJECT>Accelerated payment methods.</SUBJECT> <SECTNO>1315.6</SECTNO> <SUBJECT>Payment without evidence that supplies have been received (fast payment).</SUBJECT> <SECTNO>1315.7</SECTNO> <SUBJECT>Discounts.</SUBJECT> <SECTNO>1315.8</SECTNO> <SUBJECT>Rebates.</SUBJECT> <SECTNO>1315.9</SECTNO> <SUBJECT>Required documentation.</SUBJECT> <SECTNO>1315.10</SECTNO> <SUBJECT>Late payment interest penalties.</SUBJECT> <SECTNO>1315.11</SECTNO> <SUBJECT>Additional penalties.</SUBJECT> <SECTNO>1315.12</SECTNO> <SUBJECT>Payments to governmentwide commercial purchase card issuers.</SUBJECT> <SECTNO>1315.13</SECTNO> <SUBJECT>Commodity Credit Corporation payments.</SUBJECT> <SECTNO>1315.14</SECTNO> <SUBJECT>Payments under construction contracts.</SUBJECT> <SECTNO>1315.15</SECTNO> <SUBJECT>Grant recipients.</SUBJECT> <SECTNO>1315.16</SECTNO> <SUBJECT>Relationship to other laws.</SUBJECT> <SECTNO>1315.17</SECTNO> <SUBJECT>Formulas.</SUBJECT> <SECTNO>1315.18</SECTNO> <SUBJECT>Inquiries.</SUBJECT> <SECTNO>1315.19</SECTNO> <SUBJECT>Regulatory references to OMB Circular A-125.</SUBJECT> <SECTNO>1315.20</SECTNO> <SUBJECT>Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. chapter 39; Section 1010 of Public Law 106-398, 114 Stat. 1654.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 52586, Sept. 29, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1315.1</SECTNO> <SUBJECT>Application.</SUBJECT> <P>(a) <E T="03">Procurement contracts.</E> This part applies to contracts for the procurement of goods or services awarded by:</P> <P>(1) All Executive branch agencies except:</P> <P>(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</P> <P>(ii) Agencies specifically exempted under 5 U.S.C. 551(1); and</P> <P>(2) <E T="03">The United States Postal Service.</E> The Postmaster General is responsible for issuing implementing procurement regulations, solicitation provisions, and contract clauses for the United States Postal Service.</P> <P>(b) <E T="03">Vendor payments.</E> 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:</P> <P>(1) Contract Financing Payments, as defined in § 1315.2(h); and</P> <P>(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 <E T="03">et seq.</E>)); 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).</P> <P>(c) <E T="03">Utility payments.</E> All utility payments, including payments for telephone service, are subject to the Act except those under paragraph (b)(2) of <PRTPAGE P="132"/>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.</P> <P>(d) <E T="03">Commodity Credit Corporation payments.</E> 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 <E T="03">et seq.</E>) are subject to this part.</P> </SECTION> <SECTION> <SECTNO>§ 1315.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Accelerated payment</E> means a payment made prior to the due date (see discussion in § 1315.5).</P> <P>(b) <E T="03">Acceptance</E> 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.</P> <P>(c) <E T="03">Agency</E> 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. <E T="03">Agency</E> 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 <E T="03">agency</E> includes military post and base exchanges and commissaries.</P> <P>(d) <E T="03">Applicable interest rate</E> 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 T="04">Federal Register</E> on or about January 1 and July 1.</P> <P>(e) <E T="03">Automated Clearing House (ACH)</E> means a network that performs interbank clearing of electronic debit and credit entries for participating financial institutions.</P> <P>(f) <E T="03">Banking information</E> means information necessary to facilitate an EFT payment, including the vendor's bank account number, and the vendor financial institution's routing number.</P> <P>(g) <E T="03">Contract</E> 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 <E T="03">et seq.</E>). Contracts must meet the requirements of § 1315.9(a).</P> <P>(h) <E T="03">Contract financing payments</E> 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)).<PRTPAGE P="133"/> </P> <P>(i) <E T="03">Contracting office</E> means any entity issuing a contract or purchase order or issuing a contract modification or termination.</P> <P>(j) <E T="03">Contractor</E> (see <E T="03">Vendor</E>).</P> <P>(k) <E T="03">Day</E> means a calendar day including weekend and holiday, unless otherwise indicated.</P> <P>(l) <E T="03">Delivery ticket</E> 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.</P> <P>(m) <E T="03">Designated agency office</E> 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.</P> <P>(n) <E T="03">Discount</E> means an invoice payment reduction offered by the vendor for early payment.</P> <P>(o) <E T="03">Discount date</E> means the date by which a specified invoice payment reduction, or a discount, can be taken.</P> <P>(p) <E T="03">Due date</E> means the date on which Federal payment should be made. Determination of such dates is discussed in § 1315.4(g).</P> <P>(q) <E T="03">Electronic commerce</E> 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.</P> <P>(r) <E T="03">Electronic data interchange</E> 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.</P> <P>(s) <E T="03">Electronic Funds Transfer (EFT)</E> 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.</P> <P>(t) <E T="03">Emergency payment</E> 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.</P> <P>(u) <E T="03">Evaluated receipts</E> means contractually designated use of the acceptance document and the contract as the basis for payment without requiring a separate invoice.</P> <P>(v) <E T="03">Fast payment</E> 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.</P> <P>(w) <E T="03">Federal Acquisition Regulation (FAR)</E> 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.</P> <P>(x) <E T="03">Governmentwide commercial purchase cards</E> 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.</P> <P>(y) <E T="03">Invoice</E> 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.</P> <P>(z) <E T="03">Payment date</E> means the date on which a check for payment is dated or the date of an electronic fund transfer (EFT) payment (settlement date).</P> <P>(aa) <E T="03">Rebate</E> means a monetary incentive offered to the Government by Governmentwide commercial purchase <PRTPAGE P="134"/>card issuers to pay purchase card invoices early.</P> <P>(bb) <E T="03">Receiving office</E> means the entity which physically receives the goods or services, and may be separate from the accepting entity.</P> <P>(cc) <E T="03">Receiving report</E> 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).</P> <P>(dd) <E T="03">Recurring payments</E> 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.</P> <P>(ee) <E T="03">Settlement date</E> means the date on which an EFT payment is credited to the vendor's financial institution.</P> <P>(ff) <E T="03">Taxpayer Identifying Number (TIN)</E> 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).</P> <P>(gg) <E T="03">Utilities and telephones</E> means electricity, water, sewage services, telephone services, and natural gas. Utilities can be regulated, unregulated, or under contract.</P> <P>(hh) <E T="03">Vendor</E> 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).</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78404, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.3</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>Each agency head is responsible for the following:</P> <P>(a) <E T="03">Issuing internal procedures.</E> 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.</P> <P>(b) <E T="03">Internal control systems.</E> Ensuring that effective internal control systems are established and maintained as required by OMB Circular A-123, “Management Accountability and Control.” <E T="51">1</E> <FTREF/> Administrative activities required for payments to vendors under this part are subject to periodic quality control validation to be conducted no less frequently than once annually. Quality control processes will be used to confirm that controls are effective and that processes are efficient. Each agency head is responsible for establishing a quality control program in order to quantify payment performance and qualify corrective actions, aid cash management decision making, and estimate payment performance if actual data is unavailable.</P> <FTNT> <P> <E T="51">1</E> For availability of OMB circulars, see 5 CFR 1310.3.</P> </FTNT> <P>(c) <E T="03">Financial management systems.</E> Ensuring that financial management systems comply with OMB Circular A-127, “Financial Management Systems.” <E T="51">2</E> <FTREF/> Agency financial systems shall provide standardized information and electronic data exchange to the central management agency. Systems shall provide complete, timely, reliable, useful and consistent financial management information. Payment capabilities should provide accurate and useful management reports on payments.</P> <FTNT> <P> <E T="51">2</E> See footnote 1 in § 1315.3(b).</P> </FTNT> <P>(d) <E T="03">Reviews.</E> Ensuring that Inspectors General and internal auditors review payments performance and systems accuracy, consistent with the Chief Financial Officers (CFO) Act requirements.</P> <P>(e) <E T="03">Timely payments and interest penalties.</E> Ensuring timely payments and payment of interest penalties where required.</P> </SECTION> <SECTION> <SECTNO>§ 1315.4</SECTNO> <SUBJECT>Prompt payment standards and required notices to vendors.</SUBJECT> <P>Agency business practices shall conform to the following standards:</P> <P>(a) <E T="03">Required documentation.</E> Agencies will maintain paper or electronic documentation as required in § 1315.9.</P> <P>(b) <E T="03">Receipt of invoice.</E> 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:</P> <P>(1) On the later of:<PRTPAGE P="135"/> </P> <P>(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</P> <P>(ii) The seventh day after the date on which the property is actually delivered or performance of the services is actually completed; unless—</P> <P>(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</P> <P>(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;</P> <P>(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</P> <P>(3) On the date of delivery, when the contract specifies that the delivery ticket may serve as an invoice.</P> <P>(c) <E T="03">Review of invoice.</E> Agencies will use the following procedures in reviewing invoices:</P> <P>(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);</P> <P>(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;</P> <P>(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.</P> <P>(d) <E T="03">Receipt of goods and services.</E> 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.</P> <P>(e) <E T="03">Acceptance.</E> 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.</P> <P>(f) <E T="03">Starting the payment period.</E> 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)).</P> <P>(g) <E T="03">Determining the payment due date.</E> (1) Except as provided in paragraphs (g)(2) through (5) of this section, the payment is due either:</P> <P>(i) On the date(s) specified in the contract;</P> <P>(ii) In accordance with discount terms when discounts are offered and taken (see § 1315.7);</P> <P>(iii) In accordance with Accelerated Payment Methods (see § 1315.5); or</P> <P>(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 <PRTPAGE P="136"/>taken, and if accelerated payment methods are not used.</P> <P>(2) <E T="03">Interim payments under cost-reimbursement contracts for services.</E> 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.</P> <P>(3) <E T="03">Certain commodity payments.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(4) <E T="03">Mixed invoices for commodities.</E> When an invoice is received for items with different payment periods, agencies:</P> <P>(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;</P> <P>(ii) May make split payments by the due date applicable to each category;</P> <P>(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</P> <P>(iv) Shall not require vendors to submit multiple invoices for payment of individual orders by the agency.</P> <P>(5) <E T="03">Notification of improper invoice.</E> 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;</P> <P>(h) <E T="03">Payment date.</E> 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.</P> <P>(i) <E T="03">Late payment.</E> When payments are made after the due date, interest will be paid automatically in accordance with the procedures provided in this part.</P> <P>(j) <E T="03">Timely payment.</E> 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.<PRTPAGE P="137"/> </P> <P>(k) <E T="03">Payments for partial deliveries.</E> 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.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.5</SECTNO> <SUBJECT>Accelerated payment methods.</SUBJECT> <P>(a) <E T="03">A single invoice under $2,500.</E> 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.</P> <P>(b) <E T="03">Small business (as defined in FAR 19.001 (48 CFR 19.001)).</E> 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.</P> <P>(c) <E T="03">Emergency payments.</E> 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 <E T="03">et seq.</E>); 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.</P> <P>(d) <E T="03">Interim payments under cost-reimbursement contracts for services.</E> 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.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.6</SECTNO> <SUBJECT>Payment without evidence that supplies have been received (fast payment).</SUBJECT> <P>(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:</P> <P>(1) Individual orders do not exceed $25,000 (except where agency heads permits a higher amount on a case-by-case basis);</P> <P>(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;</P> <P>(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</P> <P>(4) The contractor agrees to replace, repair, or correct supplies not received at destination, damaged in transit, or not conforming to purchase requirements.</P> <P>(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.</P> <P>(c) Agencies shall ensure that specific internal controls are in place to assure that supplies paid for are received.</P> <P>(d) As authorized by the 1988 Amendment to the Prompt Payment Act (Section 11(b)(1)(C)), a contract clause at 48 <PRTPAGE P="138"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.7</SECTNO> <SUBJECT>Discounts.</SUBJECT> <P>Agencies shall follow these procedures in taking discounts and determining the payment due dates when discounts are taken:</P> <P>(a) <E T="03">Economically justified discounts.</E> 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) <E T="51">3</E> <FTREF/> but only after acceptance has occurred. Agencies are encouraged to include discount terms in a contract to give agencies adequate time to take the discount if it is determined to be economically justified.</P> <FTNT> <P> <E T="51">3</E> The Treasury Financial Manual is available by calling the Prompt Payment Hotline at 800-266-9667 or the Prompt Payment web site at http://www.fms.treas.gov/prompt/index.html.</P> </FTNT> <P>(b) <E T="03">Discounts taken after the discount date.</E> 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).</P> <P>(c) <E T="03">Payment date.</E> When a discount is taken, payment will be made as close as possible to, but no later than, the discount date.</P> <P>(d) <E T="03">Start date.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.8</SECTNO> <SUBJECT>Rebates.</SUBJECT> <P>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 <E T="03">www.fms.treas.gov/prompt/index.html.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1315.9</SECTNO> <SUBJECT>Required documentation.</SUBJECT> <P>Agencies are required to ensure the following payment documentation is established to support payment of invoices and interest penalties:</P> <P>(a) The following information from the contract is required as payment documentation:</P> <P>(1) Payment due date(s) as defined in § 1315.4(g);</P> <P>(2) A notation in the contract that partial payments are prohibited, if applicable;</P> <P>(3) For construction contracts, specific payment due dates for approved progress payments or milestone payments for completed phases, increments, or segments of the project;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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);</P> <P>(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 <PRTPAGE P="139"/>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;</P> <P>(9) If using Fast Payment, the proper FAR clause stipulating Fast Payment is required.</P> <P>(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:</P> <P>(i) Name of vendor;</P> <P>(ii) Invoice date;</P> <P>(iii) Government contract number, or other authorization for delivery of goods or services;</P> <P>(iv) Vendor invoice number, account number, and/or any other identifying number agreed to by contract;</P> <P>(v) Description (including, for example, contract line/subline number), price, and quantity of goods and services rendered;</P> <P>(vi) Shipping and payment terms (unless mutually agreed that this information is only required in the contract);</P> <P>(vii) Taxpayer Identifying Number (TIN), unless agency procedures provide otherwise;</P> <P>(viii) Banking information, unless agency procedures provide otherwise, or except in situations where the EFT requirement is waived under 31 CFR 208.4;</P> <P>(ix) Contact name (where practicable), title and telephone number;</P> <P>(x) Other substantiating documentation or information required by the contract.</P> <P>(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.</P> <P>(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:</P> <P>(1) Name of vendor;</P> <P>(2) Contract or other authorization number;</P> <P>(3) Description of goods or services;</P> <P>(4) Quantities received, if applicable;</P> <P>(5) Date(s) goods were delivered or services were provided;</P> <P>(6) Date(s) goods or services were accepted;</P> <P>(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.</P> <P>(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.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.10</SECTNO> <SUBJECT>Late payment interest penalties.</SUBJECT> <P>(a) <E T="03">Application and calculation.</E> Agencies will use the following procedures in calculating interest due on late payments:</P> <P>(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;</P> <P>(2) Adjustments will be made for errors in calculating interest;</P> <P>(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;</P> <P>(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;</P> <P>(5) Interest penalties under the Prompt Payment Act will not continue to accrue:</P> <P>(i) After the filing of a claim for such penalties under the Contract Disputes Act of 1978 (41 U.S.C. 601 <E T="03">et seq.</E>); or</P> <P>(ii) For more than one year;</P> <P>(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 <PRTPAGE P="140"/>specified discount date through the date of payment of the discount erroneously taken;</P> <P>(7) Interest penalties of less than one dollar need not be paid;</P> <P>(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);</P> <P>(9) Interest calculations are to be based on a 360 day year; and</P> <P>(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.</P> <P>(b) <E T="03">Payment.</E> Agencies will meet the following requirements in paying interest penalties:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Penalties not due.</E> Interest penalties are not required:</P> <P>(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 <E T="03">et seq.</E>), except for interest payments required under 31 U.S.C. 3902(h)(2);</P> <P>(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);</P> <P>(3) For a period when amounts are withheld temporarily in accordance with the contract;</P> <P>(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</P> <P>(5) When the interest penalty is less than $1.00.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.11</SECTNO> <SUBJECT>Additional penalties.</SUBJECT> <P>(a) <E T="03">Vendor entitlements.</E> 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:</P> <P>(1) Receives a payment dated after the payment due date which does not include the interest penalty also due to the vendor;</P> <P>(2) Is not paid the interest penalty by the agency within 10 days after the actual payment date; and</P> <P>(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 <PRTPAGE P="141"/>40th day. The written request must include the following:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Maximum penalty.</E> The additional penalty shall be equal to one hundred (100) percent of the original late payment interest penalty but must not exceed $5,000.</P> <P>(c) <E T="03">Minimum penalty.</E> 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.</P> <P>(d) <E T="03">Penalty basis.</E> 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.</P> <P>(e) <E T="03">Utility payments.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.12</SECTNO> <SUBJECT>Payments to governmentwide commercial purchase card issuers.</SUBJECT> <P>Standards for payments to government wide commercial purchase card issuers follow:</P> <P>(a) <E T="03">Payment date.</E> 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 <E T="51">4</E> <FTREF/> permits payment of the bill in full prior to verification that goods or services were received.</P> <FTNT> <P> <E T="51">4</E> See footnote 3 in § 1315.7(a).</P> </FTNT> <P>(b) <E T="03">Disputed line items.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.13</SECTNO> <SUBJECT>Commodity Credit Corporation payments.</SUBJECT> <P>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 <E T="03">et seq.</E>) (“1949 Act”.) Such payments shall be subject to the following provisions:</P> <P>(a) <E T="03">Payment standards.</E> 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.</P> <P>(b) <E T="03">Interest penalties.</E> 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:</P> <P>(1) On the amount of payment or loan due;</P> <P>(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</P> <P>(3) Out of funds available under Section 8 of the CCC Charter Act (15 U.S.C. 714f).</P> <P>(c) <E T="03">Contract Disputes Act of 1978.</E> Insofar as covered CCC payments are concerned, provisions relating to the Contract Disputes Act of 1978 (41 U.S.C. 601 <E T="03">et seq.</E>) in § 1315.10(a)(5)(i) and § 1315.6(a) do not apply.</P> <P>(d) <E T="03">Extended periods for payment.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="142"/> <SECTNO>§ 1315.14</SECTNO> <SUBJECT>Payments under construction contracts.</SUBJECT> <P>(a) <E T="03">Payment standards.</E> Agencies shall follow these standards when making progress payments under construction contracts:</P> <P>(1) An agency may approve a request for progress payment if the application meets the requirements specified in paragraph (b) of this section;</P> <P>(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;</P> <P>(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);</P> <P>(4) A vendor is obligated to pay interest to the Government on unearned amounts in its possession from:</P> <P>(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</P> <P>(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);</P> <P>(5) Interest payment on unearned amounts to the government under 31 U.S.C. 3905(a)(2) or 3905(e)(6), shall:</P> <P>(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;</P> <P>(ii) Be deducted from the next available payment to the vendor; and</P> <P>(iii) Revert to the Treasury.</P> <P>(b) <E T="03">Required documentation.</E> (1) Substantiation of the amount(s) requested shall include:</P> <P>(i) An itemization of the amounts requested related to the various elements of work specified in the contract;</P> <P>(ii) A listing of the amount included for work performed by each subcontractor under the contract;</P> <P>(iii) A listing of the total amount for each subcontract under the contract;</P> <P>(iv) A listing of the amounts previously paid to each subcontractor under the contract; and</P> <P>(v) Additional supporting data and detail in a form required by the contracting officer.</P> <P>(2) Certification by the prime vendor is required, to the best of the vendor's knowledge and belief, that:</P> <P>(i) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Interest penalties.</E> (1) Agencies will pay interest on:</P> <P>(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:</P> <P>(A) A period of more than 14 days after receipt of the payment request by the designated agency office; or</P> <P>(B) A longer period specified in the solicitation and/or contract if required, <PRTPAGE P="143"/>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;</P> <P>(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;</P> <P>(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:</P> <P>(A) The 30th day after the date on which the designated agency office receives a proper invoice; or</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.15</SECTNO> <SUBJECT>Grant recipients.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.16</SECTNO> <SUBJECT>Relationship to other laws.</SUBJECT> <P>(a) <E T="03">Contract Disputes Act of 1978 (41 U.S.C. 605).</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Small Business Act (15 U.S.C. 644(k)).</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.17</SECTNO> <SUBJECT>Formulas.</SUBJECT> <P>(a) <E T="03">Rebate formula.</E> (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 <PRTPAGE P="144"/>date or the date specified in the contract.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-2">(CVF/360) * 100</FP> </EXTRACT> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-2">(CVF/360) * 100</FP> <FP SOURCE="FP-2">(5/360) * 100 = 1.4</FP> </EXTRACT> <P>(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.</P> <P>(b) <E T="03">Daily simple interest formula.</E> (1) To calculate daily simple interest the following formula may be used: </P> <EXTRACT> <FP SOURCE="FP-2">P(r/360*d)</FP> <FP SOURCE="FP-2">Where:</FP> <FP SOURCE="FP-2"> <E T="03">P</E> is the amount of principle or invoice amount;</FP> <FP SOURCE="FP-2"> <E T="03">r</E> equals the Prompt Payment interest rate; and</FP> <FP SOURCE="FP-2"> <E T="03">d</E> equals the numbers of days for which interest is being calculated.</FP> </EXTRACT> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-2">$1,500 (.065/360*10) = $2.71</FP> </EXTRACT> <P>(c) <E T="03">Monthly compounding interest formula.</E> (1) To calculate interest as required in § 1315.10(a)(3), the following formula may be used: </P> <EXTRACT> <FP SOURCE="FP-2">P(1+r/12) <E T="51">n</E>*(1+(r/360*d))−P</FP> <FP SOURCE="FP-2">Where:</FP> <FP SOURCE="FP-2">P equals the principle or invoice amount;</FP> <FP SOURCE="FP-2"> <E T="03">r</E> equals the interest rate;</FP> <FP SOURCE="FP-2"> <E T="03">n</E> equals the number of months; and</FP> <FP SOURCE="FP-2"> <E T="03">d</E> equals the number of days for which interest is being calculated.</FP> </EXTRACT> <P>(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.</P> <P>(3) For example, if the amount owed is $1,500, the payment due date is April 1, the agency does not pay until June 15 and the applicable interest rate is 6 percent, interest is calculated as follows: </P> <EXTRACT> <FP SOURCE="FP-2">$ 1,500(1+.06/12) <SU>2</SU> *(1+(0.06/360*15))−$1,500 = $18.83</FP> </EXTRACT> </SECTION> <SECTION> <SECTNO>§ 1315.18</SECTNO> <SUBJECT>Inquiries.</SUBJECT> <P>(a) <E T="03">Regulation.</E> 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 <E T="03">prompt.inquiries@fms.sprint.com,</E> or by completing a Prompt Payment inquiry <PRTPAGE P="145"/>form available at www.fms.treas.gov/prompt/inquiries.html.</P> <P>(b) <E T="03">Applicable interest rate.</E> The rate is published by the Fiscal Service, Department of the Treasury, semiannually in the <E T="04">Federal Register</E> on or about January 1 and July 1. The rate also may be obtained from the Department of Treasury's Financial Management Service (FMS) at 1-800-266-9667. This information is also available at the FMS Prompt Payment Web Site at http://www.fms.treas.gov/prompt/index.html.</P> <P>(c) <E T="03">Agency payments.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.19</SECTNO> <SUBJECT>Regulatory references to OMB Circular A-125.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1315.20</SECTNO> <SUBJECT>Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.</SUBJECT> <P>Section 1010 of the National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398, 114 Stat. 1654) 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 and is applicable in the following manner:</P> <P>(a) This part shall apply to all interim payment requests received under cost-reimbursement service contracts awarded on or after December 15, 2000.</P> <P>(b) This part may be applied, at the discretion of the agency, to interim payment requests received under cost-reimbursement service contracts awarded before December 15, 2000. However, no interest penalty shall accrue under this part for any delay in payment that occurs prior to December 15, 2000.</P> <P>(c) Agencies are authorized to issue modifications to contracts, as necessary, to conform them to the provisions in this part implementing Section 1010.</P> <CITA>[65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1320</EAR> <HD SOURCE="HED">PART 1320—CONTROLLING PAPERWORK BURDENS ON THE PUBLIC</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1320.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1320.2</SECTNO> <SUBJECT>Effect.</SUBJECT> <SECTNO>1320.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1320.4</SECTNO> <SUBJECT>Coverage.</SUBJECT> <SECTNO>1320.5</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>1320.6</SECTNO> <SUBJECT>Public protection.</SUBJECT> <SECTNO>1320.7</SECTNO> <SUBJECT>Agency head and Senior Official responsibilities.</SUBJECT> <SECTNO>1320.8</SECTNO> <SUBJECT>Agency collection of information responsibilities.</SUBJECT> <SECTNO>1320.9</SECTNO> <SUBJECT>Agency certifications for proposed collections of information.</SUBJECT> <SECTNO>1320.10</SECTNO> <SUBJECT>Clearance of collections of information, other than those contained in proposed rules or in current rules.</SUBJECT> <SECTNO>1320.11</SECTNO> <SUBJECT>Clearance of collections of information in proposed rules.</SUBJECT> <SECTNO>1320.12</SECTNO> <SUBJECT>Clearance of collections of information in current rules.</SUBJECT> <SECTNO>1320.13</SECTNO> <SUBJECT>Emergency processing.</SUBJECT> <SECTNO>1320.14</SECTNO> <SUBJECT>Public access.</SUBJECT> <SECTNO>1320.15</SECTNO> <SUBJECT>Independent regulatory agency override authority.</SUBJECT> <SECTNO>1320.16</SECTNO> <SUBJECT>Delegation of approval authority.</SUBJECT> <SECTNO>1320.17</SECTNO> <SUBJECT>Information collection budget.</SUBJECT> <SECTNO>1320.18</SECTNO> <SUBJECT>Other authority.</SUBJECT> <APP>Appendix A to Part 1320—Agencies With Delegated Review and Approval Authority</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27, 29, 31, 35.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 44984, Aug. 29, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1320.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 <PRTPAGE P="146"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.2</SECTNO> <SUBJECT>Effect.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this part takes effect on October 1, 1995.</P> <P>(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:</P> <P>(i) The date of the first extension of approval for or modification of that collection of information after September 30, 1995; or</P> <P>(ii) The date of the expiration of the OMB control number after September 30, 1995.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of implementing the Act and this Part, the following terms are defined as follows:</P> <P>(a) <E T="03">Agency</E> 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:</P> <P>(1) The General Accounting Office;</P> <P>(2) Federal Election Commission;</P> <P>(3) The governments of the District of Columbia and the territories and possessions of the United States, and their various subdivisions; or</P> <P>(4) Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities.</P> <P>(b)(1) <E T="03">Burden</E> 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:</P> <P>(i) Reviewing instructions;</P> <P>(ii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of collecting, validating, and verifying information;</P> <P>(iii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of processing and maintaining information;</P> <P>(iv) Developing, acquiring, installing, and utilizing technology and systems for the purpose of disclosing and providing information;</P> <P>(v) Adjusting the existing ways to comply with any previously applicable instructions and requirements;</P> <P>(vi) Training personnel to be able to respond to a collection of information;</P> <P>(vii) Searching data sources;</P> <P>(viii) Completing and reviewing the collection of information; and</P> <P>(ix) Transmitting, or otherwise disclosing the information.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Collection of information</E> 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” <PRTPAGE P="147"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(i) Any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons.</P> <P>(ii) Any collection of information addressed to all or a substantial majority of an industry is presumed to involve ten or more persons.</P> <P>(d) <E T="03">Conduct or Sponsor</E>. 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:<PRTPAGE P="148"/> </P> <P>(1) The recipient of a grant is conducting the collection of information at the specific request of the agency; or</P> <P>(2) The terms and conditions of the grant require specific approval by the agency of the collection of information or collection procedures.</P> <P>(e) <E T="03">Director</E> means the Director of OMB, or his or her designee.</P> <P>(f) <E T="03">Display</E> means:</P> <P>(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;</P> <P>(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;</P> <P>(3) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, to publish the currently valid OMB control number in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing the OMB control number in the preamble or the regulatory text for the final rule, in a technical amendment to the final rule, or in a separate notice announcing OMB approval of the collection of information). In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, publication of the currently valid control number in the Code of Federal Regulations constitutes an alternative means of “display.” In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, OMB recommends for ease of future reference that, even where an agency has already “displayed” the OMB control number by publishing it in the <E T="04">Federal Register</E> as a separate notice or in the preamble for the final rule (rather than in the regulatory text for the final rule or in a technical amendment to the final rule), the agency also place the currently valid control number in a table or codified section to be included in the Code of Federal Regulations. For placement of OMB control numbers in the Code of Federal Regulations, see 1 CFR 21.35.</P> <P>(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.</P> <P>(g) <E T="03">Independent regulatory agency</E> 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.</P> <P>(h) <E T="03">Information</E> 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”:</P> <P>(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 <PRTPAGE P="149"/>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);</P> <P>(2) Samples of products or of any other physical objects;</P> <P>(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;</P> <P>(4) Facts or opinions submitted in response to general solicitations of comments from the public, published in the <E T="04">Federal Register</E> or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment;</P> <P>(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;</P> <P>(6) A request for facts or opinions addressed to a single person;</P> <P>(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;</P> <P>(8) Facts or opinions obtained or solicited at or in connection with public hearings or meetings;</P> <P>(9) Facts or opinions obtained or solicited through nonstandardized follow-up questions designed to clarify responses to approved collections of information; and</P> <P>(10) Like items so designated by OMB.</P> <P>(i) <E T="03">OMB</E> refers to the Office of Management and Budget.</P> <P>(j) <E T="03">Penalty</E> 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.</P> <P>(k) <E T="03">Person</E> 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;</P> <P>(l) <E T="03">Practical utility</E> 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.</P> <P>(m) <E T="03">Recordkeeping requirement</E> means a requirement imposed by or for an agency on persons to maintain specified records, including a requirement to:</P> <P>(1) Retain such records;</P> <P>(2) Notify third parties, the Federal government, or the public of the existence of such records;</P> <P>(3) Disclose such records to third parties, the Federal government, or the public; or<PRTPAGE P="150"/> </P> <P>(4) Report to third parties, the Federal government, or the public regarding such records.</P> </SECTION> <SECTION> <SECTNO>§ 1320.4</SECTNO> <SUBJECT>Coverage.</SUBJECT> <P>(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:</P> <P>(1) During the conduct of a Federal criminal investigation or prosecution, or during the disposition of a particular criminal matter;</P> <P>(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;</P> <P>(3) By compulsory process pursuant to the Antitrust Civil Process Act and section 13 of the Federal Trade Commission Improvements Act of 1980; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.5</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(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—</P> <P>(1) The agency has—</P> <P>(i) Conducted the review required in § 1320.8;</P> <P>(ii) Evaluated the public comments received under § 1320.8(d) and § 1320.11;</P> <P>(iii) Submitted to the Director, in accordance with such procedures and in such form as OMB may specify,</P> <P>(A) The certification required under § 1320.9,</P> <P>(B) The proposed collection of information in accordance with § 1320.10, § 1320.11, or § 1320.12, as appropriate,</P> <P>(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;</P> <P>(D) An explanation for a decision to provide for any payment or gift to respondents, other than remuneration of contractors or grantees;</P> <P>(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;</P> <P>(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 <E T="04">Federal Register</E> of the notice therefor; and</P> <P>(G) Copies of pertinent statutory authority, regulations, and such related supporting materials as OMB may request; and</P> <P>(iv) Published, except as provided in § 1320.13(d), a notice in the <E T="04">Federal Register</E>—</P> <P>(A) Stating that the agency has made such submission; and</P> <P>(B) Setting forth—</P> <P>(<E T="03">1</E>) A title for the collection of information;<PRTPAGE P="151"/> </P> <P>(<E T="03">2</E>) A summary of the collection of information;</P> <P>(<E T="03">3</E>) A brief description of the need for the information and proposed use of the information;</P> <P>(<E T="03">4</E>) A description of the likely respondents, including the estimated number of likely respondents, and proposed frequency of response to the collection of information;</P> <P>(<E T="03">5</E>) An estimate of the total annual reporting and recordkeeping burden that will result from the collection of information;</P> <P>(<E T="03">6</E>) Notice that comments may be submitted to OMB; and</P> <P>(<E T="03">7</E>) 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</P> <P>(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</P> <P>(3) The agency has obtained from the Director a control number to be displayed upon the collection of information.</P> <P>(b) In addition to the requirements in paragraph (a) of this section, an agency shall not conduct or sponsor a collection of information unless:</P> <P>(1) The collection of information displays a currently valid OMB control number; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(C) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, 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 publishes such information in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing such information in the preamble or the regulatory text, or in a technical amendment to the regulation, or in a separate notice announcing OMB approval of the collection of information). In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, publication of such information in the Code of Federal Regulations constitutes an alternative means of providing it “in a manner that is reasonably calculated to inform the public.” In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, OMB recommends for ease of future reference that, even where an agency has already provided such information “in a manner that is reasonably calculated to inform the public” by publishing it in the <E T="04">Federal Register</E> as a separate notice or in the preamble for the final rule (rather than in the regulatory text for <PRTPAGE P="152"/>the final rule or in a technical amendment to the final rule), the agency also publish such information along with a table or codified section of OMB control numbers to be included in the Code of Federal Regulations (see § 1320.3(f)(3)).</P> <P>(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.</P> <P>(c)(1) Agencies shall submit all collections of information, other than those contained in proposed rules published for public comment in the <E T="04">Federal Register</E> or in current regulations that were published as final rules in the <E T="04">Federal Register</E>, in accordance with the requirements in § 1320.10. Agencies shall submit collections of information contained in interim final rules or direct final rules in accordance with the requirements of § 1320.10.</P> <P>(2) Agencies shall submit collections of information contained in proposed rules published for public comment in the <E T="04">Federal Register</E> in accordance with the requirements in § 1320.11.</P> <P>(3) Agencies shall submit collections of information contained in current regulations that were published as final rules in the <E T="04">Federal Register</E> in accordance with the requirements in § 1320.12.</P> <P>(4) Special rules for emergency processing of collections of information are set forth in § 1320.13.</P> <P>(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.</P> <P>(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:</P> <P>(i) Is the least burdensome necessary for the proper performance of the agency's functions to comply with legal requirements and achieve program objectives;</P> <P>(ii) Is not duplicative of information otherwise accessible to the agency; and</P> <P>(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.</P> <P>(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—</P> <P>(i) Requiring respondents to report information to the agency more often than quarterly;</P> <P>(ii) Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;</P> <P>(iii) Requiring respondents to submit more than an original and two copies of any document;</P> <P>(iv) Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;</P> <P>(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;</P> <P>(vi) Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;</P> <P>(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</P> <P>(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.</P> <P>(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 <PRTPAGE P="153"/>this section, and will consider whether the burden of the collection of information is justified by its practical utility. In addition:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 1320.6</SECTNO> <SUBJECT>Public protection.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="154"/>other person through administrative or judicial process.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 1320.7</SECTNO> <SUBJECT>Agency head and Senior Official responsibilities.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.8</SECTNO> <SUBJECT>Agency collection of information responsibilities.</SUBJECT> <P>The office established under § 1320.7 shall review each collection of information before submission to OMB for review under this part.</P> <P>(a) This review shall include:</P> <P>(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;</P> <P>(2) A functional description of the information to be collected;</P> <P>(3) A plan for the collection of information;</P> <P>(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;</P> <P>(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;</P> <P>(6) A test of the collection of information through a pilot program, if appropriate; and</P> <P>(7) A plan for the efficient and effective management and use of the information to be collected, including necessary resources.</P> <P>(b) Such office shall ensure that each collection of information:</P> <P>(1) Is inventoried, displays a currently valid OMB control number, and, if appropriate, an expiration date;</P> <P>(2) Is reviewed by OMB in accordance with the clearance requirements of 44 U.S.C. § 3507; and</P> <P>(3) Informs and provides reasonable notice to the potential persons to whom the collection of information is addressed of—</P> <P>(i) The reasons the information is planned to be and/or has been collected;</P> <P>(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;<PRTPAGE P="155"/> </P> <P>(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);</P> <P>(iv) Whether responses to the collection of information are voluntary, required to obtain or retain a benefit (citing authority), or mandatory (citing authority);</P> <P>(v) The nature and extent of confidentiality to be provided, if any (citing authority); and</P> <P>(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.</P> <P>(c)(1) An agency shall provide the information described in paragraphs (b)(3)(i) through (v) of this section as follows:</P> <P>(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.</P> <P>(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;</P> <P>(iii) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, such information can be published in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing such information in the preamble or the regulatory text to the final rule, or in a technical amendment to the final rule, or in a separate notice announcing OMB approval of the collection of information).</P> <P>(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.</P> <P>(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)).</P> <P>(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 <E T="04">Federal Register</E>, and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comment to:</P> <P>(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;</P> <P>(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;</P> <P>(iii) Enhance the quality, utility, and clarity of the information to be collected; and</P> <P>(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.</P> <P>(2) If the agency does not publish a copy of the proposed collection of information, together with the related instructions, as part of the <E T="04">Federal Register</E> notice, the agency should—</P> <P>(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</P> <P>(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.<PRTPAGE P="156"/> </P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.9</SECTNO> <SUBJECT>Agency certifications for proposed collections of information.</SUBJECT> <P>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—</P> <P>(a) Is necessary for the proper performance of the functions of the agency, including that the information to be collected will have practical utility;</P> <P>(b) Is not unnecessarily duplicative of information otherwise reasonably accessible to the agency;</P> <P>(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:</P> <P>(1) Establishing differing compliance or reporting requirements or timetables that take into account the resources available to those who are to respond;</P> <P>(2) The clarification, consolidation, or simplification of compliance and reporting requirements; or</P> <P>(3) An exemption from coverage of the collection of information, or any part thereof;</P> <P>(d) Is written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond;</P> <P>(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;</P> <P>(f) Indicates for each recordkeeping requirement the length of time persons are required to maintain the records specified;</P> <P>(g) Informs potential respondents of the information called for under § 1320.8(b)(3);</P> <P>(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;</P> <P>(i) Uses effective and efficient statistical survey methodology appropriate to the purpose for which the information is to be collected; and</P> <P>(j) To the maximum extent practicable, uses appropriate information technology to reduce burden and improve data quality, agency efficiency and responsiveness to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1320.10</SECTNO> <SUBJECT>Clearance of collections of information, other than those contained in proposed rules or in current rules.</SUBJECT> <P>Agencies shall submit all collections of information, other than those contained either in proposed rules published for public comment in the <E T="04">Federal Register</E> (which are submitted under § 1320.11) or in current rules that were published as final rules in the <E T="04">Federal Register</E> (which are submitted under § 1320.12), in accordance with the following requirements:</P> <P>(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 <E T="04">Federal Register</E> stating that OMB approval is being sought. The notice shall direct requests for information, including copies of the proposed collection of information and supporting documentation, to the agency, and shall request that comments be submitted to OMB within 30 days of the notice's publication. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency]. A <PRTPAGE P="157"/>copy of the notice submitted to the <E T="04">Federal Register</E>, together with the date of expected publication, shall be included in the agency's submission to OMB.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and</P> <P>(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.</P> <P>(2) The agency may continue to conduct or sponsor the collection of information while the submission is pending at OMB.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> to that effect.</P> </SECTION> <SECTION> <SECTNO>§ 1320.11</SECTNO> <SUBJECT>Clearance of collections of information in proposed rules.</SUBJECT> <P>Agencies shall submit collections of information contained in proposed rules published for public comment in the <E T="04">Federal Register</E> in accordance with the following requirements:</P> <P>(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].</P> <P>(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 <E T="04">Federal <PRTPAGE P="158"/>Register</E>, in such form and in accordance with such procedures as OMB may direct. Such submissions shall include a copy of the proposed regulation and preamble.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) When the final rule is published in the <E T="04">Federal Register</E>, the agency shall explain how any collection of information contained in the final rule responds to any comments received from OMB or the public. The agency shall include an identification and explanation of any modifications made in the rule, or explain why it rejected the comments. If requested by OMB, the agency shall include OMB's comments in the preamble to the final rule.</P> <P>(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 <E T="04">Federal Register</E>, OMB may assign an OMB control number prior to publication of the final rule.</P> <P>(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:</P> <P>(1) The agency has failed to comply with paragraph (b) of this section;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> to inform the public of OMB's decision.<PRTPAGE P="159"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.12</SECTNO> <SUBJECT>Clearance of collections of information in current rules.</SUBJECT> <P>Agencies shall submit collections of information contained in current rules that were published as final rules in the <E T="04">Federal Register</E> in accordance with the following procedures:</P> <P>(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:</P> <P>(1) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and</P> <P>(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.</P> <P>(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:</P> <P>(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.(8)(d); and</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> stating that OMB review is being sought. The notice shall direct requests for copies of the collection of information and supporting documentation to the agency, and shall request that comments be submitted to OMB within 30 days of the notice's publication. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of the notice submitted to the <E T="04">Federal Register</E>, together with the date of expected publication, shall be included in the agency's submission to OMB.</P> <P>(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.</P> <P>(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 <PRTPAGE P="160"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Publish an explanation thereof in the <E T="04">Federal Register</E>; and</P> <P>(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</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E>. Such notice shall identify the proposed changes in the collections of information and shall solicit public comment on retention, change, or rescission of such collections of information. If the agency employs notice and comment rulemaking procedures for amendment or rescission of the collection of information, publication of the above in the <E T="04">Federal Register</E> and submission to OMB shall initiate OMB clearance procedures under section 3507(d) of the Act and § 1320.11. All procedures shall be completed within a reasonable period of time to be determined by OMB in consultation with the agency.</P> <P>(g) OMB may disapprove, in whole or in part, any collection of information subject to the procedures of this section, if the agency:</P> <P>(1) Has refused within a reasonable time to comply with an OMB instruction to submit the collection of information for review;</P> <P>(2) Has refused within a reasonable time to initiate procedures to change the collection of information; or</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="161"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.13</SECTNO> <SUBJECT>Emergency processing.</SUBJECT> <P>An agency head or the Senior Official, or their designee, may request OMB to authorize emergency processing of submissions of collections of information.</P> <P>(a) Any such request shall be accompanied by a written determination that:</P> <P>(1) The collection of information:</P> <P>(i) Is needed prior to the expiration of time periods established under this Part; and</P> <P>(ii) Is essential to the mission of the agency; and</P> <P>(2) The agency cannot reasonably comply with the normal clearance procedures under this part because:</P> <P>(i) Public harm is reasonably likely to result if normal clearance procedures are followed;</P> <P>(ii) An unanticipated event has occurred; or</P> <P>(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.</P> <P>(b) The agency shall state the time period within which OMB should approve or disapprove the collection of information.</P> <P>(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.</P> <P>(d) The agency shall set forth in the <E T="04">Federal Register</E> notice prescribed by § 1320.5(a)(1)(iv), unless waived or modified under this section, a statement that it is requesting emergency processing, and the time period stated under paragraph (b) of this section.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.14</SECTNO> <SUBJECT>Public access.</SUBJECT> <P>(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.</P> <P>(b) Agencies shall provide copies of the material submitted to OMB for review promptly upon request by any person.</P> <P>(c) Any person may request OMB to review any collection of information <PRTPAGE P="162"/>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:</P> <P>(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</P> <P>(2) Take appropriate remedial action, if necessary.</P> </SECTION> <SECTION> <SECTNO>§ 1320.15</SECTNO> <SUBJECT>Independent regulatory agency override authority.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(2) An exercise of authority under § 1320.10(g) concerning such agency.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1320.16</SECTNO> <SUBJECT>Delegation of approval authority.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Is sufficiently independent of program responsibility to evaluate fairly whether proposed collections of information should be approved;</P> <P>(2) Has sufficient resources to carry out this responsibility effectively; and</P> <P>(3) Has established an agency review process that demonstrates the prompt, efficient, and effective performance of collection of information review responsibilities.</P> <P>(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.</P> <P>(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:</P> <P>(1) Board of Governors of the Federal Reserve System; and</P> <P>(2) Managing Director of the Federal Communications Commission.</P> </SECTION> <SECTION> <SECTNO>§ 1320.17</SECTNO> <SUBJECT>Information collection budget.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="163"/> <SECTNO>§ 1320.18</SECTNO> <SUBJECT>Other authority.</SUBJECT> <P>(a) OMB shall determine whether any collection of information or other matter is within the scope of the Act, or this Part.</P> <P>(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.</P> <P>(c) Each agency is responsible for complying with the information policies, principles, standards, and guidelines prescribed by OMB under this Act.</P> <P>(d) To the extent permitted by law, OMB may waive any requirements contained in this part.</P> <P>(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.</P> </SECTION> <APPENDIX> <EAR>Pt. 1320, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 1320—Agencies With Delegated Review and Approval Authority</HD> <P SOURCE="P1">1. The Board of Governors of the Federal Reserve System</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> notices specified in paragraph (1)(3)(i) of this section 1.</P> <P>(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.</P> <P>(2) The Board may ask that OMB review and approve collections of information covered by this delegation.</P> <P>(3) In exercising delegated authority, the Board will:</P> <P>(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 <E T="04">Federal Register</E> informing the public of the proposed collection of information, announcing the beginning of a 60-day public comment period, and the availability of copies of the “clearance package,” to provide the public with the opportunity to comment. Such <E T="04">Federal Register</E> notices shall also advise the public that they may also send a copy of their comments to the Federal Reserve Board and to the OMB/OIRA Desk Officer.</P> <P>(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.</P> <P>(B) At the earliest practical date after approving the temporary extension to the collection of information, the Board will publish a <E T="04">Federal Register</E> notice informing the public of its approval of the collection of information and indicating why immediate action was necessary. In such cases, the Board will conduct a normal delegated review and publish a notice in the <E T="04">Federal Register</E> soliciting public comment on the intention to extend the collection of information for a period not to exceed three years.</P> <P>(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve Board with a copy of the Board's <E T="04">Federal Register</E> notice not later than the day the Board files the notice with the Office of the Federal Register.</P> <P>(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 <PRTPAGE P="164"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> notice or a summary of these comments, the certification required by 5 CFR 1320.9, and a certification that the Board has approved of the collection of information in accordance with the provisions of this delegation is transmitted to OMB for incorporation into OMB's public docket files. Such transmittal shall be made as soon as practical after the Board has taken final action approving the collection. However, no collection of information may be instituted until the Board has delivered this transmittal to OMB.</P> <P>(b) OMB will:</P> <P>(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.</P> <P>(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.</P> <P>(3) Review any collection of information referred by the Board in accordance with the provisions of section 1(a)(2) of this Appendix.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> notices and generally only if:</P> <P>(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;</P> <P>(2) There is substantial public objection to a proposed information collection: or</P> <P>(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 T="04">Federal Register</E> notice provided for in section 1(a)(3)(i) of this Appendix.</P> <P>(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. </P> <P SOURCE="P1">2. The Managing Director of the Federal Communications Commission</P> <P>(a) Authority to review and approve currently valid (OMB-approved) collections of <PRTPAGE P="165"/>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.</P> <P>(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.</P> <P>(2) The Managing Director may ask that OMB review and approve collections of information covered by the delegation.</P> <P>(3) In exercising delegated authority, the Managing Director will:</P> <P>(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 <E T="04">Federal Register</E> and an FCC Public Notice informing the public that a collection of information is being extended and announcing the beginning of a 60-day comment period, notifying the public of the “intent to extend an information collection,” and providing the public with the opportunity to comment on the need for the information, its practicality, the accuracy of the agency's burden estimate, and on ways to minimize burden, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Such notices shall advise the public that they may also send a copy of their comments to the OMB/Office of Information and Regulatory Affairs desk officer for the Commission.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> notice soliciting public comment on its intention to extend the collection of information for a period not to exceed three years.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) OMB will:</P> <P>(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.</P> <P>(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.</P> <P>(3) Periodically assess, at its discretion, the Commission's paperwork review process as administered under the delegation. The <PRTPAGE P="166"/>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.</P> <P>(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.</P> </APPENDIX> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. V (1-1-02 Edition)</LRH> <RRH>International Org. Employees Loyalty Board</RRH> <TOC> <TOCHD> <PRTPAGE P="167"/> <HD SOURCE="HED">CHAPTER V—THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1501</PT> <SUBJECT>Operations of the International Organizations Employees Loyalty Board.</SUBJECT> <PG>169</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="169"/> <EAR>Pt. 1501</EAR> <HD SOURCE="HED">PART 1501—OPERATIONS OF THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1501.1</SECTNO> <SUBJECT>Name.</SUBJECT> <SECTNO>1501.2</SECTNO> <SUBJECT>Officers.</SUBJECT> <SECTNO>1501.3</SECTNO> <SUBJECT>Duties of officers.</SUBJECT> <SECTNO>1501.4</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>1501.5</SECTNO> <SUBJECT>Panels of the Board.</SUBJECT> <SECTNO>1501.6</SECTNO> <SUBJECT>Quorum.</SUBJECT> <SECTNO>1501.7</SECTNO> <SUBJECT>Authority and responsibility of the Board.</SUBJECT> <SECTNO>1501.8</SECTNO> <SUBJECT>Grounds for determinations of the Board.</SUBJECT> <SECTNO>1501.9</SECTNO> <SUBJECT>Cases reviewable by the Board.</SUBJECT> <SECTNO>1501.10</SECTNO> <SUBJECT>Consideration of reports of investigation.</SUBJECT> <SECTNO>1501.11</SECTNO> <SUBJECT>Consideration of complete file before hearing.</SUBJECT> <SECTNO>1501.12</SECTNO> <SUBJECT>Obtaining further information.</SUBJECT> <SECTNO>1501.13</SECTNO> <SUBJECT>Conduct of hearings.</SUBJECT> <SECTNO>1501.14</SECTNO> <SUBJECT>Decision of the Board.</SUBJECT> <SECTNO>1501.15</SECTNO> <SUBJECT>Transmission of Determination to the Secretary of State.</SUBJECT> <SECTNO>1501.16</SECTNO> <SUBJECT>Notification of individual concerned.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 10422, as amended; 3 CFR, 1949-1953 Comp., p. 921.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>18 FR 6371, Oct. 7, 1953, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1501.1</SECTNO> <SUBJECT>Name.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.2</SECTNO> <SUBJECT>Officers.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.3</SECTNO> <SUBJECT>Duties of officers.</SUBJECT> <P>(a) <E T="03">The Chairman.</E> 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.</P> <P>(b) <E T="03">The Vice-Chairman.</E> The duties of the vice-chairman, when acting in the place of the chairman, shall be the same as the duties of the chairman.</P> <P>(c) <E T="03">The Executive-Secretary.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.4</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>No adverse determination shall be made without the opportunity for a hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1501.5</SECTNO> <SUBJECT>Panels of the Board.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.6</SECTNO> <SUBJECT>Quorum.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.7</SECTNO> <SUBJECT>Authority and responsibility of the Board.</SUBJECT> <P>The Board shall have the authority and responsibility to make rules and regulations, not inconsistent with the <PRTPAGE P="170"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.8</SECTNO> <SUBJECT>Grounds for determinations of the Board.</SUBJECT> <P>(a) <E T="03">Standard.</E> 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.</P> <P>(b) <E T="03">Activities and associations.</E> 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:</P> <P>(1) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs.</P> <P>(2) Treason or sedition or advocacy thereof.</P> <P>(3) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.9</SECTNO> <SUBJECT>Cases reviewable by the Board.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.10</SECTNO> <SUBJECT>Consideration of reports of investigation.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="171"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.11</SECTNO> <SUBJECT>Consideration of complete file before hearing.</SUBJECT> <P>(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.</P> <P>(b) If, upon such consideration, the Board concludes that a finding favorable to the individual may be made, no hearing shall be required.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.12</SECTNO> <SUBJECT>Obtaining further information.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.13</SECTNO> <SUBJECT>Conduct of hearings.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Testimony shall be given under oath or affirmation.</P> <P>(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.</P> <P>(f) A complete verbatim stenographic transcript shall be made of the hearing, and the transcript shall constitute a permanent part of the record.</P> <P>(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 <PRTPAGE P="172"/>the applicant resides, and such payment is considered in the interest of good administration and funds are available for this purpose.</P> <CITA>[18 FR 6371, Oct. 7, 1953, as amended at 21 FR 5249, July 14, 1956]</CITA> </SECTION> <SECTION> <SECTNO>§ 1501.14</SECTNO> <SUBJECT>Decision of the Board.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.15</SECTNO> <SUBJECT>Transmission of Determination to the Secretary of State.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1501.16</SECTNO> <SUBJECT>Notification of individual concerned.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. VI (1-1-02 Edition)</LRH> <RRH>Federal Retirement Thrift Investment Board</RRH> <TOC> <TOCHD> <PRTPAGE P="173"/> <HD SOURCE="HED">CHAPTER VI—FEDERAL RETIREMENT THRIFT INVESTMENT BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1600</PT> <SUBJECT>Employee elections to contribute to the Thrift Savings Plan</SUBJECT> <PG>175</PG> <PT>1601</PT> <SUBJECT>Participants’ choices of investment funds</SUBJECT> <PG>180</PG> <PT>1603</PT> <SUBJECT>Vesting</SUBJECT> <PG>184</PG> <PT>1604</PT> <SUBJECT>Uniformed services accounts</SUBJECT> <PG>185</PG> <PT>1605</PT> <SUBJECT>Correction of administrative errors</SUBJECT> <PG>191</PG> <PT>1606</PT> <SUBJECT>Lost earnings attributable to employing agency errors</SUBJECT> <PG>201</PG> <PT>1620</PT> <SUBJECT>Expanded and continuing eligibility</SUBJECT> <PG>208</PG> <PT>1630</PT> <SUBJECT>Privacy Act regulations</SUBJECT> <PG>217</PG> <PT>1631</PT> <SUBJECT>Availability of records</SUBJECT> <PG>226</PG> <PT>1632</PT> <SUBJECT>Rules regarding public observation of meetings</SUBJECT> <PG>236</PG> <PT>1633</PT> <SUBJECT>Standards of conduct</SUBJECT> <PG>240</PG> <PT>1636</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Federal Retirement Thrift Investment Board</SUBJECT> <PG>240</PG> <PT>1639</PT> <SUBJECT>Claims collection</SUBJECT> <PG>246</PG> <PT>1640</PT> <SUBJECT>Periodic participant statements</SUBJECT> <PG>261</PG> <PT>1645</PT> <SUBJECT>Allocation of earnings</SUBJECT> <PG>262</PG> <PT>1650</PT> <SUBJECT>Methods of withdrawing funds from the Thrift Savings Plan</SUBJECT> <PG>265</PG> <PT>1651</PT> <SUBJECT>Death benefits</SUBJECT> <PG>276</PG> <PT>1653</PT> <SUBJECT>Domestic relations orders affecting Thrift Savings Plan accounts</SUBJECT> <PG>281</PG> <PT>1655</PT> <SUBJECT>Loan program</SUBJECT> <PG>289</PG> <PT>1690</PT> <SUBJECT>Miscellaneous regulations</SUBJECT> <PG>298</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="175"/> <EAR>Pt. 1600</EAR> <HD SOURCE="HED">PART 1600—EMPLOYEE ELECTIONS TO CONTRIBUTE TO THE THRIFT SAVINGS PLAN</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1600.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Elections</HD> <SECTNO>1600.11</SECTNO> <SUBJECT>Types of elections.</SUBJECT> <SECTNO>1600.12</SECTNO> <SUBJECT>Period for making contribution elections.</SUBJECT> <SECTNO>1600.13</SECTNO> <SUBJECT>Effective dates of contribution elections.</SUBJECT> <SECTNO>1600.14</SECTNO> <SUBJECT>Method of election.</SUBJECT> <SECTNO>1600.15</SECTNO> <SUBJECT>Number of elections.</SUBJECT> <SECTNO>1600.16</SECTNO> <SUBJECT>Belated elections.</SUBJECT> <SECTNO>1600.17</SECTNO> <SUBJECT>Timing of agency contributions.</SUBJECT> <SECTNO>1600.18</SECTNO> <SUBJECT>Effect of transfer to FERS.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Program of Contributions</HD> <SECTNO>1600.21</SECTNO> <SUBJECT>Contributions in whole numbers.</SUBJECT> <SECTNO>1600.22</SECTNO> <SUBJECT>Maximum contributions.</SUBJECT> <SECTNO>1600.23</SECTNO> <SUBJECT>Required reduction of contribution rates.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Transfers From Other Qualified Retirement Plans</HD> <SECTNO>1600.31</SECTNO> <SUBJECT>Accounts eligible for transfer.</SUBJECT> <SECTNO>1600.32</SECTNO> <SUBJECT>Methods for transferring account from qualified retirement plan or conduit IRA to TSP.</SUBJECT> <SECTNO>1600.33</SECTNO> <SUBJECT>Treatment accorded transferred funds.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8432(b)(1)(A), 8474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 22089, May 2, 2001, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1600.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Terms used in this part have the following meanings:</P> <P> <E T="03">Account</E> or <E T="03">individual account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a).</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1) and (c)(3).</P> <P> <E T="03">Agency matching contributions</E> means any contributions made under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Basic pay</E> 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.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established under 5 U.S.C. 8472.</P> <P> <E T="03">Contribution allocation</E> means the apportionment of a participant's future contributions and loan payments among the TSP investment funds.</P> <P> <E T="03">Contribution election</E> means a request by an employee to start contributing to the TSP, to change the amount of contributions made to the TSP each pay period, or to terminate contributions to the TSP.</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent Federal retirement system.</P> <P> <E T="03">CSRS employee</E> or <E T="03">CSRS participant</E> means any employee or participant covered by CSRS.</P> <P> <E T="03">Date of appointment</E> means the effective date of an employee's accession by the current employing agency.</P> <P> <E T="03">Election period</E> means the last calendar month of a TSP open season. It is the earliest period during which a TSP contribution election can become effective.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440e.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3) and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board under 5 U.S.C. 8474.</P> <P> <E T="03">FERS</E> means the Federal Employees' Retirement System established by 5 U.S.C. chapter 84 or any equivalent Federal retirement system.</P> <P> <E T="03">FERS employee</E> or <E T="03">FERS participant</E> means any employee or TSP participant covered by FERS.<PRTPAGE P="176"/> </P> <P> <E T="03">Open season</E> means the period during which employees may elect to make contributions to the TSP, change the amount of contributions, or terminate contributions (without losing the right to resume contributions during the next open season).</P> <P> <E T="03">Separation from Government service</E> means the cessation of employment with the Federal Government, 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.</P> <P> <E T="03">Thrift Savings Plan,</E> <E T="03">TSP,</E> or <E T="03">Plan</E> 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.</P> <P> <E T="03">Thrift Savings Plan Service Office</E> (TSPSO) means the office of the TSP recordkeeper which provides service to participants. The TSPSO's address is: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500.</P> <P> <E T="03">TSP recordkeeper</E> means the entity that is engaged by the Board to perform recordkeeping services for the Thrift Savings Plan. The TSP recordkeeper is the National Finance Center, Office of Finance and Management, United States Department of Agriculture, located in New Orleans, Louisiana.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Elections</HD> <SECTION> <SECTNO>§ 1600.11</SECTNO> <SUBJECT>Types of elections.</SUBJECT> <P>(a) <E T="03">Contribution elections.</E> A contribution election can be made on a Form TSP-1, Thrift Savings Plan Election Form, and includes any one of the following elections:</P> <P>(1) To make employee contributions;</P> <P>(2) To change the amount of employee contributions; or</P> <P>(3) To terminate employee contributions.</P> <P>(b) <E T="03">Contribution allocation.</E> A participant may make or change the manner in which future deposits to his or her account are allocated among the TSP's investment funds only in accordance with 5 CFR part 1601.</P> </SECTION> <SECTION> <SECTNO>§ 1600.12</SECTNO> <SUBJECT>Period for making contribution elections.</SUBJECT> <P>(a) <E T="03">Participation upon initial appointment or reappointment.</E> An employee may make a contribution election as follows:</P> <P>(1) <E T="03">Appointments made during the period January 1 through June 30, 2001.</E> An employee appointed, or reappointed following a separation from Government service, to a position covered by FERS or CSRS during the period January 1 through June 30, 2001, may make a TSP contribution election during the May 15 through July 31, 2001, open season.</P> <P>(2) <E T="03">Appointments made on or after July 1, 2001.</E> An employee appointed, or reappointed following a separation from Government service, to a position covered by FERS or CSRS may make a TSP contribution election within 60 days after the effective date of the appointment.</P> <P>(b) <E T="03">Open season elections.</E> Any employee may make a contribution election during an open season. Each year an open season will begin on May 15 and will end on July 31; a second open season will begin on November 15 and will end on January 31 of the following year. If the last day of an open season falls on a Saturday, Sunday, or legal holiday, the open season will be extended through the end of the next business day.</P> <P>(c) <E T="03">Election to terminate contributions.</E> An employee may elect to terminate employee contributions to the TSP at any time. If an employee's election to terminate contributions is received by the employing agency during an open season, the employee, if otherwise eligible, may make an election to resume contributions during the next open season. If the election to terminate contributions is received by the employing agency outside an open season, the employee may not make an election to resume contributions until the second open season beginning after the election to terminate.</P> <P>(d) <E T="03">Forced termination of employee contributions due to in-service hardship withdrawal restrictions under 5 CFR part 1650.</E> If an employee is reappointed to a position covered by FERS or CSRS following a separation from Government service and, at the time of separation, <PRTPAGE P="177"/>he or she had been previously ineligible to make employee contributions or receive agency matching contributions because of the restrictions on participants' ability to make contributions after having received an in-service hardship distribution, described in 5 CFR part 1650, the employee continues to be ineligible to make employee contributions or have agency matching contributions made on the employee's behalf during the six-month period described at 5 CFR 1650.32.</P> </SECTION> <SECTION> <SECTNO>§ 1600.13</SECTNO> <SUBJECT>Effective dates of contribution elections.</SUBJECT> <P>(a) <E T="03">Participation upon initial appointment or reappointment.</E> (1) TSP contribution elections made pursuant to § 1600.12(a)(1) that are received by the employing agency between May 15, 2001, and June 30, 2001, will become effective the first full pay period in July 2001. TSP contribution elections made pursuant to § 1600.12(a)(1) that are received by the employing agency during July 2001 will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(2) TSP contribution elections made pursuant to § 1600.12(a)(2) will become effective no later than the first full pay period after the election is received by the employing agency.</P> <P>(b) <E T="03">Open season elections.</E> TSP contribution elections made pursuant to § 1600.12(b) that are received by an employing agency during a portion of an open season which precedes the election period, except for an election to terminate contributions, will become effective the first full pay period of the election period. TSP contribution elections made pursuant to § 1600.12(b) that are received by an employing agency during the election period will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(c) <E T="03">Election to terminate contributions.</E> An election to terminate contributions, whenever it is made, will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(d) <E T="03">Elections resulting from transfer to FERS.</E> Elections made pursuant to § 1600.18 will become effective no later than the first full pay period after the date the employing agency receives the election. If the employee submits a contribution election at the same time that he or she submits the FERS transfer election, both elections will become effective the same pay period.</P> </SECTION> <SECTION> <SECTNO>§ 1600.14</SECTNO> <SUBJECT>Method of election.</SUBJECT> <P>(a) A participant must submit a contribution election to his or her employing agency. Employees may use either the paper TSP election form, Form TSP-1, or, if provided by their employing agency, electronic media to make an election. If an electronic medium is used, all relevant elements contained on the paper Form TSP-1 must be included in the electronic medium.</P> <P>(b) A contribution election must:</P> <P>(1) Be completed in accordance with the instructions on Form TSP-1, if a paper form is used;</P> <P>(2) Be made in accordance with the employing agency's instructions, if the submission is made electronically; and</P> <P>(3) Not exceed the maximum contribution limitations described in § 1600.22.</P> </SECTION> <SECTION> <SECTNO>§ 1600.15</SECTNO> <SUBJECT>Number of elections.</SUBJECT> <P>Once a contribution election made during an open season becomes effective, no further contribution elections may be made during the same open season, except an election to terminate contributions.</P> </SECTION> <SECTION> <SECTNO>§ 1600.16</SECTNO> <SUBJECT>Belated elections.</SUBJECT> <P>When an employing agency determines that an employee was unable, for reasons that were beyond the employee's control (other than agency administrative error, as provided in 5 CFR part 1605), to make a contribution election within the time limits prescribed by this part, the agency may accept the employee's election within 30 calendar days after it advises the employee of its determination. The election will become effective no later than the first full pay period after the date the employing agency receives the election.</P> </SECTION> <SECTION> <PRTPAGE P="178"/> <SECTNO>§ 1600.17</SECTNO> <SUBJECT>Timing of agency contributions.</SUBJECT> <P>(a) <E T="03">Employees not previously eligible to receive agency contributions.</E> An employee appointed or reappointed to a position covered by FERS who had not been previously eligible to receive agency contributions is eligible to receive agency contributions the full second election period following the effective date of the appointment. If an employee is appointed during an election period, that election period is not counted as the first election period.</P> <P>(b) <E T="03">Employees previously eligible to receive agency contributions.</E> An employee reappointed to a position covered by FERS who was previously eligible to receive agency contributions is immediately eligible to receive agency contributions.</P> <P>(c) Agency matching contributions that are attributable to the employee contributions made to the account of a FERS participant must change or terminate, as applicable, when the employee's contribution election becomes effective.</P> </SECTION> <SECTION> <SECTNO>§ 1600.18</SECTNO> <SUBJECT>Effect of transfer to FERS.</SUBJECT> <P>(a) If an employee appointed to a position covered by CSRS elects to transfer to FERS, the employee may make a contribution election simultaneously with the election to transfer to FERS, or within 30 calendar days after the effective date of his or her transfer.</P> <P>(b) Eligibility to make employee contributions, and therefore to have agency matching contributions made on the employee's behalf, is subject to the restrictions on making employee contributions after receipt of a financial hardship in-service withdrawal described at 5 CFR part 1650.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Program of Contributions</HD> <SECTION> <SECTNO>§ 1600.21</SECTNO> <SUBJECT>Contributions in whole numbers.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1600.22</SECTNO> <SUBJECT>Maximum contributions.</SUBJECT> <P>(a) <E T="03">Percentage of basic pay.</E> (1) Subject to paragraphs (b) and (c) of this section, the maximum FERS employee contribution for 2001 is 11 percent of basic pay per pay period. The maximum contribution will increase one percent a year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraphs (b) and (c) of this section.</P> <P>(2) Subject to paragraphs (b) and (c) of this section, the maximum CSRS employee contribution for 2001 is 6 percent of basic pay per pay period. The maximum contribution will increase one percent a year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraphs (b) and (c) of this section.</P> <P>(b) <E T="03">Internal Revenue Code (I.R.C.) limit on elective deferrals.</E> Section 402(g) of the I.R.C. (26 U.S.C. 402(g)) places a limit on the amount an employee may save on a tax-deferred basis through the TSP. Employee contributions to the TSP will be restricted to the I.R.C. limit; the TSP will not accept any contribution that exceeds the I.R.C. section 402(g) limit. If a participant contributes to the TSP and another plan, and the combined contributions exceed the I.R.C. section 402(g) limit, he or she may request a refund of employee contributions from the TSP to conform with the limit.</P> <P>(c) <E T="03">I.R.C. limit on contributions to qualified plans.</E> Section 415(c) of the I.R.C. (26 U.S.C. 415(c)) also places a limit on the amount an employee may save on a tax-deferred basis through the TSP. Employee contributions, described in this section, and employer contributions, described in § 1600.17, <PRTPAGE P="179"/>made to the TSP will be restricted to the I.R.C. section 415(c) limit. No employee contribution may be made to the TSP for any year to the extent that the sum of the employee contributions and the employer contributions for that year would exceed the I.R.C. section 415(c) limit.</P> </SECTION> <SECTION> <SECTNO>§ 1600.23</SECTNO> <SUBJECT>Required reduction of contribution rates.</SUBJECT> <P>(a) The employing agency will reduce the contribution of any FERS or CSRS employee who has elected a whole dollar amount but whose elected contribution for any pay period exceeds any of the applicable maximum percentages set forth in § 1600.22. The employing agency will reduce the whole dollar amount to the highest whole dollar amount that does not exceed the applicable maximum percentage.</P> <P>(b) An employing agency will not contribute to a participant's TSP account any amounts in excess of the limits referred to in § 1600.22(b) or (c).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Transfers From Other Qualified Retirement Plans</HD> <SECTION> <SECTNO>§ 1600.31</SECTNO> <SUBJECT>Accounts eligible for transfer.</SUBJECT> <P>Effective July 1, 2001, participants may transfer funds in the following types of accounts into their existing TSP accounts. This option is not available to participants who have already made a full withdrawal of their account or who are receiving monthly payments.</P> <P>(a) <E T="03">Qualified retirement plan.</E> For the purposes of this part, a qualified retirement plan is a qualified trust, described in section 401(a) of the I.R.C. (26 U.S.C. 401(a)), which is exempt from taxation under I.R.C. section 501(a) (26 U.S.C. 501(a)), or an annuity plan, described in section 403(a) of the I.R.C. (26 U.S.C. 403(a)).</P> <P>(b) <E T="03">Conduit individual retirement account</E> (conduit IRA). For the purposes of this part, a conduit IRA is an individual retirement account, described in I.R.C. section 408(a) (26 U.S.C. 408(a)), or an individual retirement annuity, described in I.R.C. section 408(b) (26 U.S.C. 408(b)), that contains only funds transferred or rolled over from a qualified retirement plan (and earnings on those amounts).</P> <P>(c) <E T="03">Eligible rollover distribution.</E> In order to be eligible for transfer to the TSP, distributions from accounts that qualify under either paragraph (a) or (b) of this section must also be eligible rollover distributions pursuant to I.R.C. section 402(c)(4) (26 U.S.C. 402(c)(4)).</P> </SECTION> <SECTION> <SECTNO>§ 1600.32</SECTNO> <SUBJECT>Methods for transferring account from qualified retirement plan or conduit IRA to TSP.</SUBJECT> <P>(a) <E T="03">Trustee to trustee transfer.</E> Participants may request that the administrator of their qualified retirement plan or the custodian of their conduit IRA transfer any or all of their account directly to the TSP by completing and submitting a Form TSP-60, Request for a Rollover into the TSP, to the administrator or custodian and requesting that the transaction be completed.</P> <P>(b) <E T="03">Rollover by participant.</E> Participants who have already received a distribution from their plan or conduit IRA may roll over all or part of the distribution into the TSP in accordance with the following requirements:</P> <P>(1) The participant must complete a Form TSP-60, Request for a Rollover into the TSP.</P> <P>(2) The administrator of the qualified retirement plan or the custodian of the conduit IRA must certify on the TSP transfer form the amount and date of the distribution, and that the distribution is an eligible rollover distribution in accordance with I.R.C. section 402(c)(4) (26 U.S.C. 402(c)(4)).</P> <P>(3) The participant must submit the completed Form TSP-60, together with a certified check, cashier's check, cashier's draft, money order, or treasurer's check from a credit union, made out to the Thrift Savings Plan for the entire amount of the rollover. 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.</P> <P>(4) The transaction must be completed within 60 days of the participant's receipt of the distribution from the retirement plan or conduit IRA. The transaction is not complete until the TSP recordkeeper receives the <PRTPAGE P="180"/>Form TSP-60, executed by both the participant and plan administrator or IRA custodian, together with the guaranteed funds for the amount to be rolled over.</P> </SECTION> <SECTION> <SECTNO>§ 1600.33</SECTNO> <SUBJECT>Treatment accorded transferred funds.</SUBJECT> <P>(a) All funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 will be treated as employee contributions.</P> <P>(b) All funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 will be invested in accordance with the participant's contribution allocation on file at the time the transfer is completed.</P> <P>(c) Funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 are not subject to the limits on contributions described in § 1600.22.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1601</EAR> <HD SOURCE="HED">PART 1601—PARTICIPANTS' CHOICES OF INVESTMENT FUNDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1601.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Investing Future Contributions and Loan Payments</HD> <SECTNO>1601.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.12</SECTNO> <SUBJECT>Investing future contributions and loan payments in the TSP investment funds.</SUBJECT> <SECTNO>1601.13</SECTNO> <SUBJECT>Elections.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Redistributing Participants' Existing Account Balances</HD> <SECTNO>1601.21</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.22</SECTNO> <SUBJECT>Methods of requesting an interfund transfer.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Contribution Allocations and Interfund Transfer Requests</HD> <SECTNO>1601.31</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.32</SECTNO> <SUBJECT>Timing and posting dates.</SUBJECT> <SECTNO>1601.33</SECTNO> <SUBJECT>Acknowledgment of risk.</SUBJECT> <SECTNO>1601.34</SECTNO> <SUBJECT>Effectiveness of Form TSP-50.</SUBJECT> <SECTNO>1601.35</SECTNO> <SUBJECT>Posting of transaction requests.</SUBJECT> <SECTNO>1601.36</SECTNO> <SUBJECT>Error correction.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8438, 7474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 22093, May 2, 2001, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1601.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Account balance</E> means the sum of the dollar balances for each source of contributions in each investment fund for an individual account.</P> <P> <E T="03">Acknowledgment of risk</E> means an acknowledgment that any investment in the F Fund, C Fund, S Fund, or I 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.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">Contribution allocation</E> means the apportionment of a participant's future contributions and loan payments among the TSP investment funds.</P> <P> <E T="03">Day</E> means calendar day, unless otherwise stated.</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">I Fund</E> means the International Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(E).</P> <P> <E T="03">Interfund transfer</E> means the reapportionment, under this part, of a participant's existing account balance among the various TSP investment funds.</P> <P> <E T="03">Investment fund</E> means any investment fund authorized under 5 U.S.C. 8438.</P> <P> <E T="03">S Fund</E> means the Small Capitalization Stock Index Fund established under 5 U.S.C. 8438(b)(1)(D).</P> <P> <E T="03">Source of contributions</E> means employee contributions, agency automatic (1%) contributions, or agency matching contributions.</P> <P> <E T="03">ThriftLine</E> means the automated voice response system by which TSP participants may, among other things, <PRTPAGE P="181"/>access their accounts by telephone. The ThriftLine can be reached at (504) 255-8777.</P> <P> <E T="03">TSP recordkeeper</E> means the entity that is engaged by the Board to perform recordkeeping services for the Thrift Savings Plan. The TSP recordkeeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <P> <E T="03">TSP Web site</E> means the Internet location maintained by the Board, which contains information about the TSP and by which TSP participants may, among other things, access their accounts by computer. The TSP Web site address is http://www.tsp.gov.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Investing Future Contributions and Loan Payments</HD> <SECTION> <SECTNO>§ 1601.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies only to the investment of future contributions and loan payments in the TSP's investment funds; it does not apply to redistributing participants' existing account balances among the investment funds, which is covered in subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.12</SECTNO> <SUBJECT>Investing future contributions and loan payments in the TSP investment funds.</SUBJECT> <P>(a) <E T="03">Transition rule.</E> Effective May 1, 2001, contributions and loan payments will be allocated among the investment funds based on the allocation of the most recent contribution posted to the account between March 15, 2001, and April 30, 2001. If no contributions have been posted to an account between March 15, 2001, and April 30, 2001, the allocation will be based on the allocation shown on an interfund transfer request pending for April 30, 2001. If there is no interfund transfer pending for April 30, 2001, the allocation will be based on the allocation of the account as of the March 31, 2001, account balance. If the March 31, 2001, account balance is zero, the contributions and loan payments will be allocated 100% to the G Fund. The allocation derived under this section will be applied to all contributions and loan payments posted as of a date after April 30, 2001, until a new contribution allocation is made by the participant pursuant to § 1600.12.</P> <P>(b) <E T="03">Investment fund availability.</E> Effective May 1, 2001, all participants may elect to invest all or any portion of their future contributions and loan payments in any of the TSP's five investment funds.</P> </SECTION> <SECTION> <SECTNO>§ 1601.13</SECTNO> <SUBJECT>Elections.</SUBJECT> <P>(a) <E T="03">Contribution allocation.</E> Effective May 1, 2001, each participant may indicate his or her choice of investment funds for the allocation of future contributions and loan payments by using the TSP Web site or the ThriftLine, or completing Form TSP-50, Investment Allocation. The following rules apply to contribution allocations:</P> <P>(1) Contribution allocations must be made in one percent increments. The sum of the percentages elected for all of the investment funds must equal 100%;</P> <P>(2) The percentage elected by a participant for investment of future contributions in an investment fund will be applied to all sources of contributions and loan payments. A participant may not make different percentage elections for different sources of contributions or for loan payments;</P> <P>(3) A participant who elects for the first time to invest contributions and loan payments in the F Fund, C Fund, S Fund, or I Fund must execute an acknowledgment of risk in accordance with § 1601.33;</P> <P>(4) All contributions and loan payments made on behalf of a participant who does not have a contribution allocation in effect will be invested in the G Fund;</P> <P>(5) Once a contribution allocation becomes effective, it remains in effect until it is superseded by a subsequent contribution allocation. If a separated participant is rehired, his or her last contribution allocation before separation from service will be given effect until a new allocation is made.</P> <P>(b) <E T="03">Effect of rejection of form.</E> If a Form TSP-50 is rejected, the purported contribution allocation made on the form will have no effect. The TSP will provide the participant with a written statement of the reason the form was rejected.<PRTPAGE P="182"/> </P> <P>(c) <E T="03">Contribution elections.</E> A participant may designate the amount of employee contributions he or she wishes to make to the TSP or may stop contributions only in accordance with 5 CFR part 1600.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Redistributing Participants' Existing Account Balances</HD> <SECTION> <SECTNO>§ 1601.21</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies only to redistributing participants' existing account balances among the TSP's investment funds; it does not apply to the investment of future contributions and loan payments, which is covered in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.22</SECTNO> <SUBJECT>Methods of requesting an interfund transfer.</SUBJECT> <P>(a) Effective May 1, 2001, participants may make an interfund transfer using the TSP Web site or the ThriftLine, or by completing a Form TSP-50, Investment Allocation. The following rules apply to an interfund transfer request:</P> <P>(1) Interfund transfer requests must be made in one percent increments. The sum of the percentages elected for all of the investment funds must equal 100%;</P> <P>(2) The percentages elected by the participant will be applied to the balances from each source of contributions that make up the participant's total account balance on the effective date of the interfund transfer;</P> <P>(3) Any participant who elects to invest in the F Fund, C Fund, S Fund, or I Fund for the first time must execute an acknowledgment of risk in accordance with § 1601.33.</P> <P>(b) An interfund transfer request has no effect on contributions and loan payments made after the effective date of the interfund transfer request; subsequent contributions and loan payments will continue to be allocated among the investment funds in accordance with the participant's contribution allocation made under subpart B of this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Contribution Allocations and Interfund TransferRequests</HD> <SECTION> <SECTNO>§ 1601.31</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies both to contribution allocations made under subpart B of this part and interfund transfers made under subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.32</SECTNO> <SUBJECT>Timing and posting dates.</SUBJECT> <P>(a) <E T="03">Posting dates.</E> (1) A contribution allocation will ordinarily be posted within 2 business days after it is received.</P> <P>(2) An interfund transfer request received by midnight (central time) on the 15th of the month will be posted to a participant's account as of the last day of the month. (If the 15th of the months falls on a weekend, holiday, or other nonbusiness day, the deadline will be the next business day.) Requests received after the deadline will be posted to a participant's account as of the last day of the following month.</P> <P>(b) <E T="03">Limit.</E> There is no limit on the number of contribution allocations or interfund transfer requests that may be made by a participant; however, only one interfund transfer will be processed per month.</P> <P>(c) <E T="03">Multiple contribution allocations or interfund transfer requests.</E> (1) If two or more contribution allocations or two or more interfund transfer requests with different dates are received for a participant and would be posted on the same day under the rules set forth in paragraph (a) of this section, only the last contribution allocation or interfund transfer request with the latest date will be posted.</P> <P>(2) If two or more contribution allocations or two or more interfund transfer requests with the same date are received for a participant and would be posted on the same day, the following rules will apply:</P> <P>(i) If one or more of the contribution allocations or interfund transfer requests are submitted through the TSP Web site or the ThriftLine and one or more are made on a Form TSP-50 and would be posted on the same day, only the latest contribution allocation or interfund transfer request made <PRTPAGE P="183"/>through the TSP Web site or the ThriftLine will be posted;</P> <P>(ii) If one or more of the contribution allocations or interfund transfer requests are made through the TSP Web site or the ThriftLine, only the contribution allocation or interfund transfer request entered at the latest time will be posted; and</P> <P>(iii) If the contribution allocations or interfund transfer requests are submitted using Form TSP-50, all of the forms will be rejected unless the percentage allocations among the investment funds are identical, in which case one will be accepted.</P> <P>(3) For purposes of determining the date and time of a contribution allocation or an interfund transfer request, the following rules apply:</P> <P>(i) The date of a contribution allocation or interfund transfer request made through the TSP Web site or the ThriftLine, is the date the participant enters the investment percentages;</P> <P>(ii) The date of a contribution allocation or interfund transfer request made on Form TSP-50 is the date the form is signed by the participant; and</P> <P>(iii) Central time is used for determining the date and time on which a transaction is entered and confirmed through the TSP Web site or the ThriftLine.</P> <P>(d) <E T="03">Cancellation of contribution allocation or interfund transfer request.</E> (1) A contribution allocation or an interfund transfer request may be canceled only through the TSP Web site, the ThriftLine, or through written correspondence.</P> <P>(2) <E T="03">Cancellation on the TSP Web site or ThriftLine.</E> A contribution allocation or an interfund transfer request may be canceled by entering the cancellation on the TSP Web site or the ThriftLine only up to the deadline, described in paragraph (a) of this section, that is applicable to the original request. If a change or cancellation is received after the deadline, the original request will be processed as scheduled. The second request will then be processed in turn.</P> <P>(3) <E T="03">Cancellation by correspondence.</E> A participant may also cancel a contribution allocation or an interfund transfer request by submitting a letter to the TSP recordkeeper requesting cancellation. To be accepted, the cancellation letter must be signed and dated and must contain the participant's name, Social Security number, and date of birth. To be effective, the cancellation must be received by the deadline described in paragraph (a) of this section. Unless the letter states unambiguously the specific contribution allocation or interfund transfer request it seeks to cancel, the written cancellation will apply to any contribution allocation or interfund transfer request with a date (as determined under paragraph (c)(3) of this section) before the date of the cancellation letter. If the date of a cancellation letter is the same as the date of a contribution allocation or an interfund transfer request and the request was made on Form TSP-50, the form will be canceled. If the request was made on the TSP Web site or ThriftLine, it will only be canceled if the written cancellation specifies the date of the TSP Web site or ThriftLine request to be canceled.</P> </SECTION> <SECTION> <SECTNO>§ 1601.33</SECTNO> <SUBJECT>Acknowledgment of risk.</SUBJECT> <P>(a) A participant who wants to invest in any investment fund other than the G Fund must execute an acknowledgment of risk for that 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.</P> <P>(b) The acknowledgment of risk may be executed in association with a contribution allocation or an interfund transfer using the TSP Web site, the ThriftLine, or Form TSP-50.</P> </SECTION> <SECTION> <SECTNO>§ 1601.34</SECTNO> <SUBJECT>Effectiveness of Form TSP-50.</SUBJECT> <P>(a) A Form TSP-50 will not be effective if:</P> <P>(1) It is not signed and dated;</P> <P>(2) It is missing a Social Security number or date of birth;</P> <P>(3) The contribution allocation or interfund transfer percentages do not total 100%; or</P> <P>(4) The form is otherwise not properly completed in accordance with the instructions on the form.</P> <P>(b) If a Form TSP-50 is rejected, the TSP will provide the participant with a written statement of the reason the form was rejected.</P> </SECTION> <SECTION> <PRTPAGE P="184"/> <SECTNO>§ 1601.35</SECTNO> <SUBJECT>Posting of transaction requests.</SUBJECT> <P>The Board fully expects to meet the standards of § 1601.32. However, the Board cannot and does not guarantee that the TSP Web site or the ThriftLine will always be available to accept and process transaction requests.</P> </SECTION> <SECTION> <SECTNO>§ 1601.36</SECTNO> <SUBJECT>Error correction.</SUBJECT> <P>Errors in processing contribution allocations and interfund 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1603</EAR> <HD SOURCE="HED">PART 1603—VESTING</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1603.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1603.2</SECTNO> <SUBJECT>Basic vesting rules.</SUBJECT> <SECTNO>1603.3</SECTNO> <SUBJECT>Service requirements.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8432(g), 8432b(h)(1), 8474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 29835, Aug. 12, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1603.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Terms used in this part shall have the following meaning:</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1);</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, and any equivalent Federal Government retirement plan;</P> <P> <E T="03">CSRS employee</E> means any employee, Member, or participant covered by CSRS, including employees authorized to contribute to the Thrift Savings Plan under 5 U.S.C. 8351, or 5 U.S.C. 8440a to 8440d;</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, and any equivalent Federal Government retirement plan;</P> <P> <E T="03">FERS employee</E> means an employee, Member, or participant covered by FERS;</P> <P> <E T="03">First conversion contributions</E> refers to the retroactive agency contributions, including interest on these contributions, made under 5 U.S.C. 8432(c)(3)(C) to the TSP accounts of employees who were automatically converted to the Federal Employees’ Retirement System on January 1, 1987;</P> <P> <E T="03">Individual account</E> means the total of all sums contributed to the Thrift Savings Plan by or on behalf of a CSRS employee or FERS employee, plus earnings allocated to the employee's account under 5 CFR part 1645;</P> <P> <E T="03">Separation date</E> means the effective date of an employee's separation from Government service;</P> <P> <E T="03">Separation from Government service</E> has the same meaning as provided in 5 CFR 1650.3;</P> <P> <E T="03">Service</E> means:</P> <P>(1) Any non-military service that is creditable under either 5 U.S.C. chapter 83, subchapter III, or 5 U.S.C. 8411, provided however, that such 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</P> <P>(2) Any military service creditable under the provisions of 5 U.S.C. 8432b(h)(1) and the regulations issued at 5 CFR part 1620, subpart H;</P> <P> <E T="03">Vested</E> means those amounts in an individual account which are nonforfeitable; and</P> <P> <E T="03">Year of service</E> means one full calendar year of service.</P> <CITA>[62 FR 33968, June 23, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1603.2</SECTNO> <SUBJECT>Basic vesting rules.</SUBJECT> <P>(a) All amounts in a CSRS employee's individual account are immediately vested.</P> <P>(b) Except as provided in paragraph (c) of this section, all amounts in a FERS employee's individual account (including all first conversion contributions) are immediately vested.</P> <P>(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 agency automatic (1%) contributions and attributable earnings will be forfeited.<PRTPAGE P="185"/> </P> <P>(d) If a FERS employee 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.</P> <CITA>[52 FR 29835, Aug. 12, 1987, as amended at 62 FR 33969, June 23, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1603.3</SECTNO> <SUBJECT>Service requirements.</SUBJECT> <P>(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 service.</P> <P>(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 service and they are serving in one of the following positions:</P> <P>(1) A position in the Senior Executive Service as a non-career appointee (as defined in 5 U.S.C. 3132(a)(7));</P> <P>(2) Positions listed in 5 U.S.C. 5312, 5313, 5314, 5315 or 5316;</P> <P>(3) A position placed in level IV or level V of the Executive Schedule, pursuant to 5 U.S.C. 5317;</P> <P>(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</P> <P>(5) A Member of Congress or a Congressional employee.</P> <CITA>[52 FR 29835, Aug. 12, 1987, as amended at 60 FR 24535, May 9, 1995; 62 FR 33969, June 23, 1997]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1604</EAR> <HD SOURCE="HED">PART 1604—UNIFORMED SERVICES ACCOUNTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1604.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1604.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1604.3</SECTNO> <SUBJECT>Contribution elections.</SUBJECT> <SECTNO>1604.4</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1604.5</SECTNO> <SUBJECT>Separate service member and civilian accounts.</SUBJECT> <SECTNO>1604.6</SECTNO> <SUBJECT>Error correction.</SUBJECT> <SECTNO>1604.7</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <SECTNO>1604.8</SECTNO> <SUBJECT>Death benefits.</SUBJECT> <SECTNO>1604.9</SECTNO> <SUBJECT>Court orders and legal processes.</SUBJECT> <SECTNO>1604.10</SECTNO> <SUBJECT>Loans.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474(b)(5) and (c)(1); sec. 661(b), Pub. L. 106-65, 113 Stat. 512, 672 (5 U.S.C. 8440e).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 50713, Oct. 4, 2001, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1604.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This part describes the special features of TSP participation applicable to members of the uniformed services. Uniformed services members are also covered by the other regulations of 5 CFR chapter VI to the extent they do not conflict with the regulations of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1604.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Basic pay</E> means basic pay payable under 37 U.S.C. 204 and compensation received under 37 U.S.C. 206.</P> <P> <E T="03">Bonus contributions</E> means contributions made by participants from a bonus as defined in 37 U.S.C. chapter 5.</P> <P> <E T="03">Civilian account</E> means the TSP account to which contributions have been made by or on behalf of a civilian employee.</P> <P> <E T="03">Civilian employee</E> means a TSP participant covered by the Federal Employees' Retirement System, the Civil Service Retirement System, or equivalent retirement plans.</P> <P> <E T="03">Combat zone compensation</E> means compensation received for active service during a month in which a member of the uniformed services serves in a combat zone.</P> <P> <E T="03">Combat zone contributions</E> means employee contributions that are made <PRTPAGE P="186"/>from compensation subject to the Federal income tax exclusion at 26 U.S.C. 112 for combat zone compensation.</P> <P> <E T="03">Eligible retirement plan</E> means a plan defined at 26 U.S.C. 402(c)(8). Generally, an eligible retirement plan is an individual retirement account (IRA) or an individual retirement annuity (other than an endowment contract); a qualified pension, profit sharing, or stock bonus plan; an annuity plan described in 26 U.S.C. 403(a); an annuity contract described in 26 U.S.C. 403(b); or an eligible deferred compensation plan described in 26 U.S.C. 457(b). The IRA or other eligible retirement plan to which a payment from the TSP can be transferred must be a trust established inside the United States (<E T="03">i.e.,</E> the 50 states and the District of Columbia).</P> <P> <E T="03">Employee contributions</E> means contributions made by participants from basic pay, incentive pay, and special pay (including bonuses).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual who is eligible to contribute to the TSP and that has authority to make compensation decisions for that employee.</P> <P> <E T="03">Federal civilian retirement system</E> 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.</P> <P> <E T="03">Periodic contributions</E> means employee contributions made from recurring incentive pay and special pay (including bonuses) as defined in 37 U.S.C. chapter 5.</P> <P> <E T="03">Ready Reserve</E> means those members of the uniformed services described at 10 U.S.C. 10142.</P> <P> <E T="03">Regular contributions</E> means employee contributions made from basic pay.</P> <P> <E T="03">Separation from service</E> means discharge of a member from active duty or the Ready Reserve or transfer of a member to inactive status or to a retired list pursuant to any provision of title 10, U.S.C. 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.</P> <P> <E T="03">Service member</E> means a member of the uniformed services on active duty or a member of the Ready Reserve in any pay status.</P> <P> <E T="03">Service member account</E> means the account to which contributions have been made by or on behalf of a member of the uniformed services.</P> <P> <E T="03">Special and incentive pay</E> means pay payable as special or incentive pay under 37 U.S.C. chapter 5.</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <P> <E T="03">Uniformed services</E> means the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service, and the National Oceanic and Atmospheric Administration.</P> </SECTION> <SECTION> <SECTNO>§ 1604.3</SECTNO> <SUBJECT>Contribution elections.</SUBJECT> <P>A service member may make contribution elections as described in 5 CFR part 1600, with the following exceptions:</P> <P>(a) <E T="03">Initial uniformed services open season.</E> A service member may make a contribution election during an initial uniformed services TSP open season beginning October 9, 2001, and ending January 31, 2002. Contributions based on an election made on or before December 31, 2001, will be deducted from pay the first full pay period of January 2002; elections made in January 2002 will be effective during the first full pay period after the election is received.</P> <P>(b) <E T="03">New service members.</E> An individual who is appointed as a service member may make a TSP contribution election <PRTPAGE P="187"/>within 60 days after the effective date of the appointment; contributions based on such an election will be made during the first full pay period after the election is received.</P> <P>(c) <E T="03">Conversion between active duty and Ready Reserve status.</E> A service member who converts from Ready Reserve status to active duty status (for more than 30 days), or who converts from active duty to Ready Reserve status, may make a TSP contribution election within 60 days after the effective date of the conversion; contributions based on such an election will be made during the first full pay period after it is received.</P> <P>(d) <E T="03">TSP open season elections.</E> In addition to being able to make a contribution election during the periods described in paragraphs (a) through (c) of this section, as applicable, a service member may make a contribution election during any TSP open season thereafter (as described at 5 CFR part 1600, subpart B).</P> <P>(e) <E T="03">Source of contributions.</E> A service member may elect to contribute sums to the TSP from basic pay, incentive pay, and special pay (including bonuses). However, the service member must be contributing to the TSP from basic pay in order to contribute to the TSP from incentive pay and special pay (including bonuses). Except for an election to contribute from bonuses, all contribution elections must be made during one of the periods described in paragraphs (a) through (d) of this section. A 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 pay or incentive pay when the contribution election is made); those elections will take effect when the service member receives the special or incentive pay.</P> </SECTION> <SECTION> <SECTNO>§ 1604.4</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>(a) <E T="03">Employee contributions.</E> Subject to the regulations at 5 CFR part 1600 and the following limitations, a service member may make regular contributions to the TSP from basic pay. If the service member makes regular contributions, he or she also may contribute all or a portion of incentive pay and special pay (including bonuses) to the TSP:</P> <P>(1) <E T="03">Temporary percentage limitations.</E> Subject to paragraph (a)(2) of this section, the maximum service member TSP regular employee contribution (including combat zone contributions) for 2002 is 7 percent of basic pay per pay period. The maximum contribution will increase one percentage point each year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraph (a)(2) of this section.</P> <P>(2) <E T="03">Internal Revenue Code limitations.</E> The dollar amount of TSP employee contributions is limited by two different provisions of the Internal Revenue Code (I.R.C.). If a service member's employee contributions exceed either of these limitations, the service member may request a refund of employee contributions (and associated earnings) from the TSP on the form titled “Request for Return of Excess Employee Contributions to Participant,” which can be obtained from the TSP record keeper. The completed form must be returned to the TSP record keeper by February 20 of the year after the excess contributions were made.</P> <P>(i) <E T="03">Limit on elective deferrals.</E> Section 402(g) of the I.R.C. (26 U.S.C. 402(g)) places a dollar limit on the amount a person may save on a tax-deferred basis through retirement savings plans. (For 2002, the limit is $11,000. The limit will increase each year by $1,000 until it reaches $15,000 in 2006; thereafter, it will be periodically adjusted by the Internal Revenue Service (IRS).) The TSP will not accept any employee contributions that exceed the I.R.C. section 402(g) limit. If a service member contributes to a civilian TSP account or to another qualified employer plan described at I.R.C. sections 401(k), 403(b), or 408(k) (26 U.S.C. 401(k), 403(b), or 408(k)), and the total employee contributions from taxable income made to all plans exceed the I.R.C. section 402(g) limit, he or she may request a refund of employee contributions from the TSP to conform with the limit. (Combat zone contributions are not taken into consideration when determining the application of the I.R.C. section 402(g) limit.)<PRTPAGE P="188"/> </P> <P>(ii) <E T="03">Limit on contributions to qualified plans.</E> Section 415(c) of the I.R.C. (26 U.S.C. 415(c)) also places an annual limit on the combined amount that can be contributed to the TSP and to other Federal civilian retirement systems (as defined in § 1604.2). (The limit is periodically adjusted by the IRS; it is the lesser of 100 percent of compensation or $40,000 in 2002.) For purposes of applying this limit, compensation includes combat zone compensation. In implementation of this law, no employee contribution may be made to the TSP for any year to the extent that the sum of the employee's contributions to the TSP and to a Federal civilian retirement system, when added to the employer's contributions to the TSP for that year, would exceed the I.R.C. section 415(c) limit. (If a service member contributes to a civilian TSP account and to a service member TSP account in a single calendar year, the annual limit on contributions will be derived from the participant's combined service member and civilian compensation.) Combat zone contributions are taken into consideration when determining the application of the I.R.C. section 415(c) limit.</P> <P>(b) <E T="03">Matching contributions.</E> When matching contributions are authorized for a service member, that service member's regular contributions will be matched dollar-for-dollar on the first three percent of basic pay contributed to the TSP, and 50 cents on the dollar on the next two percent of basic pay contributed. Matching contributions only apply to regular contributions. Matching contributions are not taken into consideration when determining the application of the contribution limit found at I.R.C. section 402(g)(described in paragraph (a)(2)(i) of this section), but they are taken into consideration when determining the application of the contribution limit found at I.R.C. section 415 (described in paragraph (a)(2)(ii) of this section).</P> <P>(c) <E T="03">Deduction and transmittal of contributions.</E> A service member's employing agency will deduct regular contributions from the service member's basic pay each pay period based on his or her contribution election and will transmit the contributions to the TSP. If a service member also elects to make periodic contributions to the TSP, the employing agency must deduct (and transmit to the TSP) these contributions from the service member's incentive pay or special pay (including bonuses), as applicable.</P> </SECTION> <SECTION> <SECTNO>§ 1604.5</SECTNO> <SUBJECT>Separate service member and civilian accounts.</SUBJECT> <P>(a) <E T="03">Separate accounts.</E> Service member accounts are maintained separately from civilian accounts. Therefore, service members making both civilian and uniformed services TSP contributions will have two TSP accounts. For those participants, the accounts are treated separately except in the following circumstances:</P> <P>(1) If a participant contributes to a service member account and a civilian account, the contributions to both accounts together cannot exceed the Internal Revenue Code contribution limits described in § 1604.4(a)(2).</P> <P>(2) A member of the uniformed services may obtain a loan from his or her account, as described at § 1604.10, and the loan will be disbursed from the uniformed services account. If the TSP maintains a service member account and a civilian account for an individual, the TSP will calculate the Internal Revenue Code maximum loan amount using both account balances, as described in § 1604.10(a)(3).</P> <P>(b) <E T="03">Transfers between TSP accounts.</E> Service member and civilian TSP account balances may be combined through a transfer (thus producing one account), and the transferred funds will be treated as employee contributions and otherwise invested as described at 5 CFR part 1600. Transfers under this section are subject to the following rules:</P> <P>(1) An account balance can be transferred once the TSP is informed (by the participant's employing agency) that the participant has separated from either civilian or uniformed services employment.</P> <P>(2) Combat zone contributions may not be transferred from a uniformed services TSP account to a civilian TSP account.</P> <P>(3) Transferred funds will be allocated among the TSP's investment <PRTPAGE P="189"/>funds according to the contribution allocation in effect for the gaining account.</P> <P>(4) A service member must obtain the consent of his or her spouse before transferring a uniformed services TSP account balance into a civilian account that is subject to Civil Service Retirement System spousal rights. A request for an exception to the spousal consent requirement will be evaluated under the rules explained in 5 CFR part 1650.</P> <P>(5) Before the transfer can be accomplished, any outstanding loans from the account to be transferred must be closed as described in 5 CFR part 1655.</P> </SECTION> <SECTION> <SECTNO>§ 1604.6</SECTNO> <SUBJECT>Error correction.</SUBJECT> <P>(a) <E T="03">General rule.</E> A service member's employing agency must correct the service member's account if, as the result of employing agency error, a service member does not receive the TSP contributions to which he or she is entitled. Except as provided in paragraph (b) of this section, those corrections must be made in accordance with 5 CFR part 1605.</P> <P>(b) <E T="03">Missed bonus contributions.</E> This paragraph (b) applies when an employing agency fails to implement a contribution election that was properly submitted by a 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 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 service member is otherwise entitled to make.</P> <P>(1) The schedule of makeup contributions may not exceed four times the number of months it would take for the service member to earn basic pay equal to the dollar amount of the missed contribution. For example, a 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 service member 2 months to earn $2,500 in basic pay (at $2,416.67 per month).</P> <P>(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 service member to earn basic pay equal to the dollar amount of the missed contribution.</P> </SECTION> <SECTION> <SECTNO>§ 1604.7</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <P>A service member may withdraw all or a portion of his or her account under the rules in 5 CFR part 1650, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> If the TSP maintains a service member account and a civilian account for an individual, a separate withdrawal request must be made for each account.</P> <P>(b) <E T="03">Spousal rights.</E> The spouse of a service member participant has the same TSP spousal rights as the spouse of a civilian participant covered under the Federal Employees' Retirement System; those spousal rights in the context of a withdrawal (and the process by which a service member may obtain an exception to them) are explained at 5 CFR part 1650.</P> <P>(c) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the withdrawal will be distributed <E T="03">pro rata</E> from all sources. If a participant requests the TSP to transfer all, or a portion, of a withdrawal to an Individual Retirement Account (IRA) or other eligible retirement plan, the share of the withdrawal attributable to combat zone contributions (if any) can be transferred only if the IRA or retirement plan accepts such funds.</P> <P>(d) <E T="03">Separation.</E> The definition of separation from service at § 1604.2 applies when determining a service member's eligibility for a withdrawal.</P> </SECTION> <SECTION> <SECTNO>§ 1604.8</SECTNO> <SUBJECT>Death benefits.</SUBJECT> <P>The account balance of a deceased service member will be paid as described at 5 CFR part 1651, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> To designate a beneficiary for a TSP death benefit, a service member must file a valid beneficiary designation form. If the TSP maintains a service member account <PRTPAGE P="190"/>and a civilian account for an individual, a separate beneficiary designation form must be filed for each account.</P> <P>(b) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the death benefit payment will be made <E T="03">pro rata</E> from all sources.</P> <P>(c) <E T="03">Trustee-to-trustee transfers.</E> The surviving spouse of a TSP participant can request the TSP to transfer a death benefit payment to an Individual Retirement Account (IRA) or other eligible retirement plan. The share of the death benefit payment that is attributable to combat zone contributions (if any) can be transferred only if the IRA or retirement plan accepts such funds.</P> <P>(d) <E T="03">Transfer to a TSP account.</E> If the TSP maintains an account for a death benefit beneficiary who is the surviving spouse of the participant, the spouse can request the TSP to transfer the death benefit payment to his or her TSP account; the share attributable to combat zone contributions (if any) cannot be transferred into a civilian account.</P> </SECTION> <SECTION> <SECTNO>§ 1604.9</SECTNO> <SUBJECT>Court orders and legal processes.</SUBJECT> <P>A TSP account can be divided in an action for divorce, annulment, or legal separation, and is subject to legal process relating to child support, alimony, or child abuse. The TSP will make a payment from a service member's account under such orders or processes as described at 5 CFR part 1653, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> To qualify for enforcement against the TSP, a court order or legal process must expressly relate to the TSP. Therefore, if the TSP maintains a service member account and a civilian account for an individual, a qualifying court order or legal process must expressly state from which account payment is to be made.</P> <P>(b) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the payment will be made <E T="03">pro rata</E> from all sources, unless the court order or legal process directs otherwise.</P> <P>(c) <E T="03">Trustee-to-trustee transfers.</E> The current or former spouse of a TSP participant can request the TSP to transfer a court-ordered payment to an Individual Retirement Account (IRA) or other eligible retirement plan. If the payee requests the TSP to transfer all or a portion of the court-ordered payment to an IRA or other eligible retirement plan, the share of the payment attributable to combat zone contributions (if any) can be transferred only if the IRA or plan accepts such funds.</P> <P>(d) <E T="03">Transfer to a TSP account.</E> If the TSP maintains an account for a court order payee who is the current or former spouse of the participant, the payee can request the TSP to transfer the court-ordered payment to the payee's TSP account; the <E T="03">pro rata</E> share attributable to combat zone contributions (if any) cannot be transferred.</P> </SECTION> <SECTION> <SECTNO>§ 1604.10</SECTNO> <SUBJECT>Loans.</SUBJECT> <P>A service member may be eligible for a TSP loan as described at 5 CFR part 1655, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> If the TSP maintains a service member account and a civilian account for an individual:</P> <P>(1) A separate loan application must be made for each account;</P> <P>(2) A participant may have no more than two loans outstanding from each account at any time; one loan from each account may be a loan for the purchase of a primary residence;</P> <P>(3) The Internal Revenue Code maximum loan amount test, which is described in 5 CFR part 1655, will be applied using the combined balances in both TSP accounts; and</P> <P>(4) Separate TSP loan statements will be issued for each account.</P> <P>(b) <E T="03">Spousal rights.</E> Before a loan agreement is approved for a service member account, the participant's spouse must consent to the loan by signing the loan agreement. A request for an exception to the spousal consent requirement will be evaluated under the rules explained in 5 CFR part 1650.</P> <P>(c) <E T="03">Combat zone contributions.</E> The portion of a loan that is attributable to combat zone contributions (if any) will be determined when the loan is declared a taxable distribution, and that portion will not be reported as taxable income to the participant as a result of the declaration.</P> </SECTION> </PART> <PART> <PRTPAGE P="191"/> <EAR>Pt. 1605</EAR> <HD SOURCE="HED">PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1605.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD> <SECTNO>1605.11</SECTNO> <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT> <SECTNO>1605.12</SECTNO> <SUBJECT>Removal of erroneous contributions.</SUBJECT> <SECTNO>1605.13</SECTNO> <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT> <SECTNO>1605.14</SECTNO> <SUBJECT>Misclassified retirement coverage.</SUBJECT> <SECTNO>1605.15</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1605.16</SECTNO> <SUBJECT>Claims for correction of employing agency errors; time limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Board or TSP Record Keeper Errors</HD> <SECTNO>1605.21</SECTNO> <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT> <SECTNO>1605.22</SECTNO> <SUBJECT>Claims for correction of Board or TSP record keeper errors; time limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD> <SECTNO>1605.31</SECTNO> <SUBJECT>Contributions missed as a result of military service.</SUBJECT> </SUBPART> </CONTENTS> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 44277, Aug. 22, 2001, unless otherwise noted.</P> </SOURCE> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351 and 8474. Section 1605.14 also issued under Title II, Pub. L. 106-265, 114 Stat. 770.</P> </AUTH> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1605.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">“As of” date</E> means the date on which a TSP contribution or other transaction should have taken place.</P> <P> <E T="03">Attributable pay date</E> ordinarily means the pay date of an erroneous contribution with respect to which a negative adjustment is being made. If, however, the erroneous contribution was a makeup or late contribution, the attributable pay date is the “as of” date associated with the erroneous makeup or late contribution.</P> <P> <E T="03">Board error</E> means any act or omission by the Board which is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Contribution allocation of record</E> means the last contribution allocation on file for the participant's account, which either will have been derived pursuant to § 1601.12 of this chapter or will result from the participant's filing of an election pursuant to § 1601.13 of this chapter.</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">Employing agency error</E> means any act or omission by an employing agency that is not in accordance with all applicable statutes, regulations, or administrative procedures, including internal procedures promulgated by the employing agency and TSP procedures provided to employing agencies by the Board.</P> <P> <E T="03">FERCCA correction</E> 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.</P> <P> <E T="03">Late contributions</E> means: Employee contributions that were timely deducted from a participant's basic pay but were not timely reported to the TSP record keeper for investment; employee contributions that were timely reported to the TSP but were not posted to the participant's account by the TSP because the payment record on which they were submitted contained errors; and attributable agency matching contributions and agency automatic (1%) contributions that were not timely reported.</P> <P> <E T="03">Lost earnings record</E> means a data record containing information enabling the TSP system to compute lost earnings.</P> <P> <E T="03">Makeup contributions</E> 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.</P> <P> <E T="03">Negative adjustment</E> means the removal of money from a participant's TSP account by an employing agency.<PRTPAGE P="192"/> </P> <P> <E T="03">Negative adjustment record</E> means a data record submitted by an employing agency to remove from a participant's TSP account money which was previously submitted in error.</P> <P> <E T="03">Pay date</E> means the date established by an employing agency for payment of its employees.</P> <P> <E T="03">Payment record</E> means a data record submitted by an employing agency to report contributions or loan payments to a participant's TSP account.</P> <P> <E T="03">Record keeper error</E> means any act or omission by the TSP record keeper that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Source of contributions</E> means employee contributions, agency automatic (1%) contributions, or agency matching contributions.</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD> <SECTION> <SECTNO>§ 1605.11</SECTNO> <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT> <P>(a) <E T="03">Applicability.</E> 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 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.</P> <P>(b) <E T="03">Employer makeup contributions.</E> If an employing agency has failed to make agency automatic (1%) contributions that are required under 5 U.S.C. 8432(c)(1)(A), agency matching contributions that are required under section 8432(c)(2), or conversion contributions that are required under section 8432(c)(3), the following rules apply:</P> <P>(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. Employer makeup contributions will be invested in accordance with the participant's contribution allocation of record at the time the makeup contributions are posted to the account.</P> <P>(2) If the participant is entitled to lost earnings on employer makeup contributions pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(c) <E T="03">Employee makeup contributions.</E> 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 less in employee contributions to be made to the participant's account than should have been made, a participant may elect to establish a schedule of makeup contributions to replace the missed 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:</P> <P>(1) The schedule of makeup contributions elected by the participant must establish the dollar amount of the contributions 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 <PRTPAGE P="193"/>schedule, but the amounts to be contributed must be established when the schedule is created. The schedule may not exceed four times the number of pay periods over which the error occurred.</P> <P>(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.</P> <P>(3) The employing agency must implement the participant's schedule of makeup contributions as soon as practicable.</P> <P>(4) For each pay date involved, the employing agency must submit a separate payment record showing the “as of” date for the employee makeup contribution. An employee is not eligible to make up contributions with an “as of” date occurring within six months after a financial hardship in-service withdrawal, as provided in § 1650.33 of this chapter.</P> <P>(5) Employee makeup contributions will be invested in accordance with the participant's contribution allocation of record at the time the makeup contributions are posted to the account. If no contribution allocation is on file, the contributions will be invested in the G Fund.</P> <P>(6) Employee makeup contributions will not be considered in applying the maximum amount per pay period that a participant is permitted to contribute to the TSP, but will be included for purposes of applying the annual limits contained in sections 402(g) and 415(c) of the Internal Revenue Code (I.R.C.) (26 U.S.C. 402(g) and 415(c)). For purposes of applying the annual limits of sections 402(g) and 415(c) of the I.R.C., employee makeup contributions will be applied against the limit for the year in which the contributions should have been made (i.e., the year of the “as of” date).</P> <P>(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 sections 402(g) and 415(c) of the I.R.C. for the year(s) with respect to which the contributions are being made.</P> <P>(ii) The employing agency must not permit contributions that, when combined with prior contributions, would exceed the applicable annual contribution limits contained in sections 402(g) and 415(c) of the I.R.C.</P> <P>(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.</P> <P>(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.</P> <P>(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 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.</P> <P>(10) If a participant transfers to an employing agency different from the one at 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 <PRTPAGE P="194"/>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.</P> <P>(11) Employee makeup contributions may be made only by payroll deduction from basic 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.</P> <P>(12) If the participant is entitled to lost earnings on the makeup contributions pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(d) <E T="03">Late contributions.</E> If, as a result of agency error, the TSP posts a late contribution to a participant's account more than 30 calendar days after the “as of” date that is reported by the employing agency on the payment record, the employing agency must submit any lost earnings records pursuant to 5 CFR part 1606. Late contributions will be invested in accordance with the participant's contribution allocation of record on the posting date.</P> </SECTION> <SECTION> <SECTNO>§ 1605.12</SECTNO> <SUBJECT>Removal of erroneous contributions.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section applies to negative adjustments. These include situations in which, because of an employing agency error, employee contributions in excess of the amount elected by a participant are contributed to a participant's account, employee contributions (and any attributable agency matching contributions) are made on behalf of a participant who did not elect to make contributions, or excess employer contributions are made to a participant's account. Negative adjustments resulting from a FERCCA correction are addressed in § 1605.14.</P> <P>(b) <E T="03">Method of correction.</E> Negative adjustment records must be submitted by employing agencies in accordance with this part and with any other procedures provided by the Board.</P> <P>(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 amount of the erroneous contribution being removed, the attributable pay date with respect to which the erroneous contribution was made, and the source(s) of the contributions. The TSP record keeper will derive the investment of the negative adjustment from the allocation of any contribution which was reported for the attributable pay date. If no contribution was submitted for the attributable pay date, the negative adjustment will not be processed.</P> <P>(2) A negative adjustment record may be for all or a part of the contributions made for the attributable pay date and source of contributions; however, for each source of contributions, the negative adjustment may not exceed the amount of contributions made for that date, less any prior negative adjustments for the same date.</P> <P>(c) <E T="03">Processing negative adjustments.</E> Negative adjustments will be processed in accordance with the following rules:</P> <P>(1) Negative adjustment records received and accepted by the TSP record keeper by the second-to-last business day of a month will be processed effective as of the end of that month. Negative adjustment records accepted by the TSP record keeper after the second-to-last business day of a month will be processed effective as of the end of the following month; and</P> <P>(2) For each negative adjustment record, the TSP record keeper will determine attributable earnings on the amount of the adjustment by source of contribution and investment fund. Thus, earnings and losses from different sources will not be netted against each other, and earnings and losses from different investment funds will not be netted against each other. Further, interfund transfers occurring between the attributable pay date of the negative adjustment and the date the adjustment is processed by the TSP record keeper will not be considered.</P> <P>(d) <E T="03">Employee contributions.</E> The following rules apply to negative adjustments involving employee contributions:</P> <P>(1) If, on the posting date, the amount calculated under paragraph (c) of this section is greater than the <PRTPAGE P="195"/>amount of the proposed negative adjustment, the full amount of the adjustment will be returned to the employing agency. Subject to paragraph (d)(4) of this section, the earnings on the erroneous contribution will remain in the participant's account;</P> <P>(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 returned to the employing agency. However, an investment loss will not affect the employing agency's obligation to refund to the participant the full amount of the erroneous contribution;</P> <P>(3) If an employing agency removes erroneous employee contributions from a participant's account, it must also remove, under paragraph (e) of this section, any attributable agency matching contributions; and</P> <P>(4) If all employee contributions are removed from a participant's account under the rules set forth in this section, the participant may choose to leave any earnings in the account unless he or she was not eligible to have an account in the TSP at the time earnings were credited to the account, and remains ineligible. If the participant was ineligible for a TSP account (and remains ineligible), the earnings will be paid to the participant. If earnings remain in the account, upon the participant's separation from Government service, they will be subject to the same withdrawal rules as apply to any other funds in a participant's account.</P> <P>(e) <E T="03">Employer contributions.</E> The following rules apply to negative adjustments involving erroneous employer contributions:</P> <P>(1) 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;</P> <P>(2) 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 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;</P> <P>(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 less than the amount of the adjustment, the employing agency will receive the amount of the erroneous contribution reduced by the investment loss; and</P> <P>(4) 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.</P> <P>(f) <E T="03">Each negative adjustment to be processed separately.</E> For purposes of paragraphs (d) and (e) of this section—</P> <P>(1) If multiple negative adjustments for a participant are posted on the same business day, the amount removed from the participant's account and/or returned to the employing agency will be determined separately for each adjustment, for each source of contributions, and for each investment fund. Earnings and losses for erroneous contributions made on different dates will not be netted against each other. Instead, each source of contributions and each fund will be treated as separate for purposes of these calculations;</P> <P>(2) The amount computed by application of the rules in this section will be removed from the participant's account pro rata from all investment funds, by source, based on the allocation of the participant's most recent month-end valued account balance; and</P> <P>(3) If there is insufficient money in the same source of contributions to cover the amount to be removed, the negative adjustment record will be rejected.</P> </SECTION> <SECTION> <PRTPAGE P="196"/> <SECTNO>§ 1605.13</SECTNO> <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT> <P>(a) <E T="03">Participant not employed.</E> 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 employment:</P> <P>(1) If the participant is reinstated to Government employment, immediately upon reinstatement 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;</P> <P>(2) The employing agency must give the participant the following options for electing makeup contributions:</P> <P>(i) If the participant had a contribution election on file when he or she separated, upon the participant's reinstatement to Government employment, that election will be reinstated for purposes of the makeup contributions; or</P> <P>(ii) Instead of making contributions for the period of separation in accordance with the reinstated contribution election, the participant may submit a new contribution election for any open season(s) that occurred during the period of separation;</P> <P>(3) All makeup contributions under this section will be invested based on the participant's contribution allocation of record at the time the makeup contributions are posted to the account; and</P> <P>(4) The employing agency must submit lost earnings records pursuant to 5 CFR part 1606. Lost earnings will be calculated and credited to a participant's account in accordance with 5 CFR part 1606 using the rates of return for the G Fund unless otherwise requested by the agency (with the concurrence of the participant), or as ordered by a court or other tribunal with jurisdiction over the participant's back pay case.</P> <P>(b) <E T="03">Participant employed.</E> 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 not separated from Government employment:</P> <P>(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—</P> <P>(i) The participant had designated a percentage of basic pay to be contributed to the TSP; or</P> <P>(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;</P> <P>(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</P> <P>(3) If the participant is entitled to lost earnings pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(c) <E T="03">Contributions to be deducted before payment or other retroactive pay adjustment.</E> Employee makeup contributions required under paragraphs (a) and (b) of this section:</P> <P>(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;</P> <P>(2) Must not cause the participant to exceed the annual contribution limit(s) contained in sections 402(g) and 415(c) of the I.R.C. (26 U.S.C. 402(g) and 415(c)) 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</P> <P>(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 <PRTPAGE P="197"/>agency automatic (1%) contributions associated with the back pay award or other retroactive pay adjustment.</P> <P>(d) <E T="03">Prior withdrawal of TSP account.</E> If a participant has withdrawn his or her TSP account, other than by purchasing an annuity, and the separation from Government employment upon which the withdrawal 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 withdrawn to his or her TSP account. The right to restore the withdrawn funds will expire if notice is not provided by the participant to the Board within 90 days of reinstatement. If the participant returns the funds that were withdrawn, they will be posted to the participant's account based on his or her contribution allocation of record at the time of separation. If no contribution allocation is on file, the contributions will be invested in the G Fund. No lost earnings will be paid on any restored funds.</P> <P>(e) Participants who are covered by paragraph (d) of this section and who elect to return funds that were withdrawn may also elect to reinstate a loan which was previously declared to be a taxable distribution.</P> </SECTION> <SECTION> <SECTNO>§ 1605.14</SECTNO> <SUBJECT>Misclassified retirement coverage.</SUBJECT> <P>(a) If a CSRS participant is misclassified by an employing agency as a FERS participant, when the misclassification is corrected:</P> <P>(1) Employee contributions that exceed the applicable contribution percentage for the pay period(s) involved may remain in the participant's account. However, the participant may choose to have such employee contributions or all of the employee contributions made during the period of misclassification removed from his or her account and refunded to the participant. If the participant requests a refund of employee contributions, the employing agency must submit negative adjustment records, under the procedures of § 1605.12, to request removal of these funds;</P> <P>(2) The employing agency must, under the procedures of § 1605.12, remove all employer contributions made to the participant's account during the period of misclassification. Employer contributions that have been in the account for less than one year will be returned to the employing agency; employer contributions that have been in the participant's account for one year or more will be removed from the account and used to offset TSP administrative expenses; and</P> <P>(3) If the employing agency fails to submit a negative adjustment record under the procedures of § 1605.12(b) to remove employer contributions, after all such contributions have been in the participant's account for more than one year the TSP recordkeeper will remove them from the account and use such amounts to offset TSP administrative expenses.</P> <P>(b) If a FERS participant is misclassified by an employing agency as a CSRS participant, when the misclassification is corrected:</P> <P>(1) The participant may not elect to have the contributions made while classified as CSRS removed from his or her account;</P> <P>(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;</P> <P>(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;</P> <P>(4) The employing agency must submit lost earnings records for makeup employer contributions pursuant to 5 CFR part 1606; and</P> <P>(5) If the retirement coverage correction is a FERCCA correction, the participant is entitled to lost earnings on makeup employee contributions and the employing agency must submit lost earnings records pursuant to 5 CFR part 1606. However, if employee contributions were made up before the Office of Personnel Management implements its regulations on FERCCA corrections, the amount of lost earnings will be calculated by the Office of Personnel Management, pursuant to its <PRTPAGE P="198"/>regulations, and provided to the employing agency for transmission to the TSP record keeper.</P> <P>(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.</P> <P>(1) Employee contributions in the account are subject to the rules in paragraph (a)(1) of this section.</P> <P>(2) Employer contributions in the account are subject to the rules in paragraphs (a)(2) and (a)(3) of this section.</P> <P>(3) The participant will be deemed to be separated from Federal service for all TSP purposes. If the participant has an outstanding loan, it will be subject to the provisions of 5 CFR 1655.13. The participant may make a TSP post-employment withdrawal election pursuant to 5 CFR part 1650, subpart B, and the withdrawal will be subject to the provisions of 5 CFR 1650.60(b).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1605.15</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1605.16</SECTNO> <SUBJECT>Claims for correction of employing agency errors; time limitations.</SUBJECT> <P>(a) <E T="03">Agency's discovery of error.</E> (1) Upon discovery of an error made within the past six months involving the correct or timely remittance of payments to the TSP (other than a contribution allocation error as covered in paragraph (a)(2) of this section or 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 its discovery, the agency may exercise sound discretion in deciding whether to correct it, but, in any event, the agency must act promptly in doing so.</P> <P>(2) An employing agency must promptly correct a contribution allocation error that occurred before May 1, 2001, on its own initiative if it is discovered within 30 days of its first occurrence. No contribution allocation error that occurred before May 1, 2001, may be corrected if it is not the subject of a timely discovery.</P> <P>(b) <E T="03">Participant's discovery of error.</E> (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 (other than a contribution allocation error as covered by paragraph (b)(2) of this section, or a retirement system misclassification error as covered by paragraph (c) of this section), the participant may file a claim for correction of the error with his or her employing agency 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; the correction of any such error for which the participant files a claim after that time is in the agency's sound discretion.</P> <P>(2) A participant may file a claim for correction of a contribution allocation error made before May 1, 2001, with his or her employing agency no later than 30 days after the participant receives a TSP participant statement first reflecting the error. The agency must promptly correct such errors.</P> <P>(3) If a participant fails to file a claim for correction of an error described in paragraph (b)(2) of this section in a timely manner, the error will not be corrected.</P> <P>(c) <E T="03">Retirement system misclassification error.</E> Errors arising from retirement system misclassification must be corrected no matter when they are discovered, whether by an agency or a participant.</P> <P>(d) <E T="03">Agency procedures.</E> 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:</P> <P>(1) The employing agency must provide the participant with a decision on any claim within 30 days of its receipt, <PRTPAGE P="199"/>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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Board or TSP Record Keeper Errors</HD> <SECTION> <SECTNO>§ 1605.21</SECTNO> <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT> <P>(a) <E T="03">Plan-paid lost earnings.</E> (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 earnings or losses that he or she would have received had the error not occurred, the participant's TSP account will be credited (or charged) with the difference between the earnings (or losses) it actually received and the earnings (or losses) it would have received had the error not occurred.</P> <P>(2) Errors that warrant the crediting of earnings or charging of investment losses under paragraph (a)(1) of this section include, but are not limited to:</P> <P>(i) Delay in crediting contributions or other monies to a participant's account;</P> <P>(ii) Improper issuance of a loan or withdrawal payment to a participant or beneficiary which requires the money to be restored to the participant's account; and</P> <P>(iii) Investment of all or part of a participant's account in the wrong investment fund(s).</P> <P>(3) A participant will not be entitled to earnings under paragraph (a)(1) of this section if, during the period the participant's account received credit for less earnings than it would have received but for Board or record keeper error, the participant had the use of the money on which the earnings would have accrued.</P> <P>(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 error, earnings or losses under paragraph (a)(1) of this section will be computed for the relevant period based upon the investment funds in which the affected monies would have been invested had the error not occurred. If the participant did not have, and should not have had, an account in the TSP during this period, then the earnings will be computed using the G Fund rate of return for the relevant period and the monies returned to the participant.</P> <P>(b) <E T="03">Other corrections.</E> The Executive Director may, in his discretion and consistent with the requirements of applicable law, correct any other errors not specifically addressed in this section, including payment of lost earnings, if the Executive Director determines that the correction would serve the interests of justice and fairness and equity among all participants of the TSP.</P> </SECTION> <SECTION> <PRTPAGE P="200"/> <SECTNO>§ 1605.22</SECTNO> <SUBJECT>Claims for correction of Board or TSP record keeper errors; time limitations.</SUBJECT> <P>(a) <E T="03">Filing claims.</E> 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.</P> <P>(b) <E T="03">Board's or TSP record keeper's discovery of error.</E> (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.</P> <P>(2) For errors concerning contribution allocations or interfund transfers, the Board or the TSP record keeper must promptly correct the error if it is discovered before 30 days after the issuance of the earlier of the most recent TSP participant (or loan) statement or transaction confirmation that reflected the error. If it is discovered after that time, the Board or TSP record keeper may use its sound discretion in deciding whether to correct it, but, in any event, must act promptly in doing so.</P> <P>(c) <E T="03">Participant's or beneficiary's discovery of error.</E> (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.</P> <P>(2) For errors involving contribution allocations or interfund transfers of which a participant or beneficiary has knowledge, he or she may file a claim for correction with the Board or TSP record keeper no later than 30 days after receipt of the earlier of a TSP participant (or loan) statement or transaction confirmation reflecting the error. The Board or TSP record keeper must promptly correct such errors.</P> <P>(3) If a participant or beneficiary fails to file a claim for correction of contribution allocations or interfund transfers in a timely manner, the Board or TSP record keeper may nevertheless, in its sound discretion, correct any such error that is brought to its attention.</P> <P>(d) <E T="03">Processing claims.</E> (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 record keeper's response.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD> <SECTION> <SECTNO>§ 1605.31</SECTNO> <SUBJECT>Contributions missed as a result of military service.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section applies to employees who meet the conditions specified at § 1620.40 of this chapter and who are eligible to receive or to make up contributions missed as a result of military service.</P> <P>(1) <E T="03">Missed employee contributions.</E> 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 will be <PRTPAGE P="201"/>made up in accordance with the rules specified in § 1605.20(c).</P> <P>(2) <E T="03">Missed employer contributions.</E> Missed agency automatic (1%) contributions will be determined in accordance with the rules specified at 5 CFR part 1620, subpart E.</P> <P>(i) If an employee makes up missed employee contributions, attributable agency matching contributions must be made accordingly.</P> <P>(ii) The employing agency must submit lost earnings records for missed employer contributions pursuant to 5 CFR part 1606. Lost earnings may be calculated using the rates of return based on the contribution allocation(s) on file for the participant during the period of military service or using the rates of return for the G Fund; the participant must make this election at the same time his or her makeup schedule is established pursuant to § 1605.11(c).</P> <P>(b) [Reserved]</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1606</EAR> <HD SOURCE="HED">PART 1606—LOST EARNINGS ATTRIBUTABLE TO EMPLOYING AGENCY ERRORS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>1606.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1606.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1606.3</SECTNO> <SUBJECT>General rule.</SUBJECT> <SECTNO>1606.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Lost Earnings Attributable to Delayed or Erroneous Contributions</HD> <SECTNO>1606.5</SECTNO> <SUBJECT>Failure to timely make or deduct TSP contributions when participant received pay.</SUBJECT> <SECTNO>1606.6</SECTNO> <SUBJECT>Agency delay in paying employee.</SUBJECT> <SECTNO>1606.7</SECTNO> <SUBJECT>Contributions to incorrect investment fund made before May 1, 2001.</SUBJECT> <SECTNO>1606.8</SECTNO> <SUBJECT>Late payroll submissions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Lost Earnings Not Attributable to Delayed or Erroneous Contributions</HD> <SECTNO>1606.9</SECTNO> <SUBJECT>Loan allotments.</SUBJECT> <SECTNO>1606.10</SECTNO> <SUBJECT>Miscellaneous lost earnings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Lost Earnings Records</HD> <SECTNO>1606.11</SECTNO> <SUBJECT>Agency submission of lost earnings records.</SUBJECT> <SECTNO>1606.12</SECTNO> <SUBJECT>Agency responsibility.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing Lost Earnings Records</HD> <SECTNO>1606.13</SECTNO> <SUBJECT>Calculation and crediting of lost earnings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Participant Claims for Lost Earnings</HD> <SECTNO>1606.14</SECTNO> <SUBJECT>Employing agency procedures.</SUBJECT> <SECTNO>1606.15</SECTNO> <SUBJECT>Time limits on participant claims.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8432a, 8474(b)(3), and (c)(1). Section 1606.5 also issued under Title II, Pub. L. 106-265, 114 Stat. 770.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 606, Jan. 7, 1991, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 1606.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part 1606 is to implement section 2 of the Thrift Savings Plan Technical Amendments Act of 1990 (TSPTAA), Public Law 101-335, enacted July 17, 1990. The TSPTAA amended chapter 84 of title 5, United States Code by inserting section 8432a, authorizing the Executive Director to prescribe regulations pursuant to which employing agencies shall be required to pay to the Thrift Savings Fund amounts representing lost earnings caused by employing agency errors relating to the Thrift Savings Plan (TSP) described in subchapter III of chapter 84.</P> </SECTION> <SECTION> <SECTNO>§ 1606.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1) and (c)(3).</P> <P> <E T="03">Agency matching contributions</E> means any contributions made under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">“As of” date</E> means the date on which TSP contributions or other transactions should have been made.</P> <P> <E T="03">Board error</E> means any act or omission by the Board that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440e.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 <PRTPAGE P="202"/>U.S.C. 8432(c)(1) or 8432(c)(3) and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">Employing agency error</E> means any act or omission by an employing agency that is not in accordance with all applicable statutes, regulations, or administrative procedures, including internal procedures promulgated by the employing agency and TSP procedures provided to employing agencies by the Board.</P> <P> <E T="03">FERCCA correction</E> means the correction of a retirement coverage error pursuant to the Federal Erroneous Retirement Coverage Corrections Act, Public Law 106-265, 114 Stat. 770.</P> <P> <E T="03">Late contributions</E> means employee contributions that were timely deducted from a participant's basic pay but were not timely reported to the TSP record keeper for investment; employee contributions that were timely reported to the TSP but were not posted to the participant's account by the TSP because the payment record on which they were submitted contained errors; and attributable agency matching contributions and agency automatic (1%) contributions that were not timely reported.</P> <P> <E T="03">Lost earnings record</E> means a data record containing information enabling the TSP system to compute lost earnings.</P> <P> <E T="03">Makeup contributions</E> 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.</P> <P> <E T="03">Negative adjustment</E> means the removal of money from a participant's TSP account by an employing agency.</P> <P> <E T="03">Negative adjustment record</E> means a data record submitted by an employing agency to remove money from a participant's TSP account previously submitted in error.</P> <P> <E T="03">Pay date</E> means the date established by an employing agency for payment of its employees.</P> <P> <E T="03">Payment record</E> means a data record submitted by an employing agency to report contributions or loan payments to a participant's TSP account.</P> <P> <E T="03">Record keeper error</E> means any act or omission by the TSP record keeper that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <CITA>[66 FR 44283, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.3</SECTNO> <SUBJECT>General rule.</SUBJECT> <P>Except as otherwise provided, employing agencies shall pay to the Thrift Savings Fund any amount, computed by the TSP recordkeeper in a manner consistent with this part 1606, that is required to restore to the TSP account of the participant or participants involved earnings lost as a result of an employing agency error. Where lost earnings are required, the employing agency must, in accordance with this part 1606 and any instructions provided by the Board or the TSP recordkeeper, submit to the TSP recordkeeper all information and certification that is required to enable the TSP recordkeeper to compute the amount of lost earnings payable by the employing agency, and to charge that amount to the appropriate employing agency.</P> </SECTION> <SECTION> <SECTNO>§ 1606.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">In general.</E> Except as otherwise provided, the provisions of this part 1606 apply in any case where, due to employing agency error, the Thrift Savings Fund has not invested or had the use of money that would have been invested in the Thrift Savings Fund had the employing agency error not occurred, or where the money would have been invested in a different investment fund had the error not occurred.<PRTPAGE P="203"/> </P> <P>(b) <E T="03">Back pay awards and other retroactive pay adjustments.</E> The application of this part 1606, as described in paragraph (a) of this section, includes TSP contributions derived from payments associated with back pay awards or other retroactive pay adjustments that are based on a determination that the employing agency paid a participant less than the full amount of basic pay to which the participant was entitled.</P> <P>(c) <E T="03">Timing of errors.</E> This part 1606 applies regardless of whether the employing agency error that caused the effects described in paragraph (a) of this section occurred prior to, at, or after the inception of the TSP.</P> <P>(d) <E T="03">De minimis rules.</E> Notwithstanding paragraphs (a) through (c) of this section or any other provision of this part 1606:</P> <P>(1) Lost earnings shall not be payable where the amount of money for a source of contributions in a participant's account that is not invested in the Thrift Savings Fund due to an employing agency error, or that is invested in the wrong investment fund due to an employing agency error, is less than one dollar ($1.00) for that source of contributions. Where the employing agency error caused delayed or erroneous contributions for more than one pay period, this paragraph shall apply separately to each pay period involved.</P> <P>(2) Where the employing agency error caused delay in submission of TSP payment records or loan allotments, lost earnings shall not be payable unless the belated contributions or loan allotments were received by the TSP recordkeeper more than 30 days after the pay date associated with the pay period for which the contributions or loan allotments would have been submitted had the employing agency error not occurred.</P> <P>(3) For employing agency errors not covered by paragarph (d)(2) of this section, lost earnings shall not be payable unless, as the result of an employing agency error, money was not invested in the Thrift Savings Fund for a period extending more than 30 days after the date it would have been invested had the error not occurred.</P> <P>(4) The 30-day requirements contained in paragraphs (d)(2) and (d)(3) of this section do not apply where, due to employing agency error, money in a participant's account has been invested in an incorrect investment fund.</P> <P>(e) <E T="03">Contributions for pre-1987 service.</E> This part does not apply to errors involving employing agency delay in submitting contributions required by 5 U.S.C. 8432(c)(3).</P> <P>(f) <E T="03">Contributions for service in January through March 1987.</E> Notwithstanding any other provision of this section, lost earnings shall be payable with respect to contributions made pursuant to 5 U.S.C. 8432(c)(1) (B) or (C) if the payment records containing those contributions were received by the TSP recordkeeper after April 30, 1987.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Lost Earnings Attributable to Delayed or Erroneous Contributions</HD> <SECTION> <SECTNO>§ 1606.5</SECTNO> <SUBJECT>Failure to timely make or deduct TSP contributions when participant received pay.</SUBJECT> <P>(a) If a participant receives pay, but as the result of an employing agency error all or any part of the agency automatic (1%) contribution associated with that pay to which the participant is entitled is not timely received by the TSP record keeper, then the makeup or late contributions will be subject to lost earnings. In such cases:</P> <P>(1) The employing agency must, for each pay period involved, submit to the TSP record keeper a lost earnings record indicating the pay date for which the contributions would have been made had the error not occurred (i.e., the beginning date), the investment fund to which the contributions would have been deposited had the error not occurred if the beginning date on the record was before May 1, 2001, the amount of the contributions, and the pay date for which the contributions were actually made. If the beginning date on the record was on or after May 1, 2001, the TSP record keeper will use the contribution allocation of record for the beginning date and calculate lost earnings;</P> <P>(2) The TSP record keeper will compute the amount of lost earnings associated with each lost earnings record submitted by the employing agency <PRTPAGE P="204"/>pursuant to paragraph (a)(1) of this section. In performing the computation, the TSP record keeper will not take into consideration any interfund transfers;</P> <P>(3) Where the lost earnings computed in accordance with paragraph (a)(2) of this section are positive, the TSP record keeper will charge that amount to the appropriate employing agency and will credit the participant's TSP account. If the lost earnings are negative, the amount computed will be removed from the participant's account and used to offset TSP administrative expenses; and</P> <P>(4) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent valued account balance.</P> <P>(b) If a participant receives pay from which employee contributions were properly deducted, but as a result of an employing agency error all or any part of the associated agency matching contributions to which the participant is entitled were not timely received by the TSP record keeper, then the makeup agency contributions will be subject to lost earnings. In such cases, the procedures described in paragraphs (a)(1) through (a)(4) of this section will apply to the makeup agency matching contributions.</P> <P>(c) If a participant receives pay from which employee contributions were properly deducted, but as the result of an employing agency error all or any part of those employee contributions were not timely received by the TSP record keeper, or if the employee contributions were received in connection with a FERCCA correction, the makeup employee contributions will be subject to the procedures described in paragraphs (a)(1) through (a)(4) of this section.</P> <P>(d) Except for employee contributions received in connection with a FERCCA correction, if a participant receives pay from which employee contributions should have been deducted but, as the result of employing agency error, all or any part of those deductions were not made, the makeup employee contributions will not be subject to lost earnings even if the participant makes up the employee contributions pursuant to part 1605 of this chapter. However, where the participant makes up the employee contributions pursuant to part 1605 of this chapter, the agency matching contributions associated with the makeup employee contributions (which must be made in accordance with part 1605 of this chapter) will be subject to lost earnings. With respect to such makeup agency matching contributions the procedures described in paragraphs (a)(1) through (a)(4) of this section will apply.</P> <CITA>[66 FR 44283, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.6</SECTNO> <SUBJECT>Agency delay in paying employee.</SUBJECT> <P>Where, as the result of an employing agency error, a participant does not timely receive all or any part of the basic pay to which he or she is entitled, and as a result of that delay in receiving pay all or any part of the Employee Contributions, Agency Automatic (1%) Contributions, or Agency Matching Contributions are not submitted when they would have been had the employing agency error not occurred, all such belated Employee Contributions, Agency Automatic (1%) Contributions, and Agency Matching Contributions shall be subject to lost earnings. The procedures described in paragraphs (a)(1) through (a)(4) of § 1606.5 shall apply to all such belated contributions.</P> </SECTION> <SECTION> <SECTNO>§ 1606.7</SECTNO> <SUBJECT>Contributions to incorrect investment fund made before May 1, 2001.</SUBJECT> <P>Where, as the result of an employing agency error, money was deposited to a participant's TSP account in an incorrect investment fund(s), the erroneous contribution will be subject to lost earnings if a claim is submitted within the time limits set forth in § 1605.16(a)(2) of this chapter. In such cases:</P> <P>(a) The employing agency must submit a lost earnings record indicating the amount of the contributions submitted to the incorrect investment fund(s), the pay date for which it was submitted, the investment fund(s) to which it would have been deposited had the employing agency error not occurred, and the investment fund(s) to which it was actually deposited;<PRTPAGE P="205"/> </P> <P>(b) The TSP record keeper will compute the amount of lost earnings associated with each lost earnings record submitted by the employing agency pursuant to paragraph (a)(1) of this section. The TSP record keeper will not take into consideration any interfund transfers;</P> <P>(c) Where the lost earnings computed in accordance with paragraph (a)(2) of this section are positive, the TSP record keeper will charge the amount of lost earnings computed to the appropriate employing agency and will credit that amount to the account of the participant involved. If the earnings computed are negative, the amount computed will be removed from the participant's account and used to offset TSP administrative expenses; and</P> <P>(d) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent valued account balance.</P> <CITA>[66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.8</SECTNO> <SUBJECT>Late payroll submissions.</SUBJECT> <P>All contributions on payment records contained in a payroll submission received from an employing agency and processed by the TSP record keeper more than 30 days after the pay date associated with the payroll submission (as reported on Form TSP-2, Certification of Transfer of Funds and Journal Voucher) will be subject to lost earnings, as follows:</P> <P>(a) The TSP record keeper will generate a lost earnings record for each payment record contained in the late payroll submission. The lost earnings records generated by the TSP record keeper will reflect that the contributions on the payment records should have been made on the pay date associated with the payroll submission, that the contributions should have been deposited to the investment fund(s) indicated on the payment records if the pay date was before May 1, 2001, or based on the participant's contribution allocation on file as of the pay date if the pay date was on or after May 1, 2001, and that the contributions were actually made on the date the late payroll submission was processed.</P> <P>(b) The procedures applicable to lost earnings records submitted by employing agencies which are set forth in § 1606.5(a)(2) through (a)(4) will be applied to lost earnings records generated by the TSP record keeper pursuant to paragraph (a)(1) of this section.</P> <CITA>[66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Lost Earnings Not Attributable to Delayed or Erroneous Contributions</HD> <SECTION> <SECTNO>§ 1606.9</SECTNO> <SUBJECT>Loan allotments.</SUBJECT> <P>(a) Loan allotments deducted from a participant's pay but not timely received by the TSP recordkeeper due to employing agency error shall be subject to lost earnings. In such cases:</P> <P>(1) The employing agency must submit a lost earnings record indicating the amount of the loan allotment, the pay date for which the loan allotment was actually submitted, and the pay date for which the loan allotment should have been submitted;</P> <P>(2) The TSP recordkeeper shall compute lost earnings on the belated loan allotment using the G Fund rates of return for each month of the calculation;</P> <P>(3) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent month-end valued account balance.</P> <P>(b) Loan allotments not deducted from a participant's pay due to employing agency error will not be subject to lost earnings.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.10</SECTNO> <SUBJECT>Miscellaneous lost earnings.</SUBJECT> <P>Where lost earnings result from employing agency errors not specifically covered by this subpart or subpart B, the employing agency must consult with the Board or TSP Recordkeeper to determine the manner in which the employing agency shall submit lost earnings records or other data necessary to facilitate the payment of lost earnings.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Lost Earnings Records</HD> <SECTION> <SECTNO>§ 1606.11</SECTNO> <SUBJECT>Agency submission of lost earnings records.</SUBJECT> <P>(a) All lost earnings records required to be submitted pursuant to this part <PRTPAGE P="206"/>must be submitted to the TSP Recordkeeper in the manner and format prescribed in instructions provided to employing agencies by the Board or TSP recordkeeper.</P> <P>(b) Where this part requires submission of lost earnings records, the employing agency must submit a separate lost earnings record for each pay period affected by the error. A lost earnings record may include all three sources of contributions, or it may include loan allotments, but may not include both loan allotments and contributions.</P> <P>(c) Where this part requires the employing agency to indicate on a lost earnings record the investment fund to which a contribution would have been deposited had an employing agency error not occurred, that determination must be made solely on the basis of a properly completed allocation election that was accepted by the employing agency before the date the contribution should have been made, and that was still in effect as of that date. Where no such allocation election was in effect as of the date the contribution would have been made had the error not occurred, the lost earnings record submitted by the employing agency must indicate that the contributions should have been made to the G Fund.</P> <P>(d) With respect to employing agency errors that cause money not to be invested in the Thrift Savings Fund, lost earnings records may not be submitted until the money to which the lost earnings relate has been invested in the Thrift Savings Fund. Where the employing agency error involved delayed TSP contributions, no lost earnings will be payable unless the associated payment records are submitted in accordance with the provisions of 5 CFR part 1605. Lost earnings records and the delayed payment records to which they relate should be submitted simultaneously.</P> <P>(e) Where an employing agency erroneously submits a lost earnings record that is processed by the TSP record keeper, the employing agency must consult with the Board or TSP record keeper to determine the method to be used in removing the erroneous lost earnings.</P> <P>(f) Lost earnings records that contain contributions for which lost earnings must be determined at the G Fund rate of return pursuant to §§ 1605.22(a)(4) or 1605.41(a)(3) of this chapter must be accompanied by the special Journal Voucher, Form TSP-2-EG.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.12</SECTNO> <SUBJECT>Agency responsibility.</SUBJECT> <P>(a) The employing agency whose error caused the delayed or erroneous investment of money in the Thrift Savings Fund shall, in a manner consistent with paragraph (b) of this section, be ultimately responsible for payment of any lost earnings resulting from that error.</P> <P>(b) The employing agency that submitted payment records or loan allotments that are subject to lost earnings shall be responsible for submitting lost earnings records relating to those submissions, and any lost earnings calculated shall be charged to that employing agency. Where another employing agency committed the error that caused the delayed or erroneous submission by the first employing agency, the employing agency that was charged for the lost earnings may seek reimbursement from the other employing agency.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing Lost Earnings Records</HD> <SECTION> <SECTNO>§ 1606.13</SECTNO> <SUBJECT>Calculation and crediting of lost earnings.</SUBJECT> <P>(a) Lost earnings records submitted or generated pursuant to this part will be processed by the TSP record keeper monthly.</P> <P>(b) Lost earnings records received, edited, and accepted by the TSP record keeper by the next-to-last business day of a month will be processed in the processing cycle for the month following acceptance. Lost earnings records received, edited, and accepted by the TSP record keeper on the last business day of a month will be processed in the processing cycle for the second month following acceptance.</P> <P>(c) In calculating lost earnings attributable to a lost earnings record, earnings and losses for different sources of contributions or investment <PRTPAGE P="207"/>funds within a source will not be offset against each other.</P> <P>(d) Where the <E T="03">de minimis</E> rule of paragraph (d)(1) of § 1606.3 of this part is met with regard to delayed contributions or loan allotments, the calculation of lost earnings shall commence with the pay date for the pay period for which the contributions would have been made had the employing agency error not occurred. With regard to lost earnings not related to delayed contributions or loan allotments, lost earnings shall commence with the month during which the employing agency error caused the failure to invest in the Thrift Savings Fund money that would have been invested had the employing agency error not occurred, or with the month that the money was invested in an incorrect investment fund. Lost earnings calculations shall conclude as of the end of the month prior to the month during which the lost earnings records are processed.</P> <P>(e) <E T="03">Negative lost earnings.</E> Notwithstanding any other provision of this part, where the net lost earnings computed in accordance with this part on any lost earnings record are less than zero within a source of contributions, the employing agency account shall not be charged or credited with respect to that source of contributions. The amount of the negative lost earnings shall be removed from the participant's account and applied against TSP administrative expenses.</P> <P>(f) With respect to the period prior to December 31, 1990, in calculating lost earnings or determining the investment fund in which money would have been invested had an employing agency error not occurred, the TSP recordkeeper shall take into account the investment restrictions that were effective under 5 U.S.C. 8438 prior to the effective date of section 3 of the TSPTAA.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44285, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Participant Claims For Lost Earnings</HD> <SECTION> <SECTNO>§ 1606.14</SECTNO> <SUBJECT>Employing agency procedures.</SUBJECT> <P>(a) Each employing agency must provide procedures for participants to file claims for lost earnings under this part. The employing agency procedures must include the following provisions:</P> <P>(1) The employing agency shall review each claim and provide the participant with a decision within 30 days of its receipt of the participant's written claim. The employing agency's decision to deny a claim in whole or in part shall be in writing and shall contain the following information—</P> <P>(i) The employing agency's determination on the claim and the reasons for it, including any appropriate references to applicable statutes or regulations;</P> <P>(ii) A description of any additional material or information which, if provided to the employing agency, would enable the employing agency to grant the participant's claim; and</P> <P>(iii) A description of the steps the participant must take if he or she wishes to appeal and initial denial of the claim, including the name and title of the employing agency official to whom the appeal may be taken;</P> <P>(2) Within 30 days of receipt of the employing agency decision denying the claim, a participant may appeal the employing agency decision. The appeal must be in writing and must be addressed to the employing agency official designated in the initial employing agency decision. The appeal may contain any documents and comments that the employee deems relevant to the claim;</P> <P>(3) The employing agency must take a decision on the participant's appeal not later than 30 days after it receives the appeal. The agency's decision on the appeal must be written in an understandable manner and must include the reasons for the decision as well as any appropriate references to applicable statutes and regulations. If the decision on the employee's appeal is not made within this 30-day time period, or if the appeal is denied in whole or in part, the participant will have exhausted his or her administrative remedy and will be eligible to file suit against the employing agency in the appropriate Federal district court pursuant to 5 U.S.C. 8477. There is no administrative appeal to the Board of an agency final decision.<PRTPAGE P="208"/> </P> <P>(b) Where it is determined that lost earnings resulted from an employing agency error, nothing in this part shall be deemed to preclude an employing agency from paying lost earnings in the absence of a claim from the employee.</P> </SECTION> <SECTION> <SECTNO>§ 1606.15</SECTNO> <SUBJECT>Time limits on participant claims.</SUBJECT> <P>(a) Participant claims for lost earnings pursuant to § 1606.14 must be filed within six months of the participant's receipt of the earliest of a TSP participant statement, TSP loan statement, employing agency earnings and leave statement, or any other document that indicates that an employing agency error has affected the participant's TSP account.</P> <P>(b) Nothing in this section changes the provision of paragraph (d) of § 1606.11 that no lost earnings shall be payable with respect to delayed contributions unless and until the contributions are submitted to the TSP recordkeeper in accordance with 5 CFR part 1605, nor does anything in this section extend any time limits for correcting contributions under 5 CFR part 1605. Thus, notwithstanding paragraph (a) of this section, if a participant is unable to have contributions corrected due to time limits contained in 5 CFR part 1605, no lost earnings shall be payable with respect to those contributions.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44285, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1620</EAR> <HD SOURCE="HED">PART 1620—EXPANDED AND CONTINUING ELIGIBILITY</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1620.1</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1620.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1620.3</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1620.4</SECTNO> <SUBJECT>Notices.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Cooperative Extension Service, Union, and Intergovernmental Personnel Act Employees</HD> <SECTNO>1620.10</SECTNO> <SUBJECT>Definition.</SUBJECT> <SECTNO>1620.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.12</SECTNO> <SUBJECT>Employing authority contributions.</SUBJECT> <SECTNO>1620.13</SECTNO> <SUBJECT>Retroactive contributions.</SUBJECT> <SECTNO>1620.14</SECTNO> <SUBJECT>Payment to the record keeper.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Article III Justices and Judges; Bankruptcy Judges and U.S. Magistrates; and Judges of the Courts of Federal Claims and Veterans Appeals</HD> <SECTNO>1620.20</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.21</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1620.22</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <SECTNO>1620.23</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Nonappropriated Fund Employees</HD> <SECTNO>1620.30</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.31</SECTNO> <SUBJECT>Definition.</SUBJECT> <SECTNO>1620.32</SECTNO> <SUBJECT>Employees who move to a NAF instrumentality on or after August 10, 1996.</SUBJECT> <SECTNO>1620.33</SECTNO> <SUBJECT>Employees who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965.</SUBJECT> <SECTNO>1620.34</SECTNO> <SUBJECT>Employees who move from a NAF instrumentality to a Federal Government agency.</SUBJECT> <SECTNO>1620.35</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <SECTNO>1620.36</SECTNO> <SUBJECT>Transmission of information.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Uniformed Services Employment and Reemployment Rights Act (USERRA)—Covered Military Service</HD> <SECTNO>1620.40</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.41</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1620.42</SECTNO> <SUBJECT>Processing TSP contribution elections.</SUBJECT> <SECTNO>1620.43</SECTNO> <SUBJECT>Agency payments to record keeper; agency ultimately responsible.</SUBJECT> <SECTNO>1620.44</SECTNO> <SUBJECT>Restoring forfeited agency automatic (1%) contributions.</SUBJECT> <SECTNO>1620.45</SECTNO> <SUBJECT>Restoring post-employment withdrawals and reversing taxable distributions.</SUBJECT> <SECTNO>1620.46</SECTNO> <SUBJECT>Agency responsibilities.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474(b)(5) and (c)(1).</P> <P>Subpart C also issued under 5 U.S.C. 8440a(b)(7), 8440b(b)(8), and 8440c(b)(8).</P> <P>Subpart D also issued under sec. 1043(b), Pub. L. 104-106, 110 Stat. 186, 434-435; and sec. 7202(m)(2), Pub. L. 101-508, 104 Stat. 1388.</P> <P>Subpart E also issued under 5 U.S.C. 8432b(i).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 31057, June 9, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1620.1</SECTNO> <SUBJECT>Application.</SUBJECT> <P>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 <PRTPAGE P="209"/>the circumstances, that subsequent legislation requires retroactive contributions, waives open season rules, 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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Account balance</E> means the nonforfeitable valued account balance of a TSP participant as of the most recent month-end.</P> <P> <E T="03">Basic pay</E> 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 for participating in the Civil Service Retirement System or the Federal Employees’ Retirement System, as the case may be.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established under 5 U.S.C. 8472.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent retirement system.</P> <P> <E T="03">CSRS employee</E> or <E T="03">CSRS participant</E> means any employee or participant covered by CSRS or an equivalent retirement system, including employees authorized to contribute to the TSP under 5 U.S.C. 8351.</P> <P> <E T="03">Election period</E> means the last calendar month of a TSP open season and is the earliest period in which an election to make or change a TSP contribution election can become effective.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440d.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3), and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual described at § 1620.1 as being eligible to contribute to the TSP and that has authority to make personnel compensation decisions for such employee.</P> <P> <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board under 5 U.S.C. 8474.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, and any equivalent Federal Government retirement system.</P> <P> <E T="03">FERS employee</E> or <E T="03">FERS participant</E> means any employee or participant covered by FERS.</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">Individual account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a).</P> <P> <E T="03">In-service withdrawal</E> means an age-based or financial hardship withdrawal from the TSP obtained by a participant before separation from Government employment.</P> <P> <E T="03">Investment fund</E> means either the G Fund, the F Fund, or the C Fund, and any other TSP investment funds created after December 27, 1986.</P> <P> <E T="03">Monthly processing cycle</E> means the process, beginning on the evening of the fourth business day of the month, by which the TSP record keeper allocates the amount of earnings to be credited to participant accounts in the TSP, implements interfund transfer requests, and authorizes disbursements from the TSP.</P> <P> <E T="03">Open season</E> means the period during which employees may choose to begin making contributions to the TSP, to change or discontinue (without losing the right to recommence contributions the next open season) the amount currently being contributed to the TSP, or to allocate prospective contributions to the TSP among the investment funds.</P> <P> <E T="03">Plan participant or participant</E> means any person with an account in the TSP, or who would have an account in the <PRTPAGE P="210"/>TSP but for an employing agency error.</P> <P> <E T="03">Post-employment withdrawal</E> means a withdrawal from the TSP obtained by a participant who has separated from Government employment.</P> <P> <E T="03">Separation from Government employment</E> means the cessation of employment with the Federal Government or 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.</P> <P> <E T="03">Spouse</E> means the person to whom a TSP participant is married on the date he or she signs forms on which the TSP requests spouse information including a spouse from whom the participant is legally separated, and includes a person with whom a participant is living in a relationship that constitutes a common law marriage in the jurisdiction in which they live.</P> <P> <E T="03">Thrift Savings Fund</E> means the Fund described in 5 U.S.C. 8437.</P> <P> <E T="03">Thrift Savings Plan,</E> <E T="03">TSP,</E> or <E T="03">Plan</E> 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.</P> <P> <E T="03">Thrift Savings Plan (TSP) contribution election</E> means a request by an employee to start contributing to the TSP, to terminate contributions to the TSP, to change the amount of contributions made to the TSP each pay period, or to change the allocation of future TSP contributions among the investment funds, and made effective pursuant to 5 CFR part 1600.</P> <P> <E T="03">Thrift Savings Plan Service Computation Date</E> means the date, actual or constructed, that includes all “service” as defined at 5 CFR 1603.1.</P> <P> <E T="03">Thrift Savings Plan Service Office</E> means the office established by the Board to service participants. This office's current address is: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500.</P> </SECTION> <SECTION> <SECTNO>§ 1620.3</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>The employing agency is responsible for transmitting to the Board's record keeper, in accordance with Board procedures, any employee and employer contributions that are required by this part.</P> </SECTION> <SECTION> <SECTNO>§ 1620.4</SECTNO> <SUBJECT>Notices.</SUBJECT> <P>An employing agency must notify affected employees of the application of this part as soon as practicable.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Cooperative Extension Service, Union, and Intergovernmental Personnel Act Employees</HD> <SECTION> <SECTNO>§ 1620.10</SECTNO> <SUBJECT>Definition.</SUBJECT> <P>As used in this subpart, <E T="03">employing authority</E> means the entity that employs an individual described in § 1620.11 and which has the authority to make personnel compensation decisions for such employee.</P> </SECTION> <SECTION> <SECTNO>§ 1620.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart applies to any individual participating in CSRS or FERS who:</P> <P>(a) Has been appointed or otherwise assigned to one of the cooperative extension services, as defined in 7 U.S.C. 3103(5);</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.12</SECTNO> <SUBJECT>Employing authority contributions.</SUBJECT> <P>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 only commence or terminate employer contributions during an open season and must provide all affected employees with notice of a decision to <PRTPAGE P="211"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.13</SECTNO> <SUBJECT>Retroactive contributions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.14</SECTNO> <SUBJECT>Payment to the record keeper.</SUBJECT> <P>(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.</P> <P>(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 Board 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Article III Justices and Judges; Bankruptcy Judges and U.S. Magistrates; and Judges of the Courts of Federal Claims and Veterans Appeals</HD> <SECTION> <SECTNO>§ 1620.20</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) This subpart applies to:</P> <P>(1) A justice or judge of the United States as defined in 28 U.S.C. 451;</P> <P>(2) A bankruptcy judge appointed under 28 U.S.C. 152 or a United States magistrate 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;</P> <P>(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</P> <P>(4) A judge of the Court of Veterans Appeals appointed under 38 U.S.C. 7253.</P> <P>(b) This subpart does not apply to a bankruptcy judge or a United States magistrate 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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.21</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>(a) An individual covered under this subpart can contribute up to 5 percent of basic pay per pay period to the TSP, and, unless stated otherwise in this subpart, he or she is covered by the same rules and regulations that apply to a CSRS participant in the TSP.</P> <P>(b) The following amounts are not basic pay and no TSP contributions can be made from them:</P> <P>(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);</P> <P>(2) Amounts received by a bankruptcy judge or a United States magistrate under a judges’ annuity described at 28 U.S.C. 377;<PRTPAGE P="212"/> </P> <P>(3) An annuity or salary received by a judge of the United States Court of Federal Claims under 28 U.S.C. 178; and</P> <P>(4) Retired pay received by a judge of the United States Court of Veterans Appeals under 38 U.S.C. 7296.</P> </SECTION> <SECTION> <SECTNO>§ 1620.22</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <P>(a) <E T="03">Post-employment withdrawal.</E> An individual covered under this subpart can make a post-employment withdrawal election described at 5 U.S.C. 8433(b):</P> <P>(1) Upon separation from Government employment.</P> <P>(2) In addition to the circumstance described in paragraph (a)(1) of this section, a post-employment withdrawal election can be made by:</P> <P>(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);</P> <P>(ii) A bankruptcy judge or a United States magistrate receiving a judges’ annuity under 28 U.S.C. 377;</P> <P>(iii) A judge of the United States Court of Federal Claims receiving an annuity or salary under 28 U.S.C. 178; and</P> <P>(iv) A judge of the United States Court of Veterans Appeals receiving retired pay under 38 U.S.C. 7296.</P> <P>(b) <E T="03">In-service withdrawals.</E> An individual covered under this subpart can request an in-service withdrawal described at 5 U.S.C. 8433(h) if he or she:</P> <P>(1) Has not separated from Government employment; and</P> <P>(2) Is not receiving retired pay as described in paragraph (a)(2) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1620.23</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> <P>(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).</P> <P>(b) A current or former spouse of a bankruptcy judge, a United States magistrate, 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 or magistrate is covered under this subpart.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Nonappropriated Fund Employees</HD> <SECTION> <SECTNO>§ 1620.30</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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)).</P> </SECTION> <SECTION> <SECTNO>§ 1620.31</SECTNO> <SUBJECT>Definition.</SUBJECT> <P>As used in this subpart, <E T="03">move</E> means moving from a position covered by CSRS or FERS to a NAF instrumentality of the DOD or Coast Guard, or <E T="03">vice versa,</E> without a break in service of more than one year.</P> </SECTION> <SECTION> <SECTNO>§ 1620.32</SECTNO> <SUBJECT>Employees who move to a NAF instrumentality on or after August 10, 1996.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.33</SECTNO> <SUBJECT>Employees who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965.</SUBJECT> <P>(a) <E T="03">Future TSP contributions.</E>—(1) <E T="03">Employee contributions.</E> An employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS or FERS as of the date of that move may elect to make any future contributions to the TSP in accordance with 5 U.S.C. 8351(b)(2) or 8432(a), as applicable, within 30 days of the date of his or her election to be covered by CSRS or FERS. Such contributions will begin being deducted from the employee's pay no later than the pay period following the election to <PRTPAGE P="213"/>contribute to the TSP. Any TSP contribution election which may have been in effect at the time of the employee's move will not be effective for any future contributions.</P> <P>(2) <E T="03">Employer contributions.</E> If an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, elects to be covered by FERS:</P> <P>(i) The NAF instrumentality must contribute each pay period to the Thrift Savings Fund on behalf of that employee any amounts that the employee is eligible to receive under 5 U.S.C. 8432(c)(1), beginning no later than the pay period following the employee's election to be covered by FERS; and</P> <P>(ii) If the employee elects to make contributions to the TSP pursuant to paragraph (a)(1) of this section, the NAF instrumentality must also contribute each pay period to the Thrift Savings Fund on behalf of that employee any amounts that the employee is eligible to receive under 5 U.S.C. 8432(c)(2), beginning at the same time as the employee's contributions are made pursuant to paragraph (a)(l) of this section.</P> <P>(b) <E T="03">Retroactive TSP contributions.</E> (1) Without regard to any election to contribute to the TSP under paragraph (a)(l) of this section, the NAF instrumentality will take the following actions with respect to an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS or FERS as of the date of the move:</P> <P>(i) <E T="03">Agency automatic (1%) makeup contributions.</E> The NAF instrumentality must, within 30 days of the date of the employee's election to be covered by FERS, contribute to the Thrift Savings Fund an amount representing the agency automatic (1%) contribution for all pay periods during which the employee would have been eligible to receive the agency automatic (1%) contribution under 5 U.S.C. 8432, beginning with the date of the move and ending with the date that agency automatic (1%) contributions begin under paragraph (a)(2) of this section. Lost earnings will not be paid on these contributions unless they are not made by the NAF instrumentality within the time frames required by these regulations.</P> <P>(ii) <E T="03">Employee makeup contributions.</E> (A) Within 60 days of the election to be covered by FERS, an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by FERS, may make an election regarding employee makeup contributions. The employee may elect to contribute all or a percentage of the amount of employee contributions which the employee would have been eligible to make under 5 U.S.C. 8432 between the date of the move and the date employee contributions begin under paragraph (a)(1) of this section or, if no such election is made under paragraph (a)(1) of this section, the date that agency automatic (1%) contributions begin under paragraph (a)(2) of this section.</P> <P>(B) Within 60 days of the election to be covered under CSRS, an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS, may make an election regarding make-up contributions. The employee may elect to contribute all or a percentage of the amount of employee contributions that the employee would have been eligible to make under 5 U.S.C. 8351 between the date of the move and the date employee contributions begin under paragraph (a)(1) of this section or, if no such election is made under paragraph (a)(1) of this section, the pay period following the date the election to be covered by CSRS is made.</P> <P>(C) Deductions made from the employee's pay pursuant to an employee's election under paragraph (b)(1)(ii)(A) or (B) of this section, as appropriate, must be made according to a schedule that meets the requirements of 5 CFR 1505.2(c). The payment schedule must begin no later than the pay period following the date the employee elects the schedule.</P> <P>(iii) <E T="03">Agency matching makeup contributions.</E> The NAF instrumentality must pay to the Thrift Savings Fund any matching contributions attributable to employee contributions made under paragraph (b)(1)(ii)(A) of this section which the NAF instrumentality would <PRTPAGE P="214"/>have been required to make under 5 U.S.C. 8432(c), at the same time that those employee contributions are contributed to the Fund.</P> <P>(2) Makeup contributions must be reported for investment by the NAF instrumentality when contributed, according to the employee's election for current TSP contributions. If the employee is not making current contributions, the retroactive contributions must be invested according to an election form (TSP-1-NAF) filed specifically for that purpose.</P> <P>(c) <E T="03">Noneligible employees.</E> An employee who is 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 system coverage must be removed from the TSP as required by the regulations at 5 CFR part 1605.</P> <P>(d) <E T="03">Elections.</E> If a TSP election was made by an employee of a NAF instrumentality who elected to be covered by CSRS or FERS before August 10, 1996, and the election was properly implemented by the NAF instrumentality because it was valid under then-effective regulations, the election is effective under the regulations in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1620.34</SECTNO> <SUBJECT>Employees who move from a NAF instrumentality to a Federal Government agency.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.35</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <P>NAF instrumentalities must deduct and transmit TSP loan payments for employees who elect to be covered by CSRS or FERS to the record keeper in accordance with 5 CFR part 1655 and Board 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 must prepay their loans or the TSP will declare the loan to be a taxable distribution.</P> </SECTION> <SECTION> <SECTNO>§ 1620.36</SECTNO> <SUBJECT>Transmission of information.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Uniformed Services Employment and Reemployment Rights Act (USERRA)—Covered Military Service</HD> <SECTION> <SECTNO>§ 1620.40</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>To be covered by this subpart, an employee must have:</P> <P>(a) Separated from Federal civilian service or entered leave-without-pay status in order to perform military service; and</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1620.41</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P> <E T="03">Basic pay</E> means basic pay as defined in § 1620.2, except for the portion of the retroactive period when an employee did not receive a Federal salary. In <PRTPAGE P="215"/>that case, basic pay is the rate of pay that would have been payable to the employee had he or she remained continuously employed in the position last held before separating (or entering leave-without-pay status) to perform military service.</P> <P> <E T="03">Current contributions</E> means those contributions that are made prospectively for any pay period after the employee has been reemployed.</P> <P> <E T="03">Leave without pay</E> or <E T="03">LWOP</E> means a temporary nonpay status and absence from duty (including military furlough) to perform military service.</P> <P> <E T="03">Reemployed</E> or <E T="03">reemployment</E> means reemployed in (or restored from a nonpay status to) a position pursuant to 38 U.S.C. chapter 43, which is subject to 5 U.S.C. chapter 84 or which entitles the employee to contribute to the TSP pursuant to 5 U.S.C. 8351.</P> <P> <E T="03">Retroactive period</E> means the period for which an employee is entitled to make up missed employee contributions and to receive retroactive agency contributions.</P> <P> <E T="03">Retroactive period beginning date</E> means, for an employee who was eligible to contribute to the TSP when military service began, the date following the effective date of separation or, in the case of LWOP, the date the employee enters LWOP status. For an employee who was not eligible to make TSP contributions when military service began, the retroactive period begins on the first day of the first pay period in the election period during which the employee would have been eligible to make contributions had the employee remained in Federal civilian service.</P> <P> <E T="03">Retroactive period ending date</E> means the earlier of the following two dates: the date before the first day of the first election period during which a contribution election could have been made effective after reemployment, or the last day of the pay period before the pay period during which routine current contributions are begun after the employee is reemployed (or restored). If an employee who was making contributions when he or she separated elects not to make routine current contributions, the ending date of the retroactive period is the last day of the pay period during which the employee elects to terminate contributions.</P> <P> <E T="03">Separation</E> or <E T="03">separated</E> means the period an employee was separated from Federal civilian service (or entered a leave-without-pay status) in order to perform military service.</P> </SECTION> <SECTION> <SECTNO>§ 1620.42</SECTNO> <SUBJECT>Processing TSP contribution elections.</SUBJECT> <P>(a) <E T="03">Current TSP contribution elections.</E> Immediately upon reemployment, an employee's agency will give an eligible employee the opportunity to submit a TSP election form (Form TSP-1) to make current contributions. The effective date of the current Form TSP-1 will be the first day of the first full pay period in the most recent TSP election period. If the employee is reemployed during a TSP Open Season but before the election period, he or she can also submit an election form that will become effective the first day of the first full pay period in the following election period.</P> <P>(b) <E T="03">Retroactive contribution elections.</E> (1) An employee has the following options for making retroactive contributions:</P> <P>(i) If the employee had a valid contribution election form (Form TSP-1) on file when he or she separated, that election form will be reinstated for purposes of retroactive contributions.</P> <P>(ii) Instead of making the contributions for the retroactive period under the reinstated contribution election form, the employee may submit a new election form for any Open Season that occurred during the retroactive period. However, the allocation election on each Form TSP-1 for the retroactive period must be the same as the allocation election on the current Form TSP-1.</P> <P>(2) An employee who terminated contributions within two months before entering military service will be eligible to make a retroactive contribution election effective for the first Open Season that occurs after the effective date that the contributions were terminated. This election may be made even if the termination was made outside of an Open Season.</P> </SECTION> <SECTION> <PRTPAGE P="216"/> <SECTNO>§ 1620.43</SECTNO> <SUBJECT>Agency payments to record keeper; agency ultimately responsible.</SUBJECT> <P>(a) <E T="03">Agency making payments to record keeper.</E> The current employing agency always will be the agency responsible for making payments to the record keeper for all contributions (both employee and agency) and lost earnings, regardless of whether some of that expense is ultimately chargeable to a prior employing agency.</P> <P>(b) <E T="03">Agency ultimately chargeable with expense.</E> The agency ultimately chargeable with the expense of agency contributions and lost earnings attributable to the retroactive period is ordinarily the agency that reemployed the employee. 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.</P> <P>(c) <E T="03">Reimbursement by agency ultimately chargeable with expense.</E> If the agency that made the payments to the record keeper for agency contributions and lost earnings is not the agency ultimately chargeable for that expense, the agency that made the payments to the record keeper may, but is not required to, obtain reimbursement from the agency ultimately chargeable with the expense.</P> </SECTION> <SECTION> <SECTNO>§ 1620.44</SECTNO> <SUBJECT>Restoring forfeited agency automatic (1%) contributions.</SUBJECT> <P>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 § 1620.47(d) to have those funds restored.</P> </SECTION> <SECTION> <SECTNO>§ 1620.45</SECTNO> <SUBJECT>Restoring post-employment withdrawals and reversing taxable distributions.</SUBJECT> <P>(a) <E T="03">Post-employment withdrawals.</E> Employees who received automatic cashouts because their account balances were $3,500 or less, or who were required to withdraw their TSP accounts before March 1995 because they were not eligible for retirement benefits when they separated, may elect to have the separation for military service treated as if it never occurred. These employees will be permitted to return amounts to the TSP that represent the full amount of the post-employment withdrawal.</P> <P>(b) <E T="03">Reversing taxable distributions.</E> An employee who separated or who entered into nonpay status to perform military service, and whose TSP loan was therefore declared a taxable distribution, may be eligible to have that distribution reversed.</P> <P>(1) If the employee received a post-employment withdrawal when he or she separated to perform military service, he or she can have a taxable distribution reversed only if that withdrawal is returned under the procedures described in paragraph (a) of this section. If the employee is not eligible to or does not return the withdrawal, he or she cannot have the taxable distribution reversed.</P> <P>(2) The taxable distribution can be reversed either by reinstating the TSP loan or by repaying the loan in full. TSP loan repayments can be reinstated only if the loan can be repaid within five years of its disbursement for non-residential loans and 15 years for residential loans; and if the employee will have no more than two loans outstanding, one of which can be a residential loan.</P> <P>(c) <E T="03">Process.</E> Eligible employees must notify the TSP record keeper of their intent to return the withdrawn funds and/or reverse a taxable distribution. This notification must be given within one year of reemployment and the employee must provide the TSP record keeper with a copy of the SF-50, Notification of Personnel Action, indicating reemployment or reinstatement was made pursuant to 38 U.S.C. chapter 43, or a letter from his or her agency indicating reemployment or restoration pursuant to 38 U.S.C. chapter 43. If the participant is eligible to return a withdrawal and/or reverse a distribution, the TSP record keeper will:</P> <P>(1) In the case of a request to return withdrawn funds, notify the employee of the amount of funds to be returned.</P> <P>(2) In the case of a request to reverse a taxable distribution, reinstate the loan if permitted, or if not, inform the <PRTPAGE P="217"/>employee of the repayment amount for the loan.</P> <P>(3) In the case of returned withdrawal and a repaid loan, inform the employee that both actions must be accomplished in the same transaction (i.e., one payment for both amounts).</P> <P>(4) In all cases inform the employee that he or she must provide the funds in a single payment to the TSP record keeper within 90 days after the record keeper sends the employee the notice advising of the amount and procedures for repaying the loan or withdrawal. Repayment must be submitted in the form of a certified or cashier's check, a certified or treasurer's draft from a credit union, or a money order.</P> <P>(d) <E T="03">Earnings.</E> Employees will not receive retroactive earnings on any amounts returned to their accounts under this section.</P> </SECTION> <SECTION> <SECTNO>§ 1620.46</SECTNO> <SUBJECT>Agency responsibilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Agency records; procedure for reimbursement.</E> The agency that is making the payments to the record keeper for all contributions (both employee and agency) and lost earnings 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 the expense of agency contributions and lost earnings, the agency making the payments to the record keeper will determine the procedure to follow in order to collect amounts owed to it by the agency ultimately chargeable with the expense.</P> <P>(c) <E T="03">Payment schedule; matching contributions report.</E> 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.</P> <P>(d) <E T="03">Agency automatic (1%) contributions.</E> Employing agencies must calculate the agency automatic (1%) contributions for all reemployed (or restored) FERS employees, report those contributions to the record keeper, and submit lost earnings records to cover the retroactive period within 60 days of reemployment.</P> <P>(e) <E T="03">Forfeiture restoration.</E> 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 submit to the record keeper Form TSP-5-R, Request to Restore Forfeited Funds, to have those funds restored.</P> <P>(f) <E T="03">Thrift Savings Plan Service Computation Date.</E> 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1630</EAR> <HD SOURCE="HED">PART 1630—PRIVACY ACT REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1630.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1630.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1630.3</SECTNO> <SUBJECT>Publication of systems of records maintained.</SUBJECT> <SECTNO>1630.4</SECTNO> <SUBJECT>Request for notification and access.</SUBJECT> <SECTNO>1630.5</SECTNO> <SUBJECT>Granting access to a designated individual.</SUBJECT> <SECTNO>1630.6</SECTNO> <SUBJECT>Action on request.</SUBJECT> <SECTNO>1630.7</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <SECTNO>1630.8</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <SECTNO>1630.9</SECTNO> <SUBJECT>Access to the history (accounting) of disclosures from records.</SUBJECT> <SECTNO>1630.10</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <SECTNO>1630.11</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <SECTNO>1630.12</SECTNO> <SUBJECT>Action on request to amend a record.</SUBJECT> <SECTNO>1630.13</SECTNO> <SUBJECT>Procedures for review of determination to deny access to or amendment of records.</SUBJECT> <SECTNO>1630.14</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <SECTNO>1630.15</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1630.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1630.17</SECTNO> <SUBJECT>Federal agency requests.</SUBJECT> <SECTNO>1630.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a.</P> </AUTH> <SOURCE> <PRTPAGE P="218"/> <HD SOURCE="HED">Source:</HD> <P>55 FR 18852, May 7, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1630.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>These regulations implement the Privacy Act of 1974, 5 USC 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.</P> </SECTION> <SECTION> <SECTNO>§ 1630.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part—</P> <P>(a) <E T="03">Agency</E> means agency as defined in 5 USC 552(e);</P> <P>(b) <E T="03">Board</E> means the Federal Retirement Thrift Investment Board;</P> <P>(c) <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence;</P> <P>(d) <E T="03">Maintain</E> means to collect, use, or distribute;</P> <P>(e) <E T="03">Record</E> 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;</P> <P>(f) <E T="03">Record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the TSP;</P> <P>(g) <E T="03">Routine use</E> 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;</P> <P>(h) <E T="03">System manager</E> 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;</P> <P>(i) <E T="03">System of records</E> 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;</P> <P>(j) <E T="03">Statistical record</E> 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;</P> <P>(k) <E T="03">Subject individual</E> means the individual by whose name or other identifying particular a record is maintained or retrieved;</P> <P>(l) <E T="03">TSP</E> 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> <P>(m) <E T="03">TSP participant</E> means any individual for whom a TSP account has been established. This includes former participants, <E T="03">i.e.,</E> participants whose accounts have been closed;</P> <P>(n) <E T="03">TSP records</E> means those records maintained by the record keeper;</P> <P>(o) <E T="03">VRS</E> (Voice Response System) means the fully automated telephone information system for TSP account records;</P> <P>(p) <E T="03">Work days</E> 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.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67693, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.3</SECTNO> <SUBJECT>Publication of systems of records maintained.</SUBJECT> <P>(a) Prior to the establishment or revision of a system of records, the Board will publish in the <E T="04">Federal Register</E> notice of any new or intended use of the information in a system or proposed system and provide interested persons with a period within which to comment on the new or revised system. Technical or typographical corrections are not considered to be revisions of a system.</P> <P>(b) When a system of records is established or revised, the Board will publish in the <E T="04">Federal Register</E> a notice about the system. The notice shall include:</P> <P>(1) The system name,</P> <P>(2) The system location,<PRTPAGE P="219"/> </P> <P>(3) The categories of individuals covered by the system,</P> <P>(4) The categories of records in the system,</P> <P>(5) The Board's authority to maintain the system,</P> <P>(6) The routine uses of the system,</P> <P>(7) The Board's policies and practices for maintenance of the system,</P> <P>(8) The system manager,</P> <P>(9) The procedures for notification, access to and correction of records in the system, and</P> <P>(10) The sources of information for the system.</P> </SECTION> <SECTION> <SECTNO>§ 1630.4</SECTNO> <SUBJECT>Request for notification and access.</SUBJECT> <P>(a) <E T="03">TSP records.</E> (1) Records on TSP participants and the spouses, former spouses, and beneficiaries of TSP participants are maintained in the Governmentwide system of records, FRTIB-1, Thrift Savings Plan Records. 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 Service Office is: National Finance Center, PO Box 61500, New Orleans, LA, 70161-1500. Telephone inquiries are subject to the verification procedures set forth in § 1630.7. A written inquiry must include the name and Social Security number of the participant or of the spouse, former spouse, or beneficiary of the participant, as appropriate. </P> <EXTRACT> <FP>To obtain information about or gain access to TSP records about you</FP> </EXTRACT> <GPOTABLE CDEF="s25, r50, r25" COLS="3" OPTS="L2, i1"> <BOXHD> <CHED H="1">If you want:</CHED> <CHED H="1">If you are a participant who is a current Federal employee:</CHED> <CHED H="1">If you are a participant who has separated from Federal employment or a spouse, former spouse, or beneficiary:</CHED> </BOXHD> <ROW> <ENT I="01">To make inquiry as to whether you are a subject of this system of records. </ENT> <ENT>Call or write to your employing agency in accordance with agency procedures for personnel or payroll records </ENT> <ENT>Call or write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">To gain access to a record about you </ENT> <ENT>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 </ENT> <ENT>Call or write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">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) </ENT> <ENT>Write to TSP record keeper. </ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> </GPOTABLE> <P>(2) Participants may also inquire whether this system contains records about them and access certain records through the account access section of the TSP Web site and the ThriftLine (the TSP's automated telephone system). The TSP Web site is located at <E T="03">www.tsp.gov.</E> To use the TSP ThriftLine, the participant must have a touch-tone telephone and call the following number (504) 255-8777. The following information is available on the TSP Web site and the ThriftLine: account balance; available loan amount; the status of a monthly withdrawal payment; the current status of a loan or withdrawal application; and an interfund transfer request. To access these features the participant will need to provide his or her SSN and PIN.</P> <P>(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 <PRTPAGE P="220"/>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.</P> <P>(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).</P> <P>(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.</P> <P>(b) <E T="03">Non-TSP Board records.</E> 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, 1250 H Street, NW., Washington, DC 20005. The request letter should contain the complete name and identifying number of the pertinent system as published in the annual <E T="04">Federal Register</E> notice describing the Board's Systems of Records; the full name and address of the subject individual; the subject's Social Security number if a Board employee; a brief description of the nature, time, place, and circumstances of the individual's prior association with the Board; and any other information the individual believes would help the Privacy Act Officer determine whether the information about the individual is included in the system of records. In instances where the information is insufficient to ensure disclosure to the subject individual to whom the record pertains, the Board reserves the right to ask the requester for additional identifying information. The words “PRIVACY ACT REQUEST” should be printed on both the letter and the envelope.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994; 64 FR 67693, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.5</SECTNO> <SUBJECT>Granting access to a designated individual.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 26409, May 20, 1994; 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.6</SECTNO> <SUBJECT>Action on request.</SUBJECT> <P>(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.</P> <P>(b) At a minimum, the acknowledgement to a request for access shall include:</P> <P>(1) When and where the records will be available;</P> <P>(2) Name, title and telephone number of the official who will make the records available;</P> <P>(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;</P> <P>(4) Fee, if any, charged for copies (See § 1630.16); and<PRTPAGE P="221"/> </P> <P>(5) If necessary, documentation required to verify the identity of the requester (See § 1630.7).</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 67694, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.7</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <P>(a) <E T="03">In person.</E> 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.</P> <P>(b) <E T="03">In writing.</E> An individual shall provide his or her name, date of birth, and Social Security number 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.</P> <P>(c) <E T="03">By telephone.</E> (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 Social Security numbers.</P> <P>(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, 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.</P> <P>(3) A participant may also access the TSP Web site or call the TSP ThriftLine to obtain account information. These systems require the participant's Social Security number and PIN. Because a PIN is required to use these features, they are not available to former participants, whose PINs are canceled when their accounts are closed.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.8</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) To officers or employees (including contract employees) of the Board or the record keeper who need the information to perform their official duties;</P> <P>(2) Pursuant to the requirements of the Freedom of Information Act, 5 U.S.C. 552;</P> <P>(3) For a routine use that has been published in a notice in the <E T="04">Federal Register</E> (routine uses for the Board's systems of records are published separately in the <E T="04">Federal Register</E> and are available from the Board's Privacy Act Officer);</P> <P>(4) To the Bureau of the Census for uses under title 13 of the United States Code;</P> <P>(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 <PRTPAGE P="222"/>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);</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(9) To either House of Congress, or to a Congressional committee or subcommittee if the subject matter is within its jurisdiction;</P> <P>(10) To the Comptroller General, or an authorized representative, in the course of the performance of the duties of the General Accounting Office;</P> <P>(11) Pursuant to the order of a court of competent jurisdiction; or</P> <P>(12) To a consumer reporting agency in accordance with section 3711(f) of Title 31.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.9</SECTNO> <SUBJECT>Access to the history (accounting) of disclosures from records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1630.10</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(2) The Board has published rules in the <E T="04">Federal Register</E> exempting the pertinent system of records from the access requirement.</P> <P>(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.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.11</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <P>(a) <E T="03">TSP records.</E> (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:</P> <GPOTABLE CDEF="s50,r25,r25" COLS="3" OPTS="L2,i1"> <BOXHD> <CHED H="1">To correct or amend a TSP record</CHED> <CHED H="2">If the type of record is:</CHED> <CHED H="2">If you are a participant who is a current Federal employee write to:</CHED> <CHED H="2">If you are a participant who has separated from Federal employment write to:</CHED> </BOXHD> <ROW> <ENT I="01">Personnel or personal records (e.g., age, address, Social Security number, date of birth). </ENT> <ENT>Write to your employing agency. </ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">The agency's and the participant's contributions, and adjustments to contributions.</ENT> <ENT>Write to your employing agency.</ENT> <ENT>Write to your former employing agency.</ENT> </ROW> <ROW> <ENT I="01">Earnings, investment allocation, interfund transfers, loans, loan repayments, and withdrawals</ENT> <ENT>Write to TSP record keeper.</ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> </GPOTABLE> <P>(2) The address of the record keeper is listed in § 1630.4(a).</P> <P>(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 <PRTPAGE P="223"/>above chart the employing, or former employing, agency's Privacy Act procedures.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Non-TSP records.</E> (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.</P> <P>(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 <E T="04">Federal Register</E>; a precise description of the record proposed for amendment; a brief statement describing the information the requester believes to be inaccurate or incomplete, and why; and the amendment or correction desired. If the request to amend the record is the result of the individual's having gained access to the record in accordance with §§ 1630.4, 1630.5, 1630.6 or § 1630.7, copies of previous correspondence between the requester and the Board should be attached, if possible.</P> <P>(3) If the individual's identity has not been previously verified, the Board may require documentation of identification as described in § 1630.7.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.12</SECTNO> <SUBJECT>Action on request to amend a record.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The final response will include the decision whether to grant or deny the request. If the request is denied, the response will include:</P> <P>(1) The reasons for the decision;</P> <P>(2) The name and address of the official to whom an appeal should be directed;</P> <P>(3) The name and address of the official designated to assist the individual in preparing the appeal;</P> <P>(4) A description of the appeal process with the Board; and<PRTPAGE P="224"/> </P> <P>(5) A description of any other procedures which may be required of the individual in order to process the appeal.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.13</SECTNO> <SUBJECT>Procedures for review of determination to deny access to or amendment of records.</SUBJECT> <P>(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, 1250 H Street, NW., Washington, DC 20005. 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.</P> <P>(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:</P> <P>(1) The records involved;</P> <P>(2) The date of the initial request for access to or amendment of the record;</P> <P>(3) The date of the Board's denial of that request; and</P> <P>(4) The reasons supporting the request for reversal of the Board's decision.</P> <FP>Copies of previous correspondence from the Board denying the request to access or amend the record should also be attached, if possible.</FP> <P>(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.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.14</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <P>(a) Within 20 work days of receiving the request for review, the Executive Director, after consultation with the General Counsel, will make a final determination on the 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.</P> <P>(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).</P> <P>(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.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.15</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(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:</P> <P>(1) Subject to the provisions of section 552(b)(1) of the Freedom of Information Act, 5 U.S.C. 552;</P> <P>(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, <PRTPAGE P="225"/>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;</P> <P>(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;</P> <P>(4) Required by statute to be maintained and used solely as statistical records;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(b) Those designated systems of records which are exempt from the requirements of this part or any other requirements of the Privacy Act, 5 U.S.C. 552a, will be indicated in the notice of designated systems of records published by the Board.</P> <P>(c) Nothing in this part will allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 1630.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) Individuals will not be charged for:</P> <P>(1) The search and review of the record; and</P> <P>(2) Copies of ten (10) or fewer pages of a requested record.</P> <P>(b) Records of more than 10 pages will be photocopied for 15 cents a page. If the record is larger than 8<FR>1/2</FR> × 14 inches, the fee will be the cost of reproducing the record through Government or commercial sources.</P> <P>(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.</P> <P>(d) The Head, TSP Service Office or the Privacy Act Officer may waive the fee if:</P> <P>(1) The cost of collecting the fee exceeds the amount to be collected; or</P> <P>(2) The production of the copies at no charge is in the best interest of the Board.</P> <P>(e) A receipt will be furnished on request.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.17</SECTNO> <SUBJECT>Federal agency requests.</SUBJECT> <P>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:</P> <P>(a) Fair market value;</P> <P>(b) Cost to the TSP; and</P> <P>(c) Interests of the participants and beneficiaries.</P> </SECTION> <SECTION> <PRTPAGE P="226"/> <SECTNO>§ 1630.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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.</P> <P>(b) [Reserved]</P> </SECTION> </PART> <PART> <EAR>Pt. 1631</EAR> <HD SOURCE="HED">PART 1631—AVAILABILITY OF RECORDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECHD>Sec.</SECHD> <SECTNO>1631.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1631.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1631.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <SECTNO>1631.4</SECTNO> <SUBJECT>Public reference facilities and current index.</SUBJECT> <SECTNO>1631.5</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> <SECTNO>1631.6</SECTNO> <SUBJECT>How to request records—form and content.</SUBJECT> <SECTNO>1631.7</SECTNO> <SUBJECT>Initial determination.</SUBJECT> <SECTNO>1631.8</SECTNO> <SUBJECT>Prompt response.</SUBJECT> <SECTNO>1631.9</SECTNO> <SUBJECT>Responses—form and content.</SUBJECT> <SECTNO>1631.10</SECTNO> <SUBJECT>Appeals to the General Counsel from initial denials.</SUBJECT> <SECTNO>1631.11</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <SECTNO>1631.12</SECTNO> <SUBJECT>Waiver or reduction of fees.</SUBJECT> <SECTNO>1631.13</SECTNO> <SUBJECT>Prepayment of fees over $250.</SUBJECT> <SECTNO>1631.14</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <SECTNO>1631.15</SECTNO> <SUBJECT>Information to be disclosed.</SUBJECT> <SECTNO>1631.16</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1631.17</SECTNO> <SUBJECT>Deletion of exempted information.</SUBJECT> <SECTNO>1631.18</SECTNO> <SUBJECT>Annual report.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities</HD> <SECTNO>1631.30</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1631.31</SECTNO> <SUBJECT>Production prohibited unless approved by the Executive Director.</SUBJECT> <SECTNO>1631.32</SECTNO> <SUBJECT>Procedure in the event of a demand for disclosure.</SUBJECT> <SECTNO>1631.33</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 41052, Oct. 9, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECTION> <SECTNO>§ 1631.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Board</E> means the Federal Retirement Thrift Investment Board.</P> <P>(b) <E T="03">Agency</E> means agency as defined in 5 U.S.C. 552(e).</P> <P>(c) <E T="03">Executive Director</E> 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.</P> <P>(d) <E T="03">FOIA</E> means Freedom of Information Act, 5 U.S.C. 552, as amended.</P> <P>(e) <E T="03">FOIA Officer</E> means the Board's Director of Administration or his or her designee.</P> <P>(f) <E T="03">General Counsel</E> means the General Counsel of the Federal Retirement Thrift Investment Board.</P> <P>(g) <E T="03">Working days</E> or <E T="03">workdays</E> means those days when the Board is open for the conduct of Government business, and does not include Saturdays, Sundays, and Federal holidays.</P> <P>(h) <E T="03">Requester</E> means a person making a FOIA request.</P> <P>(i) <E T="03">Submitter</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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 <PRTPAGE P="227"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <P>(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 <E T="03">et seq.</E>). Its primary function is to manage and invest the Thrift Savings Fund for the exclusive benefit of its participants (<E T="03">e.g.</E>, 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:</P> <P>(1) The five part-time members who serve on the Board;</P> <P>(2) The Office of the Executive Director;</P> <P>(3) The Office of Investments;</P> <P>(4) The Office of the General Counsel;</P> <P>(5) The Office of Benefits and Program Analysis;</P> <P>(6) The Office of Accounting;</P> <P>(7) The Office of Administration;</P> <P>(8) The Office of External Affairs;</P> <P>(9) The Office of Automated Systems; and</P> <P>(10) The Office of Communications.</P> <P>(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 1250 H Street, NW., Washington, DC 20005.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, Nov. 7, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.4</SECTNO> <SUBJECT>Public reference facilities and current index.</SUBJECT> <P>(a) The Board maintains a public reading area located in room 4308 at 1250 H Street, NW., Washington, DC. Reading area hours are from 9:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of Federal holidays. Electronic reading room documents are available through http://www.frtib.gov. In the reading area and through the Web site, the Board makes available for public inspection, copying, and downloading materials required by 5 U.S.C. 552(a)(2), including documents published by the Board in the <E T="04">Federal Register</E> which are currently in effect.</P> <P>(b) The FOIA Officer shall maintain an index of Board regulations, directives, bulletins, and published materials.</P> <P>(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 General Counsel. 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.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, 55332, Nov. 7, 1994; 63 FR 41708, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.5</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> <P>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 person submitting the request shall be so notified.</P> </SECTION> <SECTION> <SECTNO>§ 1631.6</SECTNO> <SUBJECT>How to request records—form and content.</SUBJECT> <P>(a) A request made under the FOIA must be submitted in writing, addressed to: FOIA Officer, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The words “FOIA Request” should be clearly marked on both the letter and the envelope.</P> <P>(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.<PRTPAGE P="228"/> </P> <P>(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.</P> <P>(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.</P> <P>(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 made under the FOIA shall inform the person making the request of the provisions of this subpart requiring a written request according to the procedures set out herein.</P> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, Nov. 7, 1994; 63 FR 41708, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.7</SECTNO> <SUBJECT>Initial determination.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.8</SECTNO> <SUBJECT>Prompt response.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(b) The FOIA Officer will either approve or deny a reasonably descriptive request for records within 20 work days after receipt of the request, unless additional time is required for one of the following reasons:</P> <P>(1) It is necessary to search for and collect the requested records from other establishments that are separate from the office processing the request (e.g., the record keeper);</P> <P>(2) It is necessary to search for, collect, and examine a voluminous amount of records which are demanded in a single request;</P> <P>(3) It is necessary to consult with another agency which has a substantial interest in the determination of the request or to consult with two or more offices of the Board which have a substantial subject matter interest in the records; or</P> <P>(4) It is necessary to devote resources to the processing of an expedited request under § 1631.6(f).</P> <P>(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—</P> <P>(1) Limit the scope of the request; or<PRTPAGE P="229"/> </P> <P>(2) Arrange with the FOIA Officer an alternative time frame for processing the request.</P> <CITA>[63 FR 41708, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.9</SECTNO> <SUBJECT>Responses—form and content.</SUBJECT> <P>(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 advise the person making the request of any fees assessed under § 1631.13 of this part.</P> <P>(b) A denial or partial denial of a request for a record shall be in writing signed by the FOIA Officer and shall include:</P> <P>(1) The name and title of the person making the determination;</P> <P>(2) A statement of fees assessed, if any; and</P> <P>(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</P> <P>(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</P> <P>(5) A statement that the denial may be appealed to the General Counsel within 30 calendar days of receipt of the denial or partial denial.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.10</SECTNO> <SUBJECT>Appeals to the General Counsel from initial denials.</SUBJECT> <P>(a) When the FOIA Officer has denied a request for expedited processing or a request for records, in whole or in part, the person making the request may, within 30 calendar days of receipt of the response of the FOIA Officer, appeal the denial to the General Counsel. The appeal must be in writing, addressed to the General Counsel, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005, and be clearly labeled as a “Freedom of Information Act Appeal.”</P> <P>(b)(1) The General Counsel will act upon the appeal of a denial of a request for expedited processing within 5 work days of its receipt.</P> <P>(2) The General Counsel will act upon the appeal of a denial of a request for records within 20 work days of its receipt.</P> <P>(c) The General Counsel will decide the appeal in writing and mail the decision to the requester.</P> <P>(d) If the appeal concerns an expedited processing request and the decision is in favor of the person making the request, the General Counsel 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 General Counsel will order that the subject records be promptly made available to the person making the request.</P> <P>(e) If the appeal of a request for expedited processing of records is denied, in whole or in part, the General Counsel'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 General Counsel'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.)</P> <P>(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.</P> <P>(g) On appeal of a request concerning records, the General Counsel may reduce any fees previously assessed.</P> <CITA>[63 FR 41708, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <PRTPAGE P="230"/> <SECTNO>§ 1631.11</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <P>(a) There are four categories of FOIA requesters; commercial use requesters; representatives of news media; educational and noncommercial scientific institutions; and all other requesters. The Freedom of Information Reform Act of 1986 prescribes specific levels of fees for each of these categories:</P> <P>(1) When records are being requested for commercial use, the fee policy of the Board is to levy full allowable direct cost of searching for, reviewing for release, and duplicating the records sought. Commercial users are not entitled to two hours of free search time, nor 100 free pages of reproduction of documents, nor waiver or reduction of fees, based on an assertion that disclosure would be in the public interest. The full allowable direct cost of searching for, and reviewing, records will be charged even if there is ultimately no disclosure of records. Commercial use is defined as a use that furthers the commercial trade or profit interests of the requester or person on whose behalf the request is made. In determining whether a requester falls within the commercial use category, the Board will look to the use to which a requester will put the documents requested.</P> <P>(2) When records are being requested by representatives of the news media, the fee policy of the Board is to levy reproduction charges only, excluding charges for the first 100 pages. The phrase “representatives of the news media” refers to 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 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 in those instances where they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. As traditional methods of news delivery evolve (<E T="03">e.g.</E> electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of freelance journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the Board may also look to the past publication record of a requester in making this determination.</P> <P>(3) When records are being requested by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research, the fee policy of the Board is to levy reproduction charges only, excluding charges for the first 100 pages. 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, and an institution of vocational education, which operates a program or programs of scholarly research. The term “noncommercial scientific institution” refers to an institution that is not operated on a commercial basis as that term is defined under paragraph (a)(1) of this section and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. To be eligible for inclusion in this category, a requester must show that the request is being made under the auspices of a qualifying 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 noncommercial scientific institution) research.</P> <P>(4) For any other request which does not meet the criteria contained in paragraphs (a) (1) through (3) of this section, the fee policy of the Board is to levy full reasonable direct cost of searching for and duplicating the records sought, except that the first 100 pages of reproduction and the first two hours of search time will be furnished without charge. If computer search <PRTPAGE P="231"/>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, <E T="03">i.e.</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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41708, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.12</SECTNO> <SUBJECT>Waiver or reduction of fees.</SUBJECT> <P>(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:</P> <P>(1) Whether the subject of the requested records concerns the operations or activities of the Board or the Government,</P> <P>(2) Whether the disclosure is likely to contribute to an understanding of Government operations or activities (including those of the Board),</P> <P>(3) Whether the disclosure is likely to contribute significantly to public understanding of TSP or Government operations or activities,</P> <P>(4) Whether the requester has a commercial interest that would be <PRTPAGE P="232"/>furthered by the requested disclosure, and</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.13</SECTNO> <SUBJECT>Prepayment of fees over $250.</SUBJECT> <P>(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.</P> <P>(b) When a requester has previously failed to pay a fee charged in a timely fashion (<E T="03">i.e.</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.</P> <P>(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 (<E T="03">i.e.</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.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41709, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.14</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <P>(a) <E T="03">Manual searches for records.</E> 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.</P> <P>(b) <E T="03">Computer searches for records.</E> 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.</P> <P>(c) <E T="03">Duplication costs.</E> (1) For copies of documents reproduced on a standard office copying machine in sizes up to 8<FR>1/2</FR> × 14 inches, the charge will be $.15 per page.</P> <P>(2) The fee for reproducing copies of records over 8<FR>1/2</FR> × 14 inches, or whose physical characteristics do not permit reproduction by routine electrostatic copying, shall be the direct cost of reproducing the records through Government or commercial sources. 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 had indicated in advance his/her willingness to pay fees 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.</P> <P>(3) For copies prepared by computer, such as tapes or printouts, the Board shall charge the actual cost, including operator time, of producing the tape or printout. 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.</P> <P>(4) For other methods of reproduction or duplication, the Board shall charge the actual direct costs of producing the <PRTPAGE P="233"/>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.</P> <P>(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.</P> <P>(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.</P> <CITA>[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41709, Aug. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1631.15</SECTNO> <SUBJECT>Information to be disclosed.</SUBJECT> <P>(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)).</P> <P>(b) <E T="03">Records from non-U.S. Government source.</E> (1) Board personnel will generally consider two exemptions in the FOIA in deciding whether to withhold from disclosure material from a non-U.S. Government source.</P> <P>Exemption 4 permits withholding of “trade secrets and commercial or financial information obtained from a person as privileged or confidential.” Exemption 6 permits withholding certain information, the disclosure of which “would constitute a clearly unwarranted invasion of personal privacy.”</P> <P>(2)(i) <E T="03">Exemption 4</E>. 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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) That a FOIA request has been received seeking the record,</P> <P>(ii) That disclosure of the record may be required,</P> <P>(iii) That disclosure of the record could result in competitive harm to the submitter,</P> <P>(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<PRTPAGE P="234"/> </P> <P>(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.</P> <P>(4) In exceptional circumstances, the Board may extend by seven workdays the time for a submitter's response for good cause.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(11) <E T="03">Exemption 6.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.16</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1631.17</SECTNO> <SUBJECT>Deletion of exempted information.</SUBJECT> <P>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 <PRTPAGE P="235"/>disclosed by the Board with deletions. To each such record, the Board shall attach a written justification for making deletions. A single such justification shall suffice for deletions made in a group of similar or related records.</P> </SECTION> <SECTION> <SECTNO>§ 1631.18</SECTNO> <SUBJECT>Annual report.</SUBJECT> <P>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).</P> <CITA>[63 FR 41709, Aug. 5, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities</HD> <SECTION> <SECTNO>§ 1631.30</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains the regulations of the Board concerning procedures to be followed when a subpoena, order, or other demand (hereinafter in this subpart referred to as a “demand”) of a court or other authority is issued for the production or disclosure of:</P> <P>(a) Any material contained in the files of the Board;</P> <P>(b) Any information relating to materials contained in the files of the Board; or</P> <P>(c) Any information or material acquired by an employee of the Board as a part of the performance of his or her official duties or because of his or her official status.</P> </SECTION> <SECTION> <SECTNO>§ 1631.31</SECTNO> <SUBJECT>Production prohibited unless approved by the Executive Director.</SUBJECT> <P>No employee or former employee of the Board shall, in response to a demand of a court or other authority, produce any material contained in the files of the Board or disclose any information or produce any material acquired as part of the performance of his or her official status without the prior approval of the Executive Director or his or her designee.</P> </SECTION> <SECTION> <SECTNO>§ 1631.32</SECTNO> <SUBJECT>Procedure in the event of a demand for disclosure.</SUBJECT> <P>(a) Whenever a demand is made upon an employee or former employee of the Board for the production of material or the disclosure of information described in § 1631.31, he or she shall immediately notify the Executive Director or his or her designee. If possible, the Executive Director or his or her designee shall be notified before the employee or former employee concerned replies to or appears before the court or other authority.</P> <P>(b) If response to the demand is required before instructions from the Executive Director or his or her designee are received, an attorney designated for that purpose by the Board shall appear with the employee or former employee upon whom the demand has been made 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 Executive Director or his or her designee. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the Executive Director.</P> </SECTION> <SECTION> <SECTNO>§ 1631.33</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <P>If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 1631.32(b) pending receipt of instructions from the Executive Director, or his or her designee, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the Executive Director 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. [<E T="03">United States ex. rel. Touhy</E> v. <E T="03">Ragen</E>, 340 U.S. 462 (1951)].</P> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="236"/> <EAR>Pt. 1632</EAR> <HD SOURCE="HED">PART 1632—RULES REGARDING PUBLIC OBSERVATION OF MEETINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1632.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1632.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1632.3</SECTNO> <SUBJECT>Conduct of agency business.</SUBJECT> <SECTNO>1632.4</SECTNO> <SUBJECT>Meetings open to public observation.</SUBJECT> <SECTNO>1632.5</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1632.6</SECTNO> <SUBJECT>Public announcement of meetings.</SUBJECT> <SECTNO>1632.7</SECTNO> <SUBJECT>Meetings closed to public observation.</SUBJECT> <SECTNO>1632.8</SECTNO> <SUBJECT>Changes with respect to publicly announced meetings.</SUBJECT> <SECTNO>1632.9</SECTNO> <SUBJECT>Certification of General Counsel.</SUBJECT> <SECTNO>1632.10</SECTNO> <SUBJECT>Transcripts, recordings, and minutes.</SUBJECT> <SECTNO>1632.11</SECTNO> <SUBJECT>Procedures for inspection and obtaining copies of transcriptions and minutes.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552b and 5 U.S.C. 8474.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 36777, Sept. 22, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1632.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1632.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part, the following definitions shall apply:</P> <P>(a) The term <E T="03">Act</E> means the Government in the Sunshine Act, 5 U.S.C. 552b.</P> <P>(b) The term <E T="03">Board</E> means the Federal Retirement Thrift Investment Board and subdivisions thereof.</P> <P>(c) The term <E T="03">meeting</E> 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—</P> <P>(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</P> <P>(2) The conduct or disposition of official agency business by circulating written material to individual members.</P> <P>(d) The term <E T="03">number of individual agency members required to take action on behalf of the agency</E> means three members.</P> <P>(e) The term <E T="03">member</E> means a member of the Board appointed under section 101 of the Federal Employees’ Retirement System Act of 1986, 5 U.S.C. 8472.</P> <P>(f) The term <E T="03">public observation</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1632.3</SECTNO> <SUBJECT>Conduct of agency business.</SUBJECT> <P>Members shall not jointly conduct or dispose of official Board business other than in accordance with this part.</P> </SECTION> <SECTION> <SECTNO>§ 1632.4</SECTNO> <SUBJECT>Meetings open to public observation.</SUBJECT> <P>(a) Except as provided in § 1632.5 of this part, every portion of every meeting of the agency shall be open to public observation.</P> <P>(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.</P> <P>(c) The Board will maintain mailing lists of names and addresses of all persons who wish to receive copies of agency announcements of meetings open to public observation. Requests for announcements may be made by telephoning or by writing to the Office <PRTPAGE P="237"/>of External Affairs, Federal Retirement Thrift Investment Board, 1250 H Street NW., Washington, DC 20005.</P> <CITA>[53 FR 36777, Sept. 22, 1988, as amended at 59 FR 55331, Nov. 7, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1632.5</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(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:</P> <P>(1) Disclose matters that are:</P> <P>(i) Specifically authorized under criteria established by an Executive Order to be kept secret in the interests of national defense or foreign policy, and</P> <P>(ii) In fact properly classified pursuant to such Executive Order;</P> <P>(2) Relate solely to internal personnel rules and practices;</P> <P>(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:</P> <P>(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or</P> <P>(ii) Established particular criteria for withholding or refers to particular types of matters to be withheld;</P> <P>(4) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;</P> <P>(5) Involve accusing any person of a crime, or formally censuring any person;</P> <P>(6) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;</P> <P>(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:</P> <P>(i) Interfere with enforcement proceedings,</P> <P>(ii) Deprive a person of a right to a fair trial or an impartial adjudication,</P> <P>(iii) Constitute an unwarranted invasion of personal privacy,</P> <P>(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,</P> <P>(v) Disclose investigative techniques and procedures, or</P> <P>(vi) Endanger the life or physical safety of law enforcement personnel;</P> <P>(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;</P> <P>(9) Disclose information the premature disclosure of which would:</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <PRTPAGE P="238"/> <SECTNO>§ 1632.6</SECTNO> <SUBJECT>Public announcement of meetings.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 1632.7</SECTNO> <SUBJECT>Meetings closed to public observation.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="239"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1632.8</SECTNO> <SUBJECT>Changes with respect to publicly announced meetings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1632.9</SECTNO> <SUBJECT>Certification of General Counsel.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 1632.10</SECTNO> <SUBJECT>Transcripts, recordings, and minutes.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="240"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1632.11</SECTNO> <SUBJECT>Procedures for inspection and obtaining copies of transcriptions and minutes.</SUBJECT> <P>(a) Any person may inspect or copy a transcript, a recording or transcription, or minutes described in § 1632.10(c) of this part.</P> <P>(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, 1250 H Street NW., Washington, DC 20005. 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).</P> <CITA>[53 FR 36777, Sept. 22, 1988, as amended at 59 FR 55331, Nov. 7, 1994]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1633</EAR> <HD SOURCE="HED">PART 1633—STANDARDS OF CONDUCT</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301.</P> </AUTH> <SECTION> <SECTNO>§ 1633.1</SECTNO> <SUBJECT>Cross-reference to employee ethical conduct standards and financial disclosure regulations.</SUBJECT> <P>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.</P> <CITA>[59 FR 50817, Oct. 6, 1994]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1636</EAR> <HD SOURCE="HED">PART 1636—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1636.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1636.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1636.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1636.104—1636.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>1636.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>1636.112—1636.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>1636.131—1636.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>1636.141—1636.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>1636.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>1636.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>1636.152—1636.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1636.161—1636.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1636.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>1636.171—1636.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 57696, 57699, Oct. 26, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1636.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1636.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1636.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil <PRTPAGE P="241"/>Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> 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.</P> <P> <E T="03">Complete complaint</E> 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.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P> <P> <E T="03">Historic properties</E> 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.</P> <P> <E T="03">Individual with handicaps</E> 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:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(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</P> <P>(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.</P> <P>(2) <E T="03">Major life activities</E> include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> 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.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P> <P>(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;</P> <P>(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</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified individual with handicaps</E> means—</P> <P>(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;<PRTPAGE P="242"/> </P> <P>(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;</P> <P>(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</P> <P>(4) <E T="03">Qualified handicapped person</E> 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.</P> <P> <E T="03">Section 504</E> 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.</P> <P> <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.104—1636.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P> <P>(1) A description of areas examined and any problems identified; and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 1636.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.112—1636.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(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.</P> <P>(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—</P> <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(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;</P> <P>(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;</P> <P>(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 <PRTPAGE P="243"/>handicaps with aid, benefits, or services that are as effective as those provided to others;</P> <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(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</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.131—1636.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.141—1636.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1636.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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—<PRTPAGE P="244"/> </P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Methods</E>—(1) <E T="03">General.</E> 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.</P> <P>(2) <E T="03">Historic preservation programs.</E> 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—</P> <P>(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;</P> <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P> <P>(iii) Adopting other innovative methods.</P> <P>(c) <E T="03">Time period for compliance.</E> 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.</P> <P>(d) <E T="03">Transition plan.</E> 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—<PRTPAGE P="245"/> </P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(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</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 1636.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.152—1636.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(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.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with handicaps.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§§ 1636.161—1636.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1636.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(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.<PRTPAGE P="246"/> </P> <P>(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).</P> <P>(c) The Assistant General Counsel (Administration) shall be responsible for coordinating implementation of this section. Complaints may be sent to the Executive Director.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found; and</P> <P>(3) A notice of the right to appeal.</P> <P>(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.</P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(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.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(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.</P> <CITA>[58 FR 57696, 57699, Oct. 26, 1993, as amended at 58 FR 57697, Oct. 26, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1636.171—1636.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> <PART> <EAR>Pt. 1639</EAR> <HD SOURCE="HED">PART 1639—CLAIMS COLLECTION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Administrative Collection, Compromise, Termination, and Referral of Claims</HD> <SECHD>Sec.</SECHD> <SECTNO>1639.1</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>1639.2</SECTNO> <SUBJECT>Application of other regulations; scope.</SUBJECT> <SECTNO>1639.3</SECTNO> <SUBJECT>Application to other statutes.</SUBJECT> <SECTNO>1639.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1639.5</SECTNO> <SUBJECT>Use of credit reporting agencies.</SUBJECT> <SECTNO>1639.6</SECTNO> <SUBJECT>Contracting for collection services.</SUBJECT> <SECTNO>1639.7</SECTNO> <SUBJECT>Initial notice to debtor.</SUBJECT> <SECTNO>1639.8</SECTNO> <SUBJECT>Interest, penalty, and administrative costs.</SUBJECT> <SECTNO>1639.9</SECTNO> <SUBJECT>Charges pending waiver or review.</SUBJECT> <SECTNO>1639.10</SECTNO> <SUBJECT>Referrals to the Department of Justice.</SUBJECT> <SECTNO>1639.11</SECTNO> <SUBJECT>Cross-servicing agreement with the Department of the Treasury.</SUBJECT> <SECTNO>1639.12</SECTNO> <SUBJECT>Deposit of funds collected.</SUBJECT> <SECTNO>1639.13</SECTNO> <SUBJECT>Antialienation of funds in Thrift Savings Plan participant accounts.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Salary Offset</HD> <SECTNO>1639.20</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <SECTNO>1639.21</SECTNO> <SUBJECT>Waiver requests.</SUBJECT> <SECTNO>1639.22</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <SECTNO>1639.23</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>1639.24</SECTNO> <SUBJECT>Certification.</SUBJECT> <SECTNO>1639.25</SECTNO> <SUBJECT>Voluntary repayment agreements as alternative to salary offset.</SUBJECT> <SECTNO>1639.26</SECTNO> <SUBJECT>Special review.</SUBJECT> <SECTNO>1639.27</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>1639.28</SECTNO> <SUBJECT>Coordinating salary offset with other agencies.</SUBJECT> <SECTNO>1639.29</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>1639.30</SECTNO> <SUBJECT>Non-waiver of rights by payments.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="247"/> <HD SOURCE="HED">Subpart C—Tax Refund Offset</HD> <SECTNO>1639.40</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <SECTNO>1639.41</SECTNO> <SUBJECT>Procedures for tax refund offset.</SUBJECT> <SECTNO>1639.42</SECTNO> <SUBJECT>Notice requirements before tax refund offset.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Administrative Offset</HD> <SECTNO>1639.50</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <SECTNO>1639.51</SECTNO> <SUBJECT>Notice procedures.</SUBJECT> <SECTNO>1639.52</SECTNO> <SUBJECT>Board review.</SUBJECT> <SECTNO>1639.53</SECTNO> <SUBJECT>Written agreement for repayment.</SUBJECT> <SECTNO>1639.54</SECTNO> <SUBJECT>Requests for offset to Federal agencies.</SUBJECT> <SECTNO>1639.55</SECTNO> <SUBJECT>Requests for offset from Federal agencies.</SUBJECT> <SECTNO>1639.56</SECTNO> <SUBJECT>Expedited procedure.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474; 31 U.S.C. 3711, 3716, 3720A.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 49417, Sept. 22, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Administrative Collection, Compromise, Termination, and Referral of Claims</HD> <SECTION> <SECTNO>§ 1639.1</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>The regulations of this part are issued under 5 U.S.C. 8474 and 31 U.S.C. 3711, 3716, and 3720A, and in conformity with the Federal Claims Collection Standards, 4 CFR chapter II, prescribing standards for administrative collection, compromise, termination of agency collection action, and referral to the Department of Justice for litigation of civil claims by the Government for money or property, 4 CFR chapter II.</P> </SECTION> <SECTION> <SECTNO>§ 1639.2</SECTNO> <SUBJECT>Application of other regulations; scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.3</SECTNO> <SUBJECT>Application to other statutes.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Administrative offset,</E> 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.</P> <P> <E T="03">Agency</E> 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.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board, which administers the Thrift Savings Plan and the Thrift Savings Fund.</P> <P> <E T="03">Certification</E> means a written debt claim form received from a creditor agency which requests the paying agency to offset the salary of an employee.</P> <P> <E T="03">Creditor agency</E> means an agency of the Federal Government to which the debt is owed.</P> <P> <E T="03">Debt</E> 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.<PRTPAGE P="248"/> </P> <P> <E T="03">Delinquent debt</E> means a debt that has not been paid within the time limit prescribed by the Board.</P> <P> <E T="03">Disposable pay</E> 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:</P> <P>(1) Federal Social Security and Medicare taxes;</P> <P>(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;</P> <P>(3) Health insurance premiums;</P> <P>(4) Normal retirement contributions as explained in 5 CFR 581.105(e);</P> <P>(5) Normal life insurance premiums, excluding optional life insurance premiums; and</P> <P>(6) Levies pursuant to the Internal Revenue Code, as defined in 5 U.S.C. 5514(d).</P> <P> <E T="03">Employee</E> 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.</P> <P> <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board, or his or her designee.</P> <P> <E T="03">Federal Claims Collection Standards</E> means the standards published at 4 CFR chapter II.</P> <P> <E T="03">Hearing official</E> 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.</P> <P> <E T="03">Net Assets Available for Thrift Savings Plan Benefits</E> means all funds owed to Thrift Savings Plan participants and beneficiaries.</P> <P> <E T="03">Notice of intent to offset</E> or <E T="03">notice of intent</E> 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.</P> <P> <E T="03">Notice of salary offset</E> 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.</P> <P> <E T="03">Participant</E> means any person with an account in the Thrift Savings Plan, or who would have an account but for an employing agency error.</P> <P> <E T="03">Paying agency</E> 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.</P> <P> <E T="03">Payroll office</E> 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.</P> <P> <E T="03">Person</E> 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.</P> <P> <E T="03">Private collection contractor</E> means a private debt collector under contract with an agency to collect a non-tax debt owed to the United States.</P> <P> <E T="03">Salary offset</E> 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.</P> <P> <E T="03">Tax refund offset</E> 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.</P> <P> <E T="03">Thrift Savings Fund</E> means the Fund described in 5 U.S.C. 8437.</P> <P> <E T="03">Thrift Savings Plan</E> 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 <E T="03">et seq.</E>.</P> <P> <E T="03">Waiver</E> means the cancellation, remission, forgiveness, or non-recovery of a debt allegedly owed by a person to <PRTPAGE P="249"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.5</SECTNO> <SUBJECT> Use of credit reporting agencies.</SUBJECT> <P>(a) The Board may report delinquent debts to appropriate credit reporting agencies by providing the following information:</P> <P>(1) A statement that the debt is valid and is overdue;</P> <P>(2) The name, address, taxpayer identification number, and any other information necessary to establish the identity of the debtor;</P> <P>(3) The amount, status, and history of the debt; and</P> <P>(4) The program or pertinent activity under which the debt arose.</P> <P>(b) Before disclosing debt information to a credit reporting agency, the Board will:</P> <P>(1) Take reasonable action to locate the debtor if a current address is not available; and</P> <P>(2) If a current address is available, notify the debtor by certified mail, return receipt requested:</P> <P>(i) That a designated Board official has reviewed the claim and has determined that the claim is valid and over-due;</P> <P>(ii) That within 60 days the Board intends to disclose to a credit reporting agency the information authorized for disclosure by this section; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.6</SECTNO> <SUBJECT>Contracting for collection services.</SUBJECT> <P>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—</P> <P>(a) Retain sole authority to:</P> <P>(1) Resolve any dispute by the debtor regarding the validity of the debt;</P> <P>(2) Compromise the debt;</P> <P>(3) Suspend or terminate collection action;</P> <P>(4) Refer the debt to the Department of Justice for litigation; and</P> <P>(5) Take any other action under this part which does not result in full collection of the debt;</P> <P>(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 <E T="03">et seq.</E>)), and with applicable regulations of the Board;</P> <P>(c) Require the contractor to account accurately and fully for all amounts collected; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.7</SECTNO> <SUBJECT>Initial notice to debtor.</SUBJECT> <P>(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:</P> <P>(1) The amount, nature, and basis of the debt;</P> <P>(2) That payment is due immediately after receipt of the notice;</P> <P>(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;</P> <P>(4) That interest charges (except for State and local governments and Indian tribes), penalty charges, and <PRTPAGE P="250"/>admini strative costs may be assessed against a delinquent debt;</P> <P>(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</P> <P>(6) The address, telephone number, and name of the Board official available to discuss the debt.</P> <P>(b) The Board will respond promptly to communications from the debtor.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.8</SECTNO> <SUBJECT>Interest, penalty, and administrative costs.</SUBJECT> <P>(a) <E T="03">Interest.</E> The Board will assess interest on all delinquent debts unless prohibited by statute, regulation, or contract.</P> <P>(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 (<E T="03">i.e.,</E> the Treasury tax and loan account rate) as prescribed and published by the Secretary of the Treasury in the <E T="04">Federal Register</E> and the Treasury Fiscal Requirements Manual Bulletins, unless a different rate is necessary to protect the interests of the Board. The Board will notify the debtor of the basis for its finding when a different rate is necessary to protect the Board's interests.</P> <P>(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.</P> <P>(b) <E T="03">Penalty.</E> 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.</P> <P>(c) <E T="03">Administrative costs.</E> 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.</P> <P>(d) <E T="03">Allocation of payments.</E> 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.</P> <P>(e) <E T="03">Waiver.</E> (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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.9</SECTNO> <SUBJECT>Charges pending waiver or review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="251"/> <SECTNO>§ 1639.10</SECTNO> <SUBJECT>Referrals to the Department of Justice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.11</SECTNO> <SUBJECT>Cross-servicing agreement with the Department of the Treasury.</SUBJECT> <P>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 <E T="03">et seq.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1639.12</SECTNO> <SUBJECT>Deposit of funds collected.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.13</SECTNO> <SUBJECT>Antialienation of funds in Thrift Savings Plan participant accounts.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Salary Offset</HD> <SECTION> <SECTNO>§ 1639.20</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <P>(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.</P> <P>(b) The regulations in this subpart apply to collections by the Executive Director, from:</P> <P>(1) Federal employees who owe debts to the Board; and</P> <P>(2) Employees of the Board who owe debts to Federal agencies.</P> <P>(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 <E T="03">et seq.</E>); 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 T="03">e.g.,</E> travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108).</P> <P>(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 <E T="03">et seq.</E>, 4 CFR Parts 101-105, 38 CFR 1.900—1.994).</P> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.21</SECTNO> <SUBJECT>Waiver requests.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.22</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <P>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:<PRTPAGE P="252"/> </P> <P>(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;</P> <P>(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;</P> <P>(c) The amount, frequency, approximate beginning date, and duration of the intended deductions;</P> <P>(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;</P> <P>(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;</P> <P>(f) The right to a hearing conducted by an administrative law judge or other impartial hearing official (<E T="03">i.e.</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 (<E T="03">i.e.</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;</P> <P>(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;</P> <P>(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;</P> <P>(i) The method and time period for requesting a hearing;</P> <P>(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;</P> <P>(k) The name and address of the officer or employee of the Board to whom the request for a hearing should be sent;</P> <P>(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;</P> <P>(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;</P> <P>(n) That any knowingly false or frivolous statements, representations, or evidence may subject the employee to:</P> <P>(1) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 CFR part 752, or any other applicable statute or regulations;</P> <P>(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3733, or any other applicable statutory authority; and</P> <P>(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 102, or any other applicable statutory authority;</P> <P>(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> <P>(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</P> <P>(q) That proceedings with respect to the debt are governed by 5 U.S.C. 5514.</P> </SECTION> <SECTION> <SECTNO>§ 1639.23</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) <E T="03">Request for hearing.</E> 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 <PRTPAGE P="253"/>office designated in the notice of intent. See § 1639.22(k).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Failure to timely submit.</E> (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).</P> <P>(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:</P> <P>(i) Fails to file a request for a hearing and the failure is not excused; or</P> <P>(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.</P> <P>(c) <E T="03">Representation at the hearing.</E> 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.</P> <P>(d) <E T="03">Review of Board records related to the debt.</E> (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.</P> <P>(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.</P> <P>(3) If personal inspection is impractical, arrangements will be made to send copies of those records to the employee.</P> <P>(e) <E T="03">Hearing official.</E> 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.</P> <P>(f) <E T="03">Procedure.</E> (1) <E T="03">General.</E> 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.</P> <P>(2) <E T="03">Oral hearing.</E> 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 T="03">e.g.</E>, 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:</P> <P>(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;</P> <P>(ii) Informal meetings with an interview of the employee; or</P> <P>(iii) Formal written submissions, with an opportunity for oral presentation.</P> <P>(3) <E T="03">Record determination.</E> If the hearing official determines that an oral hearing is not necessary, he or she will <PRTPAGE P="254"/>make the determination based upon a review of the available written record.</P> <P>(4) <E T="03">Record.</E> The hearing official must maintain a summary record of any hearing provided by this subpart.</P> <P>(g) <E T="03">Date of decision.</E> 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.</P> <P>(h) <E T="03">Content of decision.</E> The written decision will include:</P> <P>(1) A statement of the facts presented to support the origin, nature, and amount of the debt;</P> <P>(2) The hearing official's findings, analysis, and conclusions; and</P> <P>(3) The terms of any repayment schedules, if applicable.</P> <P>(i) <E T="03">Failure to appear.</E> (1) In the absence of good cause shown (<E T="03">e.g.</E>, 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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.24</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>(a) The Board will provide a certification to the paying agency in all cases in which:</P> <P>(1) The hearing official determines that a debt exists;</P> <P>(2) The employee admits the existence and amount of the debt by failing to request a hearing; or</P> <P>(3) The employee admits the existence of the debt by failing to appear at a hearing.</P> <P>(b) The certification must be in writing and must include:</P> <P>(1) A statement that the employee owes the debt;</P> <P>(2) The amount and basis of the debt;</P> <P>(3) The date the Board's right to collect the debt first accrued;</P> <P>(4) A statement that the Board's regulations have been approved by the Office of Personnel Management under 5 CFR part 550, subpart K;</P> <P>(5) The amount and date of the collection, if only a one-time offset is required;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.25</SECTNO> <SUBJECT>Voluntary repayment agreements as alternative to salary offset.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="255"/>within the Executive Director's discretion to accept a repayment agreement instead of proceeding by salary offset.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.26</SECTNO> <SUBJECT>Special review.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Income from all sources;</P> <P>(2) Assets;</P> <P>(3) Liabilities;</P> <P>(4) Number of dependents;</P> <P>(5) Expenses for food, housing, clothing, and transportation;</P> <P>(6) Medical expenses; and</P> <P>(7) Exceptional expenses, if any.</P> <P>(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.</P> <P>(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.</P> <P>(e) If the special review results in a revised offset or repayment schedule, the Board will provide a new certification to the paying agency.</P> </SECTION> <SECTION> <SECTNO>§ 1639.27</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>(a) The Board will coordinate salary deductions under this subpart.</P> <P>(b) The Board's payroll office will determine the amount of an employee's disposable pay and will implement the salary offset.</P> <P>(c) Deductions will begin within three official pay periods following receipt by the Board's payroll office of certification for the creditor agency.</P> <P>(d) Types of collection—</P> <P>(1) <E T="03">Lump-sum offset.</E> 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.</P> <P>(2) <E T="03">Installment deductions.</E> 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.</P> <P>(3) <E T="03">Deductions from final check.</E> 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.</P> <P>(4) <E T="03">Deductions from other sources.</E> 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.<PRTPAGE P="256"/> </P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.28</SECTNO> <SUBJECT>Coordinating salary offset with other agencies.</SUBJECT> <P>(a) <E T="03">Responsibility of the Board as the creditor agency.</E> (1) The Board will coordinate debt collections with other agencies and will, as appropriate:</P> <P>(i) Arrange for a hearing or special review upon proper petitioning by the debtor; and</P> <P>(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.</P> <P>(2) The Board will ensure:</P> <P>(i) That each notice of intent to offset is consistent with the requirements of § 1639.22;</P> <P>(ii) That each certification of debt that is sent to a paying agency is consistent with the requirements of § 1639.24; and</P> <P>(iii) That hearings are properly scheduled.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="257"/> </P> <P>(b) <E T="03">Responsibility of the Board as the paying agency.</E> (1) <E T="03">Complete claim.</E> 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:</P> <P>(i) A statement that the Board has received a certified debt claim from the creditor agency;</P> <P>(ii) The amount of the debt claim;</P> <P>(iii) The date salary offset deductions will begin, and</P> <P>(iv) The amount of such deductions.</P> <P>(2) <E T="03">Incomplete claim.</E> 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.</P> <P>(3) <E T="03">Review.</E> 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.</P> <P>(4) <E T="03">Employees who transfer from one paying agency to another.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.29</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(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:</P> <P>(1) The debt is waived or all or part of the funds deducted are otherwise found not to be owed; or</P> <P>(2) An administrative or judicial order directs the Board to make a refund.</P> <P>(b) Unless required or permitted by law or contract, refunds under this section will not bear interest.</P> </SECTION> <SECTION> <SECTNO>§ 1639.30</SECTNO> <SUBJECT>Non-waiver of rights by payments.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Tax Refund Offset</HD> <SECTION> <SECTNO>§ 1639.40</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Is at least $25.00 dollars;</P> <P>(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;</P> <P>(3) Cannot be currently collected under the salary offset provisions of 5 U.S.C. 5514;</P> <P>(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;</P> <P>(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;</P> <P>(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;<PRTPAGE P="258"/> </P> <P>(7) With respect to which the Board has notified or has made a reasonable attempt to notify the debtor that:</P> <P>(i) The debt is past due, and</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.41</SECTNO> <SUBJECT>Procedures for tax refund offset.</SUBJECT> <P>(a) The Board will be the point of contact with the Department of the Treasury for administrative matters regarding the offset program.</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(2) The dollar amount of the past-due and legally enforceable debt;</P> <P>(3) The date on which the original debt became past due;</P> <P>(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).</P> <P>(d) The Board shall promptly notify the Department of the Treasury to correct Board data submitted when it:</P> <P>(1) Determines that an error has been made with respect to a debt that has been referred;</P> <P>(2) Receives or credits a payment on the debt; or</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.42</SECTNO> <SUBJECT>Notice requirements before tax refund offset.</SUBJECT> <P>(a) The Board must notify, or make a reasonable attempt to notify, the person:</P> <P>(1) The amount of the debt and that the debt is past due; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="259"/>Board must directly notify the debtor of its determination.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Administrative Offset</HD> <SECTION> <SECTNO>§ 1639.50</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) The debt is certain in amount; and</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) The debt exists; and</P> <P>(2) The person has been afforded the necessary due process rights.</P> <P>(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.</P> <P>(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.</P> <P>(g) The regulations in this subpart do not apply to:</P> <P>(1) A case in which administrative offset of the type of debt involved is explicitly provided for or prohibited by another statute; or</P> <P>(2) Debts owed to the Board by Federal agencies or by any State or local government.</P> </SECTION> <SECTION> <SECTNO>§ 1639.51</SECTNO> <SUBJECT>Notice procedures.</SUBJECT> <P>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:</P> <P>(a) A description of the nature and amount of the debt and the intention of the Board to collect the debt through administrative offset;</P> <P>(b) An opportunity to inspect and copy the records of the Board with respect to the debt;</P> <P>(c) An opportunity for review within the Board of the determination of the Board with respect to the debt; and</P> <P>(d) An opportunity to enter into a written agreement for repaying the amount of the debt.</P> </SECTION> <SECTION> <SECTNO>§ 1639.52</SECTNO> <SUBJECT>Board review.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="260"/>measured from the time the request for inspection is granted or from the time the debtor receives a copy of the records.</P> <P>(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.</P> <P>(d) During the review period, interest, penalties, and administrative costs authorized by law will continue to accrue.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.53</SECTNO> <SUBJECT>Written agreement for repayment.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.54</SECTNO> <SUBJECT>Requests for offset to Federal agencies.</SUBJECT> <P>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:</P> <P>(a) That the debtor owes the debt;</P> <P>(b) The amount and basis of the debt; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.55</SECTNO> <SUBJECT>Requests for offset from Federal agencies.</SUBJECT> <P>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:</P> <P>(a) Upon receipt of written certification from the creditor agency stating:</P> <P>(1) That the debtor owes the debt;</P> <P>(2) The amount and basis of the debt;</P> <P>(3) That the agency has prescribed regulations for the exercise of administrative offset; and</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1639.56</SECTNO> <SUBJECT>Expedited procedure.</SUBJECT> <P>The Board may effect an administrative offset against a payment to be <PRTPAGE P="261"/>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1640</EAR> <HD SOURCE="HED">PART 1640—PERIODIC PARTICIPANT STATEMENTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1640.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1640.2</SECTNO> <SUBJECT>Duty to provide information.</SUBJECT> <SECTNO>1640.3</SECTNO> <SUBJECT>Statement of individual account.</SUBJECT> <SECTNO>1640.4</SECTNO> <SUBJECT>Account transactions.</SUBJECT> <SECTNO>1640.5</SECTNO> <SUBJECT>Investment fund information.</SUBJECT> <SECTNO>1640.6</SECTNO> <SUBJECT>Method of providing information.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8439 (c)(1) and (c)(2), 5 U.S.C. 8474 (b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 20371, June 1, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1640.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this Subpart:</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board, established pursuant to 5 U.S.C. 8472;</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C);</P> <P> <E T="03">Executive Director</E> means the Executive Director of the Board described in 5 U.S.C. 8474;</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B);</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A);</P> <P> <E T="03">Individual account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a);</P> <P> <E T="03">Investment fund</E> means either the G Fund, the F Fund, or the C Fund, or any other Thrift Savings Plan investment fund created after June 24, 1997;</P> <P> <E T="03">Open season</E> means the period during which participants may choose to begin making contributions to the Thrift Savings Plan, to change or discontinue the amount they are currently contributing to the Thrift Savings Plan (without losing the right to recommence contributions the next open season), or to allocate prospective contributions to the Thrift Savings Plan among the investment funds;</P> <P> <E T="03">Participant</E> means any person with an individual account in the Thrift Savings Plan, or who would have an account in the Thrift Savings Plan but for an employing agency error;</P> <P> <E T="03">Record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. As of June 24, 1997, the record keeper is the National Finance Center, Office of the Chief Financial Officer, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <P> <E T="03">Source of contributions</E> means either agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3), agency matching contributions under 5 U.S.C. 8432(c)(2), or employee contributions under 5 U.S.C. 8351, or 8440(a) through 8440d;</P> <P> <E T="03">Thrift Savings</E> Plan means the Federal Retirement Thrift Savings Plan established by the Federal Employees’ Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, which has been codified, as amended, largely at 5 U.S.C. 8401-8479.</P> <CITA>[52 FR 20371, June 1, 1987, as amended at 62 FR 34154, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1640.2</SECTNO> <SUBJECT>Duty to provide information.</SUBJECT> <P>The Executive Director will provide the information prescribed in §§ 1640.3 and 1640.5 at least once every six months, and not later than thirty (30) days before the last month of an open season.</P> <CITA>[62 FR 34155, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1640.3</SECTNO> <SUBJECT>Statement of individual account.</SUBJECT> <P>The Executive Director will furnish each participant with the following information concerning that participant's individual account:</P> <P>(a) Name and social security number under which the account is established;</P> <P>(b) Beginning and ending dates of the period covered by the statement;</P> <P>(c) As of the opening of business on the beginning date and the close of <PRTPAGE P="262"/>business on the ending date of the period covered by the statement:</P> <P>(1) The balance of the account;</P> <P>(2) The amounts of contributions and earnings in the C Fund, the F Fund, and the G Fund, by source of contribution;</P> <P>(d) All transactions made in accordance with § 1640.4 and affecting the individual account which occurred during the period covered by the statement;</P> <P>(e) Any other information that the Executive Director determines should be in the statement.</P> <CITA>[52 FR 20371, June 1, 1987, as amended at 62 FR 34155, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1640.4</SECTNO> <SUBJECT>Account transactions.</SUBJECT> <P>(a) Where relevant, the following transactions will be reported in each individual account statement:</P> <P>(1) Contributions;</P> <P>(2) Earnings posted;</P> <P>(3) Withdrawals;</P> <P>(4) Forfeitures;</P> <P>(5) Loan Activity;</P> <P>(6) Transfers among investment funds;</P> <P>(7) Adjustments to prior transactions; and</P> <P>(8) Any other transaction that the Executive Director deems will affect the status of the individual account.</P> <P>(b) Where relevant, the statement will contain the following information concerning each transaction identified in paragraph (a) of this section:</P> <P>(1) Type of transaction;</P> <P>(2) Pay date of the pay period in which the transaction was reflected in the participant's salary payment;</P> <P>(3) Investment funds affected;</P> <P>(4) Date the transaction was processed;</P> <P>(5) Source of the contribution;</P> <P>(6) Amount of the transaction; and</P> <P>(7) Any other information the Executive Director deems relevant.</P> <CITA>[62 FR 34155, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1640.5</SECTNO> <SUBJECT>Investment fund information.</SUBJECT> <P>For each open season, the Executive Director will furnish each participant with a statement concerning each of the investment funds. This statement will contain the following information concerning each investment fund:</P> <P>(a) A summary description of the type of investments to be made by the fund, written in a manner that will allow the participant to make an informed decision; and</P> <P>(b) The performance history of the type of investments to be made by the fund, covering the five-year period preceding the date of the evaluation.</P> <CITA>[62 FR 34155, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1640.6</SECTNO> <SUBJECT>Method of providing information.</SUBJECT> <P>(a) <E T="03">Individual account statement.</E> The information concerning each participant's individual account described in §§ 1640.3 and 1640.4 will be sent to the participant at the participant's last known address, by first class mail. It is the participant's responsibility to provide his or her current address to his or her agency or, in the case of a separated employee, to the record keeper.</P> <P>(b) <E T="03">Investment information.</E> The investment information described in § 1640.5 will be furnished to each participant either:</P> <P>(1) By mailing the information to the participant by the method described in paragraph (a) of this section; or</P> <P>(2) By including that information in material published by the Board and distributed in a manner reasonably designed to reach the participant. This includes distributing the material through the participant's agency or, in the case of a separated employee, through the record keeper.</P> <CITA>[62 FR 34155, June 24, 1997]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1645</EAR> <HD SOURCE="HED">PART 1645—ALLOCATION OF EARNINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1645.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1645.2</SECTNO> <SUBJECT>Posting of receipts.</SUBJECT> <SECTNO>1645.3</SECTNO> <SUBJECT>Calculation of net earnings for each investment fund.</SUBJECT> <SECTNO>1645.4</SECTNO> <SUBJECT>Administrative expenses attributable to each investment fund.</SUBJECT> <SECTNO>1645.5</SECTNO> <SUBJECT>Basis for allocation of earnings.</SUBJECT> <SECTNO>1645.6</SECTNO> <SUBJECT>Earnings allocation for individual accounts.</SUBJECT> <SECTNO>1645.7</SECTNO> <SUBJECT>Posting of earnings to individual accounts.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8439(a)(3) and 5 U.S.C. 8474.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 15621, May 2, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="263"/> <SECTNO>§ 1645.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part, the following terms have the following meanings:</P> <P> <E T="03">Accrued</E> means accounted for during a valuation period, whether or not actually paid or received during that period.</P> <P> <E T="03">Administrative expenses</E> means the expenses authorized by 5 U.S.C. 8437(c)(3).</P> <P> <E T="03">Agency automatic (1%) contributions</E> means contributions made pursuant to 5 U.S.C. 8432(c)(1) or 5 U.S.C. 8432(c)(3).</P> <P> <E T="03">Agency matching contributions</E> means contributions made pursuant to 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Allocation</E> means any <E T="03">pro rata</E> distribution of amounts.</P> <P> <E T="03">Allocation date</E> means the last day of each calendar month.</P> <P> <E T="03">Basis</E> means the portion of an account or Investment Fund upon which the allocation of earnings is based.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established pursuant to 5 U.S.C. 8472.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established pursuant to 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">Employee contributions</E> means any contributions made pursuant to 5 U.S.C. 8432(a) or 5 U.S.C. 8351(a).</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions and agency matching contributions.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established pursuant to 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">Forfeitures</E> means amounts forfeited pursuant to 5 U.S.C. 8432(g)(2) and other nonstatutory forfeited amounts, net of restored forfeited amounts.</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established pursuant to 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">Individual account</E> means the account established for a participant in the Thrift Savings Fund pursuant to 5 U.S.C. 8439(a)(2).</P> <P> <E T="03">Investment Fund</E> means the G Fund, the F Fund, or the C Fund.</P> <P> <E T="03">Month-end account balance</E> means the value, as of the allocation date, of the funds for each source of contributions in each investment fund, including all earnings, and any forfeiture, restored forfeited amount, adjustment, earnings correction, loan, withdrawal, or interfund transfer transactions posted as of the allocation date.</P> <P> <E T="03">Posting</E> means the process of crediting or debiting amounts to an individual account.</P> <P> <E T="03">Recordkeeper</E> means the organization designated by the Board as the Thrift Savings Plan's recordkeeper.</P> <P> <E T="03">Source</E> means the origin of any one of the three types of contributions that are made to the Fund on behalf of participants—employee contributions, agency automatic (1%) contributions, or agency matching contributions.</P> <P> <E T="03">Thrift Savings Fund</E> or <E T="03">Fund</E> means the Fund described in 5 U.S.C. 8437.</P> <P> <E T="03">Valuation period</E> means the calendar month during which earnings accrue.</P> <CITA>[53 FR 15621, May 2, 1988, as amended at 61 FR 58973, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.2</SECTNO> <SUBJECT>Posting of receipts.</SUBJECT> <P>Agency and employee contributions and loan repayments will be posted by source and by investment fund to the appropriate individual account on the day they are processed by the recordkeeper.</P> <CITA>[61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.3</SECTNO> <SUBJECT>Calculation of net earnings for each investment fund.</SUBJECT> <P>(a) For each valuation period, net earnings will be calculated separately for each investment fund.</P> <P>(b) Net earnings for each investment fund will equal:</P> <P>(1) The sum of the following items, if any, accrued during the current valuation period:</P> <P>(i) Interest on money of that investment fund which is invested with the G Fund;</P> <P>(ii) Interest on other short-term investments of the investment fund;</P> <P>(iii) Income (such as dividends and interest) on other investments of the investment fund; and</P> <P>(iv) Capital gain or loss on investments of the investment fund, net of transaction costs.</P> <P>(2) Minus the accrued administrative expenses of the investment fund, determined in accordance with § 1645.4.</P> <P>(c) The net earnings for each investment fund resulting from paragraph (b) of this section will be adjusted by residual net earnings from the previous valuation period for that investment fund, as described in § 1645.6(b), to <PRTPAGE P="264"/>produce the earnings available for allocation to the participant accounts in the respective investment fund for the current valuation period.</P> <CITA>[53 FR 15621, May 2, 1988, as amended at 61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.4</SECTNO> <SUBJECT>Administrative expenses attributable to each investment fund.</SUBJECT> <P>A portion of administrative expenses accrued during each valuation period will be charged to each investment fund. The investment funds’ respective portions will be determined as follows:</P> <P>(a) Investment managers’ fees and other accrued administrative expenses attributable only to the C or F Fund will be charged to the C or F Fund, respectively;</P> <P>(b) All other accrued administrative expenses will be reduced by forfeitures and earnings on forfeitures accrued during the valuation period;</P> <P>(c) The amount of accrued administrative expenses not covered by forfeitures under paragraph (b) of this section will be charged on a <E T="03">pro rata</E> basis to the investment funds, based on the respective investment fund balances on the last day of the prior valuation period.</P> <CITA>[61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.5</SECTNO> <SUBJECT>Basis for allocation of earnings.</SUBJECT> <P>(a) <E T="03">Individual account basis.</E> Except for the amounts described in paragraph (b) of this section, the individual account basis on the earnings allocation date for each source of contributions in each investment fund equals:</P> <P>(1) The month-end account balance as of the previous allocation date; plus</P> <P>(2) One-half of contributions posted to the individual account during the current valuation period (except for contributions referred to in paragraph (b) of this section); plus</P> <P>(3) One-half of all loan repayments posted to the individual account during the current valuation period.</P> <P>(b) <E T="03">Inclusion of retroactive contributions.</E> The individual account basis for agency automatic (1%) contributions will also include all amounts attributable to retroactive contributions that are made to the individual account pursuant to 5 U.S.C. 8432(c)(3) and that are processed by the recordkeeper during the current valuation period.</P> <P>(c) <E T="03">Computation of fund basis.</E> For each valuation period, the total fund basis for each investment fund will be the sum of all individual account bases for all sources of contributions in that investment fund, calculated as described in paragraphs (a) and (b) of this section.</P> <CITA>[61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.6</SECTNO> <SUBJECT>Earnings allocation for individual accounts.</SUBJECT> <P>(a) <E T="03">Computation of earnings for each individual account.</E> Earnings for each source of contributions for each investment fund will be allocated to each individual account separately. The total net earnings for each investment fund (as computed under § 1645.3) will be divided by the total fund basis for that investment fund (as computed under § 1645.5(c)). The resulting number (the “allocation factor”) will be multiplied by the individual account basis for the respective source of contributions in that investment fund (as computed under § 1645.5(a)), to determine the individual account earnings for the valuation period attributable to that source of contributions in that investment fund. The earnings of the individual account for each source of contributions in each investment fund, when added together, will constitute the earnings for that individual account during the valuation period.</P> <P>(b) <E T="03">Residual net earnings.</E> Amounts allocated to individual accounts may not exceed the total amount of earnings available to be allocated. To avoid allocating excessive amounts, computation of earnings for individual accounts described in paragraph (a) of this section will not include fractions of a cent. Residual net earnings attributable to unallocated fractions of a cent will be allocated with the earnings for the following valuation period.</P> <CITA>[61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1645.7</SECTNO> <SUBJECT>Posting of earnings to individual accounts.</SUBJECT> <P>For each source of contributions for each investment fund, the amount of earnings computed for each individual <PRTPAGE P="265"/>account in a valuation period, as described in § 1645.6, will be posted to the individual account as of the allocation date.</P> <CITA>[61 FR 58974, Nov. 20, 1996]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1650</EAR> <HD SOURCE="HED">PART 1650—METHODS OF WITHDRAWING FUNDS FROM THE THRIFT SAVINGS PLAN</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1650.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1650.2</SECTNO> <SUBJECT>Eligibility for a TSP withdrawal.</SUBJECT> <SECTNO>1650.3</SECTNO> <SUBJECT>Frozen accounts.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Post-Employment Withdrawals</HD> <SECTNO>1650.10</SECTNO> <SUBJECT>Single payment.</SUBJECT> <SECTNO>1650.11</SECTNO> <SUBJECT>Monthly payments.</SUBJECT> <SECTNO>1650.12</SECTNO> <SUBJECT>Annuities.</SUBJECT> <SECTNO>1650.13</SECTNO> <SUBJECT>Transfer of withdrawal payments.</SUBJECT> <SECTNO>1650.14</SECTNO> <SUBJECT>Deferred withdrawal elections.</SUBJECT> <SECTNO>1650.15</SECTNO> <SUBJECT>Required withdrawal date.</SUBJECT> <SECTNO>1650.16</SECTNO> <SUBJECT>Changes and cancellation of withdrawal election.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Post-Employment Withdrawals</HD> <SECTNO>1650.20</SECTNO> <SUBJECT>Information to be provided by agency.</SUBJECT> <SECTNO>1650.21</SECTNO> <SUBJECT>Accounts of more than $3,500.</SUBJECT> <SECTNO>1650.22</SECTNO> <SUBJECT>Accounts of $3,500 or less.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—In-Service Withdrawals</HD> <SECTNO>1650.30</SECTNO> <SUBJECT>Age-based withdrawals.</SUBJECT> <SECTNO>1650.31</SECTNO> <SUBJECT>Financial hardship withdrawals.</SUBJECT> <SECTNO>1650.32</SECTNO> <SUBJECT>Contributing to the TSP after an in-service withdrawal.</SUBJECT> <SECTNO>1650.33</SECTNO> <SUBJECT>Uniqueness of loans and withdrawals.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Procedures for In-Service Withdrawals</HD> <SECTNO>1650.40</SECTNO> <SUBJECT>How to obtain an age-based in-service withdrawal.</SUBJECT> <SECTNO>1650.41</SECTNO> <SUBJECT>How to obtain a financial hardship in-service withdrawal.</SUBJECT> <SECTNO>1650.42</SECTNO> <SUBJECT>Taxes related to in-service withdrawals.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart F[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Spousal Rights</HD> <SECTNO>1650.60</SECTNO> <SUBJECT>Spousal rights pertaining to post-employment withdrawals.</SUBJECT> <SECTNO>1650.61</SECTNO> <SUBJECT>Spousal rights when a separated participant changes post-employment withdrawal election.</SUBJECT> <SECTNO>1650.62</SECTNO> <SUBJECT>Spousal rights pertaining to in-service withdrawals.</SUBJECT> <SECTNO>1650.63</SECTNO> <SUBJECT>Executive Director's exception to the spousal notification requirement.</SUBJECT> <SECTNO>1650.64</SECTNO> <SUBJECT>Executive Director's exception to requirement to obtain the spouse's signature.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8433, 8434, 8435, 8474(b)(5), and 8474(c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 49113, Sept. 18, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1650.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Account balance</E> means, unless otherwise specified, the nonforfeitable valued account balance of a TSP participant as of the most recent month-end before the date a withdrawal occurs.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established pursuant to 5 U.S.C. 8472.</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent retirement system.</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, or any equivalent retirement system.</P> <P> <E T="03">In-service withdrawal</E> means an age-based or financial hardship withdrawal from the TSP obtained by a participant who is still employed by the Government.</P> <P> <E T="03">Monthly processing cycle</E> means the process, beginning on the evening of the fourth business day of the month, by which the record keeper allocates the amount of earnings to be credited to participant accounts in the Plan and authorizes disbursements from the Plan.</P> <P> <E T="03">Participant</E> means any person with an account in the Thrift Savings Plan.</P> <P> <E T="03">Post-employment withdrawal</E> means a withdrawal from the TSP obtained by a participant who has separated from Government employment, as defined in this section.</P> <P> <E T="03">Reimbursement</E> means a payment made to or on behalf of a participant by any person or entity (including an insurance company) to cover the cost of an extraordinary expense described in § 1650.31(a)(2).</P> <P> <E T="03">Separation from Government employment</E> means the cessation of employment with the Federal Government or <PRTPAGE P="266"/>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 at least 31 full calendar days.</P> <P> <E T="03">Spouse</E> means the person to whom a TSP participant is married on the date he or she signs forms on which the TSP requests spouse information including a spouse from whom the participant is legally separated, and including a person with whom a participant is living in a relationship that constitutes a common law marriage in the jurisdiction in which they live.</P> <P> <E T="03">Thrift Savings Plan, TSP,</E> or <E T="03">Plan</E> means the Federal Retirement 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.</P> <P> <E T="03">Thrift Savings Plan (TSP) contribution election</E> means a request by an employee to start contributing to the TSP, to terminate contributions to the TSP, to change the amount of contributions made to the TSP each pay period, or to change the allocation of future TSP contributions among the investment funds, and made effective pursuant to 5 CFR part 1600.</P> <P> <E T="03">Thrift Savings Plan Service Office</E> means the office established by the Board to service participants. This office's current address is: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500.</P> <P> <E T="03">Valuation date</E> means, for purposes of a required minimum distribution, the last day of the calendar year immediately preceding the year for which a distribution is made.</P> </SECTION> <SECTION> <SECTNO>§ 1650.2</SECTNO> <SUBJECT>Eligibility for a TSP withdrawal.</SUBJECT> <P>(a) A participant who separates from Government employment, as defined in § 1650.1, can withdraw his or her account by one of the withdrawal methods described in subpart B of this part using the procedures set out in subpart C of this part.</P> <P>(b) 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 withdrawal eligibility rules:</P> <P>(1) A participant who is reemployed in a TSP-eligible position on or before the 31st full calendar day after separation cannot withdraw his or her TSP account (except for an in-service withdrawal described in subpart D of this subpart). If the participant is scheduled for an automatic cashout, as described in § 1650.22, the cashout will be canceled if the participant informs the TSP that he or she has been reemployed or expects to be reemployed within 31 full calendar days of separation.</P> <P>(2) A participant who is reemployed in a TSP-eligible position more than 31 full calendar days after separation may withdraw the portion of his or her account balance which is attributable to the earlier period of employment. If the amount attributable to the earlier period of employment is greater than $3,500, the participant must submit a properly completed withdrawal request (Form TSP-70) selecting a withdrawal option that results in an immediate withdrawal. However, a Form TSP-70 will not be accepted unless the TSP records indicate that the former employing agency reported the participant as separated from Government employment. If a participant has elected to receive monthly payments under § 1650.11, upon report by the agency that the participant is not separated, payments will not be made and, if already started, will stop.</P> <P>(c) A participant who has not separated from Government employment can elect a withdrawal option described in subpart D of this part by following the procedures set out in subpart E of this part.</P> <P>(d) A participant cannot make a post-employment withdrawal until any outstanding TSP loan has been either repaid in full or declared to be a taxable distribution. An outstanding TSP loan does not affect a participant's eligibility for an in-service withdrawal.</P> <P>(e) All withdrawals are subject to the rules relating to spouse's rights (found in subpart G of this part), domestic relations orders, alimony and child support legal process, and child abuse enforcement orders (5 CFR part 1653). Post-employment withdrawals are also subject to the Internal Revenue Code's required minimum distribution rules.</P> </SECTION> <SECTION> <PRTPAGE P="267"/> <SECTNO>§ 1650.3</SECTNO> <SUBJECT>Frozen accounts.</SUBJECT> <P>A participant may not withdraw any portion of his or her account balance if the account is frozen as a result of a pending retirement benefits court order, an alimony or child support enforcement order, a child abuse enforcement order, or as a result of a freeze placed on the account by the Board for another reason.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Post-Employment Withdrawals</HD> <SECTION> <SECTNO>§ 1650.10</SECTNO> <SUBJECT>Single payment.</SUBJECT> <P>A participant can withdraw his or her entire account in a single payment.</P> </SECTION> <SECTION> <SECTNO>§ 1650.11</SECTNO> <SUBJECT>Monthly payments.</SUBJECT> <P>(a) A participant can withdraw his or her account balance in two or more substantially equal monthly payments, to be calculated under one of the following methods:</P> <P>(1) <E T="03">A fixed monthly payment amount.</E> The amount must be at least $25 per month and must satisfy any minimum distribution requirements. Payments will be made each month until the account is expended. If the last scheduled payment would be less than the chosen amount, it will be combined and paid with the previous payment;</P> <P>(2) <E T="03">A fixed number of monthly payments.</E> The participant's month-end account balance for the month preceding the month of the first payment will be divided by the number of payments chosen in order to determine the monthly amount. The amount must be at least $25 per month and must satisfy any minimum distribution requirements. In January of each subsequent year, the TSP will divide the December 31 account balance from the prior year by the remaining number of payments in order to determine that year's monthly payments. If the monthly payment amount is less than $25, it will be increased to $25. This process will be repeated each year until the account is expended; or</P> <P>(3) <E T="03">A monthly payment amount calculated using the factors set forth in Internal Revenue Service expected return multiply table V, 26 CFR 1.72-9.</E> There is no $25 minimum monthly payment under this method. In the year payments begin, the monthly payment amount is calculated by dividing the month-end account balance for the month preceding the month of the first payment by the factor from table V based upon the participant's age as of his or her birthday in that year. This amount is then divided by 12 to yield the monthly payment amount. In subsequent years, the monthly payment amount is recalculated each January by dividing the December 31 account balance from the previous year by the factor from Table V based upon the participant's age as of his or her birthday in the year payments will be made. That amount is divided by 12 to yield the monthly payment amount.</P> <P>(b) A participant who chooses to receive monthly payments calculated using one of the three methods set forth in paragraph (a) of this section cannot change the method after payments begin. Also, except as provided in paragraph (c) of this section, the participant cannot change the number of payments or the payment amount after payments begin.</P> <P>(c) A participant receiving monthly payments can choose to receive the remainder of his or her account balance in a final single payment.</P> <P>(d) A participant receiving monthly payments may invest his or her account balance as provided in 5 CFR part 1601.</P> </SECTION> <SECTION> <SECTNO>§ 1650.12</SECTNO> <SUBJECT>Annuities.</SUBJECT> <P>(a) A participant can withdraw his or her entire account balance in the form of a life annuity. The participant's account balance must be $3,500 or more in order for the TSP to purchase an annuity. The TSP will send forms to a participant who chooses this method which ask him or her to choose an annuity method, name a beneficiary (if required), and provide any necessary spousal waiver or spousal information. Upon receipt of the required information, the TSP will purchase the annuity from the TSP's annuity vendor using the participant's entire account balance, except for any amount necessary to satisfy minimum distribution requirements. The first annuity payment will be made approximately 30 calendar days after the purchase of the annuity. The annuity will provide a <PRTPAGE P="268"/>payment for life to the participant and, if applicable, the participant's survivor, in accordance with the type of annuity chosen.</P> <P>(b) The following types of annuities are available to participants:</P> <P>(1) <E T="03">A single life annuity with level payments.</E> This annuity is based upon the life expectancy of the participant at the time of purchase and provides monthly payments to the participant as long as the participant lives.</P> <P>(2) <E T="03">A joint life annuity for the participant and his or her spouse with level payments.</E> This annuity is based upon the combined life expectancies of the participant and the spouse and 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 he or she is alive.</P> <P>(3) <E T="03">Either a single life or joint life annuity (as described in paragraph (b)(l) or (b)(2) of this section) where the amount of the monthly payment can increase each year on the anniversary date of the first annuity payment.</E> The amount of the increase is based on the average annual change in the Consumer Price Index for Urban Wage Earners and Clerical Workers as measured between the period of July through September in the second calendar year preceding the anniversary date and July through September in the calendar year preceding the anniversary date. For example, if the anniversary of an increasing annuity occurs in November of 1995, the amount of the increase will be calculated based upon the change in the index between the July-September period in 1993 and the July-September period in 1994. Monthly payments cannot decrease, nor can they increase more than 3 percent each year. If this option is chosen in conjunction with a joint life annuity with the spouse, the annual increase continues to apply to benefits received by the survivor.</P> <P>(4) <E T="03">A joint life annuity, with level payments, for the participant and another person who either is a former spouse or has an insurable interest in the participant.</E> This annuity is based upon the combined life expectancies of the participant and the other person. It 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 he or she is alive. Increasing payments cannot be chosen for a joint annuity with a person other than the spouse.</P> <P>(i) A person has an “insurable interest” in a participant if the person is financially dependent on the participant and could reasonably expect to derive financial benefit from the participant's continued life.</P> <P>(ii) A relative (whether blood or adopted, but not by marriage) who is closer than a first cousin will be presumed to have an insurable interest in the participant.</P> <P>(iii) A participant can establish that a person not described in paragraph (b)(4)(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 demonstrating that the designated joint annuitant has an insurable interest (as defined in paragraph (b)(4)(i) of this section) in the participant.</P> <P>(c) Participants who choose a joint life annuity (with either a spouse or a person with an insurable interest) must choose either a 50 percent or a 100 percent survivor benefit. A 50 percent survivor benefit provides a monthly payment to the survivor which is 50 percent of the payment made when both the participant and the joint annuitant are alive. A 100 percent survivor benefit provides a monthly payment to the survivor which is the same amount as the payment made when both the participant and the survivor are alive. Either the 50 percent or the 100 percent survivor benefit may be combined with any joint life annuity option, except that the 100 percent survivor benefit can 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) only if the joint annuitant is not more than 10 years younger than the participant.</P> <P>(d) The following mutually exclusive features can be combined with certain types of annuities, as indicated:</P> <P>(1) <E T="03">Cash refund.</E> This feature provides that, if the participant (and joint annuitant, if applicable) dies before an amount equal to the balance used to <PRTPAGE P="269"/>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 named beneficiaries. The participant (or the joint annuitant, if the participant is deceased) may name or change the beneficiaries. This feature can be combined with any other annuity option.</P> <P>(2) <E T="03">Ten-year certain.</E> This feature provides that, if the participant dies before annuity payments have been made for 10 years (120 payments), monthly payments will continue to be made to the beneficiaries selected by the participant until 120 payments have been made. This feature can be combined with any single life annuity option, but cannot be selected in conjunction with any joint life annuity option.</P> <P>(e) The Board can, from time to time, establish other types of annuities, other levels of survivor benefits, and other annuity features.</P> <P>(f) The Board can, from time to time, eliminate a type of annuity (except for those annuities described in paragraph (b) of this section), a survivor benefit level, or an annuity feature. However, if the Board does so, it must continue to allow participants to purchase annuities of the eliminated type or containing the eliminated feature for five years after the date the decision to eliminate the annuity type or feature is published in the <E T="04">Federal Register</E>.</P> <P>(g) Once an annuity has been purchased, the type of annuity, any annuity features, and the identity of the annuitant cannot be changed, and the annuity cannot be terminated.</P> </SECTION> <SECTION> <SECTNO>§ 1650.13</SECTNO> <SUBJECT>Transfer of withdrawal payments.</SUBJECT> <P>(a) At the participant's request, the TSP will transfer directly to an eligible retirement plan all or part of any withdrawal that is an “eligible rollover distribution,” as defined in 26 U.S.C. 402(c)(4). A withdrawal method that is not an eligible rollover distribution cannot be transferred.</P> <P>(b) The following TSP withdrawal methods are considered eligible rollover distributions:</P> <P>(1) A single payment, as described in § 1650.10;</P> <P>(2) Monthly payments, as described in § 1650.11, where payments are expected to last less than 10 years at the time they begin, according to the following rules:</P> <P>(i) If the participant elects a number of monthly payments, the number of payments must be fewer than 120;</P> <P>(ii) If the participant elects a monthly payment amount, the amount, when divided into the participant's account balance as of the end of the month prior to the first payment, must yield a number less than 85;</P> <P>(3) A final single payment, as described in § 1650.11(c).</P> <P>(c) The following withdrawal methods are not eligible rollover distributions:</P> <P>(1) Any annuity purchased by the TSP.</P> <P>(2) Any monthly payment that does not meet the rules set forth in paragraph (b)(2) of this section, including any monthly payment computed based on the Internal Revenue Service expected return multiple table V (see § 1650.11(a)(3)).</P> <P>(3) Any minimum distribution payment or any portion of another payment which represents a minimum distribution payment.</P> <P>(d) An eligible retirement plan is a plan defined in 26 U.S.C. 402(c)(8). There are three types of eligible retirement plans: an Individual Retirement Arrangement (IRA) (which can be either an individual retirement account or an individual retirement annuity), a plan qualified under 26 U.S.C. 401(a), and a plan described in 26 U.S.C. 403(a). An IRA or other eligible retirement plan must be maintained in the United States, which means one of the 50 states or the District of Columbia.</P> </SECTION> <SECTION> <SECTNO>§ 1650.14</SECTNO> <SUBJECT>Deferred withdrawal elections.</SUBJECT> <P>(a) Subject to paragraph (b) of this section, a participant who separates from Government employment and elects to withdraw his or her account under one of the methods provided in §§ 1650.10, 1650.11 or 1650.12 may specify a future date (which shall be a month and year) for payment of the withdrawal.</P> <P>(b) The future date chosen under this section cannot be later than March of <PRTPAGE P="270"/>the year following the year in which the participant becomes age 70<FR>1/2</FR>. If that date has already passed when the participant makes an election, the participant cannot choose a future date.</P> <P>(c) If the withdrawal method chosen for future payment is a single payment or monthly payments (and the date specified for payment is more than four months in the future on the date the election form is processed), the participant will be notified before the date chosen that such payments are scheduled to begin. If the payments are eligible roll-over distributions, the participant may choose to transfer all or part of the payments to an Individual Retirement Arrangement (IRA) or another eligible retirement plan.</P> <P>(d) If the withdrawal method chosen for future payment is an annuity (and the date specified for payment is more than four months in the future on the date the election form is processed), the participant will be notified before the date chosen. At that time, the participant will be sent information asking him or her to choose an annuity method, name a beneficiary (if the cash refund or 10-year certain feature is chosen), and provide any necessary spousal waiver or spousal information.</P> </SECTION> <SECTION> <SECTNO>§ 1650.15</SECTNO> <SUBJECT>Required withdrawal date.</SUBJECT> <P>(a)(1) A participant must withdraw his or her account under § 1650.10 or begin receiving payments under §§ 1650.11 or 1650.12 by April 1 of the year following the later of the year in which:</P> <P>(i) The participant turns 70<FR>1/2</FR>; or</P> <P>(ii) The participant separates from Government employment.</P> <P>(2) However, in no event will a withdrawal be required under paragraph (a)(1) of this section until 1998.</P> <P>(b) A separated participant may elect to withdraw his or her account or begin receiving payments before the date described in paragraph (a) of this section, but is not required to do so.</P> <P>(c) In the event that a participant does not withdraw his or her account or begin receiving payments in accordance with paragraph (a) of this section, the Board will transfer all of the funds in the participant's account not already invested in the Government Securities Investment Fund (G Fund) to that Fund. A notice of this action will be sent to the participant with a warning that his or her account will be declared abandoned and forfeited unless the participant comes into compliance with paragraph (a) of this section within 90 days of the date of the notice.</P> <P>(d) If the participant does not take the appropriate withdrawal action within the 90 day period provided in paragraph (c) of this section, the Board will purchase an annuity for the participant after the following steps have been taken:</P> <P>(1) The account has been declared abandoned and the funds in the account have been forfeited;</P> <P>(2) A notice of this action has been sent to the participant;</P> <P>(3) The participant reclaims the account balance that was abandoned, but decides against a withdrawal pursuant to §§ 1650.10 or 1650.11; and</P> <P>(4) The participant provides the information that the Board needs to purchase an annuity pursuant to § 1650.12.</P> <CITA>[62 FR 49113, Sept. 18, 1997, as amended at 64 FR 31062, June 9, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1650.16</SECTNO> <SUBJECT>Changes and cancellation of withdrawal election.</SUBJECT> <P>Subject to the rules relating to spouses’ rights in subpart G of this part, a participant who has separated from Government employment can change his or her withdrawal election to any other withdrawal election or can cancel his or her withdrawal election if the change or cancellation can be processed before the withdrawal is disbursed.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Post-Employment Withdrawals</HD> <SECTION> <SECTNO>§ 1650.20</SECTNO> <SUBJECT>Information to be provided by agency.</SUBJECT> <P>(a) <E T="03">Information to be provided to the TSP.</E> When a TSP participant separates from Government employment, his or her employing agency must report the separation (including the date of separation) to the TSP record keeper. Until the TSP record keeper receives this information from the employing agency, it cannot process a post-employment withdrawal for the participant. A post-employment withdrawal cannot occur until at least 30 full calendar days have <PRTPAGE P="271"/>elapsed after the date of separation except when the § 1650.22(a) procedures apply.</P> <P>(b) <E T="03">Information to be provided to the participant.</E> When a TSP participant separates from Government employment, his or her employing agency must furnish the participant with the most recent copies of the TSP withdrawal booklet, withdrawal forms, and tax notice. The employing agency is also responsible for counseling participants concerning TSP withdrawals.</P> </SECTION> <SECTION> <SECTNO>§ 1650.21</SECTNO> <SUBJECT>Accounts of more than $3,500.</SUBJECT> <P>A participant whose account balance is more than $3,500 must submit a properly completed withdrawal election on Form TSP-70, Withdrawal Request, and any other form required by the TSP, in order to elect a post-employment withdrawal of his or her account balance.</P> </SECTION> <SECTION> <SECTNO>§ 1650.22</SECTNO> <SUBJECT>Accounts of $3,500 or less.</SUBJECT> <P>(a) Unless he or she has already submitted a complete withdrawal election and can be scheduled for payment, a participant whose account balance is $3,500 or less as of the month end following receipt of separation information from the employing agency will be sent a notice informing him or her that the account balance will be paid directly to the participant automatically in the third monthly processing cycle following the date of the notice if the account is still $3,500 or less on the date of payment. The notice will inform the participant that he or she can:</P> <P>(1) Choose to transfer all or part of the payment to an Individual Retirement Arrangement (IRA) or other eligible retirement plan;</P> <P>(2) Choose another withdrawal method (as described in subpart B of this part);</P> <P>(3) Choose to have the payment made directly to him or her as soon as possible; or</P> <P>(4) Choose to leave his or her money in the Plan.</P> <P>(b) If the participant does not take one of the actions described in paragraph (a) of this section, payment will be made as scheduled.</P> <P>(c) No spousal rights attach to any post-employment withdrawals made to a participant whose account balance is $3,500 or less.</P> <P>(d) If a participant's account balance is $3,500 or less after separation but later increases to more than $3,500, this section will cease to apply to that participant.</P> <P>(e) This section does not apply to accounts containing a balance of less than $5.00.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—In-Service Withdrawals</HD> <SECTION> <SECTNO>§ 1650.30</SECTNO> <SUBJECT>Age-based withdrawals.</SUBJECT> <P>(a) A participant who reached age 59<FR>1/2</FR> and who has not separated from Government employment is eligible to withdraw all or a portion of his or her vested TSP account balance in a single payment. The amount of an age-based in-service withdrawal request must be at least $1,000.</P> <P>(b) The participant may request that the TSP transfer all or a portion of the withdrawal to an Individual Retirement Arrangement (IRA) or other eligible retirement plan. If a participant chooses to receive directly all or a portion of the withdrawal, the TSP will withhold for Federal income tax purposes 20 percent of all amounts paid directly to the participant.</P> <P>(c) A participant is permitted only one age-based in-service withdrawal.</P> </SECTION> <SECTION> <SECTNO>§ 1650.31</SECTNO> <SUBJECT>Financial hardship withdrawals.</SUBJECT> <P>(a) A participant who has not separated from Government employment and who can demonstrate 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 must be at least $1,000.</P> <P>(b) A participant will demonstrate financial hardship if he or she meets one or both of the following tests:</P> <P>(1) Based on TSP calculations, the participant's monthly cash flow is negative (<E T="03">i.e.,</E> net income is less than ordinary monthly household expenses).</P> <P>(2) The participant has incurred, or will incur within the next six months, extraordinary expenses which the participant has not paid, for which he or <PRTPAGE P="272"/>she has not been and will not be reimbursed, and which cannot be met by his or her monthly cash flow over a period of six months. Documentation of the expenses must be dated within 45 days of the date of the withdrawal request. Extraordinary expenses are limited to the following four types:</P> <P>(i) Medical expenses payable by the participant and related to the treatment of 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, but without regard to the Internal Revenue Service's (IRS) income limitations on deductibility. However, the following expenses that are allowed by the IRS are not eligible TSP medical expenses: health insurance premiums and expenses associated with household improvements required as a result of a medical condition, illness, or injury to the participant, the participant's spouse, or the participant's dependents. These items are already taken into account elsewhere in the TSP financial hardship calculations.</P> <P>(ii) The cost of household improvements required as a result of a medical condition, illness or injury to the participant, the participant's spouse, or the participant's dependents which is eligible for deduction as a medical expense for Federal income tax purposes, but without regard to the IRS income limitations on deductibility or the fair market value of the property. 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.</P> <P>(iii) 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.</P> <P>(iv) Legal expenses for 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.</P> <P>(c) The amount of a participant's financial hardship withdrawal cannot exceed the smallest of the following:</P> <P>(1) The amount requested;</P> <P>(2) The amount in the participant's account that is equal to his or her own contributions and attributable earnings; or</P> <P>(3)(i) The amount which would both:</P> <P>(A) Make up the participant's negative cash flow, if any, for a period of six months; and</P> <P>(B) Pay documented extraordinary expenses, if any.</P> <P>(ii) If the TSP calculates that the participant has a negative cash flow and extraordinary expenses, the amount of the disbursement is equal to six times the amount of the negative monthly cash flow plus the amount of the extraordinary expenses. If the TSP calculates that the participant has a positive cash flow, the amount of the disbursement is equal to the amount of the documented extraordinary expenses minus six times the amount of the positive monthly cash flow.</P> <P>(d) A participant is not eligible for an in-service hardship withdrawal during the time he or she has pending a petition in bankruptcy under Chapter 13 of the Bankruptcy Code.</P> <CITA>[66 FR 43462, Aug. 20, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1650.32</SECTNO> <SUBJECT>Contributing to the TSP after an in-service withdrawal.</SUBJECT> <P>(a) A participant's TSP contribution election will not be affected by an age-based in-service withdrawal; there fore, his or her TSP contributions will continue without interruption.</P> <P>(b) A participant who obtains a financial hardship in-service withdrawal may not contribute to the TSP for any pay date falling within a period of six months, beginning on the 46th day after the date of the withdrawal and ending 180 days after this beginning date; therefore, his or her TSP contributions (and any applicable matching contributions) will be discontinued <PRTPAGE P="273"/>by his or her agency upon notification by the TSP. A participant whose TSP contributions were discontinued by his or her agency because of a hardship withdrawal can resume contributions any time after expiration of the six month period by submitting a new TSP Election Form (TSP-1). If a participant voluntarily terminated TSP contributions, he or she can resume contributions at the expiration of the six-month period, or in the next open season during which the participant would be eligible to submit a new Form TSP-1, whichever is later.</P> </SECTION> <SECTION> <SECTNO>§ 1650.33</SECTNO> <SUBJECT>Uniqueness of loans and withdrawals.</SUBJECT> <P>An outstanding TSP loan cannot be converted into an in-service withdrawal, and <E T="03">vice versa</E>; nor can an in-service withdrawal be returned or repaid.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Procedures for In-Service Withdrawals</HD> <SECTION> <SECTNO>§ 1650.40</SECTNO> <SUBJECT>How to obtain an age-based in-service withdrawal.</SUBJECT> <P>To request an age-based in-service withdrawal, a participant must submit to the TSP Service Office a properly completed withdrawal election on Form TSP-75, Age-Based In-Service Withdrawal Request.</P> </SECTION> <SECTION> <SECTNO>§ 1650.41</SECTNO> <SUBJECT>How to obtain a financial hardship in-service withdrawal.</SUBJECT> <P>To request a financial hardship in-service withdrawal, a participant must submit to the TSP Service Office a properly completed request for withdrawal on Form TSP-76, Financial Hardship In-Service Withdrawal Request, a current earnings and leave statement, and supporting documentation for any extraordinary expenses listed on the application.</P> </SECTION> <SECTION> <SECTNO>§ 1650.42</SECTNO> <SUBJECT>Taxes related to in-service withdrawals.</SUBJECT> <P>(a) When an in-service withdrawal is paid directly to a participant from the TSP, the money is taxable income in the year in which the payment is made. However, a participant does not pay taxes on money that the TSP transfers directly to an IRA or other eligible retirement plan until the money is withdrawn from the IRA or plan.</P> <P>(b) A financial hardship in-service withdrawal from the TSP is not an eligible rollover distribution, and a participant therefore may not request the TSP to transfer a financial hardship in-service withdrawal to an IRA or other eligible retirement plan. A financial hardship in-service withdrawal is subject to 10% withholding. The withholding is not mandatory; the participant may either avoid the withholding or increase the amount of withholding by submitting an IRS Form W-4P, Withholding Certificate for Pension or Annuity Payments, to the TSP record keeper.</P> <P>(c) An age-based in-service withdrawal from the TSP is an eligible rollover distribution, and a participant may request the TSP to transfer all or a portion of an age-based in-service withdrawal to an IRA or other eligible retirement plan, consistent with paragraph (d) of this section. If the withdrawal is not transferred, it is subject to mandatory 20% withholding. (The participant may increase the amount of withholding by submitting an IRS Form W-4P to the TSP record keeper.)</P> <P>(d) A transfer or rollover may be requested by filing with the TSP record keeper a TSP Form 75-T. An eligible retirement plan is a plan defined in the Internal Revenue Code, 26 U.S.C. 402(c)(8). There are four types of eligible retirement plans: an individual retirement account (IRA), an individual retirement annuity (other than an endowment contract), a qualified pension, profit-sharing, or stock bonus plan, and an annuity plan described in 26 U.S.C. 403(a). An eligible retirement plan must be maintained in the United States, which means one of the 50 states or the District of Columbia.</P> <CITA>[66 FR 43462, Aug. 20, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart F[Reserved]</RESERVED> </SUBPART> <SUBPART> <PRTPAGE P="274"/> <HD SOURCE="HED">Subpart G—Spousal Rights</HD> <SECTION> <SECTNO>§ 1650.60</SECTNO> <SUBJECT>Spousal rights pertaining to post-employment withdrawals.</SUBJECT> <P>(a) The spousal rights described in this section only apply to post-employment withdrawals when the participant's vested TSP account balance exceeds $3,500.</P> <P>(b) The spouse of a CSRS participant is entitled to notice when the participant applies for a post-employment withdrawal, unless the participant was granted an exception under § 1650.63 to the spouse notification requirement within one year of the date the withdrawal form is processed by the TSP. The participant must provide the TSP record keeper with the spouse's correct address. The TSP record keeper will send the required notice by first class mail to the most recent address provided by the participant.</P> <P>(c) The spouse of a FERS participant has a right to a joint and survivor annuity with a 50 percent survivor benefit, level payments, and no cash refund when the participant elects a post-employment withdrawal. The participant may make a different withdrawal election only if his or her spouse waives the right to this annuity. To show that the spouse has waived the right to this annuity, the participant must submit to the TSP record keeper Form TSP-70, Withdrawal Election, or Form TSP-11-C, Spouse Information and Waiver, signed by his or her spouse. Once a form containing the spouse's waiver has been submitted to the TSP record keeper, the spouse's waiver is irrevocable for purposes of that form.</P> </SECTION> <SECTION> <SECTNO>§ 1650.61</SECTNO> <SUBJECT>Spousal rights when a separated participant changes post-employment withdrawal election.</SUBJECT> <P>(a) The spousal rights described in this section only apply to post-employment withdrawals when the participant's vested TSP account balance exceeds $3,500.</P> <P>(b) The spouse of a CSRS participant is entitled to notice if the participant changes his or her post-employment withdrawal election, unless the participant was granted an exception under § 1650.63 to the spouse notification requirement within one year of the date the form requesting the change is processed by the TSP. The participant must provide the TSP record keeper with the spouse's current address. The TSP record keeper will send the required notice by first class mail to the most recent address provided by the participant.</P> <P>(c)(1) A married FERS participant who has made a post-employment withdrawal election and who wants to elect another withdrawal method (other than the annuity required in § 1650.60(c)) must obtain a waiver from the spouse to whom he or she is married on the date the new withdrawal form is signed, unless:</P> <P>(i) That spouse previously signed a waiver of the required annuity in connection with an earlier post-employment withdrawal election made by the participant; or</P> <P>(ii) The participant was granted within one year of the date on which the new withdrawal form is received by the TSP an exception under § 1650.64 to the requirement to obtain that spouse's signature for an in-service or post-employment withdrawal election.</P> <P>(2) Once a form containing the spouse's waiver has been submitted to the TSP record keeper, the spouse's consent is irrevocable for purposes of that form.</P> </SECTION> <SECTION> <SECTNO>§ 1650.62</SECTNO> <SUBJECT>Spousal rights pertaining to in-service withdrawals.</SUBJECT> <P>(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 to be withdrawn.</P> <P>(b) The spouse of a CSRS participant is entitled to notice when the participant applies for an in-service withdrawal, unless the participant was granted within one year of the date on which the withdrawal form is received by the TSP an exception to the notice requirement under § 1650.63. The participant must provide the TSP record keeper with the spouse's correct address. The TSP record keeper will send the required notice by first class mail to the most recent address provided by the participant.</P> <P>(c) A participant covered by FERS must obtain the consent of his or her <PRTPAGE P="275"/>spouse before obtaining an in-service withdrawal unless the participant was granted, within one year of the date on which the new withdrawal form is received by the TSP, an exception to a signature requirement under § 1650.64. To show spousal consent, a participant must submit to the TSP record keeper Form TSP-75, Age-Based In-Service Withdrawal Request, or Form TSP-76, Financial Hardship In-Service Withdrawal Request, signed by his or her spouse. Once a form containing the spouse's consent has been submitted to the TSP record keeper, the spouse's consent is irrevocable for purposes of that form.</P> </SECTION> <SECTION> <SECTNO>§ 1650.63</SECTNO> <SUBJECT>Executive Director's exception to the spousal notification requirement.</SUBJECT> <P>(a) Whenever this subpart requires the Executive Director to give notice of an action to the spouse of a 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 an exception to a notification requirement based on unknown whereabouts must be submitted to the Executive Director on Form TSP-16, Exception to Spousal Requirements, accompanied by one of the following:</P> <P>(1) A judicial determination (court order) stating that the spouse's whereabouts cannot be determined;</P> <P>(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</P> <P>(3) Statements by the participant and two other persons that meet the following requirements:</P> <P>(i) The participant's statement must give the full name of the spouse, declare the participant's inability to locate the spouse, and state the efforts the participant has made to locate the spouse. Examples of attempting to locate the spouse include, but are not limited to, checking with relatives and mutual friends or using telephone directories or 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.</P> <P>(ii) The statements from two other persons must support the participant's statement that the participant does not know the whereabouts of his or her spouse.</P> <P>(iii) Each statement must be signed and dated and must state the following: </P> <P>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. </P> <P>(b) A withdrawal election received within one year of an approved exception may be processed so long as the spouse named on the form is the spouse for whom the exception has been approved.</P> </SECTION> <SECTION> <SECTNO>§ 1650.64</SECTNO> <SUBJECT>Executive Director's exception to requirement to obtain the spouse's signature.</SUBJECT> <P>(a) Wherever this subpart requires a spouse's consent to a loan or 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:</P> <P>(1) The spouse's whereabouts cannot be determined in accordance with the provisions of § 1650.63; or</P> <P>(2) Due to exceptional circumstances, requiring the spouse's signature would be otherwise inappropriate.</P> <P>(i) An exception to the spousal signature requirement may be granted based on exceptional circumstances only when the participant presents a judicial determination (court order) or a governmental agency determination signed by the appropriate department or division head. A court order or a governmental agency determination must contain a finding or a recitation of such exceptional circumstances regarding the spouse as would warrant an exception to the signature requirement.</P> <P>(ii) Exceptional circumstances are narrowly construed and include circumstances such as when a court order:</P> <P>(A) Indicates that the spouse and the participant have been maintaining separate residences with no financial relationship for three or more years;<PRTPAGE P="276"/> </P> <P>(B) Indicates that the spouse abandoned the participant, but for religious or similarly compelling reasons, the parties chose not to divorce; or</P> <P>(C) Expressly states that the participant may obtain a loan from his or her Thrift Savings Plan account or withdraw his or her Thrift Savings Plan account balance notwithstanding the absence of the spouse's signature.</P> <P>(b) A withdrawal election by a separated participant or an in-service withdrawal request by a participant in the Federal service received within one year of an approved exception will be processed so long as the spouse named on the form is the spouse for whom the exception has been approved.</P> <P>(c) The requirements for establishing an exception for a withdrawal by a separated participant or an in-service withdrawal by a participant in the Federal service and the one-year period of validity of an approved exception also apply to exceptions for loans under 5 CFR 1655.18.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1651</EAR> <HD SOURCE="HED">PART 1651—DEATH BENEFITS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1651.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1651.2</SECTNO> <SUBJECT>Entitlement to benefits.</SUBJECT> <SECTNO>1651.3</SECTNO> <SUBJECT>Designation of beneficiary.</SUBJECT> <SECTNO>1651.4</SECTNO> <SUBJECT>Change or cancellation of a designation of beneficiary.</SUBJECT> <SECTNO>1651.5</SECTNO> <SUBJECT>Widow or widower.</SUBJECT> <SECTNO>1651.6</SECTNO> <SUBJECT>Child or children.</SUBJECT> <SECTNO>1651.7</SECTNO> <SUBJECT>Parent or parents.</SUBJECT> <SECTNO>1651.8</SECTNO> <SUBJECT>Participant's estate.</SUBJECT> <SECTNO>1651.9</SECTNO> <SUBJECT>Participant's next of kin.</SUBJECT> <SECTNO>1651.10</SECTNO> <SUBJECT>Deceased and non-existent beneficiaries.</SUBJECT> <SECTNO>1651.11</SECTNO> <SUBJECT>Simultaneous death.</SUBJECT> <SECTNO>1651.12</SECTNO> <SUBJECT>Homicide.</SUBJECT> <SECTNO>1651.13</SECTNO> <SUBJECT>How to apply for a death benefit.</SUBJECT> <SECTNO>1651.14</SECTNO> <SUBJECT>How payment is made.</SUBJECT> <SECTNO>1651.15</SECTNO> <SUBJECT>Claims referred to the Board.</SUBJECT> <SECTNO>1651.16</SECTNO> <SUBJECT>Missing and unknown beneficiaries.</SUBJECT> <SECTNO>1651.17</SECTNO> <SUBJECT>Disclaimer of benefits.</SUBJECT> <SECTNO>1651.18</SECTNO> <SUBJECT>Payment to one bars payment to another.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8424(d), 8433(e), 8435(c)(2), 8474(b)(5) and 8474(c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 32429, June 13, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1651.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Terms used in this part shall have the following meanings:</P> <P> <E T="03">Beneficiary</E> means the person or legal entity who is entitled to receive a death benefit from a deceased participant's TSP account;</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board;</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C);</P> <P> <E T="03">Death</E> benefit means all or a share of the deceased participant's TSP account at the time of payment;</P> <P> <E T="03">Domicile</E> means the participant's place of residence for purposes of state income tax liability;</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B);</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A);</P> <P> <E T="03">Investment fund</E> means the C Fund, the F Fund, the G Fund, or any other TSP investment fund created subsequent to December 27, 1986;</P> <P> <E T="03">Order of precedence</E> means the order in which a death benefit will be paid, as specified in 5 U.S.C. 8424(d);</P> <P> <E T="03">Participant</E> means any person with an account in the Thrift Savings Fund;</P> <P> <E T="03">Thrift Savings Fund</E> means the Fund described in 5 U.S.C. 8437;</P> <P> <E T="03">Thrift Savings Plan</E> or <E T="03">TSP</E> 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 <E T="03">et seq.</E>;</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping service for the Thrift Savings Plan. As of June 13, 1997, the TSP record keeper is the National Finance Center, United States Department of Agriculture, whose mailing address is National Finance Center, TSP Service Office, P.O. Box 61135, New Orleans, Louisiana 70161-1135;</P> <P> <E T="03">Withdrawal election</E> means a request for the payment of a participant's vested account balance filed under 5 CFR 1650, subpart B.</P> <CITA>[62 FR 32429, June 13, 1997, as amended at 64 FR 31062, June 9, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1651.2</SECTNO> <SUBJECT>Entitlement to benefits.</SUBJECT> <P>(a) <E T="03">Death benefit payments made before the participant has completed a withdrawal election.</E> If a participant dies before completing a withdrawal election, <PRTPAGE P="277"/>the account will be paid to the individual or individuals surviving the participant in the following order of precedence:</P> <P>(1) To the beneficiary or beneficiaries designated by the participant on a properly completed and filed Form TSP-3, Designation of Beneficiary, in accordance with § 1651.3;</P> <P>(2) If there is no designated beneficiary, to the widow or widower of the participant in accordance with § 1651.5;</P> <P>(3) If none of the above 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;</P> <P>(4) If none of the above in paragraphs (a)(1) through (a)(3) of this section, to the parents of the participant or the surviving one of them in accordance with § 1651.7;</P> <P>(5) If none of the above 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;</P> <P>(6) If none of the above in paragraphs (a)(1) through (a)(5) of this section, to the next of kin of the participant who are entitled under the laws of the state of the participant's domicile at the date of the participant's death in accordance with § 1651.9.</P> <P>(b) <E T="03">Death benefit payments made after the participant has completed a withdrawal election.</E> (1) The death benefit will be paid in accordance with the order of precedence as set forth in paragraph (a) of this section if the Board learns that the participant has died after having completed an election to withdraw his or her TSP account balance in the form of a single payment or monthly payments (whether or not the participant has requested that all or part of such payments be transferred to an eligible retirement plan), but the account balance has not yet been paid out in accordance with such election.</P> <P>(2) The death benefit will be paid as a single payment to the joint life annuitant if the Board learns that the participant has died after having completed an election to withdraw his or her TSP account balance in the form of a joint life annuity, but the annuity has not yet been purchased.</P> <P>(3) The death benefit will be paid pro rata as a single payment to the beneficiary(ies) designated on Form TSP-11-B, Beneficiary Designation for a TSP Annuity, if both the participant and the joint annuitant die after the par ticipant has completed an election to withdraw his or her TSP account balance in the form of a joint life annuity that includes a cash refund, but before the annuity has been purchased.</P> <P>(4) The death benefit will be paid in accordance with the order of precedence as set forth in paragraph (a) of this section, if the Board learns that—</P> <P>(i) Both the participant and the joint annuitant have died after the participant has completed an election to withdraw his or her TSP account balance in the form of a joint life annuity that does not include a cash refund, but the annuity has not yet been purchased; or</P> <P>(ii) Both the beneficiary(ies) named under a cash refund election and the joint annuitant have died after the participant has completed an election to withdraw, but the annuity has not yet been purchased.</P> <P>(5) The death benefit will be paid <E T="03">pro rata</E> to the beneficiary(ies) designated on the Form TSP-11-B if the Board learns that the participant has died after having completed an election to withdraw his or her TSP account balance in the form of a single life annuity that includes either a cash refund or 10-year certain feature, but the annuity has not yet been purchased.</P> <P>(6) The death benefit will be paid in accordance with the order of precedence set forth in paragraph (a) of this section if the Board learns that the participant and all beneficiaries designated on a Form TSP-11-B have died after the participant has completed an election to withdraw his or her TSP account balance in the form of a single life annuity that includes either a cash refund or a 10-year certain feature, but the annuity has not yet been purchased.</P> <P>(7) The death benefit will be paid in accordance with the order of precedence as set forth in paragraph (a) of this section if a participant dies after <PRTPAGE P="278"/>having completed an election to withdraw his or her TSP account balance in the form of a single life annuity that does not include either a cash refund or 10-year certain feature, but before the annuity has been purchased.</P> <P>(8) If a participant dies after the annuity purchase has been completed, benefit payments will be provided in accordance with the annuity method selected.</P> <P>(c) If a participant dies with any portion of his or her TSP account in an investment fund other than the G Fund, the Board will transfer the entire account into the G Fund after receiving written notice of the participant's death. The account will continue to accrue earnings at the G Fund rate in accordance with 5 CFR part 1645 until it is paid in accordance with the order of precedence set forth in paragraph (a) of this section.</P> <CITA>[62 FR 32429, June 13, 1997, as amended at 64 FR 31062, June 9, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1651.3</SECTNO> <SUBJECT>Designation of beneficiary.</SUBJECT> <P>(a) <E T="03">Filing requirements.</E> In order to designate a beneficiary of a TSP account, the participant must complete and file Form TSP-3, Designation of Beneficiary, unless Form TSP-11-B is used for this purpose. All Forms TSP-3 and TSP-11-B signed on or after January 1, 1995, must be received by the TSP record keeper on or before the participant's date of death. If the Form TSP-3 was received and accepted by the participant's employing agency before January 1, 1995, the TSP record keeper will process it and determine its validity when it is received from the employing agency. A valid Form TSP-3 remains in effect until it is properly canceled or changed as described in § 1651.4.</P> <P>(b) <E T="03">Eligible beneficiaries.</E> Any individual, firm, cor poration, or legal entity, including the U.S. Government, may be designated as a beneficiary. Any number of beneficiaries can be named to share the death benefit. A beneficiary may be designated without the knowledge or consent of the beneficiary or the knowledge or consent of the participant's spouse.</P> <P>(c) <E T="03">Validity requirements.</E> In order to be valid, a Form TSP-3 must be signed by the participant in the presence of two witnesses, or the participant must acknowledge his or her signature on the Form TSP-3 in the presence of two wit nesses. A witness must be age 21 or older, and a witness designated as a beneficiary on the Form TSP-3 will not be entitled to receive a death benefit payment. If a witness is the only named beneficiary, the Form TSP-3 is invalid. If more than one beneficiary is named, the share of the witness beneficiary will be allocated among the remaining beneficiaries <E T="03">pro rata</E>.</P> <P>(d) <E T="03">Will.</E> A will, or any document other than Form TSP-3 or Form TSP-11-B, may not be used to designate a beneficiary(ies) of a TSP account.</P> </SECTION> <SECTION> <SECTNO>§ 1651.4</SECTNO> <SUBJECT>Change or cancellation of a designation of beneficiary.</SUBJECT> <P>(a) <E T="03">Change.</E> In order to change a designation of beneficiary, the participant must properly complete a new Form TSP-3, which must be received by the TSP record keeper on or before the date of death of the participant under the same rules as set forth in § 1651.3(a). The TSP record keeper will honor the Form TSP-3 with the latest date signed by the participant which is otherwise valid under the rules set forth in § 1651.3. A change of beneficiary may be made at any time and without the knowledge or consent of the participant's spouse or any current or prior designated beneficiaries.</P> <P>(b) <E T="03">Cancellation.</E> A participant may cancel all prior designations of beneficiaries by sending the TSP record keeper either a new valid Form TSP-3 or a letter, signed and dated by the participant and witnessed in the same manner as a Form TSP-3, stating that all prior designations are can celed. In order to be effective, either of these documents must be received by the TSP record keeper on or before the date of death of the participant in accordance with the rules set forth in § 1651.3(a). The filing of either of these documents will cancel all earlier designations.</P> <P>(c) <E T="03">Will.</E> A will, or any document other than Form TSP-3 or Form TSP-11-B, may not be used to change or cancel a beneficiary(ies) of a TSP account.</P> </SECTION> <SECTION> <PRTPAGE P="279"/> <SECTNO>§ 1651.5</SECTNO> <SUBJECT>Widow or widower.</SUBJECT> <P>For purposes of payment under § 1651.2(a)(2), the widow or widower of the participant is the person to whom the participant is 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. State law of the participant's domicile will be used to determine whether the participant was married at the time of death.</P> </SECTION> <SECTION> <SECTNO>§ 1651.6</SECTNO> <SUBJECT>Child or children.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Child.</E> A child includes a natural or adopted child of the deceased participant.</P> <P>(b) <E T="03">Descendants of deceased children.</E> “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.</P> <P>(c) <E T="03">Adoption by another.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1651.7</SECTNO> <SUBJECT>Parent or parents.</SUBJECT> <P>If the account is to be paid to the participant's parent or parents under § 1651.2(a)(4), the following rules apply:</P> <P>(a) <E T="03">Amount.</E> 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.</P> <P>(b) <E T="03">Step-parent.</E> A step-parent is not considered a parent unless the step-parent adopted the participant.</P> </SECTION> <SECTION> <SECTNO>§ 1651.8</SECTNO> <SUBJECT>Participant's estate.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Appointment by court.</E> The executor or administrator must provide documentation of court appointment.</P> <P>(b) <E T="03">Appointment by operation of law.</E> If state law provides procedures for handling small estates, the Board 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.</P> </SECTION> <SECTION> <SECTNO>§ 1651.9</SECTNO> <SUBJECT>Participant's next of kin.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1651.10</SECTNO> <SUBJECT>Deceased and non-existent beneficiaries.</SUBJECT> <P>(a) <E T="03">Designated beneficiary dies before participant.</E> The share of any beneficiary designated on a Form TSP-3 or Form TSP-11-B who predeceases the participant will be paid <E T="03">pro rata</E> to other designated beneficiary(ies). If there are no designated beneficiaries who survive the participant, the account will be paid to the person(s) determined to be the beneficiary(ies) under the order of precedence set forth in § 1651.2(a).</P> <P>(b) <E T="03">Trust designated as beneficiary but not in existence.</E> If a trust or other entity that has been designated as a beneficiary does not exist on the date of death of the participant, or if it is not created by will or other document that is effective upon the participant's death, the amount 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.</P> <P>(c) <E T="03">Non-designated beneficiary dies before participant.</E> If a beneficiary other than a beneficiary designated on a Form TSP-3 or a Form TSP-11-B (<E T="03">i.e.</E>, a beneficiary by virtue of the order of precedence) dies before the participant, the beneficiary's share will be paid equally to other living beneficiary(ies) <PRTPAGE P="280"/>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.</P> <P>(d) <E T="03">Beneficiary dies after participant but before payment.</E> If a beneficiary dies after the participant, the beneficiary's share will be paid to the beneficiary's estate.</P> <P>(e) <E T="03">Death certificate.</E> A copy of a beneficiary's certified death certificate is required in order to establish that the beneficiary has died.</P> </SECTION> <SECTION> <SECTNO>§ 1651.11</SECTNO> <SUBJECT>Simultaneous death.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1651.12</SECTNO> <SUBJECT>Homicide.</SUBJECT> <P>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 convicted of, or pleads guilty to, a crime in connection with the participant's death which would preclude the beneficiary from inheriting under state law, the beneficiary will not be entitled to receive any portion of the participant's account. The Board 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 Board 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 Board will treat the beneficiary as if he or she predeceased the participant and the account will be paid in accordance with § 1651.10.</P> </SECTION> <SECTION> <SECTNO>§ 1651.13</SECTNO> <SUBJECT>How to apply for a death benefit.</SUBJECT> <P>In order for a deceased participant's account to be disbursed, the TSP record keeper must receive Form TSP-17, Application for Account Balance of Deceased Participant. Any potential beneficiary or other individual can file Form TSP-17 with the TSP record keeper. The individual submitting Form TSP-17 must attach a copy of a certified death certificate of the participant to the application. The acceptance of an application by the TSP record keeper does not entitle the applicant to benefits.</P> </SECTION> <SECTION> <SECTNO>§ 1651.14</SECTNO> <SUBJECT>How payment is made.</SUBJECT> <P>(a) <E T="03">Notice.</E> The TSP record keeper will send notice of pending payment to each beneficiary.</P> <P>(b) <E T="03">Payment.</E> Payment is made separately to each entitled beneficiary. It will be sent to the address that is provided on Form TSP-3, unless a more recent address is provided on Form TSP-17, or is otherwise provided to the TSP record keeper in writing by the beneficiary. All beneficiaries must provide the TSP record keeper with a taxpayer identification number; <E T="03">i.e.</E>, Social Security number (SSN), employee identification number (EIN), or individual taxpayer identification number (ITIN), as appropriate.</P> <P>(c) <E T="03">Payment to widow or widower.</E> The widow or widower of the participant may request that the TSP transfer all or a portion of the payment to an Individual Retirement Arrangement (IRA). In order to request such a transfer, a spouse must file with the TSP record keeper Form TSP-13-S, Spouse Election to Transfer to IRA and Other Eligible Retirement Plan.</P> <P>(d) <E T="03">Payment to minor child or incompetent beneficiary.</E> 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 <PRTPAGE P="281"/>court documen tation showing his or her appointment as guardian.</P> <P>(e) <E T="03">Payment to executor or administrator.</E> 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 TIN must be provided for all estates.</P> <P>(f) <E T="03">Payment to trust.</E> If payment is to a trust, the check will be made payable to the trustee. A TIN must be provided for the trust.</P> </SECTION> <SECTION> <SECTNO>§ 1651.15</SECTNO> <SUBJECT>Claims referred to the Board.</SUBJECT> <P>(a) <E T="03">Contested claims.</E> 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.</P> <P>(b) <E T="03">Payment deferred.</E> No payment will be made until the Board has resolved the claim.</P> </SECTION> <SECTION> <SECTNO>§ 1651.16</SECTNO> <SUBJECT>Missing and unknown beneficiaries.</SUBJECT> <P>(a) <E T="03">Locate and identify beneficiaries.</E> (1) The TSP record keeper will attempt to identify and locate all potential beneficiaries.</P> <P>(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</P> <P>(b) <E T="03">Payment to known beneficiaries.</E> 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.</P> <P>(c) <E T="03">Abandoned account.</E> 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 Board'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 fund is abandoned. The beneficiary will be required to submit Form TSP-17 and may be required to submit proof of his or her identity and relationship to the participant.</P> </SECTION> <SECTION> <SECTNO>§ 1651.17</SECTNO> <SUBJECT>Disclaimer of benefits.</SUBJECT> <P>(a) <E T="03">Disclaimer criteria.</E> The beneficiary of a TSP account may disclaim his or her right to receive the account. In order to be effective, the following criteria must be met:</P> <P>(1) The disclaimer must be in writing. The writing must state specifically that the beneficiary is disclaiming his or her right to receive a death benefit payment from the TSP account of the participant.</P> <P>(2) The disclaimer must be irrevocable.</P> <P>(3) The disclaimer must be received by the TSP record keeper before payment is made.</P> <P>(4) The disclaimant cannot direct to whom the disclaimant's portion of the participant's account should be paid.</P> <P>(5) The disclaimant must disclaim the entire benefit, not a portion.</P> <P>(b) <E T="03">Treatment of disclaimed share.</E> The disclaimant will be treated as having predeceased the participant and his or her share will be paid in accordance with § 1651.10.</P> </SECTION> <SECTION> <SECTNO>§ 1651.18</SECTNO> <SUBJECT>Payment to one bars payment to another.</SUBJECT> <P>Payment made to a beneficiary(ies) in accordance with this part, based upon information received before payment, bars any claim by any other person.</P> </SECTION> </PART> <PART> <EAR>Pt. 1653</EAR> <HD SOURCE="HED">PART 1653—DOMESTIC RELATIONS ORDERS AFFECTING THRIFT SAVINGS PLAN ACCOUNTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Retirement Benefits Court Orders</HD> <SECHD>Sec.</SECHD> <SECTNO>1653.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1653.2</SECTNO> <SUBJECT>Qualifying retirement benefits court orders.</SUBJECT> <SECTNO>1653.3</SECTNO> <SUBJECT>Processing retirement benefits court orders.</SUBJECT> <SECTNO>1653.4</SECTNO> <SUBJECT>Calculating entitlement under a retirement benefits court order.<PRTPAGE P="282"/> </SUBJECT> <SECTNO>1653.5</SECTNO> <SUBJECT>Procedures for payment pursuant to retirement benefits court orders.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Legal Process for the Enforcement of a Participant's Legal Obligations To Provide Child Support or Make Alimony Payments</HD> <SECTNO>1653.20</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1653.21</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1653.22</SECTNO> <SUBJECT>Service of legal process.</SUBJECT> <SECTNO>1653.23</SECTNO> <SUBJECT>Requirements for “qualifying” legal process.</SUBJECT> <SECTNO>1653.24</SECTNO> <SUBJECT>Processing legal process.</SUBJECT> <SECTNO>1653.25</SECTNO> <SUBJECT>Payment pursuant to qualifying legal process.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8435, 8436(b), 8437(e)(3), 8467, 8474(b)(5) and 8474(c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 13609, Mar. 13, 1995, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Retirement Benefits Court Orders</HD> <SECTION> <SECTNO>§ 1653.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This subpart contains regulations prescribing the Board's procedures for processing retirement benefits court orders.</P> </SECTION> <SECTION> <SECTNO>§ 1653.2</SECTNO> <SUBJECT>Qualifying retirement benefits court orders.</SUBJECT> <P>(a) The TSP will only honor the terms of a retirement benefits court order that is qualifying under paragraph (b) of this section.</P> <P>(b) A retirement benefits court order must meet each of the following requirements to be considered qualifying:</P> <P>(1) The court order must be a court decree of divorce, of annulment, or of legal separation, or any court order or court-approved property settlement agreement incident to a decree of divorce, of annulment, or of legal separation. Orders may be issued at any stage of a divorce, annulment, or legal separation proceeding. Orders issued prior to a final decree, such as orders for the purpose of preserving the <E T="03">status quo</E> pending the final resolution of the proceeding, are referred to as “preliminary” court orders, and will be considered “incident to” a final decree, notwithstanding that a final decree has not yet been, and may not be, issued. Orders issued subsequent to a final decree, such as orders for the purpose of amending such decree, are referred to as “subsequent” court orders, and will also be considered “incident to” such decree. However, any subsequent court order that requires the return of money properly paid pursuant to an earlier court order will not constitute a qualifying order. </P> <P>(2) The court order must “expressly relate” to the Thrift Savings Plan account of a current TSP participant. This means that:</P> <P>(i) The order must on its face specifically describe the TSP in such a way that it cannot be confused with other Federal Government retirement benefits or non-Federal retirement benefits; and</P> <P>(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 individual participant's “account” or “account balance” rather than a “benefit formula” or the participant's “eventual benefits.”</P> <P>(3) If the court order awards an amount to be paid from the participant's TSP account, the award must be for:</P> <P>(i) A specific dollar amount;</P> <P>(ii) A stated percentage or stated fraction of the account;</P> <P>(iii) A portion of the account to be calculated by applying a formula that yields a mathematically possible result. Any variables in the formula must have values that are readily ascertainable from the face of the order or from Government employment records; or</P> <P>(iv) A survivor annuity as provided in 5 U.S.C. 8435(e).</P> <P>(4) Court orders that make awards from the TSP may only provide for payments:</P> <P>(i) To spouses or former spouses of the participant;</P> <P>(ii) As fees for attorneys for spouses or former spouses of the participant;</P> <P>(iii) To dependent children or other dependents of the participant;</P> <P>(iv) As fees for attorneys for dependent children or other dependents of the participant;</P> <P>(c) The following retirement benefits court orders will be considered non-qualifying:</P> <P>(1) Orders relating to a TSP account that contains only nonvested money, <PRTPAGE P="283"/>unless the money will become vested within 90 days of the date of receipt of the order if the participant remains in Federal service;</P> <P>(2)(i) Orders that award an amount to be paid at a future specified date or upon the occurrence of a future specified event, unless:</P> <P>(A) The amount of the entitlement can be currently calculated; and</P> <P>(B) The award provides for the payment of interest or earnings from the date of calculation to the specified date or event for payment.</P> <P>(ii) If an order meets the requirements of paragraphs (c)(2)(i) (A) and (B), a current payment will be made in accordance with the procedures set forth in § 1653.5, rather than a payment at the future date stated in the order.</P> <P>(d) For purposes of paragraph (c)(2) of this section, orders that require only that the amount of the award be calculated on the date of payment, without stating a future date or event for payment, will not be considered as awarding an amount to be paid at a future date or upon the occurrence of a future event. In such cases, the date of payment will be determined in accordance with the procedures set forth in § 1653.5, and the amount of the entitlement will be determined in accordance with § 1653.4 using that date of payment.</P> <P>(e) <E T="03">Definition.</E> For purposes of this Part, the term “former spouse” shall have the same meaning as set forth in 5 U.S.C. 8401(12).</P> </SECTION> <SECTION> <SECTNO>§ 1653.3</SECTNO> <SUBJECT>Processing retirement benefits court orders.</SUBJECT> <P>(a) Board's review of retirement benefits court orders is governed solely by the Federal Employees’ Retirement System Act (FERSA), 5 U.S.C. Chapter 84, and by the terms of this part. The Board will honor retirement benefits court orders properly issued by a 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). However, those courts have no jurisdiction over the Board and the Board cannot be made a party to the underlying domestic relations proceedings.</P> <P>(b) Retirement benefits court orders should be submitted to the Board's recordkeeper at the following address: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500. Receipt by the recordkeeper will be considered receipt by the Board.</P> <P>(c) Upon receipt of a document that purports to be a qualifying retirement benefits court order, including preliminary and subsequent court orders, the participant's account will be frozen. After the account is frozen, no withdrawals or loans will be allowed until the account is unfrozen. All other account activity, including contributions, adjustments, and interfund transfers, will be permitted.</P> <P>(d) The following documents will not be treated as purporting to be qualifying retirement benefits court orders. Therefore accounts of participants to whom such orders relate will not be frozen and these documents will not be reviewed by the Board:</P> <P>(1) A document that does not indicate on its face (or accompany a document that establishes) that it has been issued or approved by a court;</P> <P>(2) A court order relating to a TSP account that has been closed;</P> <P>(3) A court order dated prior to June 6, 1986;</P> <P>(4) A court order that fails to award all or any part of the TSP account to anyone other than the participant;</P> <P>(5) A court order that does not mention retirement benefits.</P> <P>(e) After the participant's account is frozen, the document will be reviewed initially to determine if it is a complete original or copy of a retirement benefits court order.</P> <P>(f) If it is determined that the document is not complete, a complete document will be requested. If it is not received within 30 days of the date of such request, the account will be unfrozen and no further action will be taken with respect to the document.</P> <P>(g) Upon receipt of a complete order that is either an original or a copy of a retirement benefits court order, the Board will review the order and will determine whether it is a qualifying order as described in § 1653.2 and, if it awards an amount to be paid from a participant's TSP account, the amount <PRTPAGE P="284"/>of the entitlement. The Board will advise all parties in writing of its decision.</P> <P>(h) The Board's decision will contain the following information:</P> <P>(1) The Board's determination regarding whether the court order is qualifying;</P> <P>(2) A statement of the applicable statute or regulations;</P> <P>(3) If the order is determined to be qualifying, a statement regarding the effect that compliance with the court order will have on the participant's TSP account; and</P> <P>(4) If the order requires payment, a description of the method by which the entitlement under the court order was calculated and the circumstances under which payment will be made.</P> <P>(i) The Board's decision will be final. There is no administrative appeal from the decision.</P> <P>(j) An account frozen under this section will be unfrozen as follows:</P> <P>(1) If a complete document has not been received within 30 days from the date of a request described in paragraph (f) of this section, upon expiration of the 30-day period;</P> <P>(2) If the order is a preliminary order or other order precluding payment from the account, as soon as practicable after receipt of a certified copy or original court order vacating or superseding such order (unless the order vacating or superseding the preliminary order itself warrants placing a freeze on the account);</P> <P>(3) If the order is valid to award a payment from the TSP account of a participant under this part, upon payment; and</P> <P>(4) If the Board determines that the order is not a qualifying order under this part, 45 days after issuance of the Board's decision. The 45-day period will be terminated if both parties submit a written request for such a termination to the Board.</P> <P>(k)(1) the Board will hold in abeyance the processing of a court order payment pursuant to a previously approved qualifying court order if the Board is advised by one of the parties that the underlying court order is on appeal in the state court system and that the effect of the filing of such an appeal under state law or procedures is to stay the effect of the order.</P> <P>(i) Proper documentation of the appeal and citations to legal authority which address the effect of the filing of such an appeal must be provided.</P> <P>(ii) The parties will be notified that the processing of the court order is being held in abeyance and the account will remain frozen for loans and withdrawal.</P> <P>(iii) In the absence of proper documentation and appropriate legal authority, the Board will presume that the provisions relating to the TSP in the court order remain valid and will proceed with the payment process.</P> <P>(2) The Board must be notified in writing by one of the parties of the disposition of the appeal in order for the freeze to be removed from the account or for a payment to be made. The notification must include a statement regarding the effect of the disposition on the provisions of the original order relating to the TSP and a copy of the resulting document from the court must be provided.</P> <P>(l) Multiple court orders pending before the Board will be processed in accordance with the procedures set forth in this part in the following order:</P> <P>(1) As between conflicting qualifying court orders relating to the same spouse or former spouse, the Board will process only the court order bearing the latest date entered by the clerk of the court. If any order does not have a date entered, then the date the order was filed by the clerk shall be used; if there is no date entered or date filed, then the date the order was signed by the judge shall be used.</P> <P>(2) As between conflicting qualifying court orders relating to two or more former spouses, the Board will process the orders in the order of the dates entered by the clerk of the court, starting with the order bearing the earliest date, and continuing until the account is exhausted. If any order does not have a date entered, then the date the order was filed by the clerk shall be used; if there is no date entered or date filed, then the date the order was signed by the judge shall be used.</P> </SECTION> <SECTION> <PRTPAGE P="285"/> <SECTNO>§ 1653.4</SECTNO> <SUBJECT>Calculating entitlement under a retirement benefits court order.</SUBJECT> <P>(a) If the court order awards a percentage or fraction of the account as of a specific date or event, the amount of the entitlement will be calculated based upon the balance of the account as of the end of the month on or immediately preceding the date or event, plus any transactions posted after the date or event, but before payment, that are effective on or before the month-end date used for calculating the entitlement. For purposes of computing the amount of an entitlement, any loan amount outstanding as of the month-end date used for calculating the entitlement shall be treated as included in the account balance, unless the court order provides otherwise.</P> <P>(b) If the court order awards a percentage or fraction of an account but does not contain a specific date as of which to apply the percentage or fraction to the account, the amount of the entitlement will be calculated as described in paragraph (a) of this section, using the account balance as of the end of the month on or immediately prior to the date the order was entered by the clerk of the court or, if the order does not show a date entered, the date the order was filed by the clerk of the court or, if the order does not contain a date entered or a date filed, the date signed by the judge.</P> <P>(c) If the court order awards a specific dollar amount, the amount of the entitlement will be the lesser of:</P> <P>(1) The amount the order awards; or</P> <P>(2) The amount in the account as of the end of the month on or before the date specified in the order (or, if no date is specified, the date the order was entered by the clerk of the court or, if the order does not show a date entered, the date the order was filed by the clerk of the court, or, if the order does not contain a date entered or a date filed, the date signed by the judge) plus any transactions posted after the date or event, but before payment, that are effective on or before the month-end date used for calculating the entitlement. For purposes of computing the amount of entitlement, any loan amount outstanding as of the month-end date used for calculating the entitlement shall be treated as included in the account balance, unless the court order provides otherwise.</P> <P>(d) Unless the court order specifically provides otherwise, the entitlement calculated under this section will not be credited with interest or earnings. If interest or earnings are awarded, the Board will use the monthly rates of return credited to the account unless the court order specifies a different rate. The TSP monthly rates of return may be either positive or negative. Interest or earnings will be calculated beginning with the month following the month-end valuation date used for calculating the entitlement and ending with the month prior to the month of payment.</P> <P>(e) All entitlement will be calculated initially under this section including both vested and nonvested amounts in the participant's account. If at the time of payment the non-vested portion of the account has not become vested or has been forfeited, the entitlement will be recalculated using only the participant's vested account balance.</P> </SECTION> <SECTION> <SECTNO>§ 1653.5</SECTNO> <SUBJECT>Procedures for payment pursuant to retirement benefits court orders.</SUBJECT> <P>(a) If a qualifying court order creates an entitlement to a portion of a TSP account under this part, payment will be made after the Board's decision has been issued and the 30-day tax withholding notification period has ended. The taxpayer may receive the payment sooner by waiving the tax notification period.</P> <P>(b) A payment made pursuant to a qualifying court order will be made only to the person(s) specified in the court order. If payment is to be made to the spouse or former spouse of the participant, he or she may request that the TSP transfer all or a portion of his or her payment to an Individual Retirement Arrangement (IRA) or other eligible retirement plan. Such a request must be made by filing the TSP form “Spouse Election to Transfer to IRA or Other Eligible Retirement Plan”, which must be received before payment.</P> <P>(c) In no case may a payment made pursuant to a qualifying court order exceed the participant's vested account <PRTPAGE P="286"/>balance, excluding any outstanding loan amount as of the end of the month preceding the date of payment. If the entitlement calculated pursuant to this subpart exceeds the participant's vested account balance (excluding any outstanding loan amount), then only the vested amount in the account (excluding the outstanding loan balance) will be paid.</P> <P>(d) The entire amount of an entitlement created by a qualifying court order 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 further rights to any payment under that order even if the entire amount of the entitlement could not be paid. Any further award must be contained in a separate court order.</P> <P>(e) Payment cannot be made jointly to more than one person. If payment is to be made to more than one person, the order must separately indicate the amount to be paid to each.</P> <P>(f) In order to make a payment pursuant to a retirement benefits court order, the Board's recordkeeper must be provided with the full name, mailing address, and Social Security number of the payee, even if the payment is being mailed to another address.</P> <P>(g) If the payee dies before a payment is made pursuant to a qualifying retirement benefits court order, payment will be made to the estate of the payee, unless otherwise specified by the court order. If the participant dies before payment is made pursuant to a qualifying retirement benefits order entered before the participant's death, the order will be honored as long as it is submitted to the Board before payment of the account, regardless of whether the order was received by the Board before the participant's death.</P> <P>(h) If the parties to a divorce or annulment are remarried, 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.</P> <P>(i) 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 pursuant to that order.</P> <P>(j) Payments pursuant to qualifying court orders will be paid <E T="03">pro rata</E> from the TSP investment funds, based on the balance in each fund on the date as of which the payment is made. The Board will not honor provisions of court orders that require payment to be made from specific investment funds.</P> <CITA>[60 FR 13609, Mar. 13. 1995, as amended at 61 FR 18912, Apr. 29, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Legal Process for the Enforcement of a Participant's Legal Obligations To Provide Child Support or Make Alimony Payments</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 45624, Aug. 31, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1653.20</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains regulations prescribing the Board's procedures for responding to legal process for the enforcement of a participant's legal obligations to make alimony or child support payments, as required by 5 U.S.C. 8437(e)(3).</P> </SECTION> <SECTION> <SECTNO>§ 1653.21</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P> <E T="03">Alimony</E> means the payment of funds for the support and maintenance of a spouse or former spouse. Alimony includes separate maintenance, alimony <E T="03">pendente lite,</E> maintenance, and spousal support. Alimony also can include attorney's fees, interest, and court costs, but only if these items are expressly made recoverable by qualifying legal process as described in § 1653.23.</P> <P> <E T="03">Child support</E> means payment of funds for the support and maintenance of a child or children. Child support includes payments to provide for health care, education, recreation, clothing, or to meet other specific needs of such a child or children. Child support also can include attorney's fees, interest, and court costs, but only if these items are expressly made recoverable by qualifying legal process as described in § 1653.23.</P> <P> <E T="03">Legal obligation</E> means an obligation to pay alimony or child support, or <PRTPAGE P="287"/>both, that is currently enforceable under appropriate State or local law. A “legal obligation” may include currently payable, as well as past due, alimony or child support. However, “legal obligation” does not mean any future obligation to make alimony or child support payments.</P> </SECTION> <SECTION> <SECTNO>§ 1653.22</SECTNO> <SUBJECT>Service of legal process.</SUBJECT> <P>The Thrift Savings Plan will only review legal process for the enforcement of a participant's legal obligations to provide child support or make alimony payments upon receipt of that process. Receipt by an employing agency or any other office of the government shall not constitute receipt by the Thrift Savings Plan. Legal process should be submitted to the Thrift Savings Plan Recordkeeper at the following address: TSP Service Office, National Finance Center, P.O. Box 61500, New Orleans, LA 70161-1500. Receipt by the recordkeeper will be considered receipt by the Thrift Savings Plan.</P> </SECTION> <SECTION> <SECTNO>§ 1653.23</SECTNO> <SUBJECT>Requirements for “qualifying” legal process.</SUBJECT> <P>(a) The TSP will only honor legal process if it meets each requirement of paragraph (b) of this section and one of the requirements of paragraph (c) of this section.</P> <P>(b) Legal process must meet each of the following requirements in order to be qualifying:</P> <P>(1) The legal process must be a writ, order, summons, or other similar process in the nature of a garnishment that is issued by:</P> <P>(i) a court or competent jurisdiction within any State, the District of Columbia, territory, or possession of the United States, or an Indian court; or</P> <P>(ii) a court of competent jurisdiction in any foreign country with which the United States has entered into an agreement which requires the United States to honor such process; or</P> <P>(iii) an authorized official pursuant to an order of such a court of competent jurisdiction or pursuant to State or local law; or</P> <P>(iv) A State agency authorized to issue income withholding notices pursuant to State or local law or pursuant to the requirements of 42 U.S.C. 666(b).</P> <P>(2) The legal process must “expressly relate” to the Thrift Savings Plan account of a current participant. This means that it must express a clear intent to deal with the TSP as distinct from other Federal Government retirement benefits or non-Federal retirement benefits.</P> <P>(3) The legal process must demonstrate that its purpose is to enforce a current legal obligation of the participant to provide child support or make alimony payments.</P> <P>(c) In addition to the requirements of paragraph (b) of this section, legal process also must meet one of the following requirements:</P> <P>(1) The legal process must require the Board to pay a stated dollar amount from a participant's TSP account; or</P> <P>(2) The legal process must require the Board to freeze the participant's account in anticipation of an order to pay over the account.</P> <P>(d) The TSP will presume the competence or authority of any of the entities described in paragraph (b)(1) of this section if presented with a document from that entity that appears regular on its face.</P> <P>(e) Notwithstanding paragraphs (a), (b), (c) and (d) of this section, the following legal process will be considered nonqualifying:</P> <P>(1) Legal process relating to a TSP account that contains only non-vested money, unless the money will become vested within 90 days of the date of receipt of the order if the participant were to remain in Federal service;</P> <P>(2) Legal process that requires an amount to be paid at the future date; or</P> <P>(3) Legal process that requires a series of payments.</P> </SECTION> <SECTION> <SECTNO>§ 1653.24</SECTNO> <SUBJECT>Processing legal process.</SUBJECT> <P>(a) Upon receipt of a document which purports to be qualifying legal process, the participant's account will be frozen. After an account is frozen, no withdrawal or loans will be allowed until the account is unfrozen. All other account activity, including contributions, adjustments, and interfund transfers, will be permitted.<PRTPAGE P="288"/> </P> <P>(b) The following documents will not be treated as purporting to be qualifying legal process. Therefore, accounts of participants to whom such orders relate will not be frozen and these documents will not be reviewed by the Board:</P> <P>(1) A document that pertains to a TSP account that has been closed.</P> <P>(2) A document that does not indicate that it relates either to the TSP or to the participant's retirement benefits.</P> <P>(3) A document that does not appear to have been issued by a proper authority as described in § 1653.23(b)(1).</P> <P>(c) The Board will review a document that purports to be qualifying legal process to determine whether it is complete.</P> <P>(d) If the Board determines that the document is incomplete, it will request a complete copy of the document from the party that submitted the document. If a complete copy is not received by the Board within 30 days of the Board's request, the participant's account will be unfrozen and no further action will be taken by the Board with respect to the document.</P> <P>(e) Upon receipt of a complete document, the Board will review it to determine whether it is qualifying legal process.</P> <P>(f) The Board will advise the submitting party and the TSP participant of the determination. The Board's decision letter will contain the following information:</P> <P>(1) A statement of the applicable statute and regulations.</P> <P>(2) A decision regarding whether the document is qualifying legal process, as defined in § 1653.23 (b) and (c).</P> <P>(3) If the document is determined to be qualifying legal process, the effect that compliance with the terms of the document will have on the participant's account.</P> <P>(4) If the order requires payment, the amount that will be paid pursuant to the qualifying legal process; and to whom the payment will be made.</P> <P>(5) If the order requires payment, tax reporting and withholding information will be sent to the party as to whom the payment will be reported to the Internal Revenue Service as income.</P> <P>(g) The Board's decision constitutes the final administrative action by the Board. There is no appeal right within the Board.</P> <P>(h) An account frozen under this section will be unfrozen:</P> <P>(1) If a complete document has not been received within 30 days from the date of a request described in paragraph (d) of this section, upon the expiration of the 30-day period;</P> <P>(2) If the account was frozen pursuant to legal process requiring the Board to Freeze the participant's account in anticipation of an order to pay over the account, the account will be unfrozen upon the occurrence of any one of the following events:</P> <P>(i) As soon as practicable after receipt of a complete copy of an order vacating or superseding such order (unless the order vacating or superseding the preliminary order itself warrants placing a freeze on the account); or</P> <P>(ii) Upon payment pursuant to the order to pay over the account, if the Board determines that the order is qualifying; or</P> <P>(iii) As soon as practicable after the Board issues a decision letter informing the parties that the order to pay over the account is not qualifying legal process requiring payment from the participant's account; or</P> <P>(3) If the account was frozen upon receipt of a document that purports to be legal process requiring payment from the participant's account, the account will be unfrozen upon the occurrence of any one of the following events:</P> <P>(i) Upon payment pursuant to the document, if the Board determines that the document is qualifying legal process requiring payment from the participant's account; or</P> <P>(ii) As soon as practicable after the Board issues its decision letter informing the parties that the document is not qualifying legal process requiring payment from the participant's account.</P> </SECTION> <SECTION> <SECTNO>§ 1653.25</SECTNO> <SUBJECT>Payment pursuant to qualifying legal process.</SUBJECT> <P>(a) Payment will be made pursuant to qualifying legal process after the Board's decision has been issued and the 30-day tax withholding notification period has ended. The taxpayer may receive the payment sooner by waiving the tax notification period.<PRTPAGE P="289"/> </P> <P>(b) A payment made pursuant to qualifying legal process will be made only to the persons or entities specified in the process. If payment is to be made to the spouse or former spouse of the participant, he or she may request that the TSP transfer all or a portion of his or her payment to an Individual Retirement Arrangement (IRA) or other eligible retirement plan. Such a request must be made by filing Form TSP-13-S, “Spouse Election to Transfer to IRA or Other Eligible Retirement Plan”, which must be received before payment.</P> <P>(c) In no case may a payment made pursuant to qualifying legal process exceed the participant's vested account balance, excluding any outstanding loan amount as of the end of the month preceding the date of payment. If the amount to be paid exceeds the participant's vested account balance (excluding any outstanding loan amount), then only the vested amount in the account (excluding the outstanding loan balance) will be paid.</P> <P>(d) The entire amount to be paid pursuant to qualifying legal process must be disbursed at one time. A series of payments will not be made even if the process provides for such a method of payment. A payment made pursuant to qualifying legal process extinguishes all further rights to any payment under that legal process even if the entire amount specified could not be paid. Any further payment must be made pursuant to separate legal process.</P> <P>(e) Multiple legal processes pending before the Board will be honored as follows:</P> <P>(1) As between conflicting legal processes relating to the same spouse, same former spouse, or same children of the participant, the Board will pay only the legal process bearing the latest date of issuance.</P> <P>(2) As between conflicting legal processes relating to two or more former spouses or to different children of the participant, the Board will pay the legal processes in the order of their dates of issuance starting with the legal process bearing the earliest date and continuing until the account is exhausted.</P> <P>(f) Payment cannot be made jointly to more than one person. If payment is to be made to more than one person, the legal process must separately indicate the amount to be paid to each.</P> <P>(g) In order to make payment pursuant to a qualifying legal process, the TSP recordkeeper must be provided with the full name and mailing address of the payee, even if the payment is being mailed to another address. In addition, if the payee is a spouse or former spouse of the participant, the payee must provide his or her Social Security number.</P> <P>(h) If the payee dies before a payment is made pursuant to a qualifying legal process, payment will be made to the estate of the payee, unless otherwise specified by the legal process. If the participant dies before payment is made pursuant to qualifying legal process, the process will be honored as long as it is received by the TSP before payment of the account, regardless of whether the order was received before the participant's death.</P> <P>(i) A payment made pursuant to qualifying legal process in accordance with this subpart bars recovery by any other person or entity pursuant to that qualifying legal process.</P> <P>(j) Payments made pursuant to qualifying legal process will be paid <E T="03">pro rata</E> from the TSP investment funds in which the participant is invested, on the date as of which the payment is made. The TSP will not honor provisions of legal process that require payment to be made from specific investment funds.</P> <P>(k) Unless the qualifying legal process specifically provides, interest or earnings will not be paid on the amount paid to a party or parties pursuant to the qualifying legal process.</P> <CITA>[60 FR 45624, Aug. 31, 1995, as amended at 61 FR 18912, Apr. 29, 1996]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1655</EAR> <HD SOURCE="HED">PART 1655—LOAN PROGRAM</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1655.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1655.2</SECTNO> <SUBJECT>Eligibility for loans.</SUBJECT> <SECTNO>1655.3</SECTNO> <SUBJECT>Information concerning the cost of the loan.</SUBJECT> <SECTNO>1655.4</SECTNO> <SUBJECT>Number of loans.</SUBJECT> <SECTNO>1655.5</SECTNO> <SUBJECT>Loan repayment period.</SUBJECT> <SECTNO>1655.6</SECTNO> <SUBJECT>Amount of loan.</SUBJECT> <SECTNO>1655.7</SECTNO> <SUBJECT>Interest rate.</SUBJECT> <SECTNO>1655.8</SECTNO> <SUBJECT>Quarterly loan statements.</SUBJECT> <SECTNO>1655.9</SECTNO> <SUBJECT>Effect of loans on individual account.<PRTPAGE P="290"/> </SUBJECT> <SECTNO>1655.10</SECTNO> <SUBJECT>Loan application.</SUBJECT> <SECTNO>1655.11</SECTNO> <SUBJECT>Loan Agreement/Promissory Note.</SUBJECT> <SECTNO>1655.12</SECTNO> <SUBJECT>Loan approval.</SUBJECT> <SECTNO>1655.13</SECTNO> <SUBJECT>Distributions.</SUBJECT> <SECTNO>1655.14</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <SECTNO>1655.15</SECTNO> <SUBJECT>Incorrect payments.</SUBJECT> <SECTNO>1655.16</SECTNO> <SUBJECT>Reamortization.</SUBJECT> <SECTNO>1655.17</SECTNO> <SUBJECT>Prepayment.</SUBJECT> <SECTNO>1655.18</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> <SECTNO>1655.19</SECTNO> <SUBJECT>Court orders.</SUBJECT> <SECTNO>1655.20</SECTNO> <SUBJECT>Loans for the purchase of a primary residence.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8433(g) and 8474.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 979, Jan. 10, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1655.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Account</E> or <E T="03">Individual Account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a).</P> <P> <E T="03">Agency</E> means the entity employing a participant with an account in the Thrift Savings Plan.</P> <P> <E T="03">Amortization</E> means the reduction in a loan by periodic payments of principal and interest according to a schedule of payments.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by subchapter III of chapter 83 of title 5, United States Code or any equivalent retirement system.</P> <P> <E T="03">Date of Application</E> means the date on which the recordkeeper receives the loan application.</P> <P> <E T="03">Days</E> means calendar days except when otherwise stated.</P> <P> <E T="03">Employee Contributions</E> means any contributions made under 5 U.S.C. 8432(a), 5 U.S.C. 8351(a), 5 U.S.C. 8440a or the second 5 U.S.C. 8440a.</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by chapter 84 of Title 5, United States Code or any equivalent retirement system.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">G Fund Rate</E> means the interest rate computed under 5 U.S.C. 8438(f)(2).</P> <P> <E T="03">Interim Account Balance</E> means the unvalued account balance of a participant's account on the last business day of the month.</P> <P> <E T="03">Loan Issue Date</E> means the date on which the recordkeeper authorizes a check for the loan principal amount to be issued.</P> <P> <E T="03">Loan Process Date</E> means the date the loan application is processed by the recordkeeper. This is the date that is printed on the Loan Agreement/Promissory Note.</P> <P> <E T="03">Loan Repayment Period</E> means the number of scheduled payments required to repay a loan in full.</P> <P> <E T="03">Monthly Processing Cycle</E> means the process, beginning on the evening of the fourth business day of the month, by which the recordkeeper allocates the amount of earnings to be credited to participant accounts in the Plan and authorizes disbursements from the Plan.</P> <P> <E T="03">Participant</E> means a person with an individual account in the Thrift Savings Fund.</P> <P> <E T="03">Principal</E> or <E T="03">Principal Amount</E> means the amount borrowed by a participant from his or her individual account, or, after reamortization, the amount financed.</P> <P> <E T="03">Recordkeeper</E> means the organization designated by the Board as the Thrift Savings Plan's recordkeeper.</P> <P> <E T="03">Required Reamortization</E> means the mandatory recalculation of periodic payments of principal and interest, made to reduce a loan, at the demand of the Plan.</P> <P> <E T="03">Taxable Distribution</E> means the reporting to the Internal Revenue Service as taxable income the amount of outstanding principal and interest on a loan upon failure by the participant to repay the loan in full according to the terms of the Loan Agreement/Promissory Note.</P> <P> <E T="03">Thrift Savings Fund</E> or <E T="03">Fund</E> means the Fund described in 5 U.S.C. 8437.</P> <P> <E T="03">Thrift Savings Plan</E> or <E T="03">Plan</E> means the Federal Retirement Thrift Savings Plan established under subchapter III of the Federal Employees’ Retirement System Act of 1986, 5 U.S.C. 843l, <E T="03">et seq.</E> </P> <P> <E T="03">Valuation Date</E> means the date as of which earnings are allocated to individual accounts. For any month, this date is the last day of the month.<PRTPAGE P="291"/> </P> <P> <E T="03">Vested Account Balance</E> means that portion of the individual account which is not subject to forfeiture under 5 U.S.C. 8432(g).</P> <P> <E T="03">Voluntary Reamortization</E> means the recalculation of periodic payments of principal and interest, made to reduce a loan, at the request of a participant.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.2</SECTNO> <SUBJECT>Eligibility for loans.</SUBJECT> <P>Only a participant who is in pay status with his or her agency and who has at least $1,000 in employee contributions and attributable earnings in his or her account may receive a loan, subject to the other terms and conditions set forth in this part. A participant who is separated from Government service may not receive a loan. Persons who are eligible to contribute to the Thrift Savings Plan under 5 CFR part 1620 are also eligible to apply for a loan.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.3</SECTNO> <SUBJECT>Information concerning the cost of the loan.</SUBJECT> <P>Before a loan is issued, the recordkeeper will provide the participant written information concerning the cost of the loan relative to other sources of financing, as well as the lifetime cost of the loan, including the difference in earnings rates between the funds offered by the Thrift Savings Fund and any other effect of the loan on the participant's final account balance.</P> <CITA>[61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.4</SECTNO> <SUBJECT>Number of loans.</SUBJECT> <P>A participant may have no more than two loans outstanding at any time. Only one of the two loans may be a loan for the purchase of a primary residence.</P> <CITA>[61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.5</SECTNO> <SUBJECT>Loan repayment period.</SUBJECT> <P>(a) <E T="03">Minimum.</E> The minimum loan repayment period of any loan is one year of scheduled payments.</P> <P>(b) <E T="03">Maximum.</E> The maximum loan repayment period of a loan for the purchase of a primary residence is 15 years of scheduled payments. The maximum loan repayment period of any other loan is 4 years of scheduled payments.</P> </SECTION> <SECTION> <SECTNO>§ 1655.6</SECTNO> <SUBJECT>Amount of loan.</SUBJECT> <P>(a) <E T="03">Minimum amount.</E> The initial principal amount of any loan may not be less than $1,000.</P> <P>(b) <E T="03">Maximum amount.</E> The principal amount of a new or reamortized loan, when added to any outstanding loan principal, may not exceed any of the following:</P> <P>(1) The portion of the participant's individual account balance that is attributable to employee contributions and earnings (including any outstanding loan principal).</P> <P>(2) $50,000 minus the excess of the highest outstanding loan principal of the participant during the preceding year over the current outstanding loan principal.</P> <P>(3) The greater of <FR>1/2</FR> of the participant's vested account balance (including any outstanding loan principal), or $10,000.</P> <P>(c) Subject to the requirement of paragraph (a), a participant may request a loan for the maximum allowable amount as calculated in paragraph (b).</P> </SECTION> <SECTION> <SECTNO>§ 1655.7</SECTNO> <SUBJECT>Interest rate.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, loans will bear interest at the G Fund rate in effect on the date the application is received by the recordkeeper (date of application). The interest rate per payment is calculated by dividing this G Fund rate by the number of loan payments/pay periods scheduled in a period of 12 consecutive months.</P> <P>(b) If the date of application occurs before the G Fund rate has been determined for that month, the loan will bear interest at the G Fund rate in effect during the month preceding the date of application.</P> <P>(c) The interest rate calculated under this section remains fixed until the loan is repaid.</P> </SECTION> <SECTION> <SECTNO>§ 1655.8</SECTNO> <SUBJECT>Quarterly loan statements.</SUBJECT> <P>Each participant with an outstanding loan or loans will receive quarterly loan statements that will describe the <PRTPAGE P="292"/>activity relating to each of his or her outstanding loans during the period covered.</P> </SECTION> <SECTION> <SECTNO>§ 1655.9</SECTNO> <SUBJECT>Effect of loans on individual account.</SUBJECT> <P>(a) For purposes of earnings allocation, the amount borrowed will be removed from the participant's account as of the last valuation date prior to the loan issue date. As provided in part 1645, the account will receive no earnings on the amount borrowed for the month in which the loan issue date occurs.</P> <P>(b) The removal of the principal for earnings allocation purposes described in paragraph (a) of this section will be prorated according to the investment of the portion of the account represented by employee contributions and attributable earnings in the G Fund, the C Fund, and in the F Fund as of the most recent valuation date.</P> <P>(c) Loan payments, including both principal and interest, will be credited to the individual account of the participant repaying the loan for the month in which the loan payment is processed by the recordkeeper. The loan payments (principal and interest) will be credited <E T="03">pro rata</E> to the G Fund, the C Fund, and the F Fund based upon the proportions of the interim account balances of the G Fund, the C Fund, and the F Fund balances in the borrower's account on the last day of the month prior to the month in which the loan payment is processed. Earnings on loan payments will be credited as described in 5 CFR part 1645.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.10</SECTNO> <SUBJECT>Loan application.</SUBJECT> <P>(a) A participant may apply for a loan by sending a completed and signed application to the recordkeeper.</P> <P>(b) The participant must sign and date the application. By signing the application, the participant swears that the statements made in the application are true. An unsigned application will not be processed by the recordkeeper.</P> <P>(c) The application must contain the following information:</P> <P>(1) The participant's name, Social Security number, date of birth, current address, and pay cycle;</P> <P>(2) A statement as to whether the loan is for the purchase of a primary residence as described in § 1655.20;</P> <P>(3) The amount requested and the loan repayment period;</P> <P>(4) Marital status of the participant and, if married, the name and address of the participant's spouse; and</P> <P>(5) Any other information that the Executive Director may from time to time prescribe.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.11</SECTNO> <SUBJECT>Loan Agreement/Promissory Note.</SUBJECT> <P>(a) Upon determining that the application meets the requirements of this part, the recordkeeper will send the participant a Loan Agreement/Promissory Note which will reflect the terms and conditions of the loan and the date it was prepared (loan process date).</P> <P>(b) By signing the Loan Agreement/Promissory Note, the participant is bound to follow all of its terms and conditions and certifies, to the best of his or her knowledge, under penalty of perjury, to the truth of all statements made and documentation given with the Loan Agreement/Promissory Note.</P> <P>(c) The recordkeeper must receive the completed Loan Agreement/Promissory Note (including any required supporting documentation) within 45 calendar days of the loan process date or the loan agreement will be cancelled. If the 45th day falls on a Saturday, Sunday, or Federal holiday, the deadline will be the next business day.</P> <P>(d) The signed Loan Agreement/Promissory Note must be accompanied by:</P> <P>(1) A completed and signed discretionary payroll allotment form authorizing deductions of all amounts due under the Loan Agreement/Promissory Note, which deduction the participant agrees to maintain through his or her employing agency;</P> <P>(2) In the case of a loan for the purchase of a primary residence, supporting materials that document the purchase of the residence and the amount requested. This information is described in § 1655.20; and<PRTPAGE P="293"/> </P> <P>(3) Any other information that the Executive Director shall from time to time require.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.12</SECTNO> <SUBJECT>Loan approval.</SUBJECT> <P>(a) The application will be reviewed by the recordkeeper and will be accepted only if it conforms with the requirements of this part. Upon receipt of the application, the recordkeeper will determine whether:</P> <P>(1) The participant is qualified to apply for a loan under § 1655.2 and has provided all required information;</P> <P>(2) The participant already has the maximum number of loans outstanding, or if the application is for a residential loan, the participant already has a residential loan outstanding;</P> <P>(3) The participant already has a pending loan application;</P> <P>(4) The requested loan exceeds the maximum amounts set forth in § 1655.6(b), or is less than the minimum amount set forth in § 1655.6(a). If the loan application process date occurs during a month before the monthly processing cycle, the maximum and minimum amounts will be determined using the interim account balance at the end of the prior month. If the loan application process date occurs after the monthly processing cycle but before the end of the month, the maximum and minimum amounts will be determined using the most recent valued account balance;</P> <P>(5) The applicant is covered by a retirement system that is eligible to participate in the Thrift Savings Plan;</P> <P>(6) A CSRS participant who is married but does not know the whereabouts of his or her spouse has been granted an exception to the spousal requirement as described in § 1655.18; and</P> <P>(7) The participant has received a taxable loan distribution (as described in § 1655.13) from the Thrift Savings Plan within the 12 consecutive month period preceding the date of application, except as a result of a failure to repay the loan upon the participant's separation from service or confirmed non-pay status for a period exceeding one year.</P> <P>(b) Failure by the applicant to comply with any of the requirements of this part will result in rejection of the loan application.</P> <P>(c) If the recordkeeper accepts the loan application, a Loan Agreement/Promissory Note will be sent to the applicant, as provided in § 1655.11. When the completed Loan Agreement/Promissory Note is returned by the applicant, along with documentation, if required to be submitted under §§ 1655.11(d) and 1655.20, the loan will be initially approved or denied by the recordkeeper based upon the requirements of this part, including the following conditions:</P> <P>(1) The participant has signed a promise to pay the loan and a statement that the information provided to the recordkeeper is true and complete to the best of the participant's knowledge;</P> <P>(2) Processing of the loan would not be prohibited by § 1655.19 relating to court orders;</P> <P>(3) A FERS participant's spouse 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;</P> <P>(4) The completed Loan Agreement/Promissory Note was received by the recordkeeper within 45 days of the date it was prepared;</P> <P>(5) The participant has completed and signed a loan payment allotment form; and</P> <P>(6) Any other conditions that the Executive Director may from time to time prescribe.</P> <P>(d) The loan issue date will occur within 60 days of the date the loan is initially approved unless the recordkeeper determines that:</P> <P>(1) A court order would prohibit the loan for the reasons described in § 1655.19;</P> <P>(2) The participant's employing agency has reported the death, retirement, or separation of the participant;</P> <P>(3) The participant's account balance on the loan issue date does not contain sufficient employee contributions and related earnings to make the loan;<PRTPAGE P="294"/> </P> <P>(4) The loan exceeds the maximum loan amount set forth in § 1655.6(b) as of the most recent valuation date; or</P> <P>(5) The loan does not comply with any other criteria that the Executive Director may from time to time prescribe.</P> <P>(e) Loans will be issued once a month. After the loan issue date, the recordkeeper will provide information to the United States Treasury which will permit the Treasury to mail a check for the principal amount of the approved loan to the participant.</P> <P>(f) A loan is considered to have been made to a participant on the loan issue date.</P> <CITA>[61 FR 58755, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.13</SECTNO> <SUBJECT>Distributions.</SUBJECT> <P>(a) The Board will declare the unpaid loan principal, plus unpaid interest, to be a taxable distribution from the Plan if:</P> <P>(1) A participant is in confirmed non-pay status for a period of one year or more and the participant has not prepaid the loan as provided in § 1655.17;</P> <P>(2) A participant separates from Government service and does not repay the outstanding loan principal and interest in full within a date which is the earlier of:</P> <P>(i) 90 calendar days after the date of the notice from the recordkeeper to the participant explaining his or her prepayment options that are available upon separation from Government service; or</P> <P>(ii) 90 calendar days after the date of the notice from the recordkeeper to the participant that, because his or her payments were incorrect or missing for 90 calendar days (pursuant to § 1655.15(a)), his or her loan must be reamortized or prepaid in full or a taxable distribution will be declared;</P> <P>(3) There are incorrect or missing payments (as described in § 1655.15) and the participant fails to or is ineligible to exercise one of the reamortization or repayment in full options set forth in § 1655.15;</P> <P>(4) Any material information provided in accordance with §§ 1655.10 or 1655.11 is found to be false;</P> <P>(5) The loan is not repaid in full (including interest due) within five years, in the case of any loan other than a loan for purchase of a primary residence, or 18 years, in the case of a loan for purchase of a primary residence, of the loan issue date;</P> <P>(6) The participant dies.</P> <P>(b) If a distribution occurs in accordance with paragraph (a) of this section, the Board will notify the participant or, in the case of death, the estate of the amount and date of the distribution. The Board will report the distribution to the Internal Revenue Service as income for the year in which it occurs.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58756, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.14</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <P>(a) Loan payments (except for prepayments) may only be made through a discretionary payroll allotment. The allotment must remain in effect for the life of the loan.</P> <P>(b) The initial payment on a loan is due on or before the 60th day following the loan issue date. The date when the initial payment is due may be adjusted by the Executive Director from time to time.</P> <P>(c) Subsequent payments are due at regular intervals according to the participant's pay cycle as prescribed in the Loan Agreement/Promissory Note.</P> </SECTION> <SECTION> <SECTNO>§ 1655.15</SECTNO> <SUBJECT>Incorrect payments.</SUBJECT> <P>(a) If correct payments are not processed by the recordkeeper for a period in excess of 90 calendar days from the applicable one of the following dates:</P> <P>(1) The date of the last correct payment;</P> <P>(2) The date of the first incorrect payment, if there have been no prior correct payments; or</P> <P>(3) The date the first payment was due (as calculated under § 1655.14(b)), if there have been no payments;</P> <FP>the procedures stated in paragraph (b) of this section will apply.</FP> <P>(b)(1) Interest from the beginning of the 90-day period described in paragraph (a) of this section will be added to the outstanding loan principal and the participant will be required to reamortize the loan. Generally, a reamortization schedule will be calculated to maintain the remaining number of payments scheduled for the loan. The recordkeeper will prepare <PRTPAGE P="295"/>and send a Rider to the Loan Agreement/Promissory Note and a new payroll allotment form to the participant. The recordkeeper must receive from the participant a signed Rider to the Loan Agreement/Promissory Note and a newly signed payroll allotment form within 45 calendar days of the date the Rider is prepared. If the 45th day falls on a Saturday, Sunday, or a Federal holiday, the deadline will be the next business day.</P> <P>(2) If the remaining number of payments would cause the loan term to extend beyond 18 years less 120 days from the loan issue date for a loan for the purchase of a primary residence, or five years less 120 days from the loan issue date for any other loan, the recordkeeper will reamortize the loan to enable the entire amount of principal and interest to be repaid within those limits. The recordkeeper will prepare and send to the participant a Rider to the Loan Agreement/Promissory Note and a new payroll allotment form. The recordkeeper must receive from the participant, within 45 calendar days of the date the Rider is prepared, the signed Rider to the Loan Agreement/Promissory Note and a newly signed payroll allotment form. If the 45th day falls on a Saturday, Sunday, or a Federal holiday, the deadline will be the next business day.</P> <P>(3) If no reamortized payments can be calculated under this section to allow the loan to be repaid within the time limit described in paragraph (b)(2) of this section, and the participant does not prepay the loan in full, a taxable distribution will be declared.</P> <P>(4) If the reamortized loan principal would exceed the maximum loan amount as calculated under § 1655.6(b), the loan will not be reamortized. The participant must prepay the loan in full or a taxable distribution will be declared.</P> <P>(5) If a participant does not sign and return the Rider to the Loan Agreement/Promissory Note, and the participant does not prepay the loan in full, a taxable distribution will be declared.</P> <P>(6) A reamortization will be calculated based on the assumption that the reamortization will be completed 50 days after the Rider to the Loan Agreement/Promissory Note is prepared.</P> <P>(c) If a period of incorrect payments does not exceed the 90-day period described in paragraph (a) of this section, no reamortization is required under paragraph (b) of this section. Any unpaid principal will be paid by additional payments in the same amount as the existing payments added to the term of the loan. Any overpaid principal will cause the loan repayment period to be shortened. If the additional payments would extend the term of the loan beyond five years from the loan issue date (or 18 years from the loan issue date in the case of a loan for the purchase of a primary residence), the participant must either reamortize the loan so as to establish scheduled payments that will repay the loan within those time periods or prepay in full the remaining unpaid amounts. If the participant does neither, a taxable distribution will be declared.</P> <P>(d) For purposes of this section, incorrect payments include insufficient, excessive, and missing payments.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58756, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.16</SECTNO> <SUBJECT>Reamortization.</SUBJECT> <P>(a) Reamortization of a loan will occur in the following situations:</P> <P>(1) Under the rules stated in § 1655.15;</P> <P>(2) Where a participant transfers between agencies and changes pay schedules, the loan will be required to be reamortized to reflect the changed schedule. A new payroll allotment form must be completed and signed by the participant to reflect this changed schedule;</P> <P>(3) Where a participant has had his or her loan established on the basis of a particular pay schedule (e.g., biweekly), but actual loan payments are made on a different pay schedule (e.g., monthly), the loan will be reamortized to reflect the correct pay schedule. A new payroll allotment form must be completed and signed to reflect the correct pay schedule;</P> <P>(4) A participant may voluntarily reamortize a loan, subject to the following conditions:<PRTPAGE P="296"/> </P> <P>(i) A voluntary reamortization may occur only if the participant is not currently required to reamortize the loan under the rules stated in this part;</P> <P>(ii) An outstanding loan may be voluntarily reamortized only once;</P> <P>(iii) Under a voluntary reamortization, the participant can shorten or extend the loan repayment period, provided that the new loan repayment period, when added to the original loan repayment period, is not shorter than one year of scheduled payments and does not exceed 15 years of scheduled payments, in the case of a loan for the purchase of a primary residence, or four years of scheduled payments, in the case of all other loans.</P> <P>(b) Before a loan can be reamortized, the recordkeeper must receive from the participant, within 45 days of the date a Rider to the participant's Loan Agreement/Promissory Note was prepared, a signed Rider to his or her Loan Agreement/Promissory Note which describes the estimated terms and conditions of the reamortized loan and a newly signed payroll allotment form. If the 45th day falls on a Saturday, Sunday, or Federal holiday, the deadline will be the next business day.</P> <P>(c) Upon reamortization, the new principal balance of the loan will equal the unpaid principal on the date of reamortization, plus any interest due on the unpaid principal.</P> <P>(d) [Reserved]</P> <P>(e) A loan may only be reamortized if the new principal (as described in paragraph (c) of this section) does not exceed the maximum loan amount calculated under § 1655.6(b).</P> <P>(f) The interest rate on a reamortized loan will be the same as the interest rate on the original loan.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58757, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.17</SECTNO> <SUBJECT>Prepayment.</SUBJECT> <P>(a) A participant may prepay a loan in full at any time before the declaration of a distribution under § 1655.13 unless a separated participant has signed a statement that he or she does not intend to prepay. Partial prepayments are not permitted. Prepayment in full means receipt by the recordkeeper of payment of all principal and interest due in the form of a certified or cashier's check, a certified or treasurer's draft from a credit union, or a money order.</P> <P>(b) If a participant returns a loan check to the recordkeeper in order to repay his or her loan, it will be treated as a prepayment in full. However, additional interest may be owed.</P> <CITA>[55 FR 979, Jan. 10, 1990, as amended at 61 FR 58757, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.18</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> <P>(a) Within seven calendar days of a CSRS participant's loan application process date, the recordkeeper will send a notice to the participant's current spouse that the participant has applied for a loan.</P> <P>(b) As a condition for approval of the Loan Agreement/Promissory Note for a FERS participant, the participant must provide the recordkeeper with any evidence the Board requires to demonstrate that the current spouse has consented to the loan for which the participant has applied.</P> <P>(c) A CSRS participant may obtain a waiver of the spousal requirement described in paragraph (a) of this section if the participant establishes, to the satisfaction of the Executive Director, that the spouse's whereabouts are unknown.</P> <P>(d) A FERS participant may obtain a waiver of the spousal requirement described in paragraph (b) of this section if the participant establishes, to the satisfaction of the Executive Director that:</P> <P>(1) The spouse's whereabouts are unknown; or</P> <P>(2) Exceptional circumstances prevent the obtaining of consent.</P> <P>(e) The procedures for obtaining an exception to the spousal requirements (including the definition of exceptional circumstances) described in paragraphs (c) and (d) of this section will be the same as the procedures described in 5 CFR part 1650.</P> <P>(f)(1) By signing the Loan Application and the Loan Agreement/Promissory Note, the participant represents that all information provided to the TSP during the loan process is true and correct, including statements concerning the participant's marital status and spouse's address at the time <PRTPAGE P="297"/>the application is filed and documentation that the current spouse has consented to the loan.</P> <P>(2) If the Board receives a written allegation from the spouse that the participant may have misrepresented his/her marital status or the spouse's address (in the case of a CSRS participant), or that the signature of the spouse of a FERS participant was forged, the Board will submit the questioned document to the spouse and request that he or she state in writing that the information is false or that the spouse's signature has been forged. In the event of an alleged forgery, the Board will also request the spouse to provide at least three signature samples.</P> <P>(3) If the spouse affirms the allegation in accordance with the procedure set forth in paragraph (f)(2) of this section and the loan has been disbursed, the Board will give the participant an opportunity to repay, within 60 days, the unpaid loan principal, plus unpaid interest. If the loan is repaid, the Board will not investigate the spouse's allegation.</P> <P>(4) Paragraph (f)(3) of this section will not apply where the participant has received a final divorce decree before the funds are received by the Thrift Savings Plan.</P> <P>(5) If the unpaid loan principal, plus unpaid interest, is not repaid to the Plan in full within the time period provided in paragraph (f)(3) of this section, the Board will conduct an investigation into the allegation. If the participant has received a final divorce decree before the funds are received by the Thrift Savings Plan, the Board will begin its investigation immediately.</P> <P>(6) If, during its investigation, the Board finds evidence to suggest that the participant misrepresented his/her marital status or spouse's address (in the case of a CSRS participant), or submitted the Loan Agreement/Promissory Note with a forged signature, the Board will refer the case to the Department of Justice for criminal prosecution and, if the participant is still employed, to the Inspector General or other appropriate authority in the participant's employing agency for administrative action.</P> <P>(7) Upon receipt of an allegation described in paragraph (f)(2) of this section, the participant's account will be frozen and no withdrawal or loan will be permitted until after:</P> <P>(i) 30 days have elapsed since the participant's spouse was sent a copy of the questioned document and no written affirmation of the alleged false information or forgery (together with signature samples in the case of an alleged forgery) has been received by the Board;</P> <P>(ii) The loan is repaid pursuant to paragraph (f)(3) of this section;</P> <P>(iii) The Executive Director concludes that the Board's investigation did not yield persuasive evidence that supports the spouse's allegation;</P> <P>(iv) The Executive Director has been assured in writing by the spouse that any future request for a loan or withdrawal comports with the applicable requirement of notice or consent; or</P> <P>(v) The participant is divorced.</P> <CITA>[61 FR 58757, Nov. 18, 1996, as amended at 63 FR 45391, Aug. 26, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.19</SECTNO> <SUBJECT>Court orders.</SUBJECT> <P>Upon receipt of a document that purports to be a qualifying retirement benefits court order or qualifying legal process relating to a participant's legal obligations to provide child support or make alimony payments, 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 retirement benefits court orders and legal processes are explained in 5 CFR part 1653.</P> <CITA>[61 FR 58757, Nov. 18, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1655.20</SECTNO> <SUBJECT>Loans for the purchase of a primary residence.</SUBJECT> <P>(a) A loan for the purchase of a primary residence will be made only for the purchase of the primary residence of the participant or the participant and his or her spouse and for related purchase costs. The participant must actually bear all or part of the cost of the purchase of the primary residence. If the participant purchases a primary residence with someone other than his or her spouse, only the portion of the purchase costs that are borne by the <PRTPAGE P="298"/>participant will be considered in making the loan. A loan for the purchase of a primary residence will not be made for the purpose of paying off an existing mortgage or otherwise providing financing for an existing primary residence purchased more than 2 years earlier.</P> <P>(b) A primary residence must be used by the participant as his or her principal residence. A primary residence does not include a second home or vacation home. A participant cannot have more than one primary residence. A primary residence may include a houseboat, a house trailer, a condominium, or stock held in a cooperative housing corporation.</P> <P>(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 the new residence. Construction of an addition to or the renovation of a residence does not constitute “purchase” of a primary residence.</P> <P>(d) Related purchase costs are any costs that are incurred directly as a result of the purchase or construction of a residence and which can be added to the basis of the residence for Federal tax purposes. However, “points” or loan origination fees charged for a loan, whether or not treated as part of the basis, will not be considered a purchase cost.</P> <P>(e) The documentation required for a loan under this section is as follows:</P> <P>(1) For all purchases except for construction, a copy of a home purchase contract or a settlement sheet or estimated settlement sheet;</P> <P>(2) For construction, a home construction contract. If a single home construction contract is unavailable, additional contracts, building permits, receipts, assessments, or other documentation that demonstrates the construction of an entire primary residence and expenses in the amount of the loan may be accepted.</P> <P>(f) The documentation provided under this subparagraph must bear a date that is no more than 24 months preceding the date of application.</P> </SECTION> </PART> <PART> <EAR>Pt. 1690</EAR> <HD SOURCE="HED">PART 1690—MISCELLANEOUS REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1690.1</SECTNO> <SUBJECT>Plan year.</SUBJECT> <SECTNO>1690.2</SECTNO> <SUBJECT>Power of attorney.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474.</P> </AUTH> <SECTION> <SECTNO>§ 1690.1</SECTNO> <SUBJECT>Plan year.</SUBJECT> <P>The Thrift Savings Plan's plan year will be 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.</P> <CITA>[52 FR 43315, Nov. 12, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1690.2</SECTNO> <SUBJECT>Power of attorney.</SUBJECT> <P>This section applies to all regulations in this chapter that require a signature by the participant on a Thrift Savings Plan (TSP) form, where the participant desires to effect transactions through an agent (<E T="03">i.e.,</E> an attorney-in-fact). Before an attorney-in-fact may sign a TSP form on behalf of a participant, the Board must have approved either a general power of attorney which authorizes the attorney-in-fact to act on behalf of the participant with respect to the principal's personal property or in Federal Government retirement, financial, or business transactions; or a special power of attorney which authorizes the attorney-in-fact to effect transactions in the TSP on behalf of the participant. For a power of attorney to be acceptable to effect transactions in the TSP, it must be authenticated, attested, acknowledged, or certified before a notary public or other official authorized by law to administer oaths or affirmations. The Board will advise the person submitting a power of attorney whether it is valid to effect transactions in the TSP.</P> <CITA>[64 FR 31062, June 9, 1999]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. VII (1-1-02 Edition)</LRH> <RRH>Advisory Com. on Intergovernmental Relations</RRH> <TOC> <TOCHD> <PRTPAGE P="299"/> <HD SOURCE="HED">CHAPTER VII—ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1700</PT> <SUBJECT>Employee responsibilities and conduct</SUBJECT> <PG>301</PG> <PT>1701</PT> <SUBJECT>Organization and purpose</SUBJECT> <PG>302</PG> <PT>1702</PT> <SUBJECT>Bylaws of the Commission</SUBJECT> <PG>307</PG> <PT>1703</PT> <SUBJECT>Public availability of documents and records</SUBJECT> <PG>309</PG> <PT>1720</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Advisory Commission on Intergovernmental Relations</SUBJECT> <PG>313</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="301"/> <EAR>Pt. 1700</EAR> <HD SOURCE="HED">PART 1700—EMPLOYEE RESPONSIBILITIES AND CONDUCT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1700.735-101</SECTNO> <SUBJECT>Adoption of regulations.</SUBJECT> <SECTNO>1700.735-102</SECTNO> <SUBJECT>Review of statements of employment and financial interests.</SUBJECT> <SECTNO>1700.735-103</SECTNO> <SUBJECT>Disciplinary and other remedial action.</SUBJECT> <SECTNO>1700.735-104</SECTNO> <SUBJECT>Gifts, entertainment, and favors.</SUBJECT> <SECTNO>1700.735-105</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <SECTNO>1700.735-108</SECTNO> <SUBJECT>Specific provisions of Commission regulations governing special Government employees.</SUBJECT> <SECTNO>1700.735-109</SECTNO> <SUBJECT>Statements of employment and financial interest.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; 5 CFR 735.101, <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>33 FR 4615, Mar. 16, 1968, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1700.735-101</SECTNO> <SUBJECT>Adoption of regulations.</SUBJECT> <P>Pursuant to § 735.104(f) of this title, the Advisory Commission on Intergovernmental Relations (referred to hereinafter as the Commission) hereby adopts the following sections of part 735 of this title, Code of Federal Regulations: §§ 735.101, 735.102, 735.201a, 735.202(a), (d), (e), (f)-735.210, 735.302, 735.303(a), 735.304, 735.305(a), 735.403(a), 735.404-735.411, 735.412 (b) and (d). These adopted sections are modified and supplemented as set forth in this part.</P> </SECTION> <SECTION> <SECTNO>§ 1700.735-102</SECTNO> <SUBJECT>Review of statements of employment and financial interests.</SUBJECT> <P>Each statement of employment and financial interests submitted under this part shall be reviewed by the Executive Director. When this review indicates a conflict of interest of an employee or special Government employee of the Commission and the performance of his services for the Government, the Executive Director shall have the indicated conflict brought to the attention of the employee or special Government employee, grant the employee or special Government employee an opportunity to explain the indicated conflict, and attempt to resolve the indicated conflict. If the indicated conflict cannot be resolved, the Executive Director shall forward a written report on the indicated conflict to the Chairman, Advisory Commission on Intergovernmental Relations.</P> </SECTION> <SECTION> <SECTNO>§ 1700.735-103</SECTNO> <SUBJECT>Disciplinary and other remedial action.</SUBJECT> <P>An employee or special Government employee of the Commission who violates any of the regulations in this part or adopted under § 1700.735-101 may be disciplined. The disciplinary action may be in addition to any penalty prescribed by law for the violation. In addition to, or in lieu of, disciplinary action, remedial action to end conflicts or appearance of conflicts of interest may include but is not limited to:</P> <P>(a) Changes in assigned duties;</P> <P>(b) Divestment by the employee of his conflicting interests; or</P> <P>(c) Disqualification for a particular assignment.</P> </SECTION> <SECTION> <SECTNO>§ 1700.735-104</SECTNO> <SUBJECT>Gifts, entertainment, and favors.</SUBJECT> <P>The Commission authorizes the exceptions to § 735.202(a) of this title set forth in § 735.202(b) (1) through (4) of this title.</P> </SECTION> <SECTION> <SECTNO>§ 1700.735-105</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) An employee of the Commission may engage in outside employment or other outside activity not incompatible with the full and proper discharge of the duties and responsibilities of his Government employment. An employee who engages in outside employment shall report that fact in writing to his supervisor.</P> <P>(b) Employees and special Government employees of the Commission may engage in teaching, writing, and lecturing, provided, however, employees and special Government employees shall not receive compensation or anything of monetary value for any consultation, discussion, writing, lecturing, or appearance the subject matter of which is devoted substantially to the specific responsibilities, programs, or operations of the Commission, or which draws substantially on official data or ideas which have not been published or otherwise publicly released by the Commission. The foregoing limitation on the receipt of compensation or anything of monetary value shall not be construed as applying to amounts received for reimbursement for travel and other expenses incurred in performing the outside employment.</P> </SECTION> <SECTION> <PRTPAGE P="302"/> <SECTNO>§ 1700.735-108</SECTNO> <SUBJECT>Specific provisions of Commission regulations governing special Government employees.</SUBJECT> <P>(a) The term “special Government employee” as used in this part means an officer or employee who is retained, designated, appointed, or employed by the Commission to perform, with or without compensation, for not more than 130 days during any period of 365 consecutive days, temporary duties either on a full-time or intermittent basis.</P> <P>(b) Special Government employees shall adhere to the standards of conduct applicable to employees set forth in this part and adopted under § 1700.735-101, except that § 735.203(b) of this title is not applicable to a special Government employee.</P> <P>(c) Pursuant to § 735.305(b) of this title, the Commission authorizes the same exceptions concerning gifts, entertainment, and favors for special Government employees as are authorized for employees by § 1700.735-104.</P> </SECTION> <SECTION> <SECTNO>§ 1700.735-109</SECTNO> <SUBJECT>Statements of employment and financial interests.</SUBJECT> <P>(a) In addition to the employees required to submit statements of employment and financial interests under § 735.403(a) of this title, employees in the following named positions shall submit statements of employment and financial interest to the Executive Director:</P> <P>Assistant Director, Taxation and Finance.</P> <P>Assistant Director, Governmental Structure and Functions.</P> <P>Assistant Director, Program Implementation.</P> <P>(b) The statement of employment and financial interest required by this section shall be submitted by the Executive Director to the Chairman of the Commission.</P> <P>(c) An employee who believes that his position has been improperly included in this section as one requiring the submission of a statement of employment and financial interests may obtain a review of his complaint under the agency's grievance procedure.</P> <P>(d) A statement of employment and financial interest is not required under this part from Members of the Commission. Members of the Commission are subject to 3 CFR 100.735-31 and are required to file a statement only if requested to do so by the Counsel to the President.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Notwithstanding the filing of the annual supplementary statement required by 5 CFR 735.406, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result, in a violation of the conflicts-of-interest provisions of section 208 of title 18, United States Code or the regulations in this part or adopted under § 735.101.</P> </NOTE> </SECTION> </PART> <PART> <EAR>Pt. 1701</EAR> <HD SOURCE="HED">PART 1701—ORGANIZATION AND PURPOSE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1701.1</SECTNO> <SUBJECT>Establishment and locations.</SUBJECT> <SECTNO>1701.2</SECTNO> <SUBJECT>Name.</SUBJECT> <SECTNO>1701.3</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1701.4</SECTNO> <SUBJECT>Membership of the Commission.</SUBJECT> <SECTNO>1701.5</SECTNO> <SUBJECT>Bipartisan nature of Commission.</SUBJECT> <SECTNO>1701.6</SECTNO> <SUBJECT>Organization of Commission, vacancies, quorum.</SUBJECT> <SECTNO>1701.7</SECTNO> <SUBJECT>Commission personnel.</SUBJECT> <SECTNO>1701.8</SECTNO> <SUBJECT>Activities of the Commission.</SUBJECT> <SECTNO>1701.9</SECTNO> <SUBJECT>Step-by-step development of Commission recommendations.</SUBJECT> <SECTNO>1701.10</SECTNO> <SUBJECT>Other activities of the Commission.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Pub. L. 86-380 of Sept. 24, 1959, 73 Stat 703 (42 U.S.C. 4271).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>51 FR 24800, July 9, 1986, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1701.1</SECTNO> <SUBJECT>Establishment and locations.</SUBJECT> <P>The Advisory Commission on Intergovernmental Relations was established as a permanent independent and bipartisan agency of the Federal Government by Pub. L. 86-380; 73 Stat 703 (43 U.S.C. 4272), enacted in 1959. The Commission's offices are located at 1111 20th Street, NW., Washington, DC 20575.</P> </SECTION> <SECTION> <SECTNO>§ 1701.2</SECTNO> <SUBJECT>Name.</SUBJECT> <P>The formal name of the agency is “Advisory Commission on Intergovernmental Relations.” It is also known, and sometimes referred to, as the “Commission,” or simply “ACIR.”</P> </SECTION> <SECTION> <SECTNO>§ 1701.3</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The underlying purpose of the Commission is to strengthen the ability of the United States federal system of government to meet the problems of an <PRTPAGE P="303"/>increasingly complex society by promoting greater cooperation, understanding and coordination of activities between the separate levels of government. More specifically the purpose of the Commission includes the objectives of:</P> <P>(a) Bringing together representatives of the Federal, State, and local governments for the consideration of common problem;</P> <P>(b) Providing a forum for discussing the administration and coordination of Federal grant and other programs requiring intergovernmental cooperation;</P> <P>(c) Giving critical attention to the conditions and controls involved in the administration of Federal grant programs;</P> <P>(d) Making available technical assistance to the executive and legislative branches of the Federal Government in the review of proposed legislation to determine its overall effect on the Federal system;</P> <P>(e) Encouraging discussion and study at an early stage of emerging public problems that are likely to require intergovernmental cooperation;</P> <P>(f) Recommending within the framework of the Constitution, the most desirable allocation of governmental functions, responsibilities, and revenues amount the several levels of government; and</P> <P>(g) Recommending methods of coordinating and simplifying tax laws and administrative practices to achieve a more orderly and less competitive fiscal relationship between the levels of government and to reduce the burden of compliance for taxpayers.</P> </SECTION> <SECTION> <SECTNO>§ 1701.4</SECTNO> <SUBJECT>Membership of the Commission.</SUBJECT> <P>The Commission is composed of twenty-six members, as follows:</P> <P>(a) Six appointed by the President of the United States, three of whom are officers of the executive branch of the Government, and three private citizens, all of whom have had experience of familiarity with relations between the levels of government;</P> <P>(b) Three appointed by the President of the Senate, who are Members of the Senate;</P> <P>(c) Three appointed by the Speaker of the House of Representatives, who are Members of the House;</P> <P>(d) Four appointed by the President from a panel of at least eight Governors submitted by the Governors’ Conference;</P> <P>(e) Three appointed by the President from panel of at least six members of State legislative bodies submitted by the board of managers of the Council of State Governments;</P> <P>(f) Four appointed by the President from a panel of at least eight mayors submitted jointly by the American Municipal Association and the United States Conference of Mayors;</P> <P>(g) Three appointed by the President from a panel of at least six elected county officers submitted by the National Association of County Officials.</P> </SECTION> <SECTION> <SECTNO>§ 1701.5</SECTNO> <SUBJECT>Bipartisan nature of Commission.</SUBJECT> <P>The members appointed from private life under paragraph (a) of § 1701.4 are appointed without regard to political affiliation; of each class of members enumerated in paragraphs (b) and (c) of § 1701.4, two are from the majority party of the respective houses; of each class of members enumerated in paragraphs (d), (e), (f) and (g) of § 1701.4, not more than two may be from any one political party; of each class of members enumerated in paragraphs (e), (f) and (g) of § 1701.4, not more than one from any one State; at least two of the appointees under paragraph (f) are from cities under five hundred thousand population. The term of office of each member of the Commission is two years, but members are eligible for reappointment.</P> </SECTION> <SECTION> <SECTNO>§ 1701.6</SECTNO> <SUBJECT>Organization of Commission, vacancies, quorum.</SUBJECT> <P>(a) The President designates a Chairman and a Vice Chairman from among members of the Commission.</P> <P>(b) Any vacancy in the membership of the Commission is filled in the same manner in which the original appointment was made; except that where the number of vacancies is fewer than the number of members specified in paragraphs (d), (e), (f) and (g) of § 1701.4, each panel of names submitted in accordance with the aforementioned <PRTPAGE P="304"/>paragraphs contains at least two names for each vacancy.</P> <P>(c) Where any member ceases to serve in the official position from which he or she was originally appointed under § 1701.4, that place on the Commission is deemed to be vacant.</P> <P>(d) Thirteen members of the Commission constitute a quorum, but two or more members constitute a quorum for the purpose of conducting hearings.</P> </SECTION> <SECTION> <SECTNO>§ 1701.7</SECTNO> <SUBJECT>Commission personnel.</SUBJECT> <P>(a) <E T="03">Executive Director.</E> Is appointed by the Commission itself. He is appointed without regard to the Civil Service laws or Classification Act of 1949, and without regard to political affiliation. He is appointed solely on the basis of fitness to perform the duties of the position.</P> <P>(b) <E T="03">Other employees.</E> Subject to the provisions of part 1720 of this chapter and of such other rules and regulations as the Commission may adopt, the Chairman, without reference to the Civil Service laws and the Classification Act of 1949, and without regard to political affiliation, may appoint, fix the compensation of, and remove such other personnel as he deems necessary.</P> <P>(c) <E T="03">Temporary employees.</E> The Chairman may also procure temporary and intermittent services to the same extent as is authorized by section 15 of the Administrative Expenses Act of 1946 (5 U.S.C. 55a), but at rates not to exceed the daily rate for a GS-18.</P> </SECTION> <SECTION> <SECTNO>§ 1701.8</SECTNO> <SUBJECT>Activities of the Commission.</SUBJECT> <P>The primary role of the Commission is to give advice. It issues no rules or regulations governing the general public, and the advice it gives is addressed to various levels of the American government, such as the Congress of the United States, and the States, counties, and cities. The advice it gives is contained in its recommendations and reports, and these in turn are based on research conducted by the Commission and its staff.</P> <P>(a) <E T="03">Selection of research topics—policy applied.</E> The policy applied by the Commission in the choice of research topics is to select ones which will strengthen the federal system, and promote the power balance and fiscal balance among the various levels of government. Weight is given to new ways of dealing with practical intergovernmental problems. Routine and continual re-evaluation of the same topic will be avoided whenever possible.</P> <P>(b) <E T="03">Selection of research topics—criteria.</E> The Commission, by vote of its members, selects all research projects and approves acceptance of all research grants. Its selections take into account the following general criteria:</P> <P>(1) Importance of the subject area,</P> <P>(2) Timeliness of the issues,</P> <P>(3) Utility to the governmental levels,</P> <P>(4) Compatability with the competence of the staff, and</P> <P>(5) Appropriateness for the Commission's composition and procedures.</P> <P>(c) <E T="03">Outside requests for research.</E> The Commission undertakes research requested by the Congress and by executive agencies to the extent that its work program and resources allow. However, where such requests do not meet the Commission's research selection criteria or where undertaking the work would impede other important work in progress, the Commission will necessarily seek additional funding to expend its work capacity temporarily. The Commission does not make research grants to other outside parties on topics those parties have selected for study nor will it request appropriation for such studies.</P> <P>(d) <E T="03">Special funding of projects.</E> ACIR will seek and accept grants for work on intergovernmental subjects that accord with the Commission's finding that the subject is of prime intergovernmental importance, if it is within the capacity of the staff—or outside scholars and consultants engaged for this purpose—to produce a study that meets the Commission's usual standards of quality.</P> </SECTION> <SECTION> <SECTNO>§ 1701.9</SECTNO> <SUBJECT>Step-by-step development of Commission recommendations.</SUBJECT> <P>The Commission itself selects the research projects to be undertaken and assigns the priority to be given among projects. In making its selection the Commission may consider exploratory research by the ACIR staff, the Commission members expertise, and any other information the Commission members have. Thereafter:<PRTPAGE P="305"/> </P> <P>(a) <E T="03">Working outline.</E> An outline of the project is prepared by the one or more staff members assigned to it by the Executive Director. In addition, the Chairman in his or her discretion, may assign one or more Commission members to monitor the staff work. The working outline covers the issues to be dealt with and the research techniques to be used. This outline is sent to the Commission members and reviewed at a “Thinkers” Session.</P> <P>(b) <E T="03">Thinkers session.</E> The participants at a Thinkers Session are selected by the staff, after seeking suggestions from Commission members. Participants are usually professors, researchers, and other experts who have a special knowledge and interest in the subject matter of the project. If Commission members have been assigned to oversee the work, every effort will be made to enable them to attend. Thinkers Sessions are held at times convenient to the participants and are usually held at the ACIR headquarters in Washington, but may be held elsewhere if necessary for the convenience of the participants.</P> <P>(c) <E T="03">Preliminary draft.</E> Following the Thinkers Session, the working outline will be appropriately revised and the staff will conduct the research work and prepare a preliminary draft of the study that may include a range of possible legislative recommendations for Commission consideration.</P> <P>(d) <E T="03">Critics session.</E> After being reviewed internally, the preliminary draft is subjected to review and criticism by an informal group of critics, some of whom may have been members of the thinkers group. The critics also provide expert knowledge and a diversity of substantive and philosophical viewpoints. Care is taken to include among the critics representatives of national associations of state and local officials, as well as of Congress and federal departments and agencies. If Commission members have been assigned to oversee the work, every effort is made to encourage them to attend any meeting of the critics. Participants in a critics session are selected by the staff after seeking suggestions from Commission members. Responses to the criticisms and suggestions presented at a critics meeting are determined by the staff.</P> <P>(e) <E T="03">Revision and submission to Commission.</E> The draft report is then revised by the staff in light of criticisms and comments received both orally and in writing from critics, Commission members and others. A summary of the draft report, along with potential recommendations, is included in a “Docket Book” and transmitted to Commission members at least three weeks in advance of the meeting at which it is to be considered. To the maximum extent feasible, copies of the entire report are made available to all interested parties at least two weeks before the full Commission considers the study.</P> <P>(f) <E T="03">Advisory committee.</E> In exceptional projects the Executive Director, or the Commission, may appoint a committee of advisors to help guide the research. The committee will consist of academics and practitioners who have special competence and interest in the subject under study and, particularly, who are familiar with the latest developments in the field. The committee advises the staff and the Commission on all phases of the research, from initiating the research design to developing proposed recommendations. The committee's activities supplement but do not replace thinkers and critics sessions.</P> <P>(g) <E T="03">Adoption of recommendations.</E> The draft recommendations are then considered and separately voted upon by the Commission in meeting. Majority vote of those present is required for approval. Extensive amendments and new germane matter must be set forth in writing and be made available to each member attending the meeting before they can be voted upon. New matter determined to be non-germane by the Chairman is referred to the staff with instructions on how to deal with the material.</P> <P>(h) <E T="03">Dissent.</E> Members are free to dissent from actions adopted by the Commission and may have that dissent registered in any of several ways. If requested, the names of dissenting members will be shown in the minutes of the meeting where the vote was taken. To the extent dissenting members feel the minutes fail to reflect adequately <PRTPAGE P="306"/>the nature of their dissent, they may, with Commission approval, have the minutes revised to present their viewpoint more fully. If a report is involved, the member may be listed as having dissented on a point at an appropriate location in the text of the report. In addition, if the member wishes, a statement of dissent may be included in the report at some appropriate place. On request, the staff will assist members in drafting explanatory dissent statements for inclusion in either the minutes or reports.</P> <P>(i) <E T="03">Informal action by the Commission—polling.</E> The Chairman, on his own motion, may poll the membership of the Commission to determine the views of members on matters on the agenda of a regular or special meeting of the Commission but which were not considered by the Commission. Votes so obtained may either be by mail or by telephone, but if by telephone, they must be confirmed in writing. The result of any poll is reported in the Docket Book for the next session of the Commission for ratification. At that time it is subject to a motion to reconsider, but not at any later time.</P> </SECTION> <SECTION> <SECTNO>§ 1701.10</SECTNO> <SUBJECT>Other activities of the Commission.</SUBJECT> <P>(a) The Commission devotes the necessary amount of ACIR staff time to technical assistance, publications, and education activities so as to disseminate Commission reports and encourage study of emerging public problems which may require adoption of Commission legislative recommendations. In carrying out these implementation activities, Commission members and the staff conduct and participate in press conferences, briefings for legislative and policy officials, legislative hearings, seminars and workshops, technical assistance visits to specific jurisdictions, and other activities appropriate to its statutory mandate.</P> <P>(b) <E T="03">Support activities.</E> In support of its implementation activities, the Chairman and members of the Commission complement the staff work by participating in press conferences and briefings for legislative and policy officials, testifying before Congressional committees and state and local legislative bodies, participating in their home states in press and legislative activities to generate interest in ACIR reports and recommendations and to advance their implementation, making speeches as representatives of the Commission, serving as a two-way communications channel with the ACIR staff, and undertaking such other assignments on behalf of the Commission as may be appropriate.</P> <P>(c) <E T="03">Publications.</E> ACIR reports containing legislative recommendations or Commission “findings” or “conclusions” (“A” series) and major research reports not containing legislative recommendations (“M” series) are published only after approval by the Commission. Other reports and publications may be published with the approval of the Executive Director as follows: </P> <EXTRACT> <FP SOURCE="FP-1">Public Opinion Survey (“S” series)</FP> <FP SOURCE="FP-1">Intergovernmental Perspective</FP> <FP SOURCE="FP-1">In Brief (“B” series)</FP> <FP SOURCE="FP-1">“What is ACIR”’ Brochure</FP> <FP SOURCE="FP-1">Publications List</FP> <FP SOURCE="FP-1">Staff Working Papers</FP> <FP SOURCE="FP-1">Information Bulletins</FP> </EXTRACT> <P>(d) <E T="03">Hearings.</E> Whenever in the opinion of the Commission it is necessary or desirable to have a factual determination based on the testimony of sworn witnesses in an adjudicatory-type hearing, or to provide a forum for receiving statements from interested persons or members of the public, or a part thereof, in a legislative-type hearing, the Commission, or a sub-committee of the Commission (when authorized by the Commission) or any number of members thereof (not less than two) may hold a public hearing. Factors weighed when determining whether or not to hold a hearing include, but are not limited to:</P> <P>(1) The extent to which all directly affected interests were represented in the critics session.</P> <P>(2) Whether directly affected interests have requested a hearing with the Commission.</P> <P>(3) The extent to which a report contains findings, conclusions or potential recommendations on which identifiable interests are in sharp disagreement.</P> <P>(4) The extent to which hearings may be a good device for directing public attention to the Commission, the report, or both.<PRTPAGE P="307"/> </P> <P>(5) Whether in meetings away from Washington a hearing will be a good device for calling attention to the Commission's presence in a particular community or region.</P> </SECTION> </PART> <PART> <EAR>Pt. 1702</EAR> <HD SOURCE="HED">PART 1702—BYLAWS OF THE COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1702.1</SECTNO> <SUBJECT>Establishment.</SUBJECT> <SECTNO>1702.2</SECTNO> <SUBJECT>Members.</SUBJECT> <SECTNO>1702.3</SECTNO> <SUBJECT>Officers.</SUBJECT> <SECTNO>1702.4</SECTNO> <SUBJECT>Responsibilities and duties of the Commission and Commission members.</SUBJECT> <SECTNO>1702.5</SECTNO> <SUBJECT>Duties and powers of the Chairman and Vice-Chairman.</SUBJECT> <SECTNO>1702.6</SECTNO> <SUBJECT>Commission meetings.</SUBJECT> <SECTNO>1702.7</SECTNO> <SUBJECT>Staff—powers and limitations.</SUBJECT> <SECTNO>1702.8-1702.10</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Pub. L. 86-380 of Sept. 24, 1959; 73 Stat. 703 (42 U.S.C. 4271).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>51 FR 24802, July 9, 1986, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1702.1</SECTNO> <SUBJECT>Establishment.</SUBJECT> <P>The Act establishing the Advisory Commission on Intergovernmental Relations, 42 U.S.C. 4271 <E T="03">et seq.</E> (1959), 73 Stat. 703, empowers the Commission to regulate to the extent it deems desirable for the purpose of carrying out the provisions of this Act the holding of hearings, taking of testimony and fixing the time and place of meetings (42 U.S.C. 4276(a)), rules covering the appointment and compensation of employees and the procurement of temporary and intermittent services (42 U.S.C. 4276(d)). In addition, the Commission is required to publish regulations implementing the provisions of the Freedom of Information Act (5 U.S.C. 552(a)), and the Privacy Act of 1974 (Pub. L. 93-579, 5 U.S.C. 552a). These bylaws are designed to carry out these regulatory obligations.</P> </SECTION> <SECTION> <SECTNO>§ 1702.2</SECTNO> <SUBJECT>Members.</SUBJECT> <P>Public Law 86-380, Sec. 3 (42 U.S.C. 4273), provides that the Commission consist of 26 members serving two-year terms—three U.S. Senators appointed by the President of the Senate, three members of the U.S. House of Representatives appointed by the Speaker of the House, three private citizens and three officers of the Executive Branch appointed by the President of the United States, and fourteen elected officials of state and local governments nominated by their respective national associations and appointed by the President of the United States. Except for the private citizen and Executive Branch members, appointments must have bipartisan balance within each membership group. The state and local officials on the Commission are divided into the following groups: four governors, three state legislators, four mayors and three elected county officials. Members serve until their terms expire and their replacements have been appointed, or until they leave public office in the membership category they represent. Members are eligible for reappointment.</P> </SECTION> <SECTION> <SECTNO>§ 1702.3</SECTNO> <SUBJECT>Officers.</SUBJECT> <P>In accordance with section 4(b) of Pub. L. 86-380 (42 U.S.C. 4274(b)), the President designates the Chairman and Vice-Chairman from among the members of the Commission.</P> </SECTION> <SECTION> <SECTNO>§ 1702.4</SECTNO> <SUBJECT>Responsibilities and duties of the Commission and Commission members.</SUBJECT> <P>(a) <E T="03">Studies, recommendations and reports.</E> In accordance with section 5 of Pub. L. 86-380 (42 U.S.C. 4275), the Commission is responsible for choosing topics to study and consider, for recommending “ways and means for fostering better relations between the levels of government,” and for submitting reports to the President, Congress and any other unit of government or organization, including an annual report to the President and Congress. The Commission, or the Chairman upon explicit delegation by the Commission, must approve publication of each formal report containing legislative recommendations (series “A” reports) and information reports (series “M” reports).</P> <P>(b) <E T="03">Meeting and hearings.</E> The Commission, by majority vote of those attending the meeting, may call meetings and hearings at such times and places as it deems appropriate.</P> <P>(c) <E T="03">Executive Director.</E> In accordance with section 6(c) of Pub. L. 86-380 (42 U.S.C. 4276(c)), as amended, the Commission appoints at a regular or special <PRTPAGE P="308"/>meeting, compensates and removes the Executive Director.</P> <P>(d) <E T="03">Committees.</E> The Commission may establish such committees as it deems necessary or desirable to guide research, to hold hearings, or to perform other duties.</P> <P>(e) <E T="03">Responsibilities and duties of Commission members.</E> Members are expected to:</P> <P>(1) Attend all meetings.</P> <P>(2) Be familiar with docket book contents.</P> <P>(3) Be prepared to discuss and vote on proposed recommendations.</P> <P>(4) Attend ACIR public hearings and suggest witnesses.</P> <P>(5) Make speeches and appearances on behalf of ACIR.</P> <P>(6) Testify for ACIR at Congressional hearings.</P> <P>(7) Upon request of the Chairman, serve on Commission committees.</P> <FP>Any member authorized by the Commission may administer oaths or affirmations to witnesses appearing before the Commission or any committee or members thereof (section 6(a), Pub. L. 86-380 (42 U.S.C. 4276(a)).</FP> </SECTION> <SECTION> <SECTNO>§ 1702.5</SECTNO> <SUBJECT>Duties and powers of the Chairman and Vice-Chairman.</SUBJECT> <P>(a) <E T="03">Personnel.</E> Subject to rules and regulations adopted by the Commission, the Chairman is empowered by section 6(d) of Pub. L. 86-380 (42 U.S.C. 4276(d)) to appoint, fix the compensation of, and remove all personnel other than the Executive Director, without regard to civil service laws or political affiliation; and to procure the services of temporary and intermittent employees.</P> <P>(b) <E T="03">Information requests.</E> The Chairman is empowered to request necessary information of federal departments and agencies to be furnished by them as required by Pub. L. 86-380, 42 U.S.C. 4276(b). The Vice-Chairman also is empowered to request such information.</P> <P>(c) <E T="03">Presiding and voting.</E> The Chairman shall preside at all meetings of the Commission. In the absence of the Chairman, the Vice-Chairman shall preside at Commission meetings. In the absence of both the Chairman and Vice-Chairman, the Commission member who will preside shall have been designated by the Chairman or failing such designation, by majority vote of those attending. The Chairman votes only in the case of a tie or when a vote is taken by written ballot.</P> <P>(d) <E T="03">Committees.</E> The Chairman may establish committees as necessary.</P> <P>(e) <E T="03">Hearings.</E> The Chairman may call hearings and fix their time and place.</P> <P>(f) <E T="03">Encouraging attendance and reducing absenteeism.</E> The Chairman shall promote regular attendance by Commission members at regular Commission meetings and other Commission functions. Whenever a member misses three or more consecutive regular Commission meetings, the Chairman shall write the member, on behalf of the Commission, requesting the member's resignation. The Chairman shall send a copy of his letter to the officials responsible under the law for nominating and appointing that member to the Commission, noting his record of absenteeism and suggesting that efforts be made to vacate the seat so that a new member may be nominated. Every effort will be made to make attendance expectations known to all new members and to officials making nominations and appointments.</P> </SECTION> <SECTION> <SECTNO>§ 1702.6</SECTNO> <SUBJECT>Commission meetings.</SUBJECT> <P>(a) <E T="03">Time and place.</E> The Commission intends in the exercise of its discretion provided by Pub. L. 86-380, section 6(a) (42 U.S.C. 4276(a)), to meet quarterly at the call of the Chairman, except in even numbered election years when the fall quarter meeting may be cancelled. Additional meetings may be called by the Chairman or by a majority of all the Commission members. Commission meetings shall be held, upon due notice, at such times and places as the Chairman or the Commission shall determine. The Commission also intends, in the exercise of its discretion, that at least one of its meetings each year be held outside Washington, D.C.</P> <P>(b) <E T="03">Setting meeting agendas—notice.</E> With the approval of the Chairman, the Executive Director will establish the agenda for each regular meeting and shall notify the members of its contents by sending out a docket book at least three weeks in advance of the meeting. Members wishing items placed on the agenda may request the <PRTPAGE P="309"/>Chairman to do so. By vote of a majority of the members at the meeting, the agenda may be revised.</P> <P>(c) <E T="03">Adoption of Robert's Rules of Order.</E> The rules contained in <E T="03">Robert's Rules of Order Revised,</E> 1971, shall govern the Commission in all cases to which they are applicable to the extent they are not inconsistent with these bylaws.</P> <P>(d) <E T="03">Quorum.</E> “Thirteen members of the Commission shall constitute a quorum for the transaction of business, but two or more members shall constitute a quorum for the purpose of conducting hearings.” [Pub. L. 86-380 section 4(3); 42 U.S.C. 427(e).]</P> <P>(e) <E T="03">Substitute for Federal executive members.</E> <SU>1</SU> <FTREF/> Federal executive members may designate one permanent substitute of at least Assistant Secretary rank or equivalent to act fully in his or her stead as a member of the Commission. Accordingly, such substitutes for Federal Executive members may participate in Commission debates and vote on all matters. Such named substitute designations by Federal Executive members shall be for the term of the member.</P> <FTNT> <P> <SU>1</SU> In amending and reaffirming this provision for alternate members from the Executive Branch, the Commission emphasized its desire that members of the President's Cabinet be appointed to the Commission and attend its meetings whenever possible. The Commission also stressed that an alternate substituting for an Executive Branch member should be the same person from one meeting to the next and should represent the views of the regular member with continuity. Although the Commission recognized that it might be necessary to change the designation of an alternate, the Commission urged that such changes be kep to a minimum in the interest of strengthening continuity within the Commission.</P> </FTNT> <P>(f) <E T="03">Polling.</E> The Chairman, on his own motion, may poll the membership to determine the views of the members on matters on the agenda of a regular or special meeting of the Commission but which were not considered by the Commission, or where he wishes to increase the number of members voting, or where he determines there is some administrative purpose to be served. Such voting shall either be by mail or, if by telephone, shall be confirmed in writing. The result of any poll shall be reported in the Docket Book for the following meeting of the Commission and shall be subject to a motion to reconsider at the following meeting but not at any other later time.</P> <P>(g) <E T="03">Acceptance of outside financial assistance.</E> No outside financial assistance is accepted without approval by the Commission. The Chairman, in his discretion, may request such approval by placing it in the Commission's regular agenda or by polling the members in accordance with Article VI of the Bylaws.</P> </SECTION> <SECTION> <SECTNO>§ 1702.7</SECTNO> <SUBJECT>Staff—powers and limitations.</SUBJECT> <P>(a) <E T="03">Duties and powers of the Executive Director.</E> The Executive Director directs and manages the staff in carrying out the directions of the Commission and the Chairman; represents the Commission before a variety of audiences including the Congress and its committees, the Executive Office of the President and other federal agencies, national and state associations of state and local officials, state and local governments, the media, schools and universities, and the general public; and undertakes and directs such other activities as the Executive Director and the Chairman of the Commission deem in the best interest of improved intergovernmental relations throughout the nation.</P> <P>(b) <E T="03">Commission's role in drafting legislative materials.</E> Any proposed legislation drafted by the staff to carry out Commission recommendations is to be approved by the Commission at a regularly scheduled Commission meeting before that material is transmitted to Congress, to state legislatures, to other interested groups, or to any other source.</P> </SECTION> <SECTION> <SECTNO>§§ 1702.8—1702.10</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> <PART> <EAR>Pt. 1703</EAR> <HD SOURCE="HED">PART 1703—PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Freedom of Information Act Implementation</HD> <SECHD>Sec.</SECHD> <SECTNO>1703.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1703.2</SECTNO> <SUBJECT>Publications.</SUBJECT> <SECTNO>1703.3</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <SECTNO>1703.4</SECTNO> <SUBJECT>Index.</SUBJECT> <SECTNO>1703.5</SECTNO> <SUBJECT>Policy with respect to request for particular kinds of documents.<PRTPAGE P="310"/> </SUBJECT> <SECTNO>1703.6</SECTNO> <SUBJECT>Schedules of fees.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Privacy Act Implementation</HD> <SECTNO>1703.20</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1703.21</SECTNO> <SUBJECT>Defintions.</SUBJECT> <SECTNO>1703.22</SECTNO> <SUBJECT>Procedures for requests pertaining to individual records in a system of records.</SUBJECT> <SECTNO>1703.23</SECTNO> <SUBJECT>Request for amendment or correction of a record.</SUBJECT> <SECTNO>1703.24</SECTNO> <SUBJECT>Disclosure of a record to a person other than the individual to whom it pertains.</SUBJECT> <SECTNO>1703.25</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552, 552a, and 571-576.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>51 FR 24804, July 9, 1986, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Freedom of Information Act Implementation</HD> <SECTION> <SECTNO>§ 1703.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>This part implements section 552 of title 5, United States Code, and prescribes rules governing the availability to the public of documents and records of the Advisory Commission on Intergovernmental Relations.</P> </SECTION> <SECTION> <SECTNO>§ 1703.2</SECTNO> <SUBJECT>Publications.</SUBJECT> <P>(a) Complete lists of Legislative Recommendations and Reports, together with the texts of those Recommendations, Reports and other publications are maintained in the Offices of the Commission.</P> <P>(b) The Annual Report of the Commission contains a list of all Legislative Recommendations and Commission Reports adopted during the preceding year. It also contains descriptive material regarding the work of the Commission. The Annual Report is available from ACIR. Single copies of current and past Annual Reports will also be furnished by the Commission on request, to the extent that supplies on hand permit.</P> <P>(c) The Commission endeavors to maintain for distribution to interested persons an adequate stock of reports, copies of congressional testimony, newsletters, minutes of recent committee meetings, and other documents of general interest. Requests for single copies of such documents will be filled at cost to the extent that supplies on hand permit.</P> </SECTION> <SECTION> <SECTNO>§ 1703.3</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <P>(a) It is the policy of the Commission to make records and documents in its possession available to the public to the greatest extent possible. All records of the Commission are available for public inspection and copying in accordance with this section except those records or portions of records as to which the Director or his designee specifically determines that:</P> <P>(1) They fall within a particular exemption in section 552(b) of the Freedom of Information Act and</P> <P>(2) Disclosure would not be consistent with the national interest, the protection of private rights or the efficient conduct of Commission business.</P> <P>(b) A request for records, other than for documents which are published in the <E T="04">Federal Register</E> or available for sale or distribution as described in § 1703.2, shall be made in writing and directed to the Executive Director, Advisory Commission on Intergovernmental Relations, 1111 20th Street, NW., Washington, DC 20575. Such request shall be clearly marked “Freedom of Information Request” or “Information Request” and shall reasonably describe the record requested. The staff of the Commission will make reasonable efforts to assist a requester in formulating his request. Nothing in this section shall preclude staff of the ACIR from complying with oral, unmarked, or generally stated requests for information and documents.</P> <P>(c) The Executive Director or his designee shall, within ten working days after its receipt, either comply with or deny a request for records, provided that when additional time is required because of:</P> <P>(1) A need to search for, collect and examine a voluminous amount of separate and distinct records demanded in a single request, or (2) a need for consultation with another agency having a substantial interest in the determination of the request, the time limit for disposing of the request may be extended for up to ten additional working days by a written notice to the requester setting forth the reasons for and the anticipated length of the delay.</P> <P>(d)(1) Where it appears to the Executive Director or his designee that fees <PRTPAGE P="311"/>chargeable under § 1703.6 of this regulation for compliance with the request will exceed $25, and the requester has not indicated in advance his willingness to pay fees as high as are anticipated, the requester shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In such cases, a request will not be deemed to have been received until the requester is notified of the anticipated cost and agrees to bear it. The notification shall offer the requester the opportunity to confer with Commission personnel with the object of reformulating the request so as to meet his needs at lower cost.</P> <P>(2) Where the anticipated fee chargeable under this part exceeds $50, an advance deposit of 25% of the anticipated fee or $25, whichever is greater, may be required. Where a requester has previously failed to pay a fee under this part, an advance deposit of the full amount of the anticipated fee may be required.</P> <P>(e) The requester will be notified promptly of the determination made pursuant to paragraph (c) of this section. If the determination is to release the requested record, such record shall promptly be made available. If the determination is not to release the record, the person making the request shall, at the same time he is notified of such determination, be notified of:</P> <P>(1) The reason for the determination;</P> <P>(2) The name and title or position of each person responsible for the denial of the request; and</P> <P>(3) His right to seek judicial review of such determination pursuant to the provisions of the Freedom of Information Act, 5 U.S.C. 552(a)(4).</P> </SECTION> <SECTION> <SECTNO>§ 1703.4</SECTNO> <SUBJECT>Index.</SUBJECT> <P>The Freedom of Information Act, 5 U.S.C. 552(a)(2), requires each agency to maintain and make available for public inspection and copying a current index of certain materials issued, adopted or promulgated by the agency. With respect to the materials covered by section 552(l)(2)(B), the Commission maintains currently for distribution a complete list of Commission Recommendations (“A” Series) and Reports (“M” Series), and other reports. The Commission has no adjudicatory responsibilities of the kind contemplated by section 552(a)(2)(A) of the Act and does not ordinarily issue materials of the type described in section 552(a)(2)(C). Should such materials be issued, appropriate indexes will be maintained.</P> </SECTION> <SECTION> <SECTNO>§ 1703.5</SECTNO> <SUBJECT>Policy with respect to request for particular kinds of documents.</SUBJECT> <P>This section is intended to amplify the policy set out in § 1703.3(a) as applied to specific categories of documents:</P> <P>(a) All materials which are distributed to the membership of the Commission (Docket Book) for consideration at a plenary session will upon distribution be available to the public in accordance with § 1703.2(d) of these regulations.</P> <P>(b) Consultant and staff reports which are otherwise exempt from disclosure under the Freedom of Information Act as interagency or intra-agency correspondence will, absent special circumstances, be made available if the reports are in substantially completed form and have been distributed widely for comment within or outside the Government. Tentative reports and working drafts which have received only limited circulation will ordinarily not be made available.</P> <P>(c) Agency comments on a report or proposed legislative recommendation, even if exempt from disclosure under the Freedom of Information Act, will nevertheless ordinarily be made available unless the agency indicates to the Commission that its comment is confidential. Comment of an individual Commission member, writing in his personal capacity, will not be made available without the consent of the member.</P> <P>(d) The following categories of documents are declared to be available to the public, notwithstanding any applicable exemption in section 552(b) of the Freedom of Information Act:</P> <P>(1) Agency reports on the implementation of Commission recommendations;</P> <P>(2) Correspondence from the Office of the Chairman of the Commission or the Executive Director to committees of Congress, commenting on pending legislation;<PRTPAGE P="312"/> </P> <P>(3) Minutes of meetings of the standing committees of the Commission.</P> <P>(4) Transcripts or minutes of Commission meetings.</P> </SECTION> <SECTION> <SECTNO>§ 1703.6</SECTNO> <SUBJECT>Schedules of fees.</SUBJECT> <P>The Executive Director may charge a fee for searching for and copying documents or records requested pursuant to § 1703.3, as follows:</P> <P>(a) The fee for copies shall be $0.10 per copy per page. Copying fees of less than $3 per request are waived.</P> <P>(b) The search charge shall be $9 per hour for the services of non-professional personnel and $15 per hour for the services of professional personnel. Search charges shall be calculated to the nearest quarter hour. There shall be no search charge for searches requiring less than one-half man hour.</P> <P>(c) No fee will be charged in connection with any record which is not made available because it is found to be exempt from disclosure.</P> <P>(d) Charges may be waived or reduced where the Executive Director determines that such waiver or reduction is in the public interest.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Privacy Act Implementation</HD> <SECTION> <SECTNO>§ 1703.20</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>The purpose of this subpart is the implementation of the Privacy Act of 1974, 5 U.S.C. 552a, by establishing procedures whereby an individual can determine if a system of records maintained by the Commission contains a record pertaining to himself, and procedures for providing access to such a record for the purpose of review, amendment, or correction. Requests for assistance in interpreting or complying with these regulations should be addressed to the Executive Director, Advisory Commission on Intergovernmental Relations, 1111 20th Street, NW., Washington, DC 20575.</P> </SECTION> <SECTION> <SECTNO>§ 1703.21</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart, the terms <E T="03">individual, maintain, record, system of records,</E> and <E T="03">routine use</E> have the meaning specified in 5 U.S.C. 552a(a).</P> </SECTION> <SECTION> <SECTNO>§ 1703.22</SECTNO> <SUBJECT>Procedures for requests pertaining to individual records in a system of records.</SUBJECT> <P>(a) An individual can determine if a particular system of records maintained by the Commission contains a record pertaining to himself by submitting a written request for such information to the Executive Director. The Executive Director or his designee will respond to a written request under this subpart within a reasonable time by stating that a record on the individual either is or is not contained in the system.</P> <P>(b) If an individual seeks access to a record pertaining to himself in a system of records, he shall submit a written request to the Executive Director. The Executive Director or his designee will, within ten working days after its receipt, acknowledge the request and if possible decide if it should be granted. In any event, a decision will be reached promptly and notification thereof provided to the individual seeking access. If the request is denied, the individual will be informed of the reasons therefor and his right to seek judicial review.</P> <P>(c) In cases where an individual has been granted access to his records, the Executive Director may, prior to releasing such records, require the submission of a signed notarized statement verifying the identity of the individual to assure that such records are disclosed to the proper person. No verification of identify will be required when such records are available under the Freedom of Information Act, 5 U.S.C. 552, as amended.</P> </SECTION> <SECTION> <SECTNO>§ 1703.23</SECTNO> <SUBJECT>Request for amendment or correction of a record.</SUBJECT> <P>(a) An individual may file a request with the Executive Director for amendment or correction of a record pertaining to himself in a system of records. Such written request shall state the nature of the information in the record the individual believes to be inaccurate or incomplete, the amendment or correction desired and the reasons therefor. The individual should supply whatever information or documentation he can in support of his request for amendment or correction of a record.<PRTPAGE P="313"/> </P> <P>(b) The Executive Director or his designee will, within ten working days after its receipt, acknowledge a request for amendment or correction of a record. A decision will be reached promptly and notification thereof provided to the individual seeking to amend or correct a record. The Executive Director may request such additional information or documentation as he may deem necessary to arrive at a decision upon the request. If the request is granted, the record as amended will be called to the attention of all prior recipients of the individual's record.</P> <P>(c) If the request is denied, the individual will be informed of the reasons therefor and his right to appeal the denial in writing to the Chairman of the Commission. The Chairman will render a decision on an appeal within thirty working days following the date on which the appeal is received. The individual will be notified promptly of the Chairman's decision and, if the appeal is denied, the reasons therefor and the individual's right to seek judicial review and his right to file a concise statement of disagreement, which statement will be noted in the records to which it pertains and supplied to all prior and subsequent recipients of the disputed record. If an appeal is granted, the record as amended will be called to the attention of all prior recipients of the individual's record.</P> <P>(d) Requests for amendment or correction of a record must be accompanied by a signed notarized statement verifying the identity of the requesting party.</P> </SECTION> <SECTION> <SECTNO>§ 1703.24</SECTNO> <SUBJECT>Disclosure of a record to a person other than the individual to whom it pertains.</SUBJECT> <P>Except in accordance with 5 U.S.C. 552a(b), or as required by the Freedom of Information Act, 5 U.S.C. 552, as amended, or other applicable statute, the Commission will not disclose a record to any individual other than the individual to whom the record pertains without the written consent of such individual. An accounting of the date, nature, and purpose of each disclosure of a record as well as the name and address of the person or agency to whom the disclosure was made will be maintained. This accounting will be made available to the individual to whom the record pertains upon the submission of a written, notarized request to the Executive Director.</P> </SECTION> <SECTION> <SECTNO>§ 1703.25</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>Copies of record supplied to any individual at his request shall be provided for $.10 per copy per page. Copying fees of less than $3 per request are waived.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1720</EAR> <HD SOURCE="HED">PART 1720—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1720.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1720.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1720.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1720.104—1720.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>1720.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>1720.112—1720.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>1720.131—1720.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>1720.141—1720.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>1720.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>1720.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>1720.152—1720.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1720.161—1720.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1720.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>1720.171—1720.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>51 FR 4574, 4579, Feb. 5, 1986, unless otherwise noted. Redesignated at 51 FR 24800, July 9, 1986.</P> </SOURCE> <SECTION> <SECTNO>§ 1720.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This part effectuates 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.</P> </SECTION> <SECTION> <PRTPAGE P="314"/> <SECTNO>§ 1720.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This part applies to all programs or activities conducted by the agency.</P> </SECTION> <SECTION> <SECTNO>§ 1720.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> 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, telecommunications devices 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.</P> <P> <E T="03">Complete complaint</E> 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.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Handicapped person</E> 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.</P> <P>As used in this definition, the phrase:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one of 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</P> <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> 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 addition and alcholism.</P> <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> 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.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P> <P>(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;</P> <P>(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</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified handicapped person</E> means—</P> <P>(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, a handicapped person 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; or<PRTPAGE P="315"/> </P> <P>(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.</P> <P>(3) <E T="03">Qualified handicapped person</E> is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 1720.140.</P> <P> <E T="03">Section 504</E> 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), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.</P> <CITA>[51 FR 4574, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1720.104—1720.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(a) The agency shall, by April 9, 1987, 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.</P> <P>(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).</P> <P>(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspections:</P> <P>(1) A description of areas examined and any problems identified, and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 1720.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>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 regulation.</P> </SECTION> <SECTION> <SECTNO>§§ 1720.112—1720.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(a) No qualified handicapped person 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.</P> <P>(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—</P> <P>(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;</P> <P>(iii) Provide a qualified handicapped person 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;</P> <P>(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;</P> <P>(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or</P> <P>(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.<PRTPAGE P="316"/> </P> <P>(2) The agency may not deny a qualified handicapped person 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.</P> <P>(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—</P> <P>(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.</P> <P>(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.</P> <P>(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.</P> </SECTION> <SECTION> <SECTNO>§§ 1720.131—1720.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>No qualified handicapped person 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 1613, shall apply to employment in federally conducted programs or activities.</P> </SECTION> <SECTION> <SECTNO>§§ 1720.141—1720.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>Except as otherwise provided in § 1720.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, 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.</P> </SECTION> <SECTION> <SECTNO>§ 1720.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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 handicapped persons. This paragraph does not—</P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or</P> <P>(2) 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 § 1720.150(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 <PRTPAGE P="317"/>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 handicapped persons receive the benefits and services of the program or activity.</P> <P>(b) <E T="03">Methods.</E> 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 handicapped persons. The agency is nor 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 handicapped persons in the most integrated setting appropriate.</P> <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by June 6, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by April 7, 1989, but in any event as expeditiously as possible.</P> <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by October 7, 1986, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, 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—</P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(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</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> <CITA>[51 FR 4574, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 1720.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>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 handicapped persons. 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.</P> </SECTION> <SECTION> <SECTNO>§§ 1720.152—1720.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.<PRTPAGE P="318"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 1720.160 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, handicapped persons receive the benefits and services of the program or activity.</P> </SECTION> <SECTION> <SECTNO>§§ 1720.161—1720.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1720.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(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 or activities conducted by the agency.</P> <P>(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 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P> <P>(c) The Personnel Officer shall be responsible for coordinating implementation of this section. Compliants may be sent to Budget and Management Officer, Advisory Commission on Intergovernmental Relations, Suite 2000, Vanguard Building, 1111 20th St., NW., Washington, DC 20575.</P> <P>(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.</P> <P>(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.</P> <P>(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), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.</P> <P>(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—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found;</P> <P>(3) A notice of the right to appeal.</P> <P>(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 § 1720.170(g). The agency may extend this time for good cause.<PRTPAGE P="319"/> </P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(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.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(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.</P> <CITA>[51 FR 4574, 4579, Feb. 5, 1986, as amended at 51 FR 4574, Feb. 5, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1720.171—1720.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. VIII (1-1-02 Edition)</LRH> <RRH>Office of Special Counsel</RRH> <TOC> <TOCHD> <PRTPAGE P="321"/> <HD SOURCE="HED">CHAPTER VIII—OFFICE OF SPECIAL COUNSEL</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1800</PT> <SUBJECT>Filing of complaints and allegations</SUBJECT> <PG>323</PG> <PT>1810</PT> <SUBJECT>Investigative authority of the Special Counsel</SUBJECT> <PG>325</PG> <PT>1820</PT> <SUBJECT>Public information</SUBJECT> <PG>325</PG> <PT>1830</PT> <SUBJECT>Privacy</SUBJECT> <PG>329</PG> <PT>1840</PT> <SUBJECT>Subpoenas</SUBJECT> <PG>330</PG> <PT>1850</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Office of Special Counsel</SUBJECT> <PG>330</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="323"/> <EAR>Pt. 1800</EAR> <HD SOURCE="HED">PART 1800—FILING OF COMPLAINTS AND ALLEGATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1800.1</SECTNO> <SUBJECT>Filing complaints of prohibited personnel practices or other prohibited activities.</SUBJECT> <SECTNO>1800.2</SECTNO> <SUBJECT>Filing disclosures of information.</SUBJECT> <SECTNO>1800.3</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1212(e).</P> </AUTH> <SECTION> <SECTNO>§ 1800.1</SECTNO> <SUBJECT>Filing complaints of prohibited personnel practices or other prohibited activities.</SUBJECT> <P>(a) The Office of Special Counsel (OSC) has investigative jurisdiction over the following prohibited personnel practices against current or former Federal employees and applicants for Federal employment:</P> <P>(1) Discrimination, including discrimination based on marital status or political affiliation (see § 1810.1 of this chapter for information about OSC's deferral policy);</P> <P>(2) Soliciting or considering improper recommendations or statements about individuals requesting, or under consideration for, personnel actions;</P> <P>(3) Coercing political activity, or engaging in reprisal for refusal to engage in political activity;</P> <P>(4) Deceiving or obstructing anyone with respect to competition for employment;</P> <P>(5) Influencing anyone to withdraw from competition to improve or injure the employment prospects of another;</P> <P>(6) Granting an unauthorized preference or advantage to improve or injure the employment prospects of another;</P> <P>(7) Nepotism;</P> <P>(8) Reprisal for whistleblowing (whistleblowing is generally defined as the disclosure of information about a Federal agency by an employee or applicant who reasonably believes that the information shows a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety);</P> <P>(9) Reprisal for:</P> <P>(i) Exercising certain appeal rights;</P> <P>(ii) Providing testimony or other assistance to persons exercising appeal rights;</P> <P>(iii) Cooperating with the Special Counsel or an Inspector General; or</P> <P>(iv) Refusing to obey an order that would require the violation of law;</P> <P>(10) Discrimination based on personal conduct not adverse to job performance;</P> <P>(11) Violation of a veterans' preference requirement; and</P> <P>(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. 2302(b)(1).</P> <P>(b) OSC also has investigative jurisdiction over allegations of the following prohibited activities:</P> <P>(1) Violation of the Federal Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;</P> <P>(2) Violation of the state and local Hatch Act at title 5 of the U.S. Code, chapter 15;</P> <P>(3) Arbitrary and capricious withholding of information prohibited under the Freedom of Information Act at 5 U.S.C. 552 (except for certain foreign and counterintelligence information);</P> <P>(4) Activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decisionmaking;</P> <P>(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 the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure); and</P> <P>(6) Violation of uniformed services employment and reemployment rights under 38 U.S.C. 4301, <E T="03">et seq.</E> </P> <P>(c) Complaints of prohibited personnel practices or other prohibited activities within OSC's investigative jurisdiction should be sent to: U.S. Office of Special Counsel, Complaints Examining Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.</P> <P>(d) Complaints alleging a prohibited personnel practice, or a prohibited activity other than a Hatch Act violation, must be submitted on Form OSC-11 (“Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity”).<PRTPAGE P="324"/> </P> <P>(1) The form includes a section (Part 2) that must be completed in connection with allegations of reprisal for whistleblowing, including identification of:</P> <P>(i) Each disclosure involved;</P> <P>(ii) The date of each disclosure;</P> <P>(iii) The person to whom each disclosure was made; and</P> <P>(iv) The type and date of any personnel action that occurred because of each disclosure.</P> <P>(2) If a complainant who has alleged reprisal for whistleblowing seeks to supplement a pending OSC complaint by reporting a new disclosure or personnel action, then, at OSC's discretion:</P> <P>(i) The complainant will be required to document the disclosure or personnel action in the Part 2 format, or</P> <P>(ii) OSC will document the disclosure or personnel action in the Part 2 format, a copy of which will be provided to the complainant upon OSC's closure of the complaint.</P> <P>(e) Form OSC-11 is available by writing to OSC at the address shown in paragraph (c) of this section; by calling OSC at (1) (800) 872-9855; or by printing the form from OSC's Web site (at <E T="03">http://www.osc.gov</E>).</P> <P>(f) Except for complaints alleging only a Hatch Act violation, OSC will not process a complaint submitted in any format other than a completed Form OSC-11. If a person uses a format other than the required OSC form to file a complaint (other than a Hatch Act allegation), the material received by OSC will be returned to the filer with a blank Form OSC-11 to complete and return to OSC. The complaint will be considered to be filed on the date on which OSC receives the completed Form OSC-11.</P> <P>(g) Complaints alleging only a Hatch Act violation may be submitted in any written form to the address shown in paragraph (c) of this section, but should include:</P> <P>(1) The name, mailing address, and telephone number(s) of the complainant(s), and a time when the person(s) making the complaint(s) can be safely contacted, unless the matter is submitted anonymously;</P> <P>(2) The department or agency, location, and organizational unit complained of; and</P> <P>(3) A concise description of the actions complained about, names and positions of employees who took these actions, if known to the complainant, and dates, preferably in chronological order, together with any documentary evidence the complainant may have.</P> <CITA>[65 FR 64882, Oct. 31, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1800.2</SECTNO> <SUBJECT>Filing disclosures of information.</SUBJECT> <P>(a) OSC is authorized by law (at 5 U.S.C. 1213) to provide an independent and secure channel for use by current or former Federal employees and applicants for Federal employment in disclosing information that they reasonably believe shows wrongdoing by a Federal agency. The law requires OSC to determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety. If so, OSC must refer the information to the agency head involved for investigation and a written report on the findings to the Special Counsel. The law does not give OSC jurisdiction to investigate the disclosure.</P> <P>(b) Employees, former employees, or applicants for employment wishing to file a whistleblower disclosure with OSC should send the information to: U.S. Office of Special Counsel, Disclosure Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.</P> <P>(c) A disclosure of the type of information described in paragraph (a) of this section should be submitted in writing, using any of the following formats:</P> <P>(1) Filers may use Form OSC-12 (“Disclosure of Information”), which provides more information about OSC jurisdiction and procedures for processing whistleblower disclosures. This form is available from OSC by writing to the address shown in paragraph (b) of this section; by calling OSC at (1) (800) 572-2249; or by printing the form from OSC's Web site (at <E T="03">http://www.osc.gov</E>).<PRTPAGE P="325"/> </P> <P>(2) Filers may use another written format, but the submission should include:</P> <P>(i) The name, mailing address, and telephone number(s) of the person(s) making the disclosure(s), and a time when that person(s) can be safely contacted by OSC;</P> <P>(ii) The department or agency, location and organizational unit complained of; and</P> <P>(iii) A statement as to whether the filer consents to the disclosure of his or her identity to the agency by OSC in connection with any referral to the appropriate agency.</P> <CITA>[65 FR 64883, Oct. 31, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1800.3</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> <P>The Special Counsel is authorized to issue advisory opinions only concerning Chapter 15 of Title 5, United States Code (dealing with political activity of State or local officers and employees) and Subchapter III of Chapter 73 of Title 5, United States Code (dealing with political activity of Federal officers and employees). Requesters may telephone the Office of Special Counsel toll free at 1-800-872-9855, or (202)/FTS 653-7143 in the Washington, DC, area, or make such requests in writing to the Office of Special Counsel, 1730 M Street, NW., Suite 201, Washington, DC 20036-4505.</P> <CITA>[54 FR 47341, Nov. 14, 1989, as amended at 59 FR 64843, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1810</EAR> <HD SOURCE="HED">PART 1810—INVESTIGATIVE AUTHORITY OF THE SPECIAL COUNSEL</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1212(e).</P> </AUTH> <SECTION> <SECTNO>§ 1810.1</SECTNO> <SUBJECT>Investigative policy in discrimination complaints.</SUBJECT> <P>The Special Counsel is authorized to investigate allegations of discrimination prohibited by law, as defined in 5 U.S.C. 2302(b)(1). Since procedures for investigating discrimination complaints have already been established in the agencies and the Equal Employment Opportunity Commission, the Special Counsel will normally avoid duplicating those procedures and will defer to those procedures rather than initiating an independent investigation.</P> <CITA>[54 FR 47342, Nov. 14, 1989]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1820</EAR> <HD SOURCE="HED">PART 1820—PUBLIC INFORMATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1820.1</SECTNO> <SUBJECT>Public list.</SUBJECT> <SECTNO>1820.2</SECTNO> <SUBJECT>Procedures for obtaining records under the Freedom of Information Act.</SUBJECT> <SECTNO>1820.3</SECTNO> <SUBJECT>Categories of requesters under the Freedom of Information Act.</SUBJECT> <SECTNO>1820.4</SECTNO> <SUBJECT>Free or partially free search time and partially free copying.</SUBJECT> <SECTNO>1820.5</SECTNO> <SUBJECT>Waiver or reduction of fees.</SUBJECT> <SECTNO>1820.6</SECTNO> <SUBJECT>Fees to be charged.</SUBJECT> <SECTNO>1820.7</SECTNO> <SUBJECT>Payments and collections.</SUBJECT> <SECTNO>1820.8</SECTNO> <SUBJECT>Appeals.</SUBJECT> <SECTNO>1820.9</SECTNO> <SUBJECT>Disclosures by authorized officials.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552(a)(3), 552(a)(4), 1212(g), 1219.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 47342, Nov. 14, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1820.1</SECTNO> <SUBJECT>Public list.</SUBJECT> <P>(a) Pursuant to 5 U.S.C. 1219, the Special Counsel maintains and makes available to the public a list of:</P> <P>(1) Noncriminal matters referred to heads of agencies under 5 U.S.C. 1213 (c) and (g)(1), and reports received as a result of such referrals;</P> <P>(2) Matters referred by the Special Counsel to heads of agencies under 5 U.S.C. 1215(c)(2); and</P> <P>(3) Matters referred to heads of agencies under 5 U.S.C. 1214(e), together with certifications from the heads of agencies under such subsection.</P> <P>(b) The list is available to the public between 8:30 a.m. and 5 p.m. weekdays (except legal holidays) in the Office of Special Counsel, 1730 M Street NW., Suite 201, Washington, DC 20036-4505.</P> <CITA>[55 FR 47342, Nov. 14, 1989, as amended at 55 FR 47839, Nov. 16, 1990; 59 FR 64843, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1820.2</SECTNO> <SUBJECT>Procedures for obtaining records under the Freedom of Information Act.</SUBJECT> <P>Requests for records shall be made in writing. Requests should be addressed to the Office of Special Counsel, 1730 M Street NW., Suite 201, Washington, DC 20036-4505. Requests must be clearly and prominently marked “Freedom of <PRTPAGE P="326"/>Information Act Request” on both the envelope and the letter.</P> <CITA>[54 FR 47342, Nov. 14, 1989, as amended at 59 FR 64843, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1820.3</SECTNO> <SUBJECT>Categories of requesters under the Freedom of Information Act.</SUBJECT> <P>There are four categories of requesters:</P> <P>(a) <E T="03">Commercial use requesters.</E> These requesters seek information for themselves or on behalf of someone else for a use or purpose that furthers commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. A requester will not be presumed to be a “commercial use requester” merely by submitting a request on corporate letterhead without further explanation of the use to which he plans to put the requested information. Similarly, a request submitted on the letterhead of a nonprofit organization without further explanation will not be presumed to be for a noncommercial purpose. The Office of Special Counsel will seek clarification from the requester where there is a reasonable doubt as to the intended use of the information.</P> <P>(b) <E T="03">Educational and noncommercial scientific institution requesters.</E> (1) An “educational institution” requester is associated with a preschool, a public or private elementary or secondary school, an institution of undergraduate or graduate higher education, or an institution of vocational or professional education, that operates a program or programs of scholarly research, and seeks the information for a scholarly or scientific research goal of the institution, rather than for an individual goal.</P> <P>(2) A “noncommercial scientific institution” requester is associated with an institution that is not operated on a “commercial” basis (as that term is defined by paragraph (a) of this section), and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.</P> <P>(c) <E T="03">News media requesters.</E> These requesters actively gather news for entities that are organized and operated to publish or broadcast news to the public. Freelance journalists may be news media requesters if they can demonstrate a solid basis for expecting publication through a news organization (such as by producing a publication contract or citing their past publication records), even though not actually employed by it. “News” means information about current events or information that would be of current interest to the public. News media “entities” include, but are not limited to, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public.</P> <P>(d) All other requesters.</P> </SECTION> <SECTION> <SECTNO>§ 1820.4</SECTNO> <SUBJECT>Free or partially free search time and partially free copying.</SUBJECT> <P>(a) <E T="03">Free search time and partially free copying.</E> Educational and noncommercial scientific institution requesters and news media requesters who are requesting records for noncommercial use are entitled to free copying for the first 100 pages and free search time.</P> <P>(b) <E T="03">Partially free search time and partially free copying.</E> Requesters who are not commercial use requesters, educational or noncommercial scientific institution requesters, or news media requesters are “all other requesters”, and are entitled to two hours of free search time and free copying for the first 100 pages. Requests from record subjects for records about themselves filed in a system of records will continue to be treated under the fee provisions of the Privacy Act, which permits the assessment of fees only for copying.</P> </SECTION> <SECTION> <SECTNO>§ 1820.5</SECTNO> <SUBJECT>Waiver or reduction of fees.</SUBJECT> <P>(a) The Associate Special Counsel for Investigation, the Deputy Associate Special Counsel for Prosecution, the Associate Special Counsel for Prosecution, the Deputy Special Counsel, and the Special Counsel may authorize waiver or reduction of fees that could otherwise be assessed if disclosure of the information requested:</P> <P>(1) Is in the public interest because it is likely to contribute significantly to <PRTPAGE P="327"/>public understanding of the operations or activities of the Government, and</P> <P>(2) Is not primarily in the commercial interest of the requester.</P> <P>(b) Satisfaction of paragraph (a)(1) of this section will be determined by all of the following:</P> <P>(1) Whether the subject of the requested records concerns “the operations or activities of the Government.” The requested records concern identifiable operations of activities of the Government, and the connection between the records and the operations or activities is direct and clear, not remote or attenuated;</P> <P>(2) Whether disclosure is “likely to contribute” to an understanding of Government operations or activities. An analysis of the substantive content of the releasable portions of the requested records reveals meaningfully informative information on the operations or activities of the Government that is not already in the public domain in duplicative or substantially identical form;</P> <P>(3) Whether disclosure will contribute to “public understanding.” Considering the identity of the requester and his qualifications to make use of the information, disclosure will contribute to the understanding of the public at large, and not to the individual understanding of the requester or a narrow segment of interested persons; and</P> <P>(4) Whether the disclosure is likely to contribute “significantly” to public understanding of Government operations or activities. By an objective standard, the disclosure is likely to enhance the general public's understanding of the subject matter in question more than minimally.</P> <P>(c) Satisfaction of paragraph (a)(2) of this section will be determined by both of the following:</P> <P>(1) Whether the requester has a commercial interest to be furthered by the disclosure. The requester does not seek to further a commercial, trade, or profit interest, as those terms are commonly understood; and</P> <P>(2) Whether the magnitude of the identified commercial interest of the requester is sufficiently large, compared to the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” If the requester has a commercial interest, that interest is not greater than the public interest to be served by disclosure of the requested records.</P> </SECTION> <SECTION> <SECTNO>§ 1820.6</SECTNO> <SUBJECT>Fees to be charged.</SUBJECT> <P>(a) Requests for records are subject to the following fees:</P> <P>(1) <E T="03">Commercial use requesters.</E> For search, review, and copying: Photocopies per page, $0.25. Manual record search, $2.50 per quarter hour if conducted by a clerical employee; $5.00 per quarter hour if conducted by a professional or managerial employee. Search fees may be assessed even if the records in question are not located or if the records located are determined to be exempt from disclosure.</P> <P>(2) <E T="03">Educational and noncommercial scientific institution requesters, news media requesters.</E> For copying only: Photocopies per page, $0.25, excluding the first 100 pages.</P> <P>(3) <E T="03">All other requesters.</E> For search and copying only: Photocopies per page (excluding the first 100 pages), $0.25. Manual record search (excluding the first two hours), $2.50 per quarter hour if conducted by a clerical employee; $5.00 per quarter hour if conducted by a professional or managerial employee.</P> <P>(b) <E T="03">Method of search.</E> (1) Any “search”, which includes all time spent looking for material that is responsive to a request, will be done in the most efficient and least expensive manner in order to minimize costs for both the agency and the requester.</P> <P>(2) For researches made by computer, costs will be assessed when the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent equals the equivalent dollar amount of two hours of salary of the person performing the search.</P> <P>(c) <E T="03">Review charges.</E> Only commercial use requesters will be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. These charges will be assessed only for initial review (i.e., the review undertaken when first analyzing the applicability of a specific exemption to a particular record or portion of record), and not for review at the administrative appeal level of an exemption already applied. However, <PRTPAGE P="328"/>charges will be assessed for a second review of records or portions of records withheld in full under an exemption which is subsequently determined not to apply in order to determine the applicability of other exemptions not previously considered. Review charges shall not include costs incurred in resolving issues of law or policy that may be raised in the course of processing a request.</P> <P>(d) <E T="03">Copying.</E> A “page” of copying refers to a paper copy of standard size, normally 8<FR>1/2</FR>″×11″ or 11×x14″. However, copies may also take the form of microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others.</P> <P>(e) <E T="03">Nonassessment of fees.</E> No fees will be assessed to any requester, including commercial use requesters, if the cost of routine collection and processing of the fee would be equal to or greater than the fee itself. To make this determination, the OSC will consider the administrative costs of receiving and recording a requester's remittance and processing the fee for deposit.</P> <P>(f) <E T="03">Other charges.</E> Complying with requests for special services, such as certification of records as true copies and sending records by special methods (e.g., express mail) is entirely at the discretion of the Office. Since neither the Freedom of Information Act nor its fee structure covers these kinds of services, the OSC will assess fees to recover the full costs of providing these services should the Office elect to provide them.</P> <P>(g) <E T="03">Aggregating requests.</E> If the Office of Special Counsel reasonably believes that a requester or a group of requesters acting in concert is filing a series of requests for the purpose of evading the assessment of fees, the OSC may aggregate the requests and assess fees accordingly. One element to be considered in determining reasonable belief is the time period within which the requests are filed. Multiple requests of this type filed within a 30-day period may be presumed to have been made to avoid fees. In no case will the Office aggregate requests on unrelated subjects from one requester.</P> <P>(h) <E T="03">Advance notice of fees.</E> If it is likely that fees will exceed $25, the requester will first be notified of the estimated amount, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. The notice will offer the requester the opportunity to confer with personnel of the Office of the Special Counsel with the object of reformulating the request to meet his or her needs at a lower cost.</P> </SECTION> <SECTION> <SECTNO>§ 1820.7</SECTNO> <SUBJECT>Payments and collections.</SUBJECT> <P>(a) <E T="03">Payments.</E> Payment of fees shall be made by check or money order payable to the United States Treasury.</P> <P>(b) <E T="03">Advance payments.</E> A requester is not required to make an advance payment unless:</P> <P>(1) The OSC estimates or determines that the requester may be required to pay fees in excess of $250, in which case the requester will be notified of the estimated cost. The requester must then furnish satisfactory assurance of full payment if the requester has a history of prompt payment of Freedom of Information Act fees. If the requester has no history of payment, then the requester may be required to furnish an advance payment up to the full estimated cost; or</P> <P>(2) The requester has previously failed to pay a fee assessed in a timely fashion (i.e. within 30 days of the date of billing), in which case the requester may be required to—</P> <P>(i) Pay the full amount owed plus any applicable interest as provided in paragraph (d) of this section, or prove payment of the alleged amount in arrears, and</P> <P>(ii) Make an advance payment of the full amount of the estimated cost before a new or pending request will be processed.</P> <P>(c) <E T="03">Effect of nonpayment.</E> When the OSC acts under either paragraph (b)(2)(i) or (b)(2)(ii) of this section, the administrative time limits prescribed in 5 U.S.C. 552(a)(6) of the Freedom of Information Act will begin only after the fee payments described above have been received.</P> <P>(d) <E T="03">Interest charges.</E> Interest may be charged to any requester who fails to pay fees assessed within 30 days of the date of billing. Interest will be assessed on the 31st day following the day on which the bill for fees was sent, and <PRTPAGE P="329"/>will be calculated at the rate prescribed in 31 U.S.C. 3717. Receipt of fees, even if not processed, will stay the accrual of interest.</P> <P>(e) <E T="03">Collections.</E> If the OSC deems it appropriate in order to encourage repayment of fees assessed in accordance with these regulations, the OSC will use the procedures authorized by the Debt Collection Act of 1982 (Public Law No. 97-365), including disclosure to consumer reporting agencies and use of collection agencies.</P> </SECTION> <SECTION> <SECTNO>§ 1820.8</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>Any denial, in whole or in part, of a request for records of the Office of Special Counsel shall advise the requester of his right to appeal the denial to the Special Counsel or the Special Counsel's designee. The requester shall submit his appeal in writing within 30 days of the denial. The appeal shall be addressed to the Special Counsel at 1730 M Street NW., Suite 201, Washington, DC 20036-4505. When a request is denied on appeal, the requester shall be advised of his right to seek judicial review.</P> <CITA>[54 FR 47342, Nov. 14, 1989, as amended at 59 FR 64843, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1820.9</SECTNO> <SUBJECT>Disclosures by authorized officials.</SUBJECT> <P>No employee or former employee of the Office of Special Counsel shall, in response to a demand of a court or other authority, produce or disclose any information or records acquired as part of the performance of his official duties or because of his official status without the prior approval of the Special Counsel or the Special Counsel's duly authorized designee.</P> </SECTION> </PART> <PART> <EAR>Pt. 1830</EAR> <HD SOURCE="HED">PART 1830—PRIVACY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1830.1</SECTNO> <SUBJECT>Access to records and identification.</SUBJECT> <SECTNO>1830.2</SECTNO> <SUBJECT>Medical records.</SUBJECT> <SECTNO>1830.3</SECTNO> <SUBJECT>Requests for amendment of records.</SUBJECT> <SECTNO>1830.4</SECTNO> <SUBJECT>Appeals.</SUBJECT> <SECTNO>1830.5</SECTNO> <SUBJECT>Exemptions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a(f), 1212(g).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 47344, Nov. 14, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1830.1</SECTNO> <SUBJECT>Access to records and identification.</SUBJECT> <P>(a) Individuals may request access to records pertaining to them that are maintained as described in the Privacy Act, 5 U.S.C. 552a, by addressing an inquiry to the Office of Special Counsel either by mail or by appearing in person at the Office of Special Counsel at 1730 M Street, NW., Suite 201, Washington, DC 20036-4505, during business hours on a regular business day. Requests in writing should be clearly and prominently marked “Privacy Act Request.” Requests for copies of records shall be subject to duplication fees set forth in § 1820.6 of this chapter.</P> <P>(b) Individuals making a request in person shall be required to present satisfactory proof of identity, preferably a document bearing the individual's photograph. Requests by mail or submitted other than in person should contain sufficient information to enable the Office of Special Counsel to determine that the requester and the subject of the record are one and the same. To assist in this process, individuals should submit their names and addresses, dates and places of birth, social security number, and any other known identifying information such as an agency file number or identification number and a description of the circumstances under which the records were compiled.</P> <CITA>[54 FR 47344, Nov. 14, 1989, as amended at 59 FR 64844, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1830.2</SECTNO> <SUBJECT>Medical records.</SUBJECT> <P>When a request for access involves medical records that are not otherwise exempt from disclosure, the requesting individual may be advised, if it is deemed necessary, that the records will be provided only to a physician designated in writing by the individual. Upon receipt of the designation, the physician will be permitted to review the records or to receive copies by mail upon proper verification of identity.</P> </SECTION> <SECTION> <SECTNO>§ 1830.3</SECTNO> <SUBJECT>Requests for amendment of records.</SUBJECT> <P>Individuals may request amendment of records pertaining to them that are subject to this part. Requests should be addressed, in writing, to the Special <PRTPAGE P="330"/>Counsel at 1730 M Street, NW., Suite 201, Washington, DC 20036-4505, and be clearly and prominently marked “Privacy Act Request.” Requests for amendment should include identification of records together with a statement of the basis for the requested amendment and all available supporting documents and materials. Requests for amendment shall be acknowledged not later than 10 days (excluding Saturdays, Sundays, and legal holidays) after receipt and a determination on the request shall be made promptly.</P> <CITA>[54 FR 47344, Nov. 14, 1989, as amended at 59 FR 64844, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1830.4</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>When a request for access or amendment has been denied, in whole or in part, the requester shall be advised of his right to appeal to the Special Counsel or the Special Counsel's designee. The requester shall submit his appeal in writing within 30 days of the denial. A final determination on the appeal shall be issued within 30 days (excluding Saturdays, Sundays, and legal holidays) after receipt. Where unusual circumstances prevent a determination within that time period, the time for a determination may be extended an additional 30 working days.</P> </SECTION> <SECTION> <SECTNO>§ 1830.5</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>The Office of Special Counsel will claim exemptions from the provisions of the Privacy Act at subsections (c)(3) and (d) as permitted by subsection (k) for records subject to the Act that fall within the category of investigatory material described in paragraphs (2) and (5) and testing or examination material described in paragraph (6) of that subsection. The exemptions for investigatory material are necessary to prevent frustration of inquiries into allegations of prohibited personnel practices or political activity and to protect identities of confidential sources of information. The exemption for testing or examination material is necessary to prevent the disclosure of information which would potentially give an individual an unfair competitive advantage or diminish the utility of established examination procedures. The Office of Special Counsel also reserves the right to assert exemptions for records received from another agency that could be properly claimed by that agency in responding to a request and the Office of Special Counsel may refuse access to information compiled in reasonable anticipation of a civil action or proceeding.</P> </SECTION> </PART> <PART> <EAR>Pt. 1840</EAR> <HD SOURCE="HED">PART 1840—SUBPOENAS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1212(e).</P> </AUTH> <SECTION> <SECTNO>§ 1840.1</SECTNO> <SUBJECT>Service of subpoenas by mail.</SUBJECT> <P>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.</P> <CITA>[54 FR 47345, Nov. 14, 1989]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1850</EAR> <HD SOURCE="HED">PART 1850—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF SPECIAL COUNSEL</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1850.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1850.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1850.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1850.104—1850.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>1850.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>1850.112—1850.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>1850.131—1850.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>1850.141—1850.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>1850.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>1850.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>1850.152—1850.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1850.161—1850.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1850.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>1850.171—1850.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 25881 and 25885, July 8, 1988, unless otherwise noted. Redesignated at 54 FR 47345, Nov. 14, 1989.</P> </SOURCE> <SECTION> <PRTPAGE P="331"/> <SECTNO>§ 1850.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 handicap in programs or activities conducted by Executive agencies or the United States Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 1850.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This regulation (§§ 1850.101-1850.170) 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.</P> </SECTION> <SECTION> <SECTNO>§ 1850.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this regulation, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> 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.</P> <P> <E T="03">Complete complaint</E> 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.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P> <P> <E T="03">Historic properties</E> 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.</P> <P> <E T="03">Individual with handicaps</E> 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.</P> <P>As used in this definition, the phrase:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(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</P> <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> 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.</P> <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> 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.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—<PRTPAGE P="332"/> </P> <P>(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;</P> <P>(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</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified individual with handicaps</E> means—</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(4) <E T="03">Qualified handicapped person</E> as that term is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this regulation by § 1850.140.</P> <P> <E T="03">Section 504</E> 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.</P> <P> <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.104—1850.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.</P> <P>(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).</P> <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P> <P>(1) A description of areas examined and any problems identified; and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 1850.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.112—1850.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(a) No qualified individual with handicaps shall, on the basis of handicap, be excluded from participation in, <PRTPAGE P="333"/>be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P> <P>(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—</P> <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(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;</P> <P>(iii) Provide a qualified individual with handicaps 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;</P> <P>(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;</P> <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P> <P>(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.</P> <P>(2) The agency may not deny a qualified individual with handicaps 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.</P> <P>(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—</P> <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(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</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(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.</P> <P>(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 regulation.</P> <P>(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 regulation.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.131—1850.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>No qualified individual with handicaps shall, on the basis of handicap, be subject to discrimination in employment under any program or activity <PRTPAGE P="334"/>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 1613, shall apply to employment in federally conducted programs or activities.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.141—1850.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>Except as otherwise provided in § 1850.150, 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.</P> </SECTION> <SECTION> <SECTNO>§ 1850.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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—</P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P> <P>(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</P> <P>(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 § 1850.150(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 handicaps receive the benefits and services of the program or activity.</P> <P>(b) <E T="03">Methods</E>—(1) <E T="03">General</E>. 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.</P> <P>(2) <E T="03">Historic preservation programs.</E> In meeting the requirements of § 1850.150(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 § 1850.150(a) (2) or (3), alternative methods of achieving program accessibility include—</P> <P>(i) Using audio-visual materials and devices to depict those portions of an <PRTPAGE P="335"/>historic property that cannot otherwise be made accessible;</P> <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P> <P>(iii) Adopting other innovative methods.</P> <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by November 7, 1988, except that where structural changes in facilities are undertaken, such changes shall be made by September 6, 1991, but in any event as expeditiously as possible.</P> <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by March 6, 1989, 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—</P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(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</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 1850.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.152—1850.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(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.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with handicaps.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="336"/>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 § 1850.160 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.</P> </SECTION> <SECTION> <SECTNO>§§ 1850.161—1850.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1850.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(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.</P> <P>(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 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P> <P>(c) The Managing Director for Operations shall be responsible for coordinating implementation of this section. Complaints may be sent to the Director for Management, Office of the Special Counsel, 1730 M Street, NW., Suite 201, Washington, DC 20036-4505.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found; and</P> <P>(3) A notice of the right to appeal.</P> <P>(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 § 1850.170(g). The agency may extend this time for good cause.</P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(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.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(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.</P> <CITA>[53 FR 25881 and 25885, July 8, 1988, as amended at 53 FR 25881, July 8, 1988. Redesignated and amended at 54 FR 47345, Nov. 14, 1989; 59 FR 64844, Dec. 16, 1994; 65 FR 81325, Dec. 26, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1850.171—1850.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. IX (1-1-02 Edition)</LRH> <RRH>Appalachian Regional Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="337"/> <HD SOURCE="HED">CHAPTER IX—APPALACHIAN REGIONAL COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1900</PT> <SUBJECT>Employee responsibilities and conduct</SUBJECT> <PG>339</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="339"/> <EAR>Pt. 1900</EAR> <HD SOURCE="HED">PART 1900—EMPLOYEE RESPONSIBILITIES AND CONDUCT</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301, 40 U.S.C. App. 106.</P> </AUTH> <SECTION> <SECTNO>§ 1900.100</SECTNO> <SUBJECT>Cross-references to employee ethical conduct standards and financial disclosure regulations.</SUBJECT> <P>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.</P> <CITA>[60 FR 62702, Dec. 7, 1995; 61 FR 13051, Mar. 26, 1996]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XI (1-1-02 Edition)</LRH> <RRH>Armed Forces Retirement Home</RRH> <TOC> <TOCHD> <PRTPAGE P="341"/> <HD SOURCE="HED">CHAPTER XI—ARMED FORCES RETIREMENT HOME</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>2100</PT> <SUBJECT>Armed Forces Retirement Home Privacy Act procedures</SUBJECT> <PG>343</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="343"/> <EAR>Pt. 2100</EAR> <HD SOURCE="HED">PART 2100—ARMED FORCES RETIREMENT HOME PRIVACY ACT PROCEDURES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2100.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2100.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2100.3</SECTNO> <SUBJECT>Procedure for requesting information.</SUBJECT> <SECTNO>2100.4</SECTNO> <SUBJECT>Requirements for identification.</SUBJECT> <SECTNO>2100.5</SECTNO> <SUBJECT>Access by individuals.</SUBJECT> <SECTNO>2100.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <SECTNO>2100.7</SECTNO> <SUBJECT>Request for correction or amendment.</SUBJECT> <SECTNO>2100.8</SECTNO> <SUBJECT>Review of request for amendment.</SUBJECT> <SECTNO>2100.9</SECTNO> <SUBJECT>Appeal of denial to grant access or to amend records.</SUBJECT> <SECTNO>2100.10</SECTNO> <SUBJECT>Conditions of disclosure and accounting of certain disclosures.</SUBJECT> <SECTNO>2100.11</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>2100.12</SECTNO> <SUBJECT>Accounting of disclosure.</SUBJECT> <SECTNO>2100.13</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Public Law 93-579, 88 Stat. 1896, 5 U.S.C. 552a(f).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 30669, June 15, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2100.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) All terms used in this part which are defined in 5 U.S.C. 552a, as amended, shall have the same meaning herein.</P> <P>(b) <E T="03">Agency,</E> as used in this part, means the Armed Forces Retirement Home (AFRH).</P> <P>(c) <E T="03">Facility</E> or <E T="03">facilities</E> 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).</P> <P>(d) <E T="03">Access</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.3</SECTNO> <SUBJECT>Procedure for requesting information.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.4</SECTNO> <SUBJECT>Requirements for identification.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.5</SECTNO> <SUBJECT>Access by individuals.</SUBJECT> <P>(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 <PRTPAGE P="344"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>(a) Individuals will not be charged for:</P> <P>(1) The search and review of the record.</P> <P>(2) Copies of the record produced as a necessary part of the process of making the record available for access; or,</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(5) A receipt for fees paid will be given upon request.</P> </SECTION> <SECTION> <SECTNO>§ 2100.7</SECTNO> <SUBJECT>Request for correction or amendment.</SUBJECT> <P>(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 <PRTPAGE P="345"/>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.</P> <P>(b) Requirements of identification as outlined in § 2100.4 apply to requests to correct or amend a file.</P> <P>(c) Incomplete requests shall not be honored, but the requester shall be contacted for the additional information needed to process the request.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.8</SECTNO> <SUBJECT>Review of request for amendment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 2100.9</SECTNO> <SUBJECT>Appeal of denial to grant access or to amend records.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.10</SECTNO> <SUBJECT>Conditions of disclosure and accounting of certain disclosures.</SUBJECT> <P>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, <PRTPAGE P="346"/>as amended, unless when such disclosure is:</P> <P>(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;</P> <P>(b) Required under 5 U.S.C. 552;</P> <P>(c) For a routine use of the record compatible with the purpose for which it was collected;</P> <P>(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.;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(j) To the Comptroller General, or any authorized representatives, in the course of the performance of the duties of the General Accounting Office;</P> <P>(k) Pursuant to the order of a court of competent jurisdiction; or</P> <P>(l) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).</P> </SECTION> <SECTION> <SECTNO>§ 2100.11</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) All of these offenses are misdemeanors with a fine not to exceed $5,000.</P> </SECTION> <SECTION> <SECTNO>§ 2100.12</SECTNO> <SUBJECT>Accounting of disclosure.</SUBJECT> <P>(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—</P> <P>(1) When the disclosure is made pursuant to the Freedom of Information Act, 5 U.S.C. 552, as amended; or</P> <P>(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.</P> <P>(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:<PRTPAGE P="347"/> </P> <P>(1) A brief description of the record disclosed;</P> <P>(2) The date, nature, and purpose for the disclosure; and,</P> <P>(3) The name and address of the person, agency, or other entity to whom the disclosure is made.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2100.13</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> <P>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:</P> <P>(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).</P> <P>(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).</P> <P>(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).</P> <P>(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).</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XIV (1-1-02 Edition)</LRH> <RRH>Federal Labor Relations Authority</RRH> <TOC> <TOCHD> <PRTPAGE P="349"/> <HD SOURCE="HED">CHAPTER XIV—FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—TRANSITION RULES AND REGULATIONS [RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—GENERAL PROVISIONS</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>2411</PT> <SUBJECT>Availability of official information</SUBJECT> <PG>351</PG> <PT>2412</PT> <SUBJECT>Privacy</SUBJECT> <PG>360</PG> <PT>2413</PT> <SUBJECT>Open meetings</SUBJECT> <PG>365</PG> <PT>2414</PT> <SUBJECT>Ex parte communications</SUBJECT> <PG>368</PG> <PT>2415</PT> <SUBJECT>Employee responsibilities and conduct</SUBJECT> <PG>370</PG> <PT>2416</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Federal Labor Relations Authority</SUBJECT> <PG>370</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—FEDERAL LABOR RELATIONS AUTHORITY AND GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY</HD> </SUBCHAP> <CHAPTI> <PT>2420</PT> <SUBJECT>Purpose and scope</SUBJECT> <PG>377</PG> <PT>2421</PT> <SUBJECT>Meaning of terms as used in this subchapter</SUBJECT> <PG>377</PG> <PT>2422</PT> <SUBJECT>Representation proceedings</SUBJECT> <PG>380</PG> <PT>2423</PT> <SUBJECT>Unfair labor practice proceedings</SUBJECT> <PG>391</PG> <PT>2424</PT> <SUBJECT>Negotiability proceedings</SUBJECT> <PG>405</PG> <PT>2425</PT> <SUBJECT>Review of arbitration awards</SUBJECT> <PG>414</PG> <PT>2426</PT> <SUBJECT>National consultation rights and consultation rights on Government-wide rules or regulations</SUBJECT> <PG>414</PG> <PT>2427</PT> <SUBJECT>General statements of policy or guidance</SUBJECT> <PG>419</PG> <PT>2428</PT> <SUBJECT>Enforcement of Assistant Secretary standards of conduct decisions and orders</SUBJECT> <PG>420</PG> <PT>2429</PT> <SUBJECT>Miscellaneous and general requirements</SUBJECT> <PG>420</PG> <PT>2430</PT> <SUBJECT>Awards of attorney fees and other expenses</SUBJECT> <PG>426</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—FEDERAL SERVICE IMPASSES PANEL</HD> </SUBCHAP> <CHAPTI> <PT>2470</PT> <SUBJECT>General</SUBJECT> <PG>432<PRTPAGE P="350"/> </PG> <PT>2471</PT> <SUBJECT>Procedures of the panel</SUBJECT> <PG>432</PG> <PT>2472</PT> <SUBJECT>Impasses arising pursuant to agency determinations not to establish or to terminate flexible or compressed work schedules</SUBJECT> <PG>436</PG> <PT>2473</PT> <SUBJECT>Subpoenas</SUBJECT> <PG>440</PG> </CHAPTI> <APP>Appendix A to 5 CFR Chapter XIV—Current Addresses and Geographic Jurisdictions</APP> <PG>441</PG> <APP>Appendix B to 5 CFR Chapter XIV—Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority</APP> <PG>442</PG> </TOC> <SUBCHAP TYPE="P"> <PRTPAGE P="351"/> <HD SOURCE="HED">SUBCHAPTER A—TRANSITION RULES AND REGULATIONS [RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—GENERAL PROVISIONS</HD> <PART> <EAR>Pt. 2411</EAR> <HD SOURCE="HED">PART 2411—AVAILABILITY OF OFFICIAL INFORMATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2411.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2411.2</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <SECTNO>2411.3</SECTNO> <SUBJECT>Information policy.</SUBJECT> <SECTNO>2411.4</SECTNO> <SUBJECT>Procedure for obtaining information.</SUBJECT> <SECTNO>2411.5</SECTNO> <SUBJECT>Identification of information requested.</SUBJECT> <SECTNO>2411.6</SECTNO> <SUBJECT>Time limits for processing requests.</SUBJECT> <SECTNO>2411.7</SECTNO> <SUBJECT>Appeal from denial of request.</SUBJECT> <SECTNO>2411.8</SECTNO> <SUBJECT>Modification of time limits.</SUBJECT> <SECTNO>2411.9</SECTNO> <SUBJECT>Effect of failure to meet time limits.</SUBJECT> <SECTNO>2411.10</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>2411.11</SECTNO> <SUBJECT>Compliance with subpenas.</SUBJECT> <SECTNO>2411.12</SECTNO> <SUBJECT>Annual report.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3488, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2411.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part contains the regulations of the Federal Labor Relations Authority, the General Counsel of the Federal Labor Relations Authority and the Federal Service Impasses Panel providing for public access to information from the Authority, the General Counsel or the Panel. These regulations implement the Freedom of Information Act, as amended, 5 U.S.C. 552, and the policy of the Authority, the General Counsel and the Panel to disseminate information on matters of interest to the public and to disclose to members of the public on request such information contained in records insofar as is compatible with the discharge of their responsibilities, consistent with applicable law.</P> </SECTION> <SECTION> <SECTNO>§ 2411.2</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <P>(a) <E T="03">Federal Labor Relations Authority/General Counsel of the Federal Labor Relations Authority.</E> Regional Directors of the Federal Labor Relations Authority, the Freedom of Information Officer of the Office of the General Counsel, Washington, DC, and the Solicitor of the Federal Labor Relations Authority are delegated the exclusive authority to act upon all requests for information, documents and records which are received from any person or organization under § 2411.4(a).</P> <P>(b) <E T="03">Federal Service Impasses Panel.</E> The Executive Director of the Federal Service Impasses Panel is delegated the exclusive authority to act upon all requests for information, documents and records which are received from any person or organization under § 2411.4(b).</P> </SECTION> <SECTION> <SECTNO>§ 2411.3</SECTNO> <SUBJECT>Information policy.</SUBJECT> <P>(a) <E T="03">Federal Labor Relations Authority/General Counsel of the Federal Labor Relations Authority.</E> (1) It is the policy of the Federal Labor Relations Authority and the General Counsel of the Federal Labor Relations Authority to make available for public inspection and copying: (i) Final decisions and orders of the Authority and administrative rulings of the General Counsel; (ii) statements of policy and interpretations which have been adopted by the Authority or by the General Counsel and are not published in the <E T="04">Federal Register</E>; and (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). Any person may examine and copy items (i) through (iii) at each regional office of the Authority and at the offices of the Authority and the General Counsel, respectively, in Washington, DC, under conditions prescribed by the Authority and the General Counsel, respectively, and at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Authority and the General Counsel. 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.</P> <P>(2) It is the policy of the Authority and the General Counsel to make promptly available for public inspection and copying, upon request by any <PRTPAGE P="352"/>person, other records where the request reasonably describes such records and otherwise conforms with the rules provided herein.</P> <P>(b) <E T="03">Federal Service Impasses Panel.</E> (1) It is the policy of the Federal Service Impasses Panel to make available for public inspection and copying: (i) Procedural determinations of the Panel; (ii) factfinding and arbitration reports; (iii) final decisions and orders of the Panel; (iv) statements of policy and interpretations which have been adopted by the Panel and are not published in the <E T="04">Federal Register</E>; and (v) administrative staff manuals and instructions to staff that affect a member of the public. Any person may examine and copy items (i) through (v) at the Panel's offices in Washington, D.C., under conditions prescribed by the Panel, and at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Panel. 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.</P> <P>(2) It is the policy of the Panel to make promptly available for public inspection and copying, upon request by any person, other records where the request reasonably describes such records and otherwise conforms with the rules provided herein.</P> <P>(c) The Authority, the General Counsel and the Panel shall maintain and make available for public inspection and copying the current indexes and supplements thereto which 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 or the Panel at the offices of either the Authority, the General Counsel, or the Panel, as appropriate, in Washington, D.C., under conditions prescribed by the Authority, the General Counsel or the Panel at reasonable times during normal working hours so long as it does not interfere with the efficient operations of either the Authority, the General Counsel, or the Panel.</P> <P>(d) The Authority, the General Counsel or the Panel may decline to disclose any matters exempted from the disclosure requirements in 5 U.S.C. 552(b), particularly those that are:</P> <P>(1)(i) Specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and (ii) are in fact properly classified pursuant to such executive order;</P> <P>(2) Related solely to internal personnel rules and practices of the Authority, the General Counsel or the Panel;</P> <P>(3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute:</P> <P>(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or</P> <P>(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;</P> <P>(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;</P> <P>(5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;</P> <P>(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; or</P> <P>(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would:</P> <P>(i) Interfere with an enforcement proceeding;</P> <P>(ii) Deprive a person of a right to a fair trial or an impartial adjudication;</P> <P>(iii) Constitute an unwarranted invasion of personal privacy;</P> <P>(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 an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;<PRTPAGE P="353"/> </P> <P>(v) Disclose investigative techniques and procedures; or</P> <P>(vi) Endanger the life or physical safety of law enforcement personnel.</P> <P>(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 or the Panel in Washington, D.C., as appropriate, under conditions prescribed by the Authority, the General Counsel or the Panel at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Authority, the General Counsel or the Panel.</P> <P>(2) The Authority, the General Counsel or the Panel, 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.</P> <P>(f)(1) Copies of forms prescribed by the Authority for the filing of charges and petitions may be obtained without charge from any regional office of the Authority.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2411.4</SECTNO> <SUBJECT>Procedure for obtaining information.</SUBJECT> <P>(a) <E T="03">Federal Labor Relations Authority/General Counsel of the Federal Labor Relations Authority.</E> Any person who desires to inspect or copy any records, documents or other information of the Authority or the General Counsel, covered by this part, other than those specified in paragraphs (a)(1) and (c) of § 2411.3, shall submit a written request to that effect as follows:</P> <P>(1) If the request is for records, documents or other information in a regional office of the Authority, it should be made to the appropriate Regional Director;</P> <P>(2) If the request is for records, documents or other information in the Office of the General Counsel and located in Washington, DC, it should be made to the Freedom of Information Officer, Office of the General Counsel, Washington, DC; and</P> <P>(3) If the request is for records, documents or other information in the offices of the Authority in Washington, D.C., it should be made to the Solicitor of the Authority, Washington, D.C.</P> <P>(b) <E T="03">Federal Service Impasses Panel.</E> Any person who desires to inspect or copy any records, documents or other information of the Panel covered by this part, other than those specified in paragraphs (b)(1) and (c) of § 2411.3, shall submit a written request to that effect to the Executive Director, Federal Service Impasses Panel, Washington, DC.</P> <P>(c) All requests under this part should be clearly and prominently identified as a request for information under the Freedom of Information Act 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. If a request does not comply with the provisions of this paragraph, it shall not be deemed received by the appropriate Regional Director, the Freedom of Information Officer of the Office of the General Counsel, the Solicitor of the Authority, or the Executive Director of the Panel, as appropriate, until the time it is actually received by such person.</P> </SECTION> <SECTION> <SECTNO>§ 2411.5</SECTNO> <SUBJECT>Identification of information requested.</SUBJECT> <P>(a) Each request under this part should reasonably describe the records being sought in a way that they can be identified and located. A request should include all pertinent details that will help identify the records sought.</P> <P>(b) If the description is insufficient, the officer processing the request will 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 record sought.</P> <P>(c) Upon receipt of a request for records, the appropriate Regional Director, the Freedom of Information Officer of the Office of the General Counsel, the Solicitor of the Authority, or the Executive Director of the Panel, as <PRTPAGE P="354"/>appropriate, shall enter it in a public log. The log shall state the date and time received, the name and address of the person making the request, the nature of the records requested, the action taken on the request, the date of the determination letter sent pursuant to paragraphs (b) and (c) of § 2411.6, the date(s) any records are subsequently furnished, the number of staff-hours and grade levels of persons who spent time responding to the request, and the payment requested and received.</P> </SECTION> <SECTION> <SECTNO>§ 2411.6</SECTNO> <SUBJECT>Time limits for processing requests.</SUBJECT> <P>(a) All time limits established pursuant to this section shall begin as of the time at which a request for records is logged in by the appropriate Regional Director, the Freedom of Information Officer of the Office of the General Counsel, the Solicitor of the Authority, or the Executive Director of the Panel, as appropriate, processing the request pursuant to paragraph (c) of § 2411.5. 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 set forth in paragraph (b) of this section shall begin upon the request being logged in as required by paragraph (c) of § 2411.5.</P> <P>(b) Except as provided in § 2411.8, the appropriate Regional Director, the Freedom of Information Officer of the Office of the General Counsel, the Solicitor of the Authority, or the Executive Director of the Panel, as appropriate, shall, within twenty (20) working days following receipt of the request, respond in writing to the requester, determining whether, or the extent to which, the request shall be complied with.</P> <P>(1) If all 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.</P> <P>(2) If all of the records have not been located or a final determination has not been made with respect to disclosure of all 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.</P> <P>(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 § 2411.10 before the request is processed further.</P> <P>(4) Whenever possible, 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 Authority, the General Counsel or the Panel.</P> <P>(c) If any request for records is denied in whole or in part, the response required by paragraph (b) of this section shall notify the requester of the denial. Such denial shall specify the reason therefor, 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 § 2411.7.</P> <CITA>[45 FR 3488, Jan. 17, 1980, as amended at 52 FR 26128, July 13, 1987; 62 FR 60997, Nov. 14, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2411.7</SECTNO> <SUBJECT>Appeal from denial of request.</SUBJECT> <P>(a) <E T="03">Federal Labor Relations Authority/General Counsel of the Federal Labor Relations Authority.</E> (1) Whenever any request for records is denied, a written appeal may be filed within thirty (30) 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. If the denial was made by a Regional Director or by the Freedom of Information Officer of the Office of the General Counsel, the appeal shall be filed with the General Counsel in Washington, DC. If the denial was made by the Solicitor of the Authority, the appeal shall be filed with the Chairman of the Authority in Washington, DC.</P> <P>(2) The Chairman of the Authority or the General Counsel, as appropriate, shall, within twenty (20) working days from the time of receipt of the appeal, except as provided in § 2411.8, make a <PRTPAGE P="355"/>determination on the appeal and respond in writing to the requester, determining whether, or the extent to which, the request shall be complied with.</P> <P>(i) If the determination is to comply with the request and the request is expected to involve an assessed fee in excess of $25.00, the determination shall specify or estimate the fee involved and shall require prepayment of any charges due in accordance with the provisions of paragraph (a) of § 2411.10 before the records are made available.</P> <P>(ii) Whenever possible, the determination relating to a request for records that involves a fee of less than $25.00 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 Authority or the General Counsel.</P> <P>(b) <E T="03">Federal Service Impasses Panel.</E> (1) Whenever any request for records is denied by the Executive Director, a written appeal may be filed with the Chairman of the Panel within thirty (30) 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.</P> <P>(2) The Chairman of the Panel, within twenty (20) working days from the time of receipt of the appeal, except as provided in § 2411.8, shall make a determination on the appeal and respond in writing to the requester, determining whether, or the extent to which, the request shall be complied with.</P> <P>(i) If the determination is to comply with the request and the request is expected to involve an assessed fee in excess of $25.00, the determination shall specify or estimate the fee involved and shall require prepayment of any charges due in accordance with the provisions of paragraph (a) of § 2411.10 before the records are made available.</P> <P>(ii) Whenever possible, the determination relating to a request for records that involves a fee of less than $25.00 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 Panel.</P> <P>(c) 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, 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). 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, 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.</P> </SECTION> <SECTION> <SECTNO>§ 2411.8</SECTNO> <SUBJECT>Modification of time limits.</SUBJECT> <P>(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 officer 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. No such notice shall specify a date that would result in a total extension of more than ten (10) working days. As used in this section, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request:</P> <P>(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;</P> <P>(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</P> <P>(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a <PRTPAGE P="356"/>substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.</P> <P>(b) 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 ten (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:</P> <P>(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</P> <P>(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.</P> <CITA>[64 FR 18799, Apr. 16, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2411.9</SECTNO> <SUBJECT>Effect of failure to meet time limits.</SUBJECT> <P>Failure by the Authority, the General Counsel or the Panel either to deny or grant any request under this part within the time limits prescribed by the Freedom of Information Act, as amended, 5 U.S.C. 552, and these regulations shall be deemed to be an exhaustion of the administrative remedies available to the person making this request.</P> </SECTION> <SECTION> <SECTNO>§ 2411.10</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">Definitions</E>. For the purpose of this section:</P> <P>(1) The term <E T="03">direct costs</E> means those expenditures which the Authority, the General Counsel or the Panel 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 duplicating 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.</P> <P>(2) The term <E T="03">search</E> 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. Searches may be done manually or by computer using existing programming.</P> <P>(3) The term <E T="03">duplication</E> 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, microfilm, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others.</P> <P>(4) The term <E T="03">review</E> 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 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.</P> <P>(5) The term <E T="03">“commercial use” request</E> 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 Authority, the General Counsel or the Panel will look first to the use to which a requester will put the document requested. Where the Authority, the General Counsel or the Panel 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 Authority, the General <PRTPAGE P="357"/>Counsel or the Panel may seek additional clarification before assigning the request to a specific category.</P> <P>(6) The term <E T="03">educational institution</E> refers to 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, which operates a program or programs of scholarly research.</P> <P>(7) The term <E T="03">non-commercial scientific institution</E> 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 which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.</P> <P>(8) The term <E T="03">representative of the news media</E> refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> 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 in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. In the case of “freelance” journalists, they may be regarded as working for a news organization if they demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the Authority, the General Counsel or the Panel may also look to the past publication record of a requester, press accreditation, guild membership, business registration, Federal Communications Commission licensing, or similar credentials of a requester in making this determination.</P> <P>(b) <E T="03">Exceptions to fee charges.</E> (1) With the exception of requesters seeking documents for a commercial use, the Authority, the General Counsel or the Panel 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<FR>1/2</FR>″ by 11″, or their equivalent in microfiche or computer disks. The term “search time” in this paragraph is based on a manual search for records. In applying this term to searches made by computer, when the cost of the search as set forth in paragraph (d)(2) of this section equals the equivalent dollar amount of two hours of the salary of the person performing the search, the Authority, the General Counsel or the Panel will begin assessing charges for computer search.</P> <P>(2) The Authority, the General Counsel, or the Panel 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.</P> <P>(3)(i) The Authority, the General Counsel or the Panel 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.</P> <P>(ii) In determining whether disclosure is in the public interest under paragraph (b)(3)(i) of this section, the Authority, the General Counsel, and the Panel will consider the following factors:</P> <P>(<E T="03">a</E>) <E T="03">The subject of the request.</E> Whether the subject of the requested records concerns “the operations or activities of the government”;</P> <P>(<E T="03">b</E>) <E T="03">The informative value of the information to be disclosed.</E> Whether the disclosure is “likely to contribute” to an understanding of government operations or activities;</P> <P>(<E T="03">c</E>) <E T="03">The contribution to an understanding of the subject by the general public likely to result from disclosure.</E> Whether disclosure of the requested information will contribute to “public understanding”;</P> <P>(<E T="03">d</E>) <E T="03">The significance of the contribution to the public understanding.</E> Whether the <PRTPAGE P="358"/>disclosure is likely to contribute “significantly” to public understanding of government operations or activities;</P> <P>(<E T="03">e</E>) <E T="03">The existence and magnitude of a commercial interest.</E> Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so</P> <P>(<E T="03">f</E>) <E T="03">The primary interest in disclosure.</E> 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 “primary in the commercial interest of the requester.”</P> <P>(iii) A request for a fee waiver based on the public interest under paragraph (b)(3)(i) of this section must address these factors as they apply to the request for records in order to be considered by the Authority, the General Counsel, or the Panel.</P> <P>(c) <E T="03">Level of fees to be charged.</E> The level of fees to be charged by the Authority, the General Counsel or the Panel, 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:</P> <P>(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.</P> <P>(2) A request for documents from an educational or non-commercial scientific institution will be charged for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made under the auspices of a qualifying 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.</P> <P>(3) The Authority, the General Counsel or the Panel shall provide documents to requesters who are representatives of the news media for the cost of reproduction alone, excluding charges for the first 100 pages.</P> <P>(4) The Authority, the General Counsel or the Panel shall charge requesters who do not fit into any of the categories above fees which recover the full 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 shall be furnished without charge. Requests from record subjects for records about themselves filed in Authority, General Counsel, or Panel systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permits fees only for reproduction.</P> <FP>All requesters must reasonably describe the records sought.</FP> <P>(d) The following fees shall be charged in accordance with paragraph (c) of this section:</P> <P>(1) <E T="03">Manual searches for records.</E> 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 Authority, the General Counsel or the Panel fails to locate records or if records located are determined to be exempt from disclosure.</P> <P>(2) <E T="03">Computer searches for records.</E> $4.15 per quarter hour, which the Authority, the General Counsel and the Panel determined to be the actual direct cost of providing the service, including computer search time directly attributable to searching for records responsive to a FOIA request, runs, and operator salary apportionable to the search.</P> <P>(3) <E T="03">Review of records.</E> The salary rate (i.e., basic pay plus 16 percent) 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.</P> <P>(4) <E T="03">Duplication of records.</E> Twenty-five cents per page for paper copy reproduction of documents, which the Authority, the General Counsel and the Panel determined is the reasonable direct cost of making such copies, taking into account the average salary of the operator and the cost of the reproduction <PRTPAGE P="359"/>machinery. For copies of records prepared by computer, such as tapes or printouts, the Authority, the General Counsel or the Panel shall charge the actual cost, including operator time, of production of the tape or printout.</P> <P>(5) <E T="03">Forwarding material to destination.</E> Postage, insurance and special fees will be charged on an actual cost basis.</P> <P>(e) <E T="03">Aggregating requests.</E> When the Authority, the General Counsel or the Panel 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 Authority, the General Counsel or the Panel will aggregate any such requests and charge accordingly.</P> <P>(f) <E T="03">Charging interest.</E> Interest at the rate prescribed in 31 U.S.C. 3717 may be charged those requesters who fail to pay fees charged, beginning on the 30th day following the billing date. Receipt of a fee by the Authority, the General Counsel or the Panel, whether processed or not, will stay the accrual of interest.</P> <P>(g) <E T="03">Advanced payments.</E> The Authority, the General Counsel or the Panel will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:</P> <P>(1) The Authority, the General Counsel or the Panel estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then the Authority, the General Counsel or the Panel 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</P> <P>(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 Authority, the General Counsel or the Panel requires the requester to pay the full amount owed plus any applicable interest as provided above 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 Authority, the General Counsel or the Panel 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 Authority, the General Counsel or the Panel has received fee payments described above.</P> <P>(h) Requests for copies of transcripts of hearings should be made to the official hearing reporter. However, a person may request a copy of a transcript of a hearing from the Authority, the Panel or the General Counsel, as appropriate. In such instances, the Authority, the General Counsel or the Panel, as appropriate, may, by agreement with the person making the request, make arrangements with commercial firms for required services to be charged directly to the requester.</P> <P>(i) Payment of fees shall be made by check or money order payable to the U.S. Treasury.</P> <CITA>[52 FR 26128, July 13, 1987, as amended at 62 FR 60997, Nov. 14, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2411.11</SECTNO> <SUBJECT>Compliance with subpenas.</SUBJECT> <P>No member of the Authority or the Panel, or the General Counsel, or other officer or employee of the Authority, the Panel, or the General Counsel shall produce or present any files, documents, reports, memoranda, or records of the Authority, the Panel or the General Counsel, or testify in behalf of any party to any cause pending in any arbitration or in any court or before the Authority or the Panel, or any other board, commission, or administrative agency of the United States, territory, or the District of Columbia with respect to any information, facts, or other matter to their knowledge in their official capacity or with respect to the contents of any files, documents, reports, memoranda, or records of the Authority, the Panel or the General Counsel, whether in answer to a subpena, subpena duces tecum, or otherwise, without the written consent of <PRTPAGE P="360"/>the Authority, the Panel or the General Counsel, as appropriate. Whenever any subpena, the purpose for which is to adduce testimony or require the production of records as described above, shall have been served on any member or other officer or employee of the Authority, the Panel or the General Counsel, such person will, unless otherwise expressly directed by the Authority, the Panel or the General Counsel, as appropriate, and as provided by law, move pursuant to the applicable procedure to have such subpena invalidated on the ground that the evidence sought is privileged against disclosure by this rule.</P> </SECTION> <SECTION> <SECTNO>§ 2411.12</SECTNO> <SUBJECT>Annual report.</SUBJECT> <P>On or before March 1 of each calendar year, the Executive Director of the Authority shall submit a report of the activities of the Authority, the General Counsel and the Panel with regard to public information requests during the preceding calendar year to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of the Congress. The report shall include for such calendar year all information required by 5 U.S.C. 552(d) and such other information as indicates the efforts of the Authority, the General Counsel and the Panel to administer fully the provisions of the Freedom of Information Act, as amended.</P> </SECTION> </PART> <PART> <EAR>Pt. 2412</EAR> <HD SOURCE="HED">PART 2412—PRIVACY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2412.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2412.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2412.3</SECTNO> <SUBJECT>Notice and publication.</SUBJECT> <SECTNO>2412.4</SECTNO> <SUBJECT>Existence of records requests.</SUBJECT> <SECTNO>2412.5</SECTNO> <SUBJECT>Individual access requests.</SUBJECT> <SECTNO>2412.6</SECTNO> <SUBJECT>Initial decision on access requests.</SUBJECT> <SECTNO>2412.7</SECTNO> <SUBJECT>Special procedures; medical records.</SUBJECT> <SECTNO>2412.8</SECTNO> <SUBJECT>Limitations on disclosures.</SUBJECT> <SECTNO>2412.9</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <SECTNO>2412.10</SECTNO> <SUBJECT>Requests for correction or amendment of records.</SUBJECT> <SECTNO>2412.11</SECTNO> <SUBJECT>Initial decision on correction or amendment.</SUBJECT> <SECTNO>2412.12</SECTNO> <SUBJECT>Amendment or correction of previously disclosed records.</SUBJECT> <SECTNO>2412.13</SECTNO> <SUBJECT>Agency review of refusal to provide access to, or amendment or correction of, records.</SUBJECT> <SECTNO>2412.14</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>2412.15</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>2412.16</SECTNO> <SUBJECT>Exemptions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3491, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2412.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part contains the regulations of the Federal Labor Relations Authority, the General Counsel of the Federal Labor Relations Authority and the Federal Service Impasses Panel implementing the Privacy Act of 1974, as amended, 5 U.S.C. 552a. The regulations apply to all records maintained by the Authority, the General Counsel and the Panel that are contained in a system of records, as defined herein, and that contain information about an individual. The regulations in this part set forth procedures that: (a) Authorize an individual's access to records maintained about the individual; (b) limit the access of other persons to those records; and (c) permit an individual to request the amendment or correction of records about the individual.</P> </SECTION> <SECTION> <SECTNO>§ 2412.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part—</P> <P>(a) <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence.</P> <P>(b) <E T="03">Maintain</E> includes maintain, collect, use or disseminate.</P> <P>(c) <E T="03">Record</E> means any item, collection or grouping of information about an individual that is maintained by the Authority, the General Counsel and the Panel including, but not limited to, the individual's education, financial transactions, medical history and criminal or employment history and 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.</P> <P>(d) <E T="03">System of records</E> means a group of any records under the control of the Authority, the General Counsel and the Panel from which information is retrieved by the name of the individual or by some identifying particular assigned to the individual.</P> <P>(e) <E T="03">Routine use</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="361"/> <SECTNO>§ 2412.3</SECTNO> <SUBJECT>Notice and publication.</SUBJECT> <P>The Authority, the General Counsel, and the Panel will publish in the <E T="04">Federal Register</E> such notices describing systems of records as are required by law.</P> <CITA>[51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.4</SECTNO> <SUBJECT>Existence of records requests.</SUBJECT> <P>(a) An individual who desires to know if a system of records maintained by the Authority, the General Counsel and the Panel contains a record pertaining to the individual must submit a written inquiry as follows:</P> <P>(1) If the system of records is located in a regional office of the Authority, it should be made to the appropriate Regional Director; and</P> <P>(2) If the system of records is located in the office of the Authority, the General Counsel or the Panel in Washington, DC, it should be made to the Director of Administration of the Authority, Washington, DC.</P> <P>(b) The request shall be in writing and should be clearly and prominently identified as a Privacy Act request. If the request is submitted by mail or otherwise submitted in an envelope or other cover, it should bear the legend “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 appropriate Regional Director or the Director of Administration of the Authority, as appropriate.</P> <P>(c) The inquiry must include the name and address of the individual and reasonably describe the system of records in question by the individual. Descriptions of the systems of records maintained by the Authority, the General Counsel and the Panel have been published in the <E T="04">Federal Register</E>.</P> <P>(d) The appropriate Regional Director or the Director of Administration of the Authority, as appropriate, will advise the individual in writing within ten (10) working days from receipt of the request whether the system of records named by the individual contains a record pertaining to the individual.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.5</SECTNO> <SUBJECT>Individual access requests.</SUBJECT> <P>(a) Any individual who desires to inspect or receive copies of any record pertaining to the individual which is contained in a system of records maintained by the Authority, the General Counsel and the Panel must submit a written request reasonably identifying the records sought to be inspected or copied as follows:</P> <P>(1) If the system of records is located in a regional office of the Authority, it should be made to the appropriate Regional Director; and</P> <P>(2) If the system of records is located in the offices of the Authority, the General Counsel or the Panel in Washington, DC, it should be made to the Deputy Director of Administration of the Authority, Washington, DC.</P> <P>(b) The request shall be in writing and should be clearly and prominently identified as a Privacy Act request. If the request is submitted by mail or otherwise submitted in an envelope or other cover, it should bear the legend “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 appropriate Regional Director or the Director of Administration of the Authority, as appropriate.</P> <P>(c) An individual seeking access to a record may, if desired, be accompanied by another person during review of the records. If the requester does desire to be accompanied by another person during the inspection, the requester must sign a statement, to be furnished to the Authority, the General Counsel or the Panel representative, as appropriate, at the time of the inspection, authorizing such other person to accompany the requester.</P> <P>(d) Satisfactory identification (i.e., employee identification number, current address, and verification of signature) must be provided to the Authority, the General Counsel or the Panel representative, as appropriate, prior to review of the record.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <PRTPAGE P="362"/> <SECTNO>§ 2412.6</SECTNO> <SUBJECT>Initial decision on access requests.</SUBJECT> <P>(a) Within ten (10) working days of the receipt of a request pursuant to § 2412.5, the appropriate Regional Director or the Director of Administration of the Authority, as appropriate, shall make an initial decision whether the requested records exist and whether they will be made available to the person requesting them. That initial decision shall immediately be communicated, in writing or other appropriate form, to the person who has made the request.</P> <P>(b) Where the initial decision is to provide access to the requested records, the above writing or other appropriate communication shall:</P> <P>(1) Briefly describe the records to be made available;</P> <P>(2) State whether any records maintained, in the system of records in question, about the individual making the request are not being made available;</P> <P>(3) State that the requested records will be available during ordinary office hours at the appropriate regional office or offices of the Authority, the General Counsel or the Panel, as appropriate; and</P> <P>(4) State whether any further verification of the identity of the requesting individual is necessary.</P> <P>(c) Where the initial decision is not to provide access to requested records, the appropriate Regional Director or the Director of Administration of the Authority, as appropriate, shall by writing or other appropriate communication explain the reason for that decision. The appropriate Regional Director or the Director of Administration of the Authority, as appropriate, shall only refuse to provide an individual access where:</P> <P>(1) There is inadequate verification of identity under § 2412.5(d);</P> <P>(2) In fact no such records are maintained; or</P> <P>(3) The requested records have been compiled in a reasonable anticipation of civil or criminal action or proceedings.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.7</SECTNO> <SUBJECT>Special procedures; medical records.</SUBJECT> <P>(a) If medical records are requested for inspection which, in the opinion of the appropriate Regional Director or the Director of Administration of the Authority, as appropriate, may be harmful to the requester if personally inspected by such person, such records will be furnished only to a licensed physician 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 physician must furnish a written request for the physician's receipt of such records to the appropriate Regional Director or the Director of Administration of the Authority, as appropriate.</P> <P>(b) 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.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.8</SECTNO> <SUBJECT>Limitations on disclosures.</SUBJECT> <P>(a) Requests for records about an individual made by person other than that individual shall also be directed as follows:</P> <P>(1) If the system of records is located in a regional office of the Authority, it should be made to the appropriate Regional Director; and</P> <P>(2) If the system of records is located in the offices of the Authority, the General Counsel or the Panel in Washington, DC, it should be made to the Director of Administration of the Authority, Washington, DC.</P> <P>(b) Such records shall only be made available to persons other than that individual in the following circumstances:</P> <P>(1) To any person with the prior written consent of the individual about whom the records are maintained;</P> <P>(2) To officers and employees of the Authority, the General Counsel and the Panel who need the records in the performance of their official duties;</P> <P>(3) For a routine use compatible with the purpose for which it was collected;<PRTPAGE P="363"/> </P> <P>(4) To any person to whom disclosure is required by the Freedom of Information Act, as amended, 5 U.S.C. 552;</P> <P>(5) To the Bureau of the Census for uses pursuant to title 13 of the United States Code;</P> <P>(6) In a form not individually identifiable to a recipient who has provided the Authority, the General Counsel and the Panel with adequate assurance that the record will be used solely as a statistical research or reporting record;</P> <P>(7) To the National Archives of the United States or other appropriate entity as a record which has historical or other value warranting its preservation;</P> <P>(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 Authority, the General Counsel or the Panel;</P> <P>(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;</P> <P>(10) To either House of Congress or to any committee thereof with appropriate jurisdiction;</P> <P>(11) To the Comptroller General in the performance of the official duties of the General Accounting Office; or</P> <P>(12) Pursuant to the order of a court of competent jurisdiction.</P> <P>(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 legend “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 appropriate Regional Director or the Director of Administration of the Authority, as appropriate.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.9</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <P>(a) All Regional Directors of the Authority and the Director of Administration of the Authority shall 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:</P> <P>(1) Officers or employees of the Authority, the General Counsel or the Panel in the performance of their duties; or</P> <P>(2) Any person pursuant to the Freedom of Information Act, as amended, 5 U.S.C. 552.</P> <P>(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:</P> <P>(1) A brief description of records disclosed;</P> <P>(2) The date, nature and, where known, the purpose of the disclosure; and</P> <P>(3) The name and address of the person or agency to whom the disclosure is made.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.10</SECTNO> <SUBJECT>Requests for correction or amendment of records.</SUBJECT> <P>(a) After inspection of any records, if the individual disagrees with any information in the record, the individual may request that the records maintained about the individual be corrected or otherwise amended. Such request shall specify the particular portions of the record to be amended or corrected, the desired amendment or correction, and the reasons therefor.</P> <P>(b) Such request shall be in writing and directed as follows:</P> <P>(1) If the system of records is located in a regional office of the Authority, it should be made to the appropriate Regional Director; and</P> <P>(2) If the system of records is located in the offices of the Authority, the General Counsel or the Panel in Washington, DC, it should be made to the Deputy Director of Administration of the Authority, Washington, DC.</P> </SECTION> <SECTION> <PRTPAGE P="364"/> <SECTNO>§ 2412.11</SECTNO> <SUBJECT>Initial decision on correction or amendment.</SUBJECT> <P>(a) Within ten (10) working days from the date of receipt of a request for correction or amendment, the appropriate Regional Director or the Director of Administration of the Authority, as appropriate, will acknowledge receipt of the request and, under normal circumstances, not later than thirty (30) days from receipt of the request, will give the requesting individual notice, by mail or other appropriate means, of the decision regarding the request.</P> <P>(b) Such notice of decision shall include:</P> <P>(1) A statement whether the request has been granted or denied, in whole or in part;</P> <P>(2) A quotation or description of any amendment or correction made to any records; and</P> <P>(3) Where a request is denied in whole or in part, an explanation of the reason for that denial and of the requesting individual's right to appeal the decision to the Chairman of the Authority pursuant to § 2412.13.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.12</SECTNO> <SUBJECT>Amendment or correction of previously disclosed records.</SUBJECT> <P>Whenever a record is amended or corrected pursuant to § 2412.11 or a written statement filed pursuant to § 2412.13, the appropriate Regional Director or the Director of Administration of the Authority, as appropriate, shall give notice of that correction, amendment or written statement to all persons to whom the records or copies thereof have been disclosed, as recorded in the accounting kept pursuant to § 2412.9.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.13</SECTNO> <SUBJECT>Agency review of refusal to provide access to, or amendment or correction of, records.</SUBJECT> <P>(a) Any individual whose request for access to, or amendment or correction of, records of the Authority, the General Counsel or the Panel has been denied in whole or in part by an initial decision may, within thirty (30) days of the receipt of notice of the initial decision, appeal that decision by filing a written request for review of that decision with the Chairman of the Authority in Washington, DC.</P> <P>(b) The appeal shall describe:</P> <P>(1) The request initially made by the individual for access to, or the amendment or correction of, records;</P> <P>(2) The initial decision thereupon of the appropriate Regional Director or the Director of Administration; and</P> <P>(3) The reasons why that initial decision should be modified by the Chairman of the Authority.</P> <P>(c) Not later than thirty (30) working days from receipt of a request for review (unless such period is extended by the Chairman of the Authority for good cause shown), the Chairman of the Authority shall make a decision, and give notice thereof to the appealing individual, whether to modify the initial decision of the Regional Director or the Deputy Director of Administration, in any way. If the Chairman of the Authority upholds the Regional Director's or Deputy Director of Administration's initial decision not to provide access to requested records or not to amend or correct the records as requested, the Chairman of the Authority shall notify the appealing individual of the individual's right:</P> <P>(1) To judicial review of the Chairman of the Authority's decision pursuant to 5 U.S.C. 552a(g)(1); and</P> <P>(2) To file with the Authority a written statement of disagreement setting forth the reasons why the record should have been amended or corrected as requested. That written statement of disagreement shall be made a part of the record and shall accompany that record in any use or disclosure of the record.</P> <CITA>[45 FR 3491, Jan. 17, 1980, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2412.14</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) As provided in this part, the Authority, the General Counsel or the Panel will provide a copy of the records to the individual to whom they pertain. There will be a charge of ten cents per copy of each page.</P> <P>(b) Any charges may be waived or reduced whenever it is in the public interest to do so.</P> </SECTION> <SECTION> <PRTPAGE P="365"/> <SECTNO>§ 2412.15</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>Any person who knowingly and willfully requests or obtains any record concerning an individual from the Authority, the General Counsel or the Panel under false pretenses shall 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.</P> </SECTION> <SECTION> <SECTNO>§ 2412.16</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) <E T="03">OIG files compiled for the purpose of a criminal investigation and for related purposes.</E> 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 subsections (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), (11) and (i).</P> <P>(b) <E T="03">OIG files compiled for other law enforcement purposes.</E> 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).</P> <CITA>[56 FR 33189, July 19, 1991]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2413</EAR> <HD SOURCE="HED">PART 2413—OPEN MEETINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2413.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2413.2</SECTNO> <SUBJECT>Public observation of meetings.</SUBJECT> <SECTNO>2413.3</SECTNO> <SUBJECT>Definition of meeting.</SUBJECT> <SECTNO>2413.4</SECTNO> <SUBJECT>Closing of meetings; reasons therefor.</SUBJECT> <SECTNO>2413.5</SECTNO> <SUBJECT>Action necessary to close meeting; record of votes.</SUBJECT> <SECTNO>2413.6</SECTNO> <SUBJECT>Notice of meetings; public announcement and publication.</SUBJECT> <SECTNO>2413.7</SECTNO> <SUBJECT>Transcripts, recordings or minutes of closed meeting; public availability; retention.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552b.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3494, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2413.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part contains the regulations of the Federal Labor Relations Authority implementing the Government in the Sunshine Act, 5 U.S.C. 552b.</P> </SECTION> <SECTION> <SECTNO>§ 2413.2</SECTNO> <SUBJECT>Public observation of meetings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2413.3</SECTNO> <SUBJECT>Definition of meeting.</SUBJECT> <P>For purposes of this part, <E T="03">meeting</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2413.4</SECTNO> <SUBJECT>Closing of meetings; reasons therefor.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="366"/>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).</P> </SECTION> <SECTION> <SECTNO>§ 2413.5</SECTNO> <SUBJECT>Action necessary to close meeting; record of votes.</SUBJECT> <P>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2413.6</SECTNO> <SUBJECT>Notice of meetings; public announcement and publication.</SUBJECT> <P>(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.<PRTPAGE P="367"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> immediately following their release to the public.</P> <P>(f) Announcements of meetings made pursuant to the provisions of this section shall be made publicly available by the Executive Director.</P> </SECTION> <SECTION> <SECTNO>§ 2413.7</SECTNO> <SUBJECT>Transcripts, recordings or minutes of closed meeting; public availability; retention.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="368"/>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2414</EAR> <HD SOURCE="HED">PART 2414—EX PARTE COMMUNICATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2414.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2414.2</SECTNO> <SUBJECT>Unauthorized communications.</SUBJECT> <SECTNO>2414.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2414.4</SECTNO> <SUBJECT>Duration of prohibition.</SUBJECT> <SECTNO>2414.5</SECTNO> <SUBJECT>Communications prohibited.</SUBJECT> <SECTNO>2414.6</SECTNO> <SUBJECT>Communications not prohibited.</SUBJECT> <SECTNO>2414.7</SECTNO> <SUBJECT>Solicitation of prohibited communications.</SUBJECT> <SECTNO>2414.8</SECTNO> <SUBJECT>Reporting of prohibited communications; penalties.</SUBJECT> <SECTNO>2414.9</SECTNO> <SUBJECT>Penalties and enforcement.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3495, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2414.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part contains the regulations of the Federal Labor Relations Authority relating to ex parte communications.</P> </SECTION> <SECTION> <SECTNO>§ 2414.2</SECTNO> <SUBJECT>Unauthorized communications.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2414.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>When used in this part:</P> <P>(a) The term <E T="03">person outside this agency,</E> 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.</P> <P>(b) The term <E T="03">ex parte communication</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2414.4</SECTNO> <SUBJECT>Duration of prohibition.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2414.5</SECTNO> <SUBJECT>Communications prohibited.</SUBJECT> <P>Except as provided in § 2414.6, ex parte communications prohibited by § 2414.2 shall include:</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2414.6</SECTNO> <SUBJECT>Communications not prohibited.</SUBJECT> <P>Ex parte communications prohibited by § 2414.2 shall not include:</P> <P>(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;<PRTPAGE P="369"/> </P> <P>(b) Oral or written requests for information solely with respect to the status of a proceeding;</P> <P>(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;</P> <P>(d) Oral or written communications proposing settlement or an agreement for disposition of any or all issues in the proceeding;</P> <P>(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</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 2414.7</SECTNO> <SUBJECT>Solicitation of prohibited communications.</SUBJECT> <P>No person shall knowingly and willfully solicit the making of an unauthorized ex parte communication by any other person.</P> </SECTION> <SECTION> <SECTNO>§ 2414.8</SECTNO> <SUBJECT>Reporting of prohibited communications; penalties.</SUBJECT> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2414.9</SECTNO> <SUBJECT>Penalties and enforcement.</SUBJECT> <P>(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 <PRTPAGE P="370"/>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2415</EAR> <HD SOURCE="HED">PART 2415—EMPLOYEE RESPONSIBILITIES AND CONDUCT</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 11222, 30 FR 6469, 3 CFR, 1964-65 Comp., p. 306; 5 CFR 735.101 <E T="03">et seq.</E> and 737.1 <E T="03">et seq.;</E> Pub L. 95-521; 44 FR 19974.</P> </AUTH> <SECTION> <SECTNO>§ 2415.1</SECTNO> <SUBJECT>Employee responsibilities and conduct.</SUBJECT> <P>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 and 737 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.</P> <CITA>[45 FR 3496, Jan. 17, 1980]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2416</EAR> <HD SOURCE="HED">PART 2416—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL LABOR RELATIONS AUTHORITY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2416.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2416.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>2416.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2416.104—2416.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>2416.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>2416.112—2416.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>2416.131—2416.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>2416.141—2416.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>2416.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>2416.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>2416.152—2416.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>2416.161—2416.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2416.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>2416.171—2416.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 25881 and 25885, July 8, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2416.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 handicap in programs or activities conducted by Executive agencies or the United States Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 2416.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This regulation (§§ 2416.101-2416.170) 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.</P> </SECTION> <SECTION> <PRTPAGE P="371"/> <SECTNO>§ 2416.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this regulation, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> 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.</P> <P> <E T="03">Complete complaint</E> 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.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P> <P> <E T="03">Historic properties</E> 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.</P> <P> <E T="03">Individual with handicaps</E> 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.</P> <P>As used in this definition, the phrase:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(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</P> <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> 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.</P> <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> 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.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P> <P>(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;</P> <P>(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</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified individual with handicaps</E> means—</P> <P>(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 <PRTPAGE P="372"/>statute, regulation, or agency policy to receive education services from the agency;</P> <P>(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;</P> <P>(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</P> <P>(4) <E T="03">Qualified handicapped person</E> as that term is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this regulation by § 2416.140.</P> <P> <E T="03">Section 504</E> 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.</P> <P> <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.104—2416.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.</P> <P>(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).</P> <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P> <P>(1) A description of areas examined and any problems identified; and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 2416.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.112—2416.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(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.</P> <P>(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—</P> <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(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;</P> <P>(iii) Provide a qualified individual with handicaps with an aid, benefit, or <PRTPAGE P="373"/>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;</P> <P>(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;</P> <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P> <P>(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.</P> <P>(2) The agency may not deny a qualified individual with handicaps 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.</P> <P>(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—</P> <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(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</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(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.</P> <P>(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 regulation.</P> <P>(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 regulation.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.131—2416.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>No qualified individual with handicaps shall, on the basis of handicap, 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 1613, shall apply to employment in federally conducted programs or activities.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.141—2416.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>Except as otherwise provided in § 2416.150, 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 <PRTPAGE P="374"/>participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P> </SECTION> <SECTION> <SECTNO>§ 2416.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> 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—</P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P> <P>(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</P> <P>(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 handicaps receive the benefits and services of the program or activity.</P> <P>(b) <E T="03">Methods</E>—(1) <E T="03">General</E>. 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.</P> <P>(2) <E T="03">Historic preservation programs.</E> 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 handicaps. 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—</P> <P>(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;</P> <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P> <P>(iii) Adopting other innovative methods.</P> <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by November 7, 1988, except that where structural changes in facilities are undertaken, such changes shall be made by September 6, 1991, but in any event as expeditiously as possible.</P> <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will be <PRTPAGE P="375"/>undertaken to achieve program accessibility, the agency shall develop, by March 6, 1989, 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—</P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(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</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 2416.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.152—2416.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(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.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with handicaps.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="376"/>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.</P> </SECTION> <SECTION> <SECTNO>§§ 2416.161—2416.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2416.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(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.</P> <P>(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 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P> <P>(c) The Deputy for EEO and Affirmative Action shall be responsible for coordinating implementation of this section. Complaints may be sent to the Deputy for EEO and Affirmative Action, Federal Labor Relations Authority, 500 C St. SW., Washington, DC 20424.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found; and</P> <P>(3) A notice of the right to appeal.</P> <P>(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.</P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(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.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(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.</P> <CITA>[53 FR 25881 and 25885, July 8, 1988, as amended at 53 FR 25881, July 8, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§§ 2416.171—2416.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="377"/> <HD SOURCE="HED">SUBCHAPTER C—FEDERAL LABOR RELATIONS AUTHORITY AND GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY</HD> <PART> <EAR>Pt. 2420</EAR> <HD SOURCE="HED">PART 2420—PURPOSE AND SCOPE</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>3 U.S.C. 431; 5 U.S.C. 7134.</P> </AUTH> <SECTION> <SECTNO>§ 2420.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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:</P> <P>(a) Determine the appropriateness of units for labor organization representation under 5 U.S.C. 7112;</P> <P>(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;</P> <P>(c) Resolve issues relating to the granting of national consultation rights under 5 U.S.C. 7113;</P> <P>(d) Resolve issues relating to determining compelling need for agency rules and regulations under 5 U.S.C. 7117(b);</P> <P>(e) Resolve issues relating to the duty to bargain in good faith under 5 U.S.C. 7117(c);</P> <P>(f) Resolve issues relating to the granting of consultation rights with respect to conditions of employment under 5 U.S.C. 7117(d);</P> <P>(g) Conduct hearings and resolve complaints of unfair labor practices under 5 U.S.C. 7118;</P> <P>(h) Resolve exceptions to arbitrators’ awards under 5 U.S.C. 7122; and</P> <P>(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.</P> <CITA>[45 FR 3497, Jan. 17, 1980, as amended at 63 FR 46158, Aug. 31, 1998]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2421</EAR> <HD SOURCE="HED">PART 2421—MEANING OF TERMS AS USED IN THIS SUBCHAPTER</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2421.1</SECTNO> <SUBJECT>Federal Service Labor-Management Relations Statute.</SUBJECT> <SECTNO>2421.2</SECTNO> <SUBJECT>Terms defined in 5 U.S.C. 7103(a); General Counsel; Assistant Secretary.</SUBJECT> <SECTNO>2421.3</SECTNO> <SUBJECT>National consultation rights; consultation rights on Government-wide rules or regulations; exclusive recognition; unfair labor practices.</SUBJECT> <SECTNO>2421.4</SECTNO> <SUBJECT>Activity.</SUBJECT> <SECTNO>2421.5</SECTNO> <SUBJECT>Primary national subdivision.</SUBJECT> <SECTNO>2421.6</SECTNO> <SUBJECT>Regional Director.</SUBJECT> <SECTNO>2421.7</SECTNO> <SUBJECT>Executive Director.</SUBJECT> <SECTNO>2421.8</SECTNO> <SUBJECT>Hearing Officer.</SUBJECT> <SECTNO>2421.9</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <SECTNO>2421.10</SECTNO> <SUBJECT>Chief Administrative Law Judge.</SUBJECT> <SECTNO>2421.11</SECTNO> <SUBJECT>Party.</SUBJECT> <SECTNO>2421.12</SECTNO> <SUBJECT>Intervenor.</SUBJECT> <SECTNO>2421.13</SECTNO> <SUBJECT>Certification.</SUBJECT> <SECTNO>2421.14</SECTNO> <SUBJECT>Appropriate unit.</SUBJECT> <SECTNO>2421.15</SECTNO> <SUBJECT>Secret ballot.</SUBJECT> <SECTNO>2421.16</SECTNO> <SUBJECT>Showing of interest.</SUBJECT> <SECTNO>2421.17</SECTNO> <SUBJECT>Regular and substantially equivalent employment.</SUBJECT> <SECTNO>2421.18</SECTNO> <SUBJECT>Petitioner.</SUBJECT> <SECTNO>2421.19</SECTNO> <SUBJECT>Eligibility period.</SUBJECT> <SECTNO>2421.20</SECTNO> <SUBJECT>Election agreement.</SUBJECT> <SECTNO>2421.21</SECTNO> <SUBJECT>Affected by issues raised.</SUBJECT> <SECTNO>2421.22</SECTNO> <SUBJECT>Determinative challenged ballots.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>3 U.S.C. 431; 5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3497, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2421.1</SECTNO> <SUBJECT>Federal Service Labor-Management Relations Statute.</SUBJECT> <P>The term <E T="03">Federal Service Labor-Management Relations Statute</E> means chapter 71 of title 5 of the United States Code.</P> </SECTION> <SECTION> <SECTNO>§ 2421.2</SECTNO> <SUBJECT>Terms defined in 5 U.S.C. 7103(a); General Counsel; Assistant Secretary.</SUBJECT> <P>(a) The terms <E T="03">person, employee, agency, labor organization, dues, Authority, Panel, collective bargaining agreement, grievance, supervisor, management official, collective bargaining, confidential <PRTPAGE P="378"/>employee, conditions of employment, professional employee, exclusive representative, firefighter</E>, and <E T="03">United States</E>, as used in this subchapter shall have the meanings set forth in 5 U.S.C. 7103(a). The terms <E T="03">covered employee, employee</E>, <E T="03">employing office</E>, and <E T="03">agency</E>, when used in connection with the Presidential and Executive Office Accountability Act, 3 U.S.C. 401 <E T="03">et seq.</E>, 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).</P> <P>(b) The term <E T="03">General Counsel</E> means the General Counsel of the Authority.</P> <P>(c) The term <E T="03">Assistant Secretary</E> means the Assistant Secretary of Labor for Labor-Management Relations.</P> <CITA>[45 FR 3497, Jan. 17, 1980, as amended at 63 FR 46158, Aug. 31, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.3</SECTNO> <SUBJECT>National consultation rights; consultation rights on Government-wide rules or regulations; exclusive recognition; unfair labor practices.</SUBJECT> <P>(a) <E T="03">National consultation rights</E> has the meaning as set forth in 5 U.S.C. 7113;</P> <P>(b) <E T="03">Consultation rights on Government-wide rules or regulations</E> has the meaning as set forth in 5 U.S.C. 7117(d);</P> <P>(c) <E T="03">Exclusive recognition</E> has the meaning as set forth in 5 U.S.C. 7111; and</P> <P>(d) <E T="03">Unfair labor practices</E> has the meaning as set forth in 5 U.S.C. 7116.</P> </SECTION> <SECTION> <SECTNO>§ 2421.4</SECTNO> <SUBJECT>Activity.</SUBJECT> <P> <E T="03">Activity</E> means any facility, organizational entity, or geographical subdivision or combination thereof, of any agency.</P> </SECTION> <SECTION> <SECTNO>§ 2421.5</SECTNO> <SUBJECT>Primary national subdivision.</SUBJECT> <P> <E T="03">Primary national subdivision</E> of an agency means a first-level organizational segment which has functions national in scope that are implemented in field activities.</P> </SECTION> <SECTION> <SECTNO>§ 2421.6</SECTNO> <SUBJECT>Regional Director.</SUBJECT> <P> <E T="03">Regional Director</E> means the Director of a region of the Authority with geographical boundaries as fixed by the Authority.</P> </SECTION> <SECTION> <SECTNO>§ 2421.7</SECTNO> <SUBJECT>Executive Director.</SUBJECT> <P> <E T="03">Executive Director</E> means the Executive Director of the Authority.</P> </SECTION> <SECTION> <SECTNO>§ 2421.8</SECTNO> <SUBJECT>Hearing Officer.</SUBJECT> <P> <E T="03">Hearing Officer</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.9</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <P> <E T="03">Administrative Law Judge</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.10</SECTNO> <SUBJECT>Chief Administrative Law Judge.</SUBJECT> <P> <E T="03">Chief Administrative Law Judge</E> means the Chief Administrative Law Judge of the Authority.</P> </SECTION> <SECTION> <SECTNO>§ 2421.11</SECTNO> <SUBJECT>Party.</SUBJECT> <P> <E T="03">Party</E> means:</P> <P>(a) Any labor organization, employing agency or activity or individual filing a charge, petition, or request;</P> <P>(b) Any labor organization or agency or activity</P> <P>(1) Named as</P> <P>(i) A charged party in a charge,</P> <P>(ii) A respondent in a complaint, or</P> <P>(iii) An employing agency or activity or an incumbent labor organization in a petition;</P> <P>(2) Whose intervention in a proceeding has been permitted or directed by the Authority; or</P> <P>(3) Who participated as a party</P> <P>(i) In a matter that was decided by an agency head under 5 U.S.C. 7117, or</P> <P>(ii) In a matter where the award of an arbitrator was issued; and</P> <P>(c) The General Counsel, or the General Counsel's designated representative, in appropriate proceedings.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> <SECTION> <PRTPAGE P="379"/> <SECTNO>§ 2421.12</SECTNO> <SUBJECT>Intervenor.</SUBJECT> <P> <E T="03">Intervenor</E> means a party in a proceeding whose intervention has been permitted or directed by the Authority, its agents or representatives.</P> </SECTION> <SECTION> <SECTNO>§ 2421.13</SECTNO> <SUBJECT>Certification.</SUBJECT> <P> <E T="03">Certification</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.14</SECTNO> <SUBJECT>Appropriate unit.</SUBJECT> <P> <E T="03">Appropriate unit</E> 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.</P> <CITA>[63 FR 46158, Aug. 31, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.15</SECTNO> <SUBJECT>Secret ballot.</SUBJECT> <P> <E T="03">Secret ballot</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.16</SECTNO> <SUBJECT>Showing of interest.</SUBJECT> <P> <E T="03">Showing of interest</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.17</SECTNO> <SUBJECT>Regular and substantially equivalent employment.</SUBJECT> <P> <E T="03">Regular and substantially equivalent employment</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2421.18</SECTNO> <SUBJECT>Petitioner.</SUBJECT> <P> <E T="03">Petitioner</E> means the party filing a petition under part 2422 of this subchapter.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.19</SECTNO> <SUBJECT>Eligibility period.</SUBJECT> <P> <E T="03">Eligibility period</E> 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.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.20</SECTNO> <SUBJECT>Election agreement.</SUBJECT> <P> <E T="03">Election agreement</E> 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.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.21</SECTNO> <SUBJECT>Affected by issues raised.</SUBJECT> <P>The phrase <E T="03">affected by issues raised,</E> as used in part 2422, should be construed broadly to include parties and other <PRTPAGE P="380"/>labor organizations, or agencies or activities that have a connection to employees affected by, or questions presented in, a proceeding.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 2421.22</SECTNO> <SUBJECT>Determinative challenged ballots.</SUBJECT> <P> <E T="03">Determinative challenged ballots</E> are challenges that are unresolved prior to the tally and sufficient in number after the tally to affect the results of the election.</P> <CITA>[60 FR 67291, Dec. 29, 1995]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2422</EAR> <HD SOURCE="HED">PART 2422—REPRESENTATION PROCEEDINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2422.1</SECTNO> <SUBJECT>Purposes of a petition.</SUBJECT> <SECTNO>2422.2</SECTNO> <SUBJECT>Standing to file a petition.</SUBJECT> <SECTNO>2422.3</SECTNO> <SUBJECT>Contents of a petition.</SUBJECT> <SECTNO>2422.4</SECTNO> <SUBJECT>Service requirements.</SUBJECT> <SECTNO>2422.5</SECTNO> <SUBJECT>Filing petitions.</SUBJECT> <SECTNO>2422.6</SECTNO> <SUBJECT>Notification of filing.</SUBJECT> <SECTNO>2422.7</SECTNO> <SUBJECT>Posting notice of filing of a petition.</SUBJECT> <SECTNO>2422.8</SECTNO> <SUBJECT>Intervention and cross-petitions.</SUBJECT> <SECTNO>2422.9</SECTNO> <SUBJECT>Adequacy of showing of interest.</SUBJECT> <SECTNO>2422.10</SECTNO> <SUBJECT>Validity of showing of interest.</SUBJECT> <SECTNO>2422.11</SECTNO> <SUBJECT>Challenge to the status of a labor organization.</SUBJECT> <SECTNO>2422.12</SECTNO> <SUBJECT>Timeliness of petitions seeking an election.</SUBJECT> <SECTNO>2422.13</SECTNO> <SUBJECT>Resolution of issues raised by a petition.</SUBJECT> <SECTNO>2422.14</SECTNO> <SUBJECT>Effect of withdrawal/dismissal.</SUBJECT> <SECTNO>2422.15</SECTNO> <SUBJECT>Duty to furnish information and cooperate.</SUBJECT> <SECTNO>2422.16</SECTNO> <SUBJECT>Election agreements or directed elections.</SUBJECT> <SECTNO>2422.17</SECTNO> <SUBJECT>Notice of hearing and prehearing conference.</SUBJECT> <SECTNO>2422.18</SECTNO> <SUBJECT>Hearing procedures.</SUBJECT> <SECTNO>2422.19</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>2422.20</SECTNO> <SUBJECT>Rights of parties at a hearing.</SUBJECT> <SECTNO>2422.21</SECTNO> <SUBJECT>Duties and powers of the Hearing Officer.</SUBJECT> <SECTNO>2422.22</SECTNO> <SUBJECT>Objections to the conduct of the hearing.</SUBJECT> <SECTNO>2422.23</SECTNO> <SUBJECT>Election procedures.</SUBJECT> <SECTNO>2422.24</SECTNO> <SUBJECT>Challenged ballots.</SUBJECT> <SECTNO>2422.25</SECTNO> <SUBJECT>Tally of ballots.</SUBJECT> <SECTNO>2422.26</SECTNO> <SUBJECT>Objections to the election.</SUBJECT> <SECTNO>2422.27</SECTNO> <SUBJECT>Determinative challenged ballots and objections.</SUBJECT> <SECTNO>2422.28</SECTNO> <SUBJECT>Runoff elections.</SUBJECT> <SECTNO>2422.29</SECTNO> <SUBJECT>Inconclusive elections.</SUBJECT> <SECTNO>2422.30</SECTNO> <SUBJECT>Regional Director investigations, notices of hearings, actions, and Decisions and Orders.</SUBJECT> <SECTNO>2422.31</SECTNO> <SUBJECT>Application for review of a Regional Director Decision and Order.</SUBJECT> <SECTNO>2422.32</SECTNO> <SUBJECT>Certifications and revocations.</SUBJECT> <SECTNO>2422.33</SECTNO> <SUBJECT>Relief obtainable under part 2423.</SUBJECT> <SECTNO>2422.34</SECTNO> <SUBJECT>Rights and obligations during the pendency of representation proceedings.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>3 U.S.C. 431; 5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 67291, Dec. 29, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2422.1</SECTNO> <SUBJECT>Purposes of a petition.</SUBJECT> <P>A petition may be filed for the following purposes:</P> <P>(a) <E T="03">Elections or Eligibility for dues allotment.</E> To request:</P> <P>(1)(i) An election to determine if employees in an appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, and/or</P> <P>(ii) A determination of eligibility for dues allotment in an appropriate unit without an exclusive representative; or</P> <P>(2) an election to determine if employees in a unit no longer wish to be represented for the purpose of collective bargaining by an exclusive representative.</P> <P>(3) Petitions under this subsection must be accompanied by an appropriate showing of interest.</P> <P>(b) <E T="03">Clarification or Amendment</E>. To clarify, and/or amend:</P> <P>(1) A recognition or certification then in effect; and/or</P> <P>(2) Any other matter relating to representation.</P> <P>(c) <E T="03">Consolidation</E>. To consolidate two or more units, with or without an election, in an agency and for which a labor organization is the exclusive representative.</P> </SECTION> <SECTION> <SECTNO>§ 2422.2</SECTNO> <SUBJECT>Standing to file a petition.</SUBJECT> <P>A representation petition may be filed by: 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: <E T="03">Provided, however,</E> that</P> <P>(a) Only a labor organization has standing to file a petition pursuant to section 2422.1(a)(1);</P> <P>(b) Only an individual has standing to file a petition pursuant to section 2422.1(a)(2); and</P> <P>(c) Only an agency or a labor organization may file a petition pursuant to section 2422.1(b) or (c).</P> </SECTION> <SECTION> <PRTPAGE P="381"/> <SECTNO>§ 2422.3</SECTNO> <SUBJECT>Contents of a petition.</SUBJECT> <P>(a) <E T="03">What to file</E>. A petition must be filed on a form prescribed by the Authority and contain the following information:</P> <P>(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.</P> <P>(2) The name, mailing address and work telephone number of the contact person for each agency or activity affected by issues raised in the petition.</P> <P>(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.</P> <P>(4) The name, mailing address and work telephone number of the contact person for each labor organization affected by issues raised in the petition.</P> <P>(5) The name and mailing address for the petitioner, including street number, city, state and zip code. If a labor organization petitioner is affiliated with a national organization, the local designation and the national affiliation should both be included.</P> <P>(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.</P> <P>(7) The approximate number of employees in the unit(s) affected by issues raised in the petition.</P> <P>(8) A clear and concise statement of the issues raised by the petition and the results the petitioner seeks.</P> <P>(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.</P> <P>(10) The signature, title, mailing address and telephone number of the person filing the petition.</P> <P>(b) <E T="03">Compliance with 5 U.S.C. 7111(e)</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.</P> <P>(c) <E T="03">Showing of interest supporting a representation petition</E>. When filing a petition requiring a showing of interest, the petitioner must:</P> <P>(1) So indicate on the petition form;</P> <P>(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</P> <P>(3) Include an alphabetical list of the names constituting the showing of interest.</P> <P>(d) <E T="03">Petition seeking dues allotment</E>. When there is no exclusive representative, a petition seeking certification for dues allotment shall 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.4</SECTNO> <SUBJECT>Service requirements.</SUBJECT> <P>Every petition, motion, brief, request, challenge, written objection, or application for review shall be served on all parties affected by issues raised in the filing. The service shall include all documentation in support thereof, with the exception of a showing of interest, evidence supporting challenges to the validity of a showing of interest, and evidence supporting objections to an election. The filer must submit a written statement of service to the Regional Director.</P> </SECTION> <SECTION> <PRTPAGE P="382"/> <SECTNO>§ 2422.5</SECTNO> <SUBJECT>Filing petitions.</SUBJECT> <P>(a) <E T="03">Where to file</E>. Petitions must be filed 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, the petitions must be filed with the Regional Director for the region in which the headquarters of the agency or activity is located.</P> <P>(b) <E T="03">Number of copies</E>. An original and two (2) copies of the petition and the accompanying material must be filed with the Regional Director.</P> <P>(c) <E T="03">Date of filing</E>. A petition is filed when it is received by the appropriate Regional Director.</P> </SECTION> <SECTION> <SECTNO>§ 2422.6</SECTNO> <SUBJECT>Notification of filing.</SUBJECT> <P>(a) <E T="03">Notification to parties</E>. After a petition is filed, the Regional Director will notify any labor organization, agency or activity that the parties have identified as being affected by issues raised by the petition, that a petition has been filed with the Regional Director. The Regional Director will also make reasonable efforts to identify and notify any other party affected by the issues raised by the petition.</P> <P>(b) <E T="03">Contents of the notification</E>. The notification will inform the labor organization, agency or activity of:</P> <P>(1) The name of the petitioner;</P> <P>(2) The description of the unit(s) or employees affected by issues raised in the petition; and,</P> <P>(3) A statement that all affected parties should advise the Regional Director in writing of their interest in the issues raised in the petition.</P> </SECTION> <SECTION> <SECTNO>§ 2422.7</SECTNO> <SUBJECT>Posting notice of filing of a petition.</SUBJECT> <P>(a) <E T="03">Posting notice of petition</E>. When appropriate, the Regional Director, after the filing of a representation petition, 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.</P> <P>(b) <E T="03">Contents of notice</E>. The notice shall advise affected employees about the petition.</P> <P>(c) <E T="03">Duration of notice</E>. The notice should be conspicuously posted for a period of ten (10) days and not be altered, defaced, or covered by other material.</P> </SECTION> <SECTION> <SECTNO>§ 2422.8</SECTNO> <SUBJECT>Intervention and cross-petitions.</SUBJECT> <P>(a) <E T="03">Cross-petitions</E>. A cross-petition is a petition which involves any employees in a unit covered by a pending representation petition. Cross-petitions must be filed in accordance with this subpart.</P> <P>(b) <E T="03">Intervention requests and cross-petitions</E>. A request to intervene and a cross-petition, accompanied by any necessary showing of interest, must be submitted in writing and filed with either the Regional Director or the Hearing Officer before the hearing opens, unless good cause is shown for granting an extension. If no hearing is held, a request to intervene and a cross-petition must be filed prior to action being taken pursuant to § 2422.30.</P> <P>(c) <E T="03">Labor organization intervention requests</E>. Except for incumbent intervenors, a labor organization seeking to intervene shall submit a statement that it has complied with 5 U.S.C. 7111(e) and one of the following:</P> <P>(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 constituting the showing of interest; or</P> <P>(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</P> <P>(3) Evidence that it is or was, prior to a reorganization, the recognized or certified exclusive representative of any of the employees affected by issues raised in the petition.</P> <P>(d) <E T="03">Incumbent</E>. 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.<PRTPAGE P="383"/> </P> <P>(e) <E T="03">Employing agency</E>. An agency or activity will be considered a party if any of its employees are affected by issues raised in the petition.</P> <P>(f) <E T="03">Agency or activity intervention</E>. 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.9</SECTNO> <SUBJECT>Adequacy of showing of interest.</SUBJECT> <P>(a) <E T="03">Adequacy</E>. 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).</P> <P>(b) <E T="03">Regional Director investigation and Decision and Order</E>. The Regional Director will conduct such investigation as 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.10</SECTNO> <SUBJECT>Validity of showing of interest.</SUBJECT> <P>(a) <E T="03">Validity</E>. Validity questions are raised by challenges to a showing of interest on grounds other than adequacy.</P> <P>(b) <E T="03">Validity challenge</E>. The Regional Director or any party may challenge the validity of a showing of interest.</P> <P>(c) <E T="03">When and where validity challenges may be filed</E>. Party 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 good cause is shown for granting an extension. If no hearing is held, challenges to the validity of a showing of interest must be filed prior to action being taken pursuant to § 2422.30.</P> <P>(d) <E T="03">Contents of validity challenges</E>. Challenges to the validity of a showing of interest must be supported with evidence.</P> <P>(e) <E T="03">Regional Director investigation and Decision and Order</E>. The Regional Director will conduct such investigation as 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.11</SECTNO> <SUBJECT>Challenge to the status of a labor organization.</SUBJECT> <P>(a) <E T="03">Basis of challenge to labor organization status</E>. The only basis on which a challenge to the status of a labor organization may be made is compliance with 5 U.S.C. 7103(a)(4).</P> <P>(b) <E T="03">Format and time for filing a challenge</E>. Any party filing a challenge to the status of a labor organization involved in the processing of a petition must do so in writing to the Regional Director or the Hearing Officer before the hearing opens, unless good cause is shown for granting an extension. If no hearing is held, challenges must be filed prior to action being taken pursuant to § 2422.30.</P> </SECTION> <SECTION> <SECTNO>§ 2422.12</SECTNO> <SUBJECT>Timeliness of petitions seeking an election.</SUBJECT> <P>(a) <E T="03">Election bar</E>. 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.</P> <P>(b) <E T="03">Certification bar</E>. 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.</P> <P>(c) <E T="03">Bar during 5 U.S.C. 7114(c) agency head review.</E> 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 <PRTPAGE P="384"/>expires upon either the passage of thirty (30) days absent agency head action, or upon the date of any timely agency head action.</P> <P>(d) <E T="03">Contract bar where the contract is for three (3) years or less.</E> 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 prior to the expiration of the agreement.</P> <P>(e) <E T="03">Contract bar where the contract is for more than three (3) years.</E> 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 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 prior to the expiration of the initial three (3) year period, and any time after the expiration of the initial three (3) year period.</P> <P>(f) <E T="03">Unusual circumstances.</E> 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.</P> <P>(g) <E T="03">Premature extension.</E> Where a collective bargaining agreement with a term of three (3) years or less has been extended prior to 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.</P> <P>(h) <E T="03">Contract requirements.</E> 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, do not constitute a bar to a petition seeking an election under this section unless a clear and unambiguous effective date, renewal date where applicable, duration, and termination date are ascertainable from the agreement and relevant accompanying documentation.</P> </SECTION> <SECTION> <SECTNO>§ 2422.13</SECTNO> <SUBJECT>Resolution of issues raised by a petition.</SUBJECT> <P>(a) <E T="03">Meetings prior to filing a representation petition.</E> All parties affected by the representation issues that may be raised in a petition are encouraged to meet prior to 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.</P> <P>(b) <E T="03">Meetings to narrow and resolve the issues after the petition is filed.</E> After a petition is filed, the Regional Director may require all affected parties to meet to narrow and resolve the issues raised in the petition.</P> </SECTION> <SECTION> <SECTNO>§ 2422.14</SECTNO> <SUBJECT>Effect of withdrawal/dismissal.</SUBJECT> <P>(a) <E T="03">Withdrawal/dismissal less than sixty (60) days before contract expiration.</E> When a petition seeking an election that has been timely filed is withdrawn by the petitioner or dismissed by the Regional Director less than sixty (60) days prior to the expiration of an existing agreement between the incumbent exclusive representative and the agency or activity or any time after the expiration of the agreement, another petition seeking an election will not be considered timely if filed within a ninety (90) day period from either:</P> <P>(1) The date the withdrawal is approved; or</P> <P>(2) The date the petition is dismissed by the Regional Director when no application for review is filed with the Authority; or</P> <P>(3) The date the Authority rules on an application for review. Other pending petitions that have been timely filed under this Part will continue to be processed.</P> <P>(b) <E T="03">Withdrawal by petitioner.</E> A petitioner who submits a withdrawal request for a petition seeking an election that is received by the Regional Director after the notice of hearing issues or after approval of an election agreement, whichever occurs first, 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 of the approval of the withdrawal by the Regional Director.<PRTPAGE P="385"/> </P> <P>(c) <E T="03">Withdrawal by incumbent.</E> When an election is not held because the incumbent disclaims any representation interest in a unit, a petition by the incumbent seeking an election involving the same unit or a subdivision of the same unit will not be considered timely if filed within six (6) months of cancellation of the election.</P> </SECTION> <SECTION> <SECTNO>§ 2422.15</SECTNO> <SUBJECT>Duty to furnish information and cooperate.</SUBJECT> <P>(a) <E T="03">Relevant information.</E> After a petition is filed, all parties must, upon request of the Regional Director, furnish 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.</P> <P>(b) <E T="03">Inclusions and exclusions.</E> After a petition seeking an election is filed, the Regional Director may direct the agency or activity to furnish 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.</P> <P>(c) <E T="03">Cooperation.</E> 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 failure to cooperate in the representation process may result in the Regional Director taking appropriate action, including dismissal of the petition or denial of intervention.</P> </SECTION> <SECTION> <SECTNO>§ 2422.16</SECTNO> <SUBJECT>Election agreements or directed elections.</SUBJECT> <P>(a) <E T="03">Election agreements.</E> Parties are encouraged to enter into election agreements.</P> <P>(b) <E T="03">Regional Director directed election.</E> 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.</P> <P>(c) <E T="03">Opportunity for a hearing.</E> Before directing an election, the Regional Director shall provide affected parties an opportunity for a hearing on other than procedural matters, and thereafter may:</P> <P>(1) Issue a Decision and Order; or</P> <P>(2) If there are no questions regarding unit appropriateness, issue a Direction of Election without a Decision and Order.</P> <P>(d) <E T="03">Challenges or objections to a directed election.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.17</SECTNO> <SUBJECT>Notice of hearing and prehearing conference.</SUBJECT> <P>(a) <E T="03">Purpose of notice of a hearing.</E> The Regional Director may issue a notice of hearing involving any issues raised in the petition.</P> <P>(b) <E T="03">Contents.</E> 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.</P> <P>(c) <E T="03">Prehearing conference.</E> 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.</P> <P>(d) <E T="03">No interlocutory appeal of hearing determination.</E> A Regional Director's determination of whether to issue a notice of hearing is not appealable to the Authority.</P> </SECTION> <SECTION> <SECTNO>§ 2422.18</SECTNO> <SUBJECT>Hearing procedures.</SUBJECT> <P>(a) <E T="03">Purpose of a hearing.</E> 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.</P> <P>(b) <E T="03">Conduct of hearing.</E> Hearings will be open to the public unless otherwise <PRTPAGE P="386"/>ordered by the Hearing Officer. There is no burden of proof, with the exception of proceedings on objections to elections as provided for in § 2422.27(b). Formal rules of evidence do not apply.</P> <P>(c) <E T="03">Hearing officer.</E> Hearings will be conducted by a Hearing Officer appointed by the Regional Director. Another Hearing Officer may be substituted for the presiding Hearing Officer at any time.</P> <P>(d) <E T="03">Transcript.</E> 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. Requests by parties to purchase copies of the official transcript should be made to the official hearing reporter.</P> </SECTION> <SECTION> <SECTNO>§ 2422.19</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(a) <E T="03">Purpose of a motion.</E> Subsequent to the issuance of a Notice of Hearing in a representation proceeding, a party seeking a ruling, an order, or relief must do so by filing or raising a motion stating the order or relief sought and the grounds therefor. Challenges and other filings referenced in other sections of this subpart may, in the discretion of the Regional Director or Hearing Officer, be treated as a motion.</P> <P>(b) <E T="03">Prehearing motions.</E> Prehearing motions must be filed 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.</P> <P>(c) <E T="03">Motions made at the hearing.</E> During the hearing, motions will be made to the Hearing Officer and may be oral on the record, unless otherwise required in this subpart to be in writing. Responses may be oral on the record or in writing, but, absent permission of the Hearing Officer, must be provided before the hearing closes. When appropriate, the Hearing Officer will rule on motions made at the hearing or referred to the Hearing Officer by the Regional Director.</P> <P>(d) <E T="03">Posthearing motions.</E> Motions made after the hearing closes must be filed 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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.20</SECTNO> <SUBJECT>Rights of parties at a hearing.</SUBJECT> <P>(a) <E T="03">Rights.</E> A party at a hearing will have the right:</P> <P>(1) To appear in person or by a representative;</P> <P>(2) To examine and cross-examine witnesses; and</P> <P>(3) To introduce into the record relevant evidence.</P> <P>(b) <E T="03">Documentary evidence and stipulations.</E> Parties must submit two (2) copies of documentary evidence to the Hearing Officer and copies to all other parties. Stipulations of fact between/among the parties may be introduced into evidence.</P> <P>(c) <E T="03">Oral argument.</E> Parties will be entitled to a reasonable period prior to 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.</P> <P>(d) <E T="03">Briefs.</E> A party will be afforded an opportunity to file a brief with the Regional Director.</P> <P>(1) An original and two (2) copies of a brief must be filed with the Regional Director within thirty (30) days from the close of the hearing.</P> <P>(2) A written request for an extension of time to file a brief must be filed with and received by the Regional Director no later than five (5) days before the date the brief is due.</P> <P>(3) No reply brief may be filed without permission of the Regional Director.</P> </SECTION> <SECTION> <SECTNO>§ 2422.21</SECTNO> <SUBJECT>Duties and powers of the Hearing Officer.</SUBJECT> <P>(a) <E T="03">Duties of the Hearing Officer.</E> The Hearing Officer will receive evidence and inquire fully into the relevant and material facts concerning the matters that are the subject of the hearing, and may make recommendations on the record to the Regional Director.</P> <P>(b) <E T="03">Powers of the Hearing Officer.</E> During the period a case is assigned to a Hearing Officer by the Regional Director and prior to the close of the hearing, the Hearing Officer may take any action necessary to schedule, conduct, continue, control, and regulate the <PRTPAGE P="387"/>hearing, including ruling on motions when appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 2422.22</SECTNO> <SUBJECT>Objections to the conduct of the hearing.</SUBJECT> <P>(a) <E T="03">Objections.</E> Objections are oral or written complaints concerning the conduct of a hearing.</P> <P>(b) <E T="03">Exceptions to rulings.</E> There are automatic exceptions to all adverse rulings.</P> </SECTION> <SECTION> <SECTNO>§ 2422.23</SECTNO> <SUBJECT>Election procedures.</SUBJECT> <P>(a) <E T="03">Regional Director conducts or supervises election.</E> The Regional Director will decide to conduct or supervise the election. In supervised elections, agencies will perform all acts as specified in the Election Agreement or Direction of Election.</P> <P>(b) <E T="03">Notice of election.</E> Prior to the election a notice of election, prepared by the Regional Director, will be posted by the activity 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 will contain 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.</P> <P>(c) <E T="03">Sample ballot.</E> The reproduction of any document purporting to be a copy of the official ballot 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.</P> <P>(d) <E T="03">Secret ballot.</E> All elections will be by secret ballot.</P> <P>(e) <E T="03">Intervenor withdrawal from ballot.</E> When two or more labor organizations are included as choices in an election, an intervening labor organization may, prior to 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 request is not received prior to the approval of an election agreement or before the direction of an election, unless the parties and the Regional Director agree otherwise, the intervening labor organization will remain on the ballot. The Regional Director's decision on the request is final and not subject to the filing of an application for review with the Authority.</P> <P>(f) <E T="03">Incumbent withdrawal from ballot in an election to decertify an incumbent representative.</E> When there is no intervening labor organization, an election to decertify an incumbent exclusive representative will not be 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 will be held if the intervening labor organization proffers a thirty percent (30%) showing of interest within the time period established by the Regional Director.</P> <P>(g) <E T="03">Petitioner withdraws from ballot in an election.</E> When there is no intervening labor organization, an election will not be held if the petitioner provides the Regional Director with a written request to withdraw the petition. When there is an intervenor, an election will be held if the intervening labor organization proffers a thirty percent (30%) showing of interest within the time period established by the Regional Director.</P> <P>(h) <E T="03">Observers.</E> All parties are entitled to representation at the polling location(s) by observers of their own selection subject to the Regional Director's approval.</P> <P>(1) Parties desiring to name observers must file in writing with the Regional Director a request for specifically named observers at least fifteen (15) days prior to an election. The Regional Director may grant an extension of time for filing a request for specifically named observers for good cause where a party requests such an extension or on the Regional Director's own motion. The request must name and identify the observers requested.</P> <P>(2) An agency or activity may use as its observers any employees who are not eligible to vote in the election, except:</P> <P>(i) Supervisors or management officials;</P> <P>(ii) Employees who have any official connection with any of the labor organizations involved; or</P> <P>(iii) Non-employees of the Federal government.<PRTPAGE P="388"/> </P> <P>(3) A labor organization may use as its observers any employees eligible to vote in the election, except:</P> <P>(i) Employees on leave without pay status who are working for the labor organization involved; or</P> <P>(ii) Employees who hold an elected office in the union.</P> <P>(4) Objections to a request for specific observers must be filed with the Regional Director stating the reasons in support within five (5) days after service of the request.</P> <P>(5) The Regional Director's ruling on requests for and objections to observers is final and binding and is not subject to the filing of an application for review with the Authority.</P> </SECTION> <SECTION> <SECTNO>§ 2422.24</SECTNO> <SUBJECT>Challenged ballots.</SUBJECT> <P>(a) <E T="03">Filing challenges.</E> A party or the Regional Director may, for good cause, challenge the eligibility of any person to participate in the election prior to the employee voting.</P> <P>(b) <E T="03">Challenged ballot procedure.</E> 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) prior to the tally of ballots, the unresolved challenged ballot(s) will be impounded and preserved until a determination can be made, if necessary, by the Regional Director.</P> </SECTION> <SECTION> <SECTNO>§ 2422.25</SECTNO> <SUBJECT>Tally of ballots.</SUBJECT> <P>(a) <E T="03">Tallying the ballots.</E> When the election is concluded, the Regional Director will tally the ballots.</P> <P>(b) <E T="03">Service of the tally.</E> 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.</P> <P>(c) <E T="03">Valid ballots cast.</E> Representation will be determined by the majority of the valid ballots cast.</P> </SECTION> <SECTION> <SECTNO>§ 2422.26</SECTNO> <SUBJECT>Objections to the election.</SUBJECT> <P>(a) <E T="03">Filing objections to the election.</E> Objections to the procedural conduct of the election or to conduct that may have improperly affected the results of the election may be filed by any party. Objections must be filed and received by the Regional Director 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. An original and two (2) copies of the objections must be received by the Regional Director.</P> <P>(b) <E T="03">Supporting evidence.</E> The objecting party must file with the Regional Director evidence, including signed statements, documents and other materials supporting the objections within ten (10) days after the objections are filed.</P> </SECTION> <SECTION> <SECTNO>§ 2422.27</SECTNO> <SUBJECT>Determinative challenged ballots and objections.</SUBJECT> <P>(a) <E T="03">Investigation.</E> The Regional Director will investigate objections and/or determinative challenged ballots that are sufficient in number to affect the results of the election.</P> <P>(b) <E T="03">Burden of proof.</E> A party filing objections to the election bears the burden of proof by a preponderance of the evidence concerning those objections. However, no party bears the burden of proof on challenged ballots.</P> <P>(c) <E T="03">Regional Director Action.</E> After investigation, the Regional Director will take appropriate action consistent with § 2422.30.</P> <P>(d) <E T="03">Consolidated hearing on objections and/or determinative challenged ballots and an unfair labor practice hearing.</E> When appropriate, and in accordance with § 2422.33, objections and/or determinative challenged ballots may be consolidated with an unfair labor practice hearing. Such consolidated hearings will be conducted by an Administrative Law Judge. Exceptions and related submissions must be filed with the Authority and the Authority will issue a decision in accordance with part 2423 of this chapter, except for the following:</P> <P>(1) Sections 2423.18 and 2423.19(j) of this Subchapter concerning the burden of proof and settlement conferences are not applicable;</P> <P>(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; and,</P> <P>(3) References to “charge” and “complaint” in § 2423.26(b) of this chapter will be omitted.</P> </SECTION> <SECTION> <PRTPAGE P="389"/> <SECTNO>§ 2422.28</SECTNO> <SUBJECT>Runoff elections.</SUBJECT> <P>(a) <E T="03">When a runoff may be held.</E> 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.</P> <P>(b) <E T="03">Eligibility.</E> 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.</P> <P>(c) <E T="03">Ballot.</E> The ballot in the runoff election will provide for a selection between the two choices receiving the largest and second largest number of votes in the election.</P> </SECTION> <SECTION> <SECTNO>§ 2422.29</SECTNO> <SUBJECT>Inconclusive elections.</SUBJECT> <P>(a) <E T="03">Inconclusive elections.</E> An inconclusive election is one where challenged ballots are not sufficient to affect the outcome of the election and one of the following occurs:</P> <P>(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</P> <P>(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</P> <P>(3) When a runoff ballot provides for a choice between two labor organizations and results in the votes being equally divided; or</P> <P>(4) When the Regional Director determines that there have been significant procedural irregularities.</P> <P>(b) <E T="03">Eligibility to vote in a rerun election.</E> A current payroll period will be used to determine eligibility to vote in a rerun election.</P> <P>(c) <E T="03">Ballot.</E> 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.</P> <P>(d) <E T="03">Number of reruns.</E> There will be only one rerun of an inconclusive election. If the rerun results in another inconclusive election, the tally of ballots will indicate a majority of valid ballots has not been cast for any choice and a certification of results will be issued. If necessary, a runoff may be held when an original election is rerun.</P> </SECTION> <SECTION> <SECTNO>§ 2422.30</SECTNO> <SUBJECT>Regional Director investigations, notices of hearings, actions, and Decisions and Orders.</SUBJECT> <P>(a) <E T="03">Regional Director investigation.</E> The Regional Director will make such investigation of the petition and any other matter as the Regional Director deems necessary.</P> <P>(b) <E T="03">Regional Director notice of hearing.</E> 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.</P> <P>(c) <E T="03">Regional Director action and Decision and Order.</E> After investigation and/or hearing, when a hearing has been ordered, the Regional Director will resolve the matter in dispute and, when appropriate, direct an election or approve an election agreement, or issue a Decision and Order.</P> <P>(d) <E T="03">Appeal of Regional Director Decision and Order.</E> A party may file with the Authority an application for review of a Regional Director Decision and Order.</P> <P>(e) <E T="03">Contents of the Record.</E> When no hearing has been conducted all material submitted to and considered by the Regional Director during the investigation becomes a part of the record. When a hearing has been conducted, the transcript and all material entered into evidence, including any posthearing briefs, become a part of the record.</P> </SECTION> <SECTION> <SECTNO>§ 2422.31</SECTNO> <SUBJECT>Application for review of a Regional Director Decision and Order.</SUBJECT> <P>(a) <E T="03">Filing an application for review.</E> 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 provided for in 5 U.S.C. 7105(f) may not be extended or waived.</P> <P>(b) <E T="03">Contents.</E> An application for review must be sufficient to enable the Authority to rule on the application <PRTPAGE P="390"/>without recourse to 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 reference 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.</P> <P>(c) <E T="03">Review.</E> 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:</P> <P>(1) The decision raises an issue for which there is an absence of precedent;</P> <P>(2) Established law or policy warrants reconsideration; or,</P> <P>(3) There is a genuine issue over whether the Regional Director has:</P> <P>(i) Failed to apply established law;</P> <P>(ii) Committed a prejudicial procedural error;</P> <P>(iii) Committed a clear and prejudicial error concerning a substantial factual matter.</P> <P>(d) <E T="03">Opposition.</E> 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. A copy must be served on the Regional Director and all other parties and a statement of service must be filed with the Authority.</P> <P>(e) <E T="03">Regional Director Decision and Order becomes the Authority's action</E>. A Decision and Order of a Regional Director becomes the action of the Authority when:</P> <P>(1) No application for review is filed with the Authority within sixty (60) days after the date of the Regional Director's Decision and Order; or</P> <P>(2) A timely application for review is filed 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</P> <P>(3) The Authority denies an application for review of the Regional Director's Decision and Order.</P> <P>(f) <E T="03">Authority grant of review and stay.</E> 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 shall stay any action ordered by the Regional Director unless specifically ordered by the Authority.</P> <P>(g) <E T="03">Briefs if review is granted</E>. 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, afford the parties an opportunity to file briefs. The briefs will be limited to the issue(s) referenced in the Authority's order granting review.</P> </SECTION> <SECTION> <SECTNO>§ 2422.32</SECTNO> <SUBJECT>Certifications and revocations.</SUBJECT> <P>(a) <E T="03">Certifications</E>. The Regional Director will issue an appropriate certification when:</P> <P>(1) After an election, runoff, or rerun,</P> <P>(i) No objections are filed or challenged ballots are not determinative, or</P> <P>(ii) Objections and determinative challenged ballots are decided and resolved; or</P> <P>(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 otherwise directs the issuance of a certification.</P> <P>(b) <E T="03">Revocations</E>. Without prejudice to any rights and obligations which may exist under the Statute, the Regional Director will revoke a recognition or certification, as appropriate, and provide a written statement of reasons when:</P> <P>(1) An incumbent exclusive representative files, during a representation proceeding, a disclaimer of any representational interest in the unit; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2422.33</SECTNO> <SUBJECT>Relief obtainable under part 2423.</SUBJECT> <P>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 <PRTPAGE P="391"/>the basis for similar relief if filed or raised as an unfair labor practice under part 2423 of this chapter: <E T="03">Provided, however,</E> that related matters may be consolidated for hearing as noted in § 2422.27(d) of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 2422.34</SECTNO> <SUBJECT>Rights and obligations during the pendency of representation proceedings.</SUBJECT> <P>(a) <E T="03">Existing recognitions, agreements, and obligations under the Statute</E>. During the pendency of any representation proceeding, parties are obligated to maintain existing recognitions, adhere to the terms and conditions of existing collective bargaining agreements, and fulfill all other representational and bargaining responsibilities under the Statute.</P> <P>(b) <E T="03">Unit status of individual employees.</E> Notwithstanding paragraph (a) of this section and except as otherwise prohibited by law, a party may take action based on its position regarding the bargaining unit status of individual employees, pursuant to 3 U.S.C. 431(d)(2), 5 U.S.C. 7103(a)(2), and 7112(b) and (c): <E T="03">Provided, however</E>, that its actions may be challenged, reviewed, and remedied where appropriate.</P> <CITA>[60 FR 67291, Dec. 29, 1995, as amended at 63 FR 46158, Aug. 31, 1998]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2423</EAR> <HD SOURCE="HED">PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2423.0</SECTNO> <SUBJECT>Applicability of this part.</SUBJECT> <SUBPART> <HD SOURCE="HED">Subpart A—Filing, Investigating, Resolving, and Acting on Charges</HD> <SECTNO>2423.1</SECTNO> <SUBJECT>Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint.</SUBJECT> <SECTNO>2423.2</SECTNO> <SUBJECT>Alternative Dispute Resolution (ADR) services.</SUBJECT> <SECTNO>2423.3</SECTNO> <SUBJECT>Who may file charges.</SUBJECT> <SECTNO>2423.4</SECTNO> <SUBJECT>Contents of the charge; supporting evidence and documents.</SUBJECT> <SECTNO>2423.5</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2423.6</SECTNO> <SUBJECT>Filing and service of copies.</SUBJECT> <SECTNO>2423.7</SECTNO> <SUBJECT>Alternative case processing procedure.</SUBJECT> <SECTNO>2423.8</SECTNO> <SUBJECT>Investigation of charges.</SUBJECT> <SECTNO>2423.9</SECTNO> <SUBJECT>Amendment of charges.</SUBJECT> <SECTNO>2423.10</SECTNO> <SUBJECT>Action by the Regional Director.</SUBJECT> <SECTNO>2423.11</SECTNO> <SUBJECT>Determination not to issue complaint; review of action by the Regional Director.</SUBJECT> <SECTNO>2423.12</SECTNO> <SUBJECT>Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint.</SUBJECT> <SECTNO>2423.13-2423.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Post Complaint, Prehearing Procedures</HD> <SECTNO>2423.20</SECTNO> <SUBJECT>Issuance and contents of the complaint; answer to the complaint; amendments; role of Office of the Administrative Law Judges.</SUBJECT> <SECTNO>2423.21</SECTNO> <SUBJECT>Motions procedure.</SUBJECT> <SECTNO>2423.22</SECTNO> <SUBJECT>Intervenors.</SUBJECT> <SECTNO>2423.23</SECTNO> <SUBJECT>Prehearing disclosure.</SUBJECT> <SECTNO>2423.24</SECTNO> <SUBJECT>Powers and duties of the Administrative Law Judge during prehearing proceedings.</SUBJECT> <SECTNO>2423.25</SECTNO> <SUBJECT>Post complaint, prehearing settlements.</SUBJECT> <SECTNO>2423.26</SECTNO> <SUBJECT>Stipulations of fact submissions.</SUBJECT> <SECTNO>2423.27</SECTNO> <SUBJECT>Summary judgment motions.</SUBJECT> <SECTNO>2423.28</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <SECTNO>2423.29</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Hearing Procedures.</HD> <SECTNO>2423.30</SECTNO> <SUBJECT>General rules.</SUBJECT> <SECTNO>2423.31</SECTNO> <SUBJECT>Powers and duties of the Administrative Law Judge at the hearing.</SUBJECT> <SECTNO>2423.32</SECTNO> <SUBJECT>Burden of proof before the Administrative Law Judge.</SUBJECT> <SECTNO>2423.33</SECTNO> <SUBJECT>Posthearing briefs.</SUBJECT> <SECTNO>2423.34</SECTNO> <SUBJECT>Decision and record.</SUBJECT> <SECTNO>2423.35-2423.39</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Post-Transmission and Exceptions to Authority Procedures</HD> <SECTNO>2423.40</SECTNO> <SUBJECT>Exceptions; oppositions and cross-exceptions; oppositions to cross-exceptions; waiver.</SUBJECT> <SECTNO>2423.41</SECTNO> <SUBJECT>Action by the Authority; compliance with Authority decisions and orders.</SUBJECT> <SECTNO>2423.42</SECTNO> <SUBJECT>Backpay proceedings.</SUBJECT> <SECTNO>2423.43-2423.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>3 U.S.C. 431; 5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 40916, July 31, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2423.0</SECTNO> <SUBJECT>Applicability of this part</SUBJECT> <P>This part is applicable to any charge of alleged unfair labor practices pending or filed with the Authority on or after January 1, 1999, and any complaint filed on or after October 1, 1997.</P> <CITA>[63 FR 65642, Nov. 30, 1998]</CITA> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart A—Filing, Investigating, Resolving, and Acting on Charges</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 65642, Nov. 30, 1998, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="392"/> <SECTNO>§ 2423.1</SECTNO> <SUBJECT>Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint.</SUBJECT> <P>(a) <E T="03">Resolving unfair labor practice disputes prior to filing a charge.</E> The purposes and policies of the Federal Service Labor-Management Relations 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 prior to filing unfair labor practice charges. If requested, or agreed to, by both parties, a representative of the Regional Office, in appropriate circumstances, may participate in these meetings to assist the parties in identifying the issues and their interests and in resolving the dispute. Attempts to resolve unfair labor practice disputes prior to 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).</P> <P>(b) <E T="03">Resolving unfair labor practice disputes after filing a charge.</E> The General Counsel encourages the informal resolution of unfair labor practice allegations subsequent to the filing of a charge and prior to a determination on the merits of the charge by a Regional Director. A representative of the appropriate Regional Office, as part of the investigation, may assist the parties in informally resolving their dispute.</P> </SECTION> <SECTION> <SECTNO>§ 2423.2</SECTNO> <SUBJECT>Alternative Dispute Resolution (ADR) services.</SUBJECT> <P>(a) <E T="03">Purpose of ADR services.</E> 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 Federal Service Labor-Management Relations Statute and by providing services which assist labor organizations and agencies, on a voluntary basis: To develop collaborative labor-management relationships; to avoid unfair labor practice disputes; and to resolve any unfair labor practice disputes informally.</P> <P>(b) <E T="03">Types of ADR Services.</E> Agencies and labor organizations may jointly request, or agree to, the provision of the following services by the Office of the General Counsel:</P> <P>(1) <E T="03">Facilitation.</E> Assisting the parties in improving their labor-management relationship as governed by the Federal Service Labor-Management Relations Statute;</P> <P>(2) <E T="03">Intervention.</E> Intervening when parties are experiencing or expect significant unfair labor practice disputes;</P> <P>(3) <E T="03">Training.</E> Training labor organization officials and agency representatives on their rights and responsibilities under the Federal Service Labor-Management Relations Statute and how to avoid litigation over those rights and responsibilities, and on utilizing problem solving and ADR skills, techniques, and strategies to resolve informally unfair labor practice disputes; and</P> <P>(4) <E T="03">Education.</E> 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.</P> <P>(c) <E T="03">ADR services after initiation of an investigation.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.3</SECTNO> <SUBJECT>Who may file charges.</SUBJECT> <P>(a) <E T="03">Filing charges.</E> 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.</P> <P>(b) <E T="03">Charging Party.</E> Charging Party means the individual, labor organization, activity or agency filing an unfair labor practice charge with a Regional Director.</P> <P>(c) <E T="03">Charged Party.</E> Charged Party means the activity, agency or labor organization charged with allegedly having engaged in, or engaging in, an unfair labor practice.</P> </SECTION> <SECTION> <SECTNO>§ 2423.4</SECTNO> <SUBJECT>Contents of the charge; supporting evidence and documents.</SUBJECT> <P>(a) <E T="03">What to file.</E> The Charging Party may file a charge alleging a violation <PRTPAGE P="393"/>of 5 U.S.C. 7116 by completing a form prescribed by the General Counsel, or on a substantially similar form, that contains the following information:</P> <P>(1) The name, address, telephone number, and facsimile number (where facsimile equipment is available) of the Charging Party;</P> <P>(2) The name, address, telephone number, and facsimile number (where facsimile equipment is available) of the Charged Party;</P> <P>(3) The name, address, telephone number, and facsimile number (where facsimile equipment is available) of the Charging Party's point of contact;</P> <P>(4) The name, address, telephone number, and facsimile number (where facsimile equipment is available) of the Charged Party's point of contact;</P> <P>(5) A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of the section(s) and paragraph(s) of the Federal Service Labor-Management Relations Statute alleged to have been violated, and the date and place of occurrence of the particular acts; and</P> <P>(6) A statement whether the subject matter raised in the charge:</P> <P>(i) Has been raised previously in a grievance procedure;</P> <P>(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 the Special Counsel for consideration or action;</P> <P>(iii) Involves a negotiability issue raised by the Charging Party in a petition pending before the Authority pursuant to part 2424 of this subchapter; or</P> <P>(iv) Has been the subject of any other administrative or judicial proceeding.</P> <P>(7) A statement describing the result or status of any proceeding identified in paragraph (a)(6) of this section.</P> <P>(b) <E T="03">Declaration of truth and statement of service.</E> A charge shall be in writing and signed, and shall 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.</P> <P>(c) <E T="03">Statement of service.</E> A charge shall also contain a statement that the Charging Party served the charge on the Charged Party, and shall list the name, title and location of the individual served, and the method of service.</P> <P>(d) <E T="03">Self-contained document.</E> A charge shall be a self-contained document describing the alleged unfair labor practice without a need to refer to supporting evidence documents submitted under paragraph (e) of this section.</P> <P>(e) <E T="03">Submitting supporting evidence and documents and identifying potential witnesses.</E> When filing a charge, the Charging Party shall 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. The Charging Party also shall identify potential witnesses and shall provide a brief synopsis of their expected testimony.</P> </SECTION> <SECTION> <SECTNO>§ 2423.5</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 2423.6</SECTNO> <SUBJECT>Filing and service of copies.</SUBJECT> <P>(a) <E T="03">Where to file.</E> A Charging Party shall 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.</P> <P>(b) <E T="03">Filing date.</E> A charge is deemed filed when it is received by a Regional Director.</P> <P>(c) <E T="03">Method of filing.</E> A Charging Party may file a charge with the Regional Director in person or by commercial delivery, first-class mail, or certified mail. Notwithstanding § 2429.24(e) of this subchapter, a Charging Party also may file a charge by facsimile transmission if the charge does not exceed 2 pages. If filing by facsimile transmission, the Charging Party is not required to file an original copy of the charge with the Region. A Charging Party assumes responsibility for receipt of a charge. Supporting evidence <PRTPAGE P="394"/>and documents shall be submitted to the Regional Director in person, by commercial delivery, first-class mail, or certified mail, not by facsimile transmission. Charges shall not be filed by electronic mail.</P> <P>(d) <E T="03">Service of the charge.</E> The Charging Party shall serve a copy of the charge (without supporting evidence and documents) on the Charged Party. Where facsimile equipment is available, the charge may be served by facsimile transmission in accordance with paragraph (c) of this section. The Region routinely serves a copy of the charge on the Charged Party, but the Charging Party remains responsible for serving the charge in accordance with this paragraph.</P> </SECTION> <SECTION> <SECTNO>§ 2423.7</SECTNO> <SUBJECT>Alternative case processing procedure.</SUBJECT> <P>(a) <E T="03">Alternative case processing procedure.</E> The Region may utilize an alternative case processing procedure to assist the parties in resolving their unfair labor practice dispute, if the parties voluntarily agree, by facilitating a problem-solving approach, rather than initially investigating the particular facts and determining the merits of the charge.</P> <P>(b) <E T="03">No evidence is taken.</E> The purpose of the alternative case processing procedure is to resolve the underlying unfair labor practice dispute without determining the merits of the charge. The role of the agent is to assist the parties in that endeavor by facilitating a solution rather than conducting an investigation. No testimonial or documentary evidence or positions on the merits of the charge shall be gathered during the alternative case processing procedure or entered into the case file.</P> <P>(c) <E T="03">Investigation is not waived.</E> If the parties are unable to resolve the dispute, the Region conducts an investigation on the merits of the charge. The agent who is involved in the alternative case processing procedure shall not be involved in any subsequent investigation on the merits of the charge, unless the parties and the Regional Director agree otherwise.</P> </SECTION> <SECTION> <SECTNO>§ 2423.8</SECTNO> <SUBJECT>Investigation of charges.</SUBJECT> <P>(a) <E T="03">Investigation.</E> The Regional Director, on behalf of the General Counsel, conducts such investigation of the charge as the Regional Director deems necessary. During the course of the investigation, all parties involved are afforded an opportunity to present their evidence and views to the Regional Director.</P> <P>(b) <E T="03">Cooperation.</E> The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the full cooperation of all parties involved and the timely submission of all potentially relevant information from all potential sources during the course of the investigation. All persons shall cooperate fully with the Regional Director in the investigation of charges. Cooperation includes any of the following actions, when deemed appropriate by the Regional Director:</P> <P>(1) Making union officials, employees, and agency supervisors and managers available to give sworn/affirmed testimony regarding matters under investigation;</P> <P>(2) Producing documentary evidence pertinent to the matters under investigation; and</P> <P>(3) Providing statements of position on the matters under investigation.</P> <P>(c) <E T="03">Investigatory subpoenas.</E> 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 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.</P> <P>(1) A subpoena shall 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:</P> <P>(i) By delivering it to the witness in person;</P> <P>(ii) By registered or certified mail; or</P> <P>(iii) By delivering the subpoena to a responsible individual (named in the document certifying the delivery) at <PRTPAGE P="395"/>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 Regional Director and the General Counsel.</P> <P>(2) 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 General Counsel.</P> <P>(3) The General Counsel shall 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 shall state the procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, and any ruling on the petition to revoke, shall become part of the official record if there is a hearing under subpart C of this part.</P> <P>(4) Upon the failure of any person to comply with a subpoena issued by the General Counsel, the General Counsel shall determine whether to institute proceedings in the appropriate district court for the enforcement of the subpoena. Enforcement shall not be sought if to do so would be inconsistent with law, including the Federal Service Labor-Management Relations Statute.</P> <P>(d) <E T="03">Confidentiality.</E> 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, as a means of ensuring the General Counsel's continuing ability to obtain all relevant information. After issuance of a complaint and in preparation for a hearing, however, identification of witnesses, a synopsis of their expected testimony and documents proposed to be offered into evidence at the hearing may be disclosed as required by the prehearing disclosure requirements in § 2423.23.</P> </SECTION> <SECTION> <SECTNO>§ 2423.9</SECTNO> <SUBJECT>Amendment of charges.</SUBJECT> <P>Prior to the issuance of a complaint, the Charging Party may amend the charge in accordance with the requirements set forth in § 2423.6.</P> </SECTION> <SECTION> <SECTNO>§ 2423.10</SECTNO> <SUBJECT>Action by the Regional Director.</SUBJECT> <P>(a) <E T="03">Regional Director action.</E> The Regional Director may take any of the following actions, as appropriate:</P> <P>(1) Approve a request to withdraw a charge;</P> <P>(2) Refuse to issue a complaint;</P> <P>(3) Approve a written settlement agreement in accordance with the provisions of § 2423.12;</P> <P>(4) Issue a complaint; or</P> <P>(5) Withdraw a complaint.</P> <P>(b) <E T="03">Request for appropriate temporary relief.</E> 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 such appropriate temporary relief is final and shall not be appealed to the Authority.</P> <P>(c) <E T="03">General Counsel requests to the Authority.</E> 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. Temporary relief may be sought if it is just and proper and the record establishes probable cause that an unfair labor practice is being committed. Temporary relief shall not be sought if it would interfere with the ability of the agency to carry out its essential functions.</P> <P>(d) <E T="03">Actions subsequent to obtaining appropriate temporary relief.</E> The General Counsel shall inform the district court which granted temporary relief pursuant to 5 U.S.C. 7123(d) whenever an Administrative Law Judge recommends <PRTPAGE P="396"/>dismissal of the complaint, in whole or in part.</P> </SECTION> <SECTION> <SECTNO>§ 2423.11</SECTNO> <SUBJECT>Determination not to issue complaint; review of action by the Regional Director.</SUBJECT> <P>(a) <E T="03">Opportunity to withdraw a charge.</E> If upon the completion of an investigation under § 2423.8, the Regional Director, on behalf of the General Counsel, determines that issuance of a complaint is not warranted because 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.</P> <P>(b) <E T="03">Dismissal letter.</E> If the Charging Party does not withdraw the charge within a reasonable period of time, the Regional Director may, on behalf of the General Counsel, dismiss the charge and provide the parties with a written statement of the reasons for not issuing a complaint.</P> <P>(c) <E T="03">Appeal of a dismissal letter.</E> The Charging Party may obtain review of the Regional Director's decision not to issue a complaint by filing an appeal with the General Counsel within 25 days after service of the Regional Director's decision. A Charging Party shall serve a copy of the appeal on the Regional Director. The Office of the General Counsel shall serve notice on the Charged Party that an appeal has been filed.</P> <P>(d) <E T="03">Extension of time.</E> The Charging Party may file a request, in writing, for an extension of time to file an appeal, which shall be received by the General Counsel not later than 5 days before the date the appeal is due. A Charging Party shall serve a copy of the request for an extension of time on the Regional Director.</P> <P>(e) <E T="03">Grounds for granting an appeal.</E> The General Counsel may grant an appeal when the appeal establishes at least one of the following grounds:</P> <P>(1) The Regional Director's decision did not consider material facts that would have resulted in issuance of complaint;</P> <P>(2) The Regional Director's decision is based on a finding of a material fact that is clearly erroneous;</P> <P>(3) The Regional Director's decision is based on an incorrect statement of the applicable rule of law;</P> <P>(4) There is no Authority precedent on the legal issue in the case; or</P> <P>(5) The manner in which the Region conducted the investigation has resulted in prejudicial error.</P> <P>(f) <E T="03">General Counsel action.</E> The General Counsel may deny the appeal of the Regional Director's refusal to issue a complaint, 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 decision of the General Counsel is final.</P> <P>(g) <E T="03">Reconsideration.</E> 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 shall be filed within 10 days after the date on which the General Counsel's final decision is postmarked. A motion for reconsideration shall state with particularity the extraordinary circumstances claimed and shall be supported by appropriate citations. The decision of the General Counsel on a motion for reconsideration is final.</P> </SECTION> <SECTION> <SECTNO>§ 2423.12</SECTNO> <SUBJECT>Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint.</SUBJECT> <P>(a) <E T="03">Bilateral informal settlement agreement.</E> Prior to issuing a complaint, the Regional Director may afford 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.</P> <P>(b) <E T="03">Unilateral informal settlement agreement.</E> If the Charging Party elects not <PRTPAGE P="397"/>to become a party to an informal settlement agreement which the Regional Director concludes effectuates the policies of the Federal Service Labor-Management Relations Statute, the agreement may be between the Charged Party and the Regional Director. The Regional Director, on behalf of the General Counsel, shall 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 in accordance with § 2423.11(c) and (d). The General Counsel shall take action on the appeal as set forth in § 2423.11(e)-(g).</P> </SECTION> <SECTION> <SECTNO>§§ 2423.13-2423.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Post Complaint, Prehearing Procedures</HD> <SECTION> <SECTNO>§ 2423.20</SECTNO> <SUBJECT>Issuance and contents of the complaint; answer to the complaint; amendments; role of Office of Administrative Law Judges.</SUBJECT> <P>(a) <E T="03">Complaint.</E> 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:</P> <P>(1) Notice of the charge;</P> <P>(2) The basis for jurisdiction;</P> <P>(3) The facts alleged to constitute an unfair labor practice;</P> <P>(4) The particular sections of 5 U.S.C., chapter 71 and the rules and regulations involved;</P> <P>(5) Notice of the date, time, and place that a hearing will take place before an Administrative Law Judge; and</P> <P>(6) A brief statement explaining the nature of the hearing.</P> <P>(b) <E T="03">Answer.</E> 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.</P> <P>(c) <E T="03">Amendments.</E> 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.</P> <P>(d) <E T="03">Office of Administrative Law Judges.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.21</SECTNO> <SUBJECT>Motions procedure.</SUBJECT> <P>(a) <E T="03">General requirements.</E> 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.</P> <P>(b) <E T="03">Motions made to the Administrative Law Judge.</E> Prehearing motions and motions made at the hearing shall be filed with the Administrative Law <PRTPAGE P="398"/>Judge. Unless otherwise specified in subparts B or C of this part, or otherwise directed or approved by the Administrative Law Judge:</P> <P>(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;</P> <P>(2) Responses to motions made during the hearing shall be filed prior to the close of hearing;</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Post-transmission motions.</E> 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.</P> <P>(d) <E T="03">Interlocutory appeals.</E> Motions for an interlocutory appeal of any ruling and responses shall be filed in accordance with this section and § 2423.31(c).</P> </SECTION> <SECTION> <SECTNO>§ 2423.22</SECTNO> <SUBJECT>Intervenors.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 2423.23</SECTNO> <SUBJECT>Prehearing disclosure.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Witnesses.</E> Proposed witness lists, including a brief synopsis of the expected testimony of each witness;</P> <P>(b) <E T="03">Documents.</E> Copies of documents, with an index, proposed to be offered into evidence; and</P> <P>(c) <E T="03">Theories.</E> A brief statement of the theory of the case, including relief sought, and any and all defenses to the allegations in the complaint.</P> </SECTION> <SECTION> <SECTNO>§ 2423.24</SECTNO> <SUBJECT>Powers and duties of the Administrative Law Judge during prehearing proceedings.</SUBJECT> <P>(a) <E T="03">Prehearing procedures.</E> The Administrative Law Judge shall regulate the course and scheduling of prehearing matters, including prehearing orders, conferences, disclosure, motions, and subpoena requests.</P> <P>(b) <E T="03">Changing date, time, or place of hearing.</E> 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.</P> <P>(c) <E T="03">Prehearing order.</E> (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:</P> <P>(i) The date, time, or place of the hearing;</P> <P>(ii) The schedule for prehearing disclosure of witness lists and documents intended to be offered into evidence at the hearing;</P> <P>(iii) The date for submission of procedural and substantive motions;</P> <P>(iv) The date, time, and place of the prehearing conference; and</P> <P>(v) Any other matter pertaining to prehearing or hearing procedures.</P> <P>(2) The prehearing order shall be served in accordance with § 2429.12 of this subchapter.</P> <P>(d) <E T="03">Prehearing conferences.</E> 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 <PRTPAGE P="399"/>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:</P> <P>(1) Settlement of the case, either by the Judge conducting the prehearing conference or pursuant to § 2423.25;</P> <P>(2) Admissions of fact, disclosure of contents and authenticity of documents, and stipulations of fact;</P> <P>(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;</P> <P>(4) Subpoena requests or petitions to revoke subpoenas;</P> <P>(5) Any matters subject to official notice;</P> <P>(6) Outstanding motions; or</P> <P>(7) Any other matter that may expedite the hearing or aid in the disposition of the case.</P> <P>(e) <E T="03">Sanctions.</E> 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:</P> <P>(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.</P> <P>(2) Refuse to consider any submission that is not filed in compliance with subparts B or C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 2423.25</SECTNO> <SUBJECT>Post complaint, prehearing settlements.</SUBJECT> <P>(a) <E T="03">Informal and formal settlements.</E> Post complaint settlements may be either informal or formal.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Informal settlement procedure.</E> 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.</P> <P>(c) <E T="03">Formal settlement procedure.</E> 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 <PRTPAGE P="400"/>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.</P> <P>(d) <E T="03">Settlement judge program.</E> 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.</P> <P>(1) The settlement official shall convene and preside over settlement conferences by telephone or in person.</P> <P>(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.</P> <P>(3) The settlement official shall not discuss any aspect of the case with the hearing judge.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.26</SECTNO> <SUBJECT>Stipulations of fact submissions.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Stipulations to the Administrative Law Judge.</E> Where the stipulation adequately addresses the appropriate material facts, the Administrative Law Judge may grant the motion and decide the case through stipulation.</P> <P>(c) <E T="03">Stipulations to the Authority.</E> 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.</P> <P>(d) <E T="03">Decision based on stipulation.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.27</SECTNO> <SUBJECT>Summary judgment motions.</SUBJECT> <P>(a) <E T="03">Motions.</E> 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.</P> <P>(b) <E T="03">Responses.</E> 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.</P> <P>(c) <E T="03">Decision.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="401"/> <SECTNO>§ 2423.28</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <P>(a) <E T="03">When necessary.</E> 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.</P> <P>(b) <E T="03">Requests for subpoenas.</E> 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.</P> <P>(c) <E T="03">Subpoena procedures.</E> 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.</P> <P>(d) <E T="03">Service of subpoena.</E> 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:</P> <P>(1) By delivering it to the witness in person,</P> <P>(2) By registered or certified mail, or</P> <P>(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.</P> <P>(e)(1) <E T="03">Petition to revoke subpoena.</E> 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.</P> <P>(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.</P> <P>(f) <E T="03">Failure to comply.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.29</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Hearing Procedures</HD> <SECTION> <SECTNO>§ 2423.30</SECTNO> <SUBJECT>General rules.</SUBJECT> <P>(a) <E T="03">Open hearing.</E> The hearing shall be open to the public unless otherwise ordered by the Administrative Law Judge.</P> <P>(b) <E T="03">Administrative Procedure Act.</E> 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.<PRTPAGE P="402"/> </P> <P>(c) <E T="03">Rights of parties.</E> 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.</P> <P>(d) <E T="03">Objections.</E> 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.</P> <P>(e) <E T="03">Oral argument.</E> 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.</P> <P>(f) <E T="03">Official transcript.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.31</SECTNO> <SUBJECT>Powers and duties of the Administrative Law Judge at the hearing.</SUBJECT> <P>(a) <E T="03">Conduct of hearing.</E> 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.</P> <P>(b) <E T="03">Evidence.</E> 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.</P> <P>(c) <E T="03">Interlocutory appeals.</E> 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.</P> <P>(1) The Judge shall grant the motion and certify the contested ruling to the Authority if:</P> <P>(i) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Bench decisions.</E> 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.</P> <P>(e) <E T="03">Settlements after the opening of the hearing.</E> As set forth in § 2423.25(a), settlements may be either informal or formal.</P> <P>(1) <E T="03">Informal settlement procedure: Judge's approval of withdrawal.</E> If the <PRTPAGE P="403"/>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.</P> <P>(2) <E T="03">Formal settlement procedure: Judge's approval of settlement.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.32</SECTNO> <SUBJECT>Burden of proof before the Administrative Law Judge.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.33</SECTNO> <SUBJECT>Posthearing briefs.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2423.34</SECTNO> <SUBJECT>Decision and record.</SUBJECT> <P>(a) <E T="03">Recommended decision.</E> 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:</P> <P>(1) A statement of the issues;</P> <P>(2) Relevant findings of fact;</P> <P>(3) Conclusions of law and reasons therefor;</P> <P>(4) Credibility determinations as necessary; and</P> <P>(5) A recommended disposition or order.</P> <P>(b) <E T="03">Transmittal to Authority.</E> 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 <PRTPAGE P="404"/>hearing, briefs, and any other filings or submissions made by the parties.</P> </SECTION> <SECTION> <SECTNO>§§ 2423.35-2423.39</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Post-Transmission and Exceptions to Authority Procedures</HD> <SECTION> <SECTNO>§ 2423.40</SECTNO> <SUBJECT>Exceptions; oppositions and cross-exceptions; oppositions to cross-exceptions; waiver.</SUBJECT> <P>(a) <E T="03">Exceptions.</E> 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:</P> <P>(1) The specific findings, conclusions, determinations, rulings, or recommendations being challenged; the grounds relied upon; and the relief sought.</P> <P>(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.</P> <P>(3) Exceptions containing 25 or more pages shall include a table of contents and a table of legal authorities cited.</P> <P>(b) <E T="03">Oppositions and cross-exceptions.</E> 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.</P> <P>(c) <E T="03">Reply briefs.</E> Reply briefs shall not be filed absent prior permission of the Authority.</P> <P>(d) <E T="03">Waiver.</E> Any exception not specifically argued shall be deemed to have been waived.</P> </SECTION> <SECTION> <SECTNO>§ 2423.41</SECTNO> <SUBJECT>Action by the Authority; compliance with Authority decisions and orders.</SUBJECT> <P>(a) <E T="03">Authority decision; no exceptions filed.</E> 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.</P> <P>(b) <E T="03">Authority decision; exceptions filed.</E> 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.</P> <P>(c) <E T="03">Authority's order.</E> 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).</P> <P>(d) <E T="03">Dismissal.</E> Upon finding no violation, the Authority shall dismiss the complaint.</P> <P>(e) <E T="03">Report of compliance.</E> 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.</P> <CITA>[62 FR 40916, July 31, 1997, as amended at 63 FR 46158, Aug. 31, 1998]</CITA> </SECTION> <SECTION> <PRTPAGE P="405"/> <SECTNO>§ 2423.42</SECTNO> <SUBJECT>Backpay proceedings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 2423.43-2423.49</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2424</EAR> <HD SOURCE="HED">PART 2424—NEGOTIABILITY PROCEEDINGS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Applicability of This Part and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>2424.1</SECTNO> <SUBJECT>Applicability of this part.</SUBJECT> <SECTNO>2424.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2424.3-2424.9</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Alternative Dispute Resolution; Requesting and Providing Allegations Concerning the Duty To Bargain</HD> <SECTNO>2424.10</SECTNO> <SUBJECT>Collaboration and Alternative Dispute Resolution Program.</SUBJECT> <SECTNO>2424.11</SECTNO> <SUBJECT>Requesting and providing written allegations concerning the duty to bargain.</SUBJECT> <SECTNO>2424.12-2424.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Filing and Responding to a Petition for Review; Conferences</HD> <SECTNO>2424.20</SECTNO> <SUBJECT>Who may file a petition for review.</SUBJECT> <SECTNO>2424.21</SECTNO> <SUBJECT>Time limits for filing a petition for review.</SUBJECT> <SECTNO>2424.22</SECTNO> <SUBJECT>Exclusive representative's petition for review; purpose; content; severance; service.</SUBJECT> <SECTNO>2424.23</SECTNO> <SUBJECT>Post-petition conferences; conduct and record.</SUBJECT> <SECTNO>2424.24</SECTNO> <SUBJECT>Agency's statement of position; purpose; time limits; content; severance; service.</SUBJECT> <SECTNO>2424.25</SECTNO> <SUBJECT>Response of the exclusive representative; purpose; time limits; content; severance; service.</SUBJECT> <SECTNO>2424.26</SECTNO> <SUBJECT>Agency's reply; purpose; time limits; content; service.</SUBJECT> <SECTNO>2424.27</SECTNO> <SUBJECT>Additional submissions to the Authority.</SUBJECT> <SECTNO>2424.28-2424.29</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Processing a Petition for Review</HD> <SECTNO>2424.30</SECTNO> <SUBJECT>Procedure through which the petition for review will be resolved.</SUBJECT> <SECTNO>2424.31</SECTNO> <SUBJECT>Resolution of disputed issues of material fact; hearings.</SUBJECT> <SECTNO>2424.32</SECTNO> <SUBJECT>Parties’ responsibilities; failure to raise, support, and/or respond to arguments; failure to participate in conferences and/or respond to Authority orders.</SUBJECT> <SECTNO>2424.33-2424.39</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Decision and Order</HD> <SECTNO>2424.40</SECTNO> <SUBJECT>Authority decision and order.</SUBJECT> <SECTNO>2424.41</SECTNO> <SUBJECT>Compliance.</SUBJECT> <SECTNO>2424.42-2424.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Criteria for Determining Compelling Need for Agency Rules and Regulations</HD> <SECTNO>2424.50</SECTNO> <SUBJECT>Illustrative criteria.</SUBJECT> <SECTNO>2424.51-2424.59</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 66413, Dec. 2, 1998, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Applicability of This Part and Definitions</HD> <SECTION> <SECTNO>§ 2424.1</SECTNO> <SUBJECT>Applicability of this part.</SUBJECT> <P>This part is applicable to all petitions for review filed after April 1, 1999.</P> </SECTION> <SECTION> <SECTNO>§ 2424.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In this part, the following definitions apply:</P> <P>(a) <E T="03">Bargaining obligation dispute</E> 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 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:</P> <P>(1) A proposal concerns a matter that is covered by a collective bargaining agreement; and<PRTPAGE P="406"/> </P> <P>(2) Bargaining is not required over a change in bargaining unit employees’ conditions of employment because the effect of the change is <E T="03">de minimis.</E> </P> <P>(b) <E T="03">Collaboration and Alternative Dispute Resolution Program</E> refers to the Federal Labor Relations Authority's program that assists parties in reaching agreements to resolve disputes.</P> <P>(c) <E T="03">Negotiability dispute</E> 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:</P> <P>(1) Affects a management right under 5 U.S.C. 7106(a);</P> <P>(2) Constitutes a procedure or appropriate arrangement, within the meaning of 5 U.S.C. 7106(b)(2) and (3), respectively; and</P> <P>(3) Is consistent with a Government-wide regulation.</P> <P>(d) <E T="03">Petition for review</E> 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.</P> <P>(e) <E T="03">Proposal</E> 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 includes each proposal concerned.</P> <P>(f) <E T="03">Provision</E> 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 includes each provision concerned.</P> <P>(g) <E T="03">Service</E> 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.</P> <P>(h) <E T="03">Severance</E> 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.</P> <P>(i) <E T="03">Written allegation concerning the duty to bargain</E> means an agency allegation that the duty to bargain in good faith does not extend to a proposal.</P> </SECTION> <SECTION> <SECTNO>§§ 2424.3-2424.9</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Alternative Dispute Resolution; Requesting and Providing Allegations Concerning the Duty To Bargain</HD> <SECTION> <SECTNO>§ 2424.10</SECTNO> <SUBJECT>Collaboration and Alternative Dispute Resolution Program.</SUBJECT> <P>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 Program (CADR). Upon request, 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 or write the CADR Office at (202) 482-6503, 607 14th Street, NW., Washington, D.C. 20424-001. A brief summary of CADR activities is available on the Internet at www.flra.gov.</P> </SECTION> <SECTION> <SECTNO>§ 2424.11</SECTNO> <SUBJECT>Requesting and providing written allegations concerning the duty to bargain.</SUBJECT> <P>(a) <E T="03">General.</E> 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 <PRTPAGE P="407"/>also may file a petition for review if it requests 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.</P> <P>(b) <E T="03">Agency allegation in response to request.</E> 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).</P> <P>(c) <E T="03">Unrequested agency allegation.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§§ 2424.12-2424.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Filing and Responding to a Petition for Review; Conferences</HD> <SECTION> <SECTNO>§ 2424.20</SECTNO> <SUBJECT>Who may file a petition for review.</SUBJECT> <P>A petition for review may be filed by an exclusive representative that is a party to the negotiations.</P> </SECTION> <SECTION> <SECTNO>§ 2424.21</SECTNO> <SUBJECT>Time limits for filing a petition for review.</SUBJECT> <P>(a) A petition for review must be filed within fifteen (15) days after the date of service of either:</P> <P>(1) An agency's written allegation that the exclusive representative's proposal is not within the duty to bargain, or</P> <P>(2) An agency head's disapproval of a provision.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2424.22</SECTNO> <SUBJECT>Exclusive representative's petition for review; purpose; content; severance; service.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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. As more fully explained in paragraph (b) of this section, the exclusive representative is required in the petition for review to, among other things, inform the Authority of the exact wording and meaning of the proposal or provision as well as how it is intended to operate, explain technical or unusual terms, and provide copies of materials that support the exclusive representative's position.</P> <P>(b) <E T="03">Content.</E> A petition for review must be filed on a form provided by the Authority for that purpose, or in a substantially similar format. It must be dated and include the following:</P> <P>(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;</P> <P>(2) Specific citation to any law, rule, regulation, section of a collective bargaining agreement, or other authority relied on by the exclusive representative in its argument or referenced in the proposal or provision, and a copy of any such material that is not easily available to the Authority;</P> <P>(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;</P> <P>(4) Any request for a hearing before the Authority and the reasons supporting such request; and</P> <P>(5) A table of contents and a table of legal authorities cited, if the petition exceeds 25 double-spaced pages in length.</P> <P>(c) <E T="03">Severance.</E> The exclusive representative may, but is not required to, <PRTPAGE P="408"/>include in the petition for review a statement as to whether it requests severance of a proposal or provision. If severance is requested in the petition for review, then the exclusive representative must support its request with an explanation of how each severed portion of the proposal or provision may stand alone, and how such severed portion would operate. The explanation and argument in support of the severed portion(s) must meet the same requirements for information set forth in paragraph (b) of this section.</P> <P>(d) <E T="03">Service.</E> The petition for review, including all attachments, must be served in accord with § 2424.2(g).</P> </SECTION> <SECTION> <SECTNO>§ 2424.23</SECTNO> <SUBJECT>Post-petition conferences; conduct and record.</SUBJECT> <P>(a) <E T="03">Timing of post-petition conference.</E> On receipt of a petition for review involving a proposal or a provision, a representative of the FLRA will, where appropriate, schedule a post-petition conference to be conducted by telephone or in person. All reasonable efforts will be made to schedule and conduct the conference within ten (10) days after receipt of the petition for review.</P> <P>(b) <E T="03">Conduct of conference.</E> 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:</P> <P>(1) The meaning of the proposal or provision in dispute;</P> <P>(2) Any disputed factual issue(s);</P> <P>(3) Negotiability dispute objections and bargaining obligation claims regarding the proposal or provision;</P> <P>(4) Whether the proposal or provision is also involved in an unfair labor practice charge under part 2423 of this subchapter, in a grievance under the parties’ negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter; and</P> <P>(5) Whether an extension of the time limits for filing the agency's statement of position and any subsequent filings is requested. 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 <E T="03">et seq.</E>, and this part, extend such time limits.</P> <P>(c) <E T="03">Record of the conference.</E> At the post-petition conference, or after it has been completed, the representative of the FLRA will prepare and serve on the parties a written statement 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 matters.</P> </SECTION> <SECTION> <SECTNO>§ 2424.24</SECTNO> <SUBJECT>Agency's statement of position; purpose; time limits; content; severance; service.</SUBJECT> <P>(a) <E T="03">Purpose.</E> The purpose of an agency statement of position is to inform the Authority and the exclusive representative why a proposal or provision is not within the duty to bargain or contrary to law, respectively. As more fully explained in paragraph (c) of this section, the agency is required in the statement of position to, among other things, set forth its understanding of the proposal or provision, state any disagreement with the facts, arguments, or meaning of the proposal or provision set forth in the exclusive representative's petition for review, and supply all arguments and authorities in support of its position.</P> <P>(b) <E T="03">Time limit for filing.</E> 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.</P> <P>(c) <E T="03">Content.</E> The agency's statement of position must be on a form provided by the Authority for that purpose, or in a substantially similar format. It must be dated and must:</P> <P>(1) Withdraw either:</P> <P>(i) The allegation that the duty to bargain in good faith does not extend to the exclusive representative's proposal, or</P> <P>(ii) The disapproval of the provision under 5 U.S.C. 7114(c); or</P> <P>(2) Set forth in full the agency's position on any matters relevant to the petition that it wishes the Authority to consider in reaching its decision, including a statement of the arguments <PRTPAGE P="409"/>and authorities supporting any bargaining obligation or negotiability claims, any disagreement with claims made by the exclusive representative in the petition for review, specific citation to any law, rule, regulation, section of a collective bargaining agreement, or other authority relied on by the agency, and a copy of any such material that is not easily available to the Authority. The statement of position must also include the following:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(4) Any request for a hearing before the Authority and the reasons supporting such request; and</P> <P>(5) A table of contents and a table of legal authorities cited, if the statement of position exceeds 25 double-spaced pages in length.</P> <P>(d) <E T="03">Severance.</E> If the exclusive representative has requested severance in the petition for review, and if the agency opposes the exclusive representative's request for severance, then the agency must explain with specificity why severance is not appropriate.</P> <P>(e) <E T="03">Service.</E> A copy of the agency's statement of position, including all attachments, must be served in accord with § 2424.2(g).</P> </SECTION> <SECTION> <SECTNO>§ 2424.25</SECTNO> <SUBJECT>Response of the exclusive representative; purpose; time limits; content; severance; service.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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 union disagrees with any facts or arguments in the agency's statement of position. As more fully explained in paragraph (c) of this section, the exclusive representative is required in its response to, among other things, state why the proposal or provision does not conflict with any law, or why it falls within an exception to management rights, including permissive subjects under 5 U.S.C. 7106(b)(1), and procedures and appropriate arrangements under section 7106(b) (2) and (3). Another purpose of the response is to permit the exclusive representative to request the Authority to sever portions of the proposal or provision and to explain why and how it can be done.</P> <P>(b) <E T="03">Time limit for filing.</E> 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.</P> <P>(c) <E T="03">Content.</E> The response must be on a form provided by the Authority for that purpose, or in a substantially similar format. With the exception of a request for severance pursuant to paragraph (d) of this section, the exclusive representative's response is specifically limited to the matters raised in the agency's statement of position. The response must be dated and must include the following:</P> <P>(1) Any disagreement with the agency's bargaining obligation or negotiability claims. The exclusive representative must state the arguments and authorities supporting its opposition to any agency argument, and must include specific citation to any law, rule, regulation, section of a collective bargaining agreement, or other authority <PRTPAGE P="410"/>relied on by the exclusive representative, and provide a copy of any such material that is not easily available to the Authority. The exclusive representative is not required to repeat arguments made in the petition for review. If not included in the petition for review, the exclusive representative must state the arguments and authorities supporting any assertion that the proposal or provision does not affect a management right under 5 U.S.C. 7106(a), and any assertion that an exception to management rights applies, including:</P> <P>(i) Whether and why the proposal or provision concerns a matter negotiable at the election of the agency under 5 U.S.C. 7106(b)(1);</P> <P>(ii) Whether and why the proposal or provision constitutes a negotiable procedure as set forth in 5 U.S.C. 7106(b)(2);</P> <P>(iii) Whether and why the proposal or provision constitutes an appropriate arrangement as set forth in 5 U.S.C. 7106(b)(3); and</P> <P>(iv) Whether and why the proposal or provision enforces an “applicable law,” within the meaning of 5 U.S.C. 7106(a)(2).</P> <P>(2) Any allegation that agency rules or regulations relied on in the agency's statement of position violate applicable law, rule, regulation or appropriate authority outside the agency; that the rules or regulations were not issued by the agency or by any primary national subdivision of the agency, or otherwise are not applicable to bar negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need exists for the rules or regulations to bar negotiations.</P> <P>(3) A table of contents and a table of legal authorities cited if the response to an agency statement of position exceeds 25 double-spaced pages in length.</P> <P>(d) <E T="03">Severance.</E> If not requested in the petition for review, or if the exclusive representative wishes to modify the request in the petition for review, the exclusive representative may request severance in its response. The exclusive representative must support its request with an explanation of how the severed portion(s) of the proposal or provision may stand alone, and how such severed portion(s) would operate. The exclusive representative also must respond to any agency arguments regarding severance made in the agency's statement of position. 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.</P> <P>(e) <E T="03">Service.</E> A copy of the response of the exclusive representative, including all attachments, must be served in accord with § 2424.2(g).</P> </SECTION> <SECTION> <SECTNO>§ 2424.26</SECTNO> <SUBJECT>Agency's reply; purpose; time limits; content; service.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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. As more fully explained in paragraph (c) of this section, the Agency is required in the reply to, among other things, provide the reasons why the proposal or provision does not fit within any exceptions to management rights that were asserted by the exclusive representative in its response, and to explain why severance of the proposal or provision is not appropriate.</P> <P>(b) <E T="03">Time limit for filing.</E> 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.</P> <P>(c) <E T="03">Content.</E> The reply must be on a form provided by the Authority for that purpose, or in a substantially similar format. The agency's reply is specifically limited to the matters raised for the first time in the exclusive representative's response. The agency's reply must state the arguments and authorities supporting its reply, cite with specificity any law, rule, regulation, section of a collective bargaining agreement, or other authority relied on, and provide a copy of any material that is not easily available to the Authority. The agency is not required to repeat arguments made in its statement of position. The agency's reply must be dated and must include the following:</P> <P>(1) Any disagreement with the exclusive representative's assertion that an <PRTPAGE P="411"/>exception to management rights applies, including:</P> <P>(i) Whether and why the proposal or provision concerns a matter included in section 7106(b)(1) of the Federal Service Labor-Management Relations Statute;</P> <P>(ii) Whether and why the proposal or provision does not constitute a negotiable procedure as set forth in section 7106(b)(2) of the Federal Service Labor-Management Relations Statute;</P> <P>(iii) Whether and why the proposal or provision does not constitute an appropriate arrangement as set forth in section 7106(b)(3) of the Federal Service Labor-Management Relations Statute;</P> <P>(iv) Whether and why the proposal or provision does not enforce an “applicable law,” within the meaning of section 7106(a)(2) of the Federal Service Labor-Management Relations Statute;</P> <P>(2) Any arguments in reply to an exclusive representative's allegation in its response that agency rules or regulations relied on in the agency's statement of position violate applicable law, rule, regulation or appropriate authority outside the agency; that the rules or regulations were not issued by the agency or by any primary national subdivision of the agency, or otherwise are not applicable to bar negotiations under 5 U.S.C. 7117(a)(3); or that no compelling need exists for the rules or regulations to bar negotiations; and</P> <P>(3) A table of contents and a table of legal authorities cited, if the agency's reply to an exclusive representative's response exceeds 25 double-spaced pages in length.</P> <P>(d) <E T="03">Severance.</E> If the exclusive representative requests severance for the first time in its response, or if the request for severance in an exclusive representative's response differs from the request in its petition for review, and if the agency opposes the exclusive representative's request for severance, then the agency must explain with specificity why severance is not appropriate.</P> <P>(e) <E T="03">Service.</E> A copy of the agency's reply, including all attachments, must be served in accord with § 2424.2(g).</P> </SECTION> <SECTION> <SECTNO>§ 2424.27</SECTNO> <SUBJECT>Additional submissions to the Authority.</SUBJECT> <P>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 either with the written request or no later than five (5) days after receipt of the Authority's order granting the request. Any opposition to the additional submission must be filed within fifteen (15) days after the date of the receipt of the additional submission. All documents filed under this section must be served in accord with § 2424.2(g).</P> </SECTION> <SECTION> <SECTNO>§§ 2424.28-2424.29</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Processing a Petition for Review</HD> <SECTION> <SECTNO>§ 2424.30</SECTNO> <SUBJECT>Procedure through which the petition for review will be resolved.</SUBJECT> <P>(a) <E T="03">Exclusive representative has filed related unfair labor practice charge or grievance alleging an unfair labor practice.</E> Except for proposals or provisions that are the subject of an agency's compelling need claim under 5 U.S.C. 7117(a)(2), where 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 Authority will dismiss the petition for review. 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 <PRTPAGE P="412"/>may refile the petition for review, and the Authority will determine whether resolution of the petition is still required.</P> <P>(b) <E T="03">Exclusive representative has not filed related unfair labor practice charge or grievance alleging an unfair labor practice.</E> Where an exclusive representative files only a petition for review under this part, the petition will be processed as follows:</P> <P>(1) <E T="03">No bargaining obligation dispute exists.</E> Where there is no bargaining obligation dispute, the Authority will resolve the petition for review under the procedures of this part.</P> <P>(2) <E T="03">A bargaining obligation dispute exists.</E> Where a bargaining obligation dispute exists in addition to the negotiability dispute, the Authority will inform the exclusive representative of any opportunity to file an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance under the parties’ negotiated grievance procedure and, where the exclusive representative pursues either of these courses, proceed in accord with paragraph (a) of this section. If the exclusive representative does not file an unfair labor practice charge or grievance, 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.</P> </SECTION> <SECTION> <SECTNO>§ 2424.31</SECTNO> <SUBJECT>Resolution of disputed issues of material fact; hearings.</SUBJECT> <P>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, as appropriate:</P> <P>(a) Direct the parties to provide specific documentary evidence;</P> <P>(b) Direct the parties to provide answers to specific factual questions;</P> <P>(c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3) and/or (c)(5); or</P> <P>(d) Take any other appropriate action.</P> </SECTION> <SECTION> <SECTNO>§ 2424.32</SECTNO> <SUBJECT>Parties’ responsibilities; failure to raise, support, and/or respond to arguments; failure to participate in conferences and/or respond to Authority orders.</SUBJECT> <P>(a) <E T="03">Responsibilities of the exclusive representative.</E> The exclusive representative has the burden of 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, and, where applicable, why severance is appropriate.</P> <P>(b) <E T="03">Responsibilities of the agency.</E> The agency has the burden of raising and supporting arguments that the proposal or provision is outside the duty to bargain or contrary to law, respectively, and, where applicable, why severance is not appropriate.</P> <P>(c) <E T="03">Failure to raise, support, and respond to arguments.</E> (1) Failure to raise and support an argument will, where appropriate, be deemed a waiver of such argument. Absent good cause:</P> <P>(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</P> <P>(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.</P> <P>(2) Failure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion.</P> <P>(d) <E T="03">Failure to participate in conferences; failure to respond to Authority orders.</E> 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 <PRTPAGE P="413"/>technical deficiencies in filing, the Authority may, in addition to those actions set forth in paragraph (c) of this section, take any other action that, in the Authority's discretion, is deemed 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 and/or rescission of an agency head disapproval under 5 U.S.C. 7114(c), with or without conditions.</P> </SECTION> <SECTION> <SECTNO>§§ 2424.33-2424.39</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Decision and Order</HD> <SECTION> <SECTNO>§ 2424.40</SECTNO> <SUBJECT>Authority decision and order.</SUBJECT> <P>(a) <E T="03">Issuance.</E> 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).</P> <P>(b) <E T="03">Cases involving proposals.</E> If the Authority finds that the duty to bargain extends to the proposal, or any severable part of the proposal, then the Authority will order the agency to bargain on request 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. 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 on request in the event its bargaining obligation claims are resolved in a manner that requires bargaining.</P> <P>(c) <E T="03">Cases involving provisions.</E> If the Authority finds that a provision, or any severable part thereof, is not contrary to law, rule or regulation, or is bargainable at the election of the agency, 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, the Authority will dismiss the petition for review as to that provision.</P> </SECTION> <SECTION> <SECTNO>§ 2424.41</SECTNO> <SUBJECT>Compliance.</SUBJECT> <P>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, that the agency must upon request (or as otherwise agreed to by the parties) bargain concerning the proposal or that the agency must rescind its disapproval of a provision. 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).</P> </SECTION> <SECTION> <SECTNO>§§ 2424.42-2424.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Criteria for Determining Compelling Need for Agency Rules and Regulations</HD> <SECTION> <SECTNO>§ 2424.50</SECTNO> <SUBJECT>Illustrative criteria.</SUBJECT> <P>A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:</P> <P>(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.<PRTPAGE P="414"/> </P> <P>(b) The rule or regulation is necessary to ensure the maintenance of basic merit principles.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§§ 2424.51-2424.59</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2425</EAR> <HD SOURCE="HED">PART 2425—REVIEW OF ARBITRATION AWARDS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2425.1</SECTNO> <SUBJECT>Who may file an exception; time limits for filing; opposition; service.</SUBJECT> <SECTNO>2425.2</SECTNO> <SUBJECT>Content of exception.</SUBJECT> <SECTNO>2425.3</SECTNO> <SUBJECT>Grounds for review.</SUBJECT> <SECTNO>2425.4</SECTNO> <SUBJECT>Authority decision.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SECTION> <SECTNO>§ 2425.1</SECTNO> <SUBJECT>Who may file an exception; time limits for filing; opposition; service.</SUBJECT> <P>(a) 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.</P> <P>(b) The time limit for filing an exception to an arbitration award is thirty (30) days beginning on the date the award is served on the filing party.</P> <P>(c) An opposition to the exception may be filed by a party within thirty (30) days after the date of service of the exception.</P> <P>(d) A copy of the exception and any opposition shall be served on the other party.</P> <CITA>[45 FR 3513, Jan. 17, 1980, as amended at 46 FR 40675, Aug. 11, 1981; 49 FR 22623, May 31, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2425.2</SECTNO> <SUBJECT>Content of exception.</SUBJECT> <P>An exception must be a dated, self-contained document which sets forth in full:</P> <P>(a) A statement of the grounds on which review is requested;</P> <P>(b) Evidence or rulings bearing on the issues before the Authority;</P> <P>(c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities; and</P> <P>(d) A legible copy of the award of the arbitrator and legible copies of other pertinent documents.</P> <P>(e) The name and address of the arbitrator.</P> <CITA>[45 FR 3513, Jan. 17, 1986, as amended at 51 FR 45755, Dec. 22, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2425.3</SECTNO> <SUBJECT>Grounds for review.</SUBJECT> <P>(a) The Authority will review an arbitrator's award to which an exception has been filed to determine if the award is deficient—</P> <P>(1) Because it is contrary to any law, rule or regulation; or</P> <P>(2) On other grounds similar to those applied by Federal courts in private sector labor-management relations.</P> <P>(b) The Authority will not consider an exception with respect to an award relating to:</P> <P>(1) An action based on unacceptable performance covered under 5 U.S.C. 4303;</P> <P>(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</P> <P>(3) Matters similar to those covered under 5 U.S.C. 4303 and 5 U.S.C. 7512 which arise under other personnel systems.</P> <CITA>[45 FR 3513, Jan. 17, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 2425.4</SECTNO> <SUBJECT>Authority decision.</SUBJECT> <P>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.</P> <CITA>[45 FR 3513, Jan. 17, 1980]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2426</EAR> <HD SOURCE="HED">PART 2426—NATIONAL CONSULTATION RIGHTS AND CONSULTATION RIGHTS ON GOVERNMENT-WIDE RULES OR REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—National Consultation Rights</HD> <SECHD>Sec.</SECHD> <SECTNO>2426.1</SECTNO> <SUBJECT>Requesting; granting; criteria.</SUBJECT> <SECTNO>2426.2</SECTNO> <SUBJECT>Requests; petition and procedures for determination of eligibility for national consultation rights.</SUBJECT> <SECTNO>2426.3</SECTNO> <SUBJECT>Obligation to consult.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="415"/> <HD SOURCE="HED">Subpart B—Consultation Rights on Government-wide Rules or Regulations</HD> <SECTNO>2426.11</SECTNO> <SUBJECT>Requesting; granting; criteria.</SUBJECT> <SECTNO>2426.12</SECTNO> <SUBJECT>Requests; petition and procedures for determination of eligibility for consultation rights on Government-wide rules or regulations.</SUBJECT> <SECTNO>2426.13</SECTNO> <SUBJECT>Obligation to consult.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3513, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—National Consultation Rights</HD> <SECTION> <SECTNO>§ 2426.1</SECTNO> <SUBJECT>Requesting; granting; criteria.</SUBJECT> <P>(a) An agency shall accord national consultation rights to a labor organization that:</P> <P>(1) Requests national consultation rights at the agency level; and</P> <P>(2) Holds exclusive recognition for either:</P> <P>(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</P> <P>(ii) 3,500 or more employees of the agency.</P> <P>(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:</P> <P>(1) Requests national consultation rights at the primary national subdivision level; and</P> <P>(2) Holds exclusive recognition for either:</P> <P>(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</P> <P>(ii) 3,500 or more employees of the primary national subdivision.</P> <P>(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:</P> <P>(1) At the agency level, employees represented by the labor organization under national exclusive recognition granted at the agency level.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2426.2</SECTNO> <SUBJECT>Requests; petition and procedures for determination of eligibility for national consultation rights.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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:</P> <P>(i) Name and affiliation, if any, of the petitioner and its address and telephone number;</P> <P>(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;</P> <P>(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;<PRTPAGE P="416"/> </P> <P>(iv) The signature of the petitioner's representative, including such person's title and telephone number;</P> <P>(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;</P> <P>(vi) A showing that petitioner holds adequate exclusive recognition as required by § 2426.1; and</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(3) The following regulations govern petitions filed under this section:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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: <E T="03">Provided, however,</E> 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 <PRTPAGE P="417"/>§§ 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.</P> <CITA>[45 FR 3513, Jan. 17, 1980, as amended at 48 FR 40193, Sept. 6, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2426.3</SECTNO> <SUBJECT>Obligation to consult.</SUBJECT> <P>(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:</P> <P>(1) Reasonable notice of any proposed substantive change in conditions of employment; and</P> <P>(2) Reasonable time to present its views and recommendations regarding the change.</P> <P>(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:</P> <P>(1) Consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and</P> <P>(2) Provide the labor organization a written statement of the reasons for taking the final action.</P> <P>(c) Nothing in this subpart shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Consultation Rights on Government-wide Rules or Regulations</HD> <SECTION> <SECTNO>§ 2426.11</SECTNO> <SUBJECT>Requesting; granting; criteria.</SUBJECT> <P>(a) An agency shall accord consultation rights on Government-wide rules or regulations to a labor organization that:</P> <P>(1) Requests consultation rights on Government-wide rules or regulations from an agency; and</P> <P>(2) Holds exclusive recognition for 3,500 or more employees.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2426.12</SECTNO> <SUBJECT>Requests; petition and procedures for determination of eligibility for consultation rights on Government-wide rules or regulations.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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:</P> <P>(i) Name and affiliation, if any, of the petitioner and its address and telephone number;</P> <P>(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;</P> <P>(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;</P> <P>(iv) The signature of the petitioner's representative, including such person's title and telephone number;</P> <P>(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;<PRTPAGE P="418"/> </P> <P>(vi) A showing that petitioner meets the criteria as required by § 2426.11; and</P> <P>(vii) A statement, as appropriate:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(3) The following regulations govern petitions filed under this section:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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: <E T="03">Provided, however,</E> 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.</P> <CITA>[45 FR 3513, Jan. 17, 1980, as amended at 48 FR 40193, Sept. 6, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2426.13</SECTNO> <SUBJECT>Obligation to consult.</SUBJECT> <P>(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:</P> <P>(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<PRTPAGE P="419"/> </P> <P>(2) Reasonable time to present its views and recommendations regarding the change.</P> <P>(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:</P> <P>(1) Consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and</P> <P>(2) Provide the labor organization a written statement of the reasons for taking the final action.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2427</EAR> <HD SOURCE="HED">PART 2427—GENERAL STATEMENTS OF POLICY OR GUIDANCE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2427.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>2427.2</SECTNO> <SUBJECT>Requests for general statements of policy or guidance.</SUBJECT> <SECTNO>2427.3</SECTNO> <SUBJECT>Content of request.</SUBJECT> <SECTNO>2427.4</SECTNO> <SUBJECT>Submissions from interested parties.</SUBJECT> <SECTNO>2427.5</SECTNO> <SUBJECT>Standards governing issuance of general statements of policy or guidance.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3516, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2427.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 2427.2</SECTNO> <SUBJECT>Requests for general statements of policy or guidance.</SUBJECT> <P>(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.</P> <P>(b) The Authority ordinarily will not consider a request related to any matter pending before the Authority, General Counsel, Panel or Assistant Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 2427.3</SECTNO> <SUBJECT>Content of request.</SUBJECT> <P>(a) A request for a general statement of policy or guidance shall be in writing and must contain:</P> <P>(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;</P> <P>(2) A statement of the standards under § 2427.5 upon which the request is based;</P> <P>(3) A full and detailed statement of the position or positions of the requesting party or parties;</P> <P>(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</P> <P>(5) Identification of other known interested parties.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2427.4</SECTNO> <SUBJECT>Submissions from interested parties.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2427.5</SECTNO> <SUBJECT>Standards governing issuance of general statements of policy or guidance.</SUBJECT> <P>In deciding whether to issue a general statement of policy or guidance, the Authority shall consider:</P> <P>(a) Whether the question presented can more appropriately be resolved by other means;</P> <P>(b) Where other means are available, whether an Authority statement would prevent the proliferation of cases involving the same or similar question;</P> <P>(c) Whether the resolution of the question presented would have general applicability under the Federal Service Labor-Management Relations Statute;<PRTPAGE P="420"/> </P> <P>(d) Whether the question currently confronts parties in the context of a labor-management relationship;</P> <P>(e) Whether the question is presented jointly by the parties involved; and</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2428</EAR> <HD SOURCE="HED">PART 2428—ENFORCEMENT OF ASSISTANT SECRETARY STANDARDS OF CONDUCT DECISIONS AND ORDERS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2428.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>2428.2</SECTNO> <SUBJECT>Petitions for enforcement.</SUBJECT> <SECTNO>2428.3</SECTNO> <SUBJECT>Authority decision.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3516, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2428.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2428.2</SECTNO> <SUBJECT>Petitions for enforcement.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2428.3</SECTNO> <SUBJECT>Authority decision.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2429</EAR> <HD SOURCE="HED">PART 2429—MISCELLANEOUS AND GENERAL REQUIREMENTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Miscellaneous</HD> <SECHD>Sec.</SECHD> <SECTNO>2429.1</SECTNO> <SUBJECT> [Reserved]</SUBJECT> <SECTNO>2429.2</SECTNO> <SUBJECT>Transfer and consolidation of cases.</SUBJECT> <SECTNO>2429.3</SECTNO> <SUBJECT>Transfer of record.</SUBJECT> <SECTNO>2429.4</SECTNO> <SUBJECT>Referral of policy questions to the Authority.</SUBJECT> <SECTNO>2429.5</SECTNO> <SUBJECT>Matters not previously presented; official notice.</SUBJECT> <SECTNO>2429.6</SECTNO> <SUBJECT>Oral argument.</SUBJECT> <SECTNO>2429.7</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <SECTNO>2429.8</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2429.9</SECTNO> <SUBJECT>Amicus curiae.</SUBJECT> <SECTNO>2429.10</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> <SECTNO>2429.11</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <SECTNO>2429.12</SECTNO> <SUBJECT>Service of process and papers by the Authority.</SUBJECT> <SECTNO>2429.13</SECTNO> <SUBJECT>Official time for witnesses.</SUBJECT> <SECTNO>2429.14</SECTNO> <SUBJECT>Witness fees.</SUBJECT> <SECTNO>2429.15</SECTNO> <SUBJECT>Authority requests for advisory opinions.</SUBJECT> <SECTNO>2429.16</SECTNO> <SUBJECT>General remedial authority.</SUBJECT> <SECTNO>2429.17</SECTNO> <SUBJECT>Reconsideration.</SUBJECT> <SECTNO>2429.18</SECTNO> <SUBJECT>Service of petitions for review of final authority orders.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Requirements</HD> <SECTNO>2429.21</SECTNO> <SUBJECT>Computation of time for filing papers.</SUBJECT> <SECTNO>2429.22</SECTNO> <SUBJECT>Additional time after service by mail.</SUBJECT> <SECTNO>2429.23</SECTNO> <SUBJECT>Extension; waiver.</SUBJECT> <SECTNO>2429.24</SECTNO> <SUBJECT>Place and method of filing; acknowledgement.</SUBJECT> <SECTNO>2429.25</SECTNO> <SUBJECT>Number of copies and paper size.</SUBJECT> <SECTNO>2429.26</SECTNO> <SUBJECT>Other documents.</SUBJECT> <SECTNO>2429.27</SECTNO> <SUBJECT>Service; statement of service.</SUBJECT> <SECTNO>2429.28</SECTNO> <SUBJECT>Petitions for amendment of regulations.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7134; § 2429.18 also issued under 28 U.S.C. 2112(a).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3516, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="421"/> <HD SOURCE="HED">Subpart A—Miscellaneous</HD> <SECTION> <SECTNO>§ 2429.1</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 2429.2</SECTNO> <SUBJECT>Transfer and consolidation of cases.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.3</SECTNO> <SUBJECT>Transfer of record.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.4</SECTNO> <SUBJECT>Referral of policy questions to the Authority.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.5</SECTNO> <SUBJECT>Matters not previously presented; official notice.</SUBJECT> <P>The Authority will not consider evidence offered by a party, or any issue, which was 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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.6</SECTNO> <SUBJECT>Oral argument.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.7</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="422"/>is not a party to the proceeding. The person who served the subpoena must certify that he or she did so:</P> <P>(1) By delivering it to the witness in person,</P> <P>(2) By registered or certified mail, or</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <CITA>[45 FR 3516, Jan. 17, 1980, as amended at 62 FR 40922, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.8</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2429.9</SECTNO> <SUBJECT>Amicus curiae.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.10</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> <P>The Authority and the General Counsel will not issue advisory opinions.</P> </SECTION> <SECTION> <SECTNO>§ 2429.11</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <P>Except as set forth in part 2423, the Authority and the General Counsel ordinarily will not consider interlocutory appeals.</P> <CITA>[62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.12</SECTNO> <SUBJECT>Service of process and papers by the Authority.</SUBJECT> <P>(a) <E T="03">Methods of service.</E> 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-<PRTPAGE P="423"/>class mail, by facsimile transmission, or by certified mail. 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.</P> <P>(b) <E T="03">Upon whom served.</E> 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.</P> <P>(c) <E T="03">Proof of service.</E> 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.</P> <CITA>[45 FR 3516, Jan. 17, 1980, as amended at 48 FR 40194, Sept. 6, 1983; 62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.13</SECTNO> <SUBJECT>Official time for witnesses.</SUBJECT> <P>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.</P> <CITA>[62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.14</SECTNO> <SUBJECT>Witness fees.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.15</SECTNO> <SUBJECT>Authority requests for advisory opinions.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.16</SECTNO> <SUBJECT>General remedial authority.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2429.17</SECTNO> <SUBJECT>Reconsideration.</SUBJECT> <P>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 <PRTPAGE P="424"/>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.</P> <CITA>[46 FR 40675, Aug. 11, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.18</SECTNO> <SUBJECT>Service of petitions for review of final authority orders.</SUBJECT> <P>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.</P> <CITA>[55 FR 2509, Jan. 25, 1990]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Requirements</HD> <SECTION> <SECTNO>§ 2429.21</SECTNO> <SUBJECT>Computation of time for filing papers.</SUBJECT> <P>(a) In computing any period of time prescribed by or allowed by this subchapter, except in agreement bar situations described in § 2422.12 (c), (d), (e), and (f) of this subchapter, and except as to the filing of exceptions to an arbitrator's award under § 2425.1 of this subchapter, the day of the act, event, or default from or after which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or a Federal legal holiday. <E T="03">Provided, however,</E> in agreement bar situations described in § 2422.12 (c), (d), (e), and (f), if the 60th day prior to the expiration date of an agreement falls on Saturday, Sunday, or a Federal legal holiday, a petition, to be timely, must be filed by the close of business on the last official workday preceding the 60th day. When the period of time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, and Federal legal holidays shall be excluded from the computations.</P> <P>(b) Except when filing an unfair labor practice charge pursuant to part 2423 of this subchapter, a representation petition pursuant to part 2422 of this subchapter, and a request for an extension of time pursuant to § 2429.23(a) of this part, when this subchapter requires the filing of any paper with the Authority, the General Counsel, a Regional Director, or an Administrative Law Judge, the date of filing shall be determined by the date of mailing indicated by the postmark date or the date a facsimile is transmitted. If no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the date of facsimile transmission is unclear, the date of transmission shall be the date the facsimile transmission is received. If the filing is by personal or commercial delivery, it shall be considered filed on the date it is received by the Authority or the officer or agent designated to receive such materials.</P> <P>(c) All documents filed or required to be filed with the Authority shall be filed in accordance with § 2429.24(a) of this subchapter.</P> <CITA>[51 FR 45751, Dec. 22, 1986, as amended at 60 FR 67298, Dec. 29, 1995; 62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.22</SECTNO> <SUBJECT>Additional time after service by mail.</SUBJECT> <P>Except as to the filing of an application for review of a Regional Director's Decision and Order under § 2422.31 of this subchapter, whenever a party has the right or is required to do some act pursuant to this subchapter within a prescribed period after service of a notice or other paper upon such party, and the notice or paper is served on such party by mail, 5 days shall be <PRTPAGE P="425"/>added to the prescribed period: Provided, however, that 5 days shall not be added in any instance where an extension of time has been granted.</P> <CITA>[62 FR 40923, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.23</SECTNO> <SUBJECT>Extension; waiver.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The time limits established in this subchapter may not be extended or waived in any manner other than that described in this subchapter.</P> <P>(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.</P> <CITA>[45 FR 3516, Jan. 17, 1980, as amended at 48 FR 40194, Sept. 6, 1983; 51 FR 45752, Dec. 22, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.24</SECTNO> <SUBJECT>Place and method of filing; acknowledgement.</SUBJECT> <P>(a) All documents filed or required to be filed with the Authority pursuant to this subchapter shall be filed with the Director, Case Control Office, Federal Labor Relations Authority, Docket Room, suite 415, 607 14th Street, NW., Washington, DC 20424-0001 (telephone: FTS or Commercial (202) 482-6540) between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays). Documents hand-delivered for filing must be presented in the Docket Room not later than 5 p.m. to be accepted for filing on that day.</P> <P>(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.</P> <P>(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.</P> <P>(d) A document submitted to an Administrative Law Judge pursuant to this subchapter shall be filed with the appropriate Administrative Law Judge, as set forth in the appendix.</P> <P>(e) All documents filed pursuant to this section shall be filed in person, by commercial delivery, by first-class mail, or by certified mail. Provided, however, that where facsimile equipment is available, motions; information pertaining to prehearing disclosure, conferences, orders, or hearing dates, times, and locations; information pertaining to subpoenas; and other similar matters may be filed by facsimile transmission, provided that the entire individual filing by the party does not exceed 10 pages in total length, with normal margins and font sizes.</P> <P>(f) All matters filed under paragraphs (a), (b), (c) and (d) of this section shall be printed, typed, or otherwise legibly duplicated: Carbon copies of typewritten matter will be accepted if they are clearly legible.</P> <P>(g) Documents in any proceedings under this subchapter, including correspondence, shall show the title of the proceeding and the case number, if any.</P> <P>(h) The original of each document required to be filed under this subchapter shall be signed by the party or by an attorney or representative of record for the party, or by an officer of the party, and shall contain the address and telephone number of the person signing it.</P> <P>(i) A return postal receipt may serve as acknowledgement of receipt by the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer, as appropriate. The receiving officer will otherwise acknowledge receipt of documents filed only when the filing party so requests <PRTPAGE P="426"/>and includes an extra copy of the document or its transmittal letter which the receiving office will date stamp upon receipt and return. If return is to be made by mail, the filing party shall include a self-addressed, stamped envelope for the purpose.</P> <CITA>[45 FR 3516, Jan. 17, 1980, as amended at 51 FR 45752, Dec. 22, 1986; 58 FR 53105, Oct. 14, 1993; 62 FR 40924, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.25</SECTNO> <SUBJECT>Number of copies and paper size.</SUBJECT> <P>Unless otherwise provided by the Authority or the General Counsel, or their designated representatives, as appropriate, or under this subchapter, and with the exception of any prescribed forms, any document or paper filed with the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer, as appropriate, under this subchapter, together with any enclosure filed therewith, shall be submitted on 8<FR>1/2</FR> x 11 inch size paper, using normal margins and font sizes, in an original and four (4) legible copies. Where facsimile filing is permitted pursuant to § 2429.24(e), one (1) legible copy, capable of reproduction, shall be sufficient. A clean copy capable of being used as an original for purposes such as further reproduction may be substituted for the original.</P> <CITA>[62 FR 40924, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.26</SECTNO> <SUBJECT>Other documents.</SUBJECT> <P>(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.</P> <P>(b) A copy of such other documents shall be served on the other parties.</P> </SECTION> <SECTION> <SECTNO>§ 2429.27</SECTNO> <SUBJECT>Service; statement of service.</SUBJECT> <P>(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.</P> <P>(b) Service of any document or paper under this subchapter, by any party, including documents and papers served by one party on any other party, shall be accomplished by certified mail, first-class mail, commercial delivery, or in person. Where facsimile equipment is available, service by facsimile of documents described in § 2429.24(e) is permissible.</P> <P>(c) A signed and dated statement of service shall be submitted at the time of filing. The statement of service 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.</P> <P>(d) The date of service or date served shall be the day when the matter served is deposited in the U.S. mail, delivered in person, received from commercial delivery, or, in the case of facsimile transmissions, the date transmitted.</P> <CITA>[45 FR 3516, Jan. 17, 1980, as amended at 62 FR 40924, July 31, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2429.28</SECTNO> <SUBJECT>Petitions for amendment of regulations.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2430</EAR> <HD SOURCE="HED">PART 2430—AWARDS OF ATTORNEY FEES AND OTHER EXPENSES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2430.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2430.2</SECTNO> <SUBJECT>Proceedings affected; eligibility for award.</SUBJECT> <SECTNO>2430.3</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>2430.4</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <SECTNO>2430.5</SECTNO> <SUBJECT>Rulemaking on maximum rates for attorney fees.</SUBJECT> <SECTNO>2430.6</SECTNO> <SUBJECT>Contents of application; net worth exhibit; documentation of fees and expenses.<PRTPAGE P="427"/> </SUBJECT> <SECTNO>2430.7</SECTNO> <SUBJECT>When an application may be filed; referral to Administrative Law Judge; stay of proceeding.</SUBJECT> <SECTNO>2430.8</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>2430.9</SECTNO> <SUBJECT>Answer to application; reply to answer; comments by other parties; extensions of time to file documents.</SUBJECT> <SECTNO>2430.10</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>2430.11</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <SECTNO>2430.12</SECTNO> <SUBJECT>Administrative Law Judge's decision; contents; service; transfer of case to the Authority; contents of record in case.</SUBJECT> <SECTNO>2430.13</SECTNO> <SUBJECT>Exceptions to Administrative Law Judge's decision; briefs; action of Authority.</SUBJECT> <SECTNO>2430.14</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 504.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 48623, Oct. 2, 1981, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2430.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <CITA>[51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2430.2</SECTNO> <SUBJECT>Proceedings affected; eligibility for award.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[46 FR 48623, Oct. 2, 1981, as amended at 51 FR 33837, Sept. 23, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 2430.3</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.4</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <P>(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:</P> <MATH DEEP="26" SPAN="2"> <PRTPAGE P="428"/> <MID>ER28FE00.001</MID> </MATH> <P>(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.</P> <P>(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.</P> <P>(b) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the following matters may be considered:</P> <P>(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;</P> <P>(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;</P> <P>(3) The time actually spent in the representation of the applicant;</P> <P>(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and</P> <P>(5) Such other factors as may bear on the value of the services provided.</P> <P>(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.</P> <CITA>[46 FR 48623, Oct. 2, 1981, as amended at 64 FR 30861, June 9, 1999; 65 FR 10374, Feb. 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2430.5</SECTNO> <SUBJECT>Rulemaking on maximum rates for attorney fees.</SUBJECT> <P>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.</P> <CITA>[65 FR 10374, Feb. 28, 2000</CITA> </SECTION> <SECTION> <SECTNO>§ 2430.6</SECTNO> <SUBJECT>Contents of application; net worth exhibit; documentation of fees and expenses.</SUBJECT> <P>(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.</P> <P>(b) The application shall include a statement that the applicant's net worth does not exceed $5 million.</P> <P>(c) The application shall state the amount of fees and expenses for which an award is sought.</P> <P>(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.</P> <P>(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.</P> <P>(f) Each applicant must provide with its application a detailed exhibit showing the net worth of the applicant <PRTPAGE P="429"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.7</SECTNO> <SUBJECT>When an application may be filed; referral to Administrative Law Judge; stay of proceeding.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.8</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.9</SECTNO> <SUBJECT>Answer to application; reply to answer; comments by other parties; extensions of time to file documents.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="430"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.10</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.11</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.12</SECTNO> <SUBJECT>Administrative Law Judge's decision; contents; service; transfer of case to the Authority; contents of record in case.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="431"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 2430.13</SECTNO> <SUBJECT>Exceptions to Administrative Law Judge's decision; briefs; action of Authority.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 2430.14</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>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.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="432"/> <HD SOURCE="HED">SUBCHAPTER D—FEDERAL SERVICE IMPASSES PANEL</HD> <PART> <EAR>Pt. 2470</EAR> <HD SOURCE="HED">PART 2470—GENERAL</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose</HD> <SECHD>Sec.</SECHD> <SECTNO>2470.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Definitions</HD> <SECTNO>2470.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>3 U.S.C. 431; 5 U.S.C. 7119, 7134.</P> </AUTH> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose</HD> <SECTION> <SECTNO>§ 2470.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <CITA>[63 FR 46159, Aug. 31, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Definitions</HD> <SECTION> <SECTNO>§ 2470.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The terms <E T="03">agency, labor organization</E>, and <E T="03">conditions of employment</E> 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 <E T="03">agency</E> as used in the Panel's regulations in this subchapter means an employing office as defined in 3 U.S.C. 401(a)(4).</P> <P>(b) The term <E T="03">Executive Director</E> means the Executive Director of the Panel.</P> <P>(c) The terms <E T="03">designated representative</E> or <E T="03">designee</E> of the Panel means a Panel member, a staff member, or other individual designated by the Panel to act on its behalf.</P> <P>(d) The term <E T="03">hearing</E> means a factfinding hearing, arbitration hearing, or any other hearing procedure deemed necessary to accomplish the purposes of 5 U.S.C. 7119.</P> <P>(e) The term <E T="03">impasse</E> 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.</P> <P>(f) The term <E T="03">Panel</E> means the Federal Service Impasses Panel described in 5 U.S.C. 7119(c) or a quorum thereof.</P> <P>(g) The term <E T="03">party</E> means the agency or the labor organization participating in the negotiation of conditions of employment.</P> <P>(h) The term <E T="03">quorum</E> means a majority of the members of the Panel.</P> <P>(i) The term <E T="03">voluntary arrangements</E> 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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 48 FR 19693, May 2, 1983; 63 FR 46159, Aug. 31, 1998]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2471</EAR> <HD SOURCE="HED">PART 2471—PROCEDURES OF THE PANEL</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2471.1</SECTNO> <SUBJECT>Request for Panel consideration; request for Panel approval of binding arbitration.</SUBJECT> <SECTNO>2471.2</SECTNO> <SUBJECT>Request form.</SUBJECT> <SECTNO>2471.3</SECTNO> <SUBJECT>Content of request.</SUBJECT> <SECTNO>2471.4</SECTNO> <SUBJECT>Where to file.</SUBJECT> <SECTNO>2471.5</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <SECTNO>2471.6</SECTNO> <SUBJECT>Investigation of request; Panel procedures; approval of binding arbitration.</SUBJECT> <SECTNO>2471.7</SECTNO> <SUBJECT>Preliminary factfinding procedures.</SUBJECT> <SECTNO>2471.8</SECTNO> <SUBJECT>Conduct of factfinding and other hearings; prehearing conferences.</SUBJECT> <SECTNO>2471.9</SECTNO> <SUBJECT>Report and recommendations.</SUBJECT> <SECTNO>2471.10</SECTNO> <SUBJECT>Duties of each party following receipt of recommendations.</SUBJECT> <SECTNO>2471.11</SECTNO> <SUBJECT>Final action by the Panel.</SUBJECT> <SECTNO>2471.12</SECTNO> <SUBJECT>Inconsistent labor agreement provisions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7119, 7134.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 3520, Jan. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="433"/> <SECTNO>§ 2471.1</SECTNO> <SUBJECT>Request for Panel consideration; request for Panel approval of binding arbitration.</SUBJECT> <P>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:</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2471.2</SECTNO> <SUBJECT>Request form.</SUBJECT> <P>A form is available for use by the parties in filing a request for consideration of an impasse or approval of a binding arbitration procedure. Copies are available from the Office of the Executive Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite 220, Washington, DC. 20424-0001. Telephone (202) 482-6670. Use of the form is not required provided that the request includes all of the information set forth in § 2471.3.</P> <CITA>[61 FR 41294, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.3</SECTNO> <SUBJECT>Content of request.</SUBJECT> <P>(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:</P> <P>(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;</P> <P>(2) Statement of issues at impasse and the summary positions of the initiating party or parties with respect to those issues; and</P> <P>(3) Number, length, and dates of negotiation and mediation sessions held, including the nature and extent of all other voluntary arrangements utilized.</P> <P>(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:</P> <P>(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;</P> <P>(2) Brief description of the impasse including the issues to be submitted to the arbitrator;</P> <P>(3) Number, length, and dates of negotiation and mediation sessions held, including the nature and extent of all other voluntary arrangements utilized;</P> <P>(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</P> <P>(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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 61 FR 41294, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.4</SECTNO> <SUBJECT>Where to file.</SUBJECT> <P>Requests to the Panel provided for in this part, and inquiries or correspondence on the status of impasses or other related matters, should be addressed to the Executive Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001. Telephone (202) 482-6670. Facsimile (202) 482-6674.</P> <CITA>[61 FR 41294, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.5</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <P>(a) <E T="03">Filing and service of request.</E> (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. A clean copy may be submitted for the original. Requests may be submitted in person or by registered mail, certified mail, regular mail, or private delivery service. Requests may also be accepted by the Panel if transmitted to the facsimile machine of its office. A party submitting a request by facsimile shall <PRTPAGE P="434"/>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.</P> <P>(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 private delivery service. With the permission of the person receiving the request, service may be made by 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.</P> <P>(b) <E T="03">Filing and service of other documents.</E> (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. 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, or private delivery service. Documents may also be accepted by the Panel if transmitted 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.</P> <P>(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 private delivery service. With the permission of the person receiving the document, service may be made by facsimile transmission or by any other agreed-upon method.</P> <P>(c) A signed and dated statement of service shall accompany each document submitted to the Panel. The statement of service 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.</P> <P>(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 private delivery service that will provide a record showing the date the document was tendered to the delivery service. Where service is made by facsimile transmission, the date of service shall be the date on which transmission is received.</P> <P>(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<FR>1/2</FR>×11 inch plain white paper, shall have margins no less than 1 inch on each side, shall be in typeface no smaller than 10 characters per inch, and shall be numbered consecutively. Nonconforming papers may, at the Panel's discretion, be rejected.</P> <CITA>[48 FR 19694, May 2, 1983, as amended at 61 FR 41294, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.6</SECTNO> <SUBJECT>Investigation of request; Panel procedures; approval of binding arbitration.</SUBJECT> <P>(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:</P> <P>(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 <PRTPAGE P="435"/>or in part, and so advise the parties in writing, stating its reasons; or</P> <P>(2) Assert jurisdiction and</P> <P>(i) Recommend to the parties procedures for the resolution of the impasse; and/or</P> <P>(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.</P> <P>(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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 61 FR 41294, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.7</SECTNO> <SUBJECT>Preliminary factfinding procedures.</SUBJECT> <P>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:</P> <P>(a) The names of the parties to the dispute;</P> <P>(b) The date, time, place, type, and purpose of the hearing;</P> <P>(c) The date, time, place, and purpose of the prehearing conference, if any;</P> <P>(d) The name of the designated representatives appointed by the Panel;</P> <P>(e) The issues to be resolved; and</P> <P>(f) The method, if any, by which the hearing shall be recorded.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 48 FR 19694, May 2, 1983; 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.8</SECTNO> <SUBJECT>Conduct of factfinding and other hearings; prehearing conferences.</SUBJECT> <P>(a) A designated representative of the Panel, when so appointed to conduct a hearing, shall have the authority on behalf of the Panel to:</P> <P>(1) Administer oaths, take the testimony or deposition of any person under oath, receive other evidence, and issue subpenas;</P> <P>(2) Conduct the hearing in open, or in closed session at the discretion of the designated representative for good cause shown;</P> <P>(3) Rule on motions and requests for appearance of witnesses and the production of records;</P> <P>(4) Designate the date on which posthearing briefs, if any, shall be submitted.</P> <P>(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.</P> <P>(b) A prehearing conference may be conducted by the designated representative of the Panel in order to:</P> <P>(1) Inform the parties of the purpose of the hearing and the procedures under which it will take place;</P> <P>(2) Explore the possibilities of obtaining stipulations of fact;</P> <P>(3) Clarify the positions of the parties with respect to the issues to be heard; and</P> <P>(4) Discuss any other relevant matters which will assist the parties in the resolution of the dispute.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 48 FR 19694, May 2, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.9</SECTNO> <SUBJECT>Report and recommendations.</SUBJECT> <P>(a) When a report is issued after a factfinding hearing is conducted pursuant to § 2471.7 and 2471.8, it normally <PRTPAGE P="436"/>shall be in writing and, when authorized by the Panel, shall contain recommendations.</P> <P>(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.</P> <P>(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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.10</SECTNO> <SUBJECT>Duties of each party following receipt of recommendations.</SUBJECT> <P>(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:</P> <P>(1) Accept the recommendations and so notify the Executive Director; or</P> <P>(2) Reach a settlement of all unresolved issues and submit a written settlement statement to the Executive Director; or</P> <P>(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.</P> <P>(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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 48 FR 19694, May 2, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.11</SECTNO> <SUBJECT>Final action by the Panel.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) When the exercise of authority under this section requires the holding of a hearing, the procedure contained in § 2471.8 shall apply.</P> <P>(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.</P> <CITA>[45 FR 3520, Jan. 17, 1980, as amended at 48 FR 19694, May 2, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2471.12</SECTNO> <SUBJECT>Inconsistent labor agreement provisions.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2472</EAR> <HD SOURCE="HED">PART 2472—IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>2472.1</SECTNO> <SUBJECT> Purpose.</SUBJECT> <SECTNO>2472.2</SECTNO> <SUBJECT> Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures of the Panel</HD> <SECTNO>2472.3</SECTNO> <SUBJECT>Request for Panel consideration.</SUBJECT> <SECTNO>2472.4</SECTNO> <SUBJECT>Content of request.</SUBJECT> <SECTNO>2472.5</SECTNO> <SUBJECT>Where to file.</SUBJECT> <SECTNO>2472.6</SECTNO> <SUBJECT>Filing and service.<PRTPAGE P="437"/> </SUBJECT> <SECTNO>2472.7</SECTNO> <SUBJECT>Investigation of request; Panel assistance.</SUBJECT> <SECTNO>2472.8</SECTNO> <SUBJECT>Preliminary hearing procedures.</SUBJECT> <SECTNO>2472.9</SECTNO> <SUBJECT>Conduct of hearing and prehearing conference.</SUBJECT> <SECTNO>2472.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>2472.11</SECTNO> <SUBJECT>Final action by the Panel.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 6131.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 19695, May 2, 1983, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Definitions</HD> <SECTION> <SECTNO>§ 2472.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2472.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The term <E T="03">the Act</E> means the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. 97-221, 5 U.S.C. 6120 <E T="03">et seq.</E> </P> <P>(b) The term <E T="03">adverse agency impact</E> shall have the meaning set forth in 5 U.S.C. 6131(b).</P> <P>(c) The term <E T="03">agency</E> shall have the meaning set forth in 5 U.S.C. 6121(1).</P> <P>(d) The term <E T="03">duly authorized delegatee</E> means an official who has been delegated the authority to act for the head of the agency in the matter concerned.</P> <P>(e) The term <E T="03">agency determination</E> 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).</P> <P>(f) The terms <E T="03">collective bargaining agreement</E> and <E T="03">exclusive representative</E> shall have the meanings set forth in 5 U.S.C. 6121(8).</P> <P>(g) The term <E T="03">Executive Director</E> means the Executive Director of the Panel.</P> <P>(h) The terms <E T="03">designated representative</E> or <E T="03">designee</E> of the Panel means a Panel member, staff member, or other individual designated by the Panel to act on its behalf.</P> <P>(i) The term <E T="03">flexible and compressed work schedules</E> shall have the meaning set forth in 5 U.S.C. 6121 <E T="03">et seq.</E> </P> <P>(j) The term <E T="03">hearing</E> means a factfinding hearing or any other hearing procedures deemed necessary to accomplish the purpose of 5 U.S.C. 6131.</P> <P>(k) The term <E T="03">impasse</E> 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.</P> <P>(l) The term <E T="03">Panel</E> means the Federal Service Impasses Panel described in 5 U.S.C. 7119(c) or a quorum thereof.</P> <P>(m) The term <E T="03">party</E> means the agency or the exclusive representative participating in negotiations concerning flexible and compressed work schedules.</P> <P>(n) The term <E T="03">quorum</E> means a majority of the members of the Panel.</P> <P>(o) The term <E T="03">schedule(s)</E> means flexible and compressed work schedules.</P> <CITA>[48 FR 19695, May 2, 1983, as amended at 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures of the Panel</HD> <SECTION> <SECTNO>§ 2472.3</SECTNO> <SUBJECT>Request for Panel consideration.</SUBJECT> <P>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 from the Office of the Executive Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001. Telephone (202) 482-6670. Facsimile (202) 482-6674. Use of the form is not required provided that the request includes all of the information set forth in § 2472.4.</P> <CITA>[61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.4</SECTNO> <SUBJECT>Content of request.</SUBJECT> <P>(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 <PRTPAGE P="438"/>schedule under section 6131 (c)(2) or (c)(3) of the Act must be in writing and shall include the following information:</P> <P>(1) Identification of the parties and individuals authorized to act on their behalf, including their addresses, telephone numbers, and facsimile numbers;</P> <P>(2) Description of the bargaining unit involved in the dispute and the date recognition was accorded to the exclusive representative;</P> <P>(3) Number, length, and dates of negotiation sessions held;</P> <P>(4) A copy of any collective bargaining agreement between the parties and any other agreements concerning flexible and compressed work schedules;</P> <P>(5) A copy of the schedule or proposed schedule, if any, which is the subject of the agency's determination;</P> <P>(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</P> <P>(7) A summary of the position of the initiating party or parties with respect to the agency's determination.</P> <CITA>[48 FR 19695, May 2, 1983, as amended at 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.5</SECTNO> <SUBJECT>Where to file.</SUBJECT> <P>Requests to the Panel provided for in these rules, and inquiries or correspondence on the status of impasses or other related matters, should be directed to the Executive Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001. Telephone (202) 482-6670. Facsimile (202) 482-6674.</P> <CITA>[61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.6</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <P>(a) <E T="03">Filing and service of request</E>. (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. A clean copy may be submitted for the original. Requests may be submitted in person or by registered mail, certified mail, regular mail, or private delivery service. 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.</P> <P>(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 private delivery service. With the permission of the person receiving the request, service may be made by facsimile transmission or by any other agreed-upon method.</P> <P>(b) <E T="03">Filing and service of other documents</E>. (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. 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, or private delivery service. Documents may also be accepted by the Panel if transmitted 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.</P> <P>(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 private delivery service. With the permission of the person receiving the <PRTPAGE P="439"/>document, service may be made by facsimile transmission or by any other agreed-upon method.</P> <P>(c) A signed and dated statement of service shall accompany each document submitted to the Panel. The statement of service 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.</P> <P>(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 private delivery service that will provide a record showing the date the document was tendered to the delivery service. Where service is made by facsimile transmission, the date of service shall be the date on which transmission is received.</P> <P>(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<FR>1/2</FR>×11 inch plain white paper, shall have margins no less than 1 inch on each side, shall be in typeface no smaller than 10 characters per inch, and shall be numbered consecutively. Nonconforming papers may, at the Panel's discretion, be rejected.</P> <P>(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.</P> <CITA>[48 FR 19695, May 2, 1983. Redesignated and amended at 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.7</SECTNO> <SUBJECT>Investigation of request; Panel assistance.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[48 FR 19695, May 2, 1983. Redesignated and amended at 61 FR 41295, 41296, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.8</SECTNO> <SUBJECT>Preliminary hearing procedures.</SUBJECT> <P>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:</P> <P>(a) The names of the parties to the dispute;</P> <P>(b) The date, time, place, type, and purpose of the hearing;</P> <P>(c) The date, time, place, and purpose of the prehearing conference, if any;</P> <P>(d) The name of the designated representative(s) appointed by the Panel;</P> <P>(e) The issue(s) to be resolved; and</P> <P>(f) The method, if any, by which the hearing shall be transcribed.</P> <CITA>[61 FR 41296, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.9</SECTNO> <SUBJECT>Conduct of hearing and prehearing conference.</SUBJECT> <P>(a) A designated representative of the Panel, when so appointed to conduct a hearing, shall have the authority on behalf of the Panel to:</P> <P>(1) Administer oaths, take the testimony or deposition of any person under oath, receive other evidence, and issue subpoenas;</P> <P>(2) Conduct the hearing in open or in closed session at the discretion of the designated representative for good cause shown;</P> <P>(3) Rule on motions and requests for appearance of witnesses and the production of records;</P> <P>(4) Designate the date on which posthearing briefs, if any, shall be submitted; and</P> <P>(5) Determine all procedural matters concerning the hearing, including the length of sessions, conduct of persons <PRTPAGE P="440"/>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.</P> <P>(b) A prehearing conference may be conducted by the designated representative of the Panel to:</P> <P>(1) Inform the parties of the purpose of the hearing and the procedures under which it will take place;</P> <P>(2) Explore the possibilities of obtaining stipulations of fact;</P> <P>(3) Clarify the positions of the parties with respect to the issues to be heard; and</P> <P>(4) Discuss any other relevant matters which will assist the parties in the resolution of the dispute.</P> <CITA>[48 FR 19695, May 2, 1983. Redesignated at 61 FR 41295, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>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.</P> <CITA>[61 FR 41296, Aug. 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2472.11</SECTNO> <SUBJECT>Final action by the Panel.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Notice of any final action of the Panel shall be promptly served upon the parties.</P> <CITA>[48 FR 19695, May 2, 1983. Redesignated and amended at 61 FR 41295, 41296, Aug. 8, 1996]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2473</EAR> <HD SOURCE="HED">PART 2473—SUBPOENAS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7119, 7134.</P> </AUTH> <SECTION> <SECTNO>§ 2473.1</SECTNO> <SUBJECT>Subpenas.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="441"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[61 FR 41296, Aug. 8, 1996]</CITA> </SECTION> <APPENDIX> <EAR>Ch. XIV, App. A</EAR> <HD SOURCE="HED">Appendix A to 5 CFR Chapter XIV—Current Addresses and Geographic Jurisdictions</HD> <P>(a) The Office address, telephone and fax numbers of the Authority are: 607 14th Street, NW., Washington, DC 20424-0001; telephone: FTS or Commercial (202) 482-6540; fax: FTS or Commercial (202) 482-6635.</P> <P>(b) The Office address, telephone and fax numbers of the General Counsel are: 607 14th Street, NW., Washington, DC 20424-0001; telephone: FTS or Commercial (202) 482-6600; fax: FTS Commercial (202) 482-6608.</P> <P>(c) The Office address, telephone and fax numbers of the Chief Administrative Law Judge are: 607 14th Street, NW., Washington, DC 20424-0001; telephone: FTS or Commercial (202) 482-6630; fax: FTS or Commercial (202) 482-6635.</P> <P>(d) The Office addresses, telephone and fax numbers of the Regional Offices of the Authority are as follows:<PRTPAGE P="442"/> </P> <P>(1) Boston, Massachusetts Regional Office-99 Summer Street, suite 1500, Boston, Massachusetts 02110-1200; telephone: FTS or commercial (617) 424-5730; fax: FTS or commercial (617) 424-5743.</P> <P>(2) Washington, DC Regional Office—Tech World Plaza, 800 K Street, NW., Suite 910, Washington, DC 20001-1206; telephone: FTS or commercial (202) 482-6700; fax: FTS or commercial (202) 482-6724.</P> <P>(3) Atlanta, Georgia Regional Office—285 Peachtree Center Avenue, suite 701, Atlanta, Georgia 30303-1270; telephone: FTS or commercial (404) 331-5300; fax: FTS or commercial (404) 331-5280.</P> <P>(4) Chicago, Illinois Regional Office—55 West Monroe, suite 1150, Chicago, Illinois 60603-9729; telephone: FTS or commercial (312) 353-6306; fax: FTS or commercial (312) 886-5977.</P> <P>(5) Dallas, Texas Regional Office—525 Griffin Street, suite 926, LB-107, Dallas, Texas 75202-1906; telephone: FTS or commercial (214) 767-4996; fax: FTS or commercial (214) 767-0156.</P> <P>(6) Denver, Colorado Regional Office—1244 Speer Boulevard, suite 100, Denver, Colorado 80204-3581; telephone: FTS or commercial (303) 844-5224; fax: FTS or commercial (303) 844-2774.</P> <P>(7) San Francisco, California Regional Office—901 Market Street, suite 220, San Francisco, California 94103-1791; telephone: FTS or commercial (415) 356-5000; fax: FTS or commercial (415) 356-5017.</P> <P>(e) The Office address and telephone number of the Federal Service Impasses Panel are: 607 14th Street NW., Washington, DC 20424-0001; telephone: FTS or Commercial (202) 482-6670.</P> <P>(f) The geographic jurisdictions of the Regional Directors of the Federal Labor Relations Authority are as follows:</P> <GPOTABLE CDEF="s70,r30" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">State or other locality</CHED> <CHED H="1">Regional office</CHED> </BOXHD> <ROW> <ENT I="01">Alabama</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">Alaska</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">Arizona</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Arkansas</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">California</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">Colorado</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Connecticut</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Delaware</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">District of Columbia</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">Florida</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">Georgia</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">Hawaii and all land and water areas west of the continents of North and South America (except coastal islands) to long. 90 degrees East</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">Idaho</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">Illinois</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Indiana</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Iowa</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Kansas</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Kentucky</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Louisiana</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">Maine</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Maryland</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">Massachusetts</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Michigan</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Minnesota</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Mississippi</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">Missouri</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Montana</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Nebraska</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Nevada</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">New Hampshire</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">New Jersey</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">New Mexico</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">New York</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">North Carolina</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">North Dakota</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Ohio</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Oklahoma</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">Oregon</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">Pennsylvania</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Puerto Rico</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Rhode Island</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">South Carolina</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">South Dakota</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Tennessee</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Texas</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">Utah</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Vermont</ENT> <ENT>Boston</ENT> </ROW> <ROW> <ENT I="01">Virginia</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">Washington</ENT> <ENT>San Francisco</ENT> </ROW> <ROW> <ENT I="01">West Virginia</ENT> <ENT>Washington, DC</ENT> </ROW> <ROW> <ENT I="01">Wisconsin</ENT> <ENT>Chicago</ENT> </ROW> <ROW> <ENT I="01">Wyoming</ENT> <ENT>Denver</ENT> </ROW> <ROW> <ENT I="01">Virgin Islands</ENT> <ENT>Atlanta</ENT> </ROW> <ROW> <ENT I="01">Panama/limited FLRA jurisdiction</ENT> <ENT>Dallas</ENT> </ROW> <ROW> <ENT I="01">All land and water areas east of the continents of North and South America to long. 90 degrees E., except the Virgin Islands, Panama (limited FLRA jurisdiction), Puerto Rico and coastal islands</ENT> <ENT>Washington, DC</ENT> </ROW> </GPOTABLE> <SECAUTH>(5 U.S.C. 7134)</SECAUTH> <CITA>[55, FR 52831, Dec. 24, 1990, as amended at 58 FR 13695, Mar. 15, 1993; 59 FR 30504, June 14, 1994; 60 FR 49493, Sept. 26, 1995; 61 FR 1697, Jan. 23, 1996; 61 FR 51207, Oct. 1, 1996; 63 FR 70989, Dec. 23, 1998; 63 FR 72350, Dec. 31, 1998]</CITA> </APPENDIX> <APPENDIX> <EAR>Ch. XIV, App. B</EAR> <HD SOURCE="HED">Appendix B to 5 CFR Chapter XIV—Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority</HD> <P>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: </P> <P>(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.</P> <P>(2) The General Counsel may—<PRTPAGE P="443"/> </P> <P>(A) investigate alleged unfair labor practices under this chapter,</P> <P>(B) file and prosecute complaints under this chapter, and</P> <P>(C) exercise such other powers of the Authority as the Authority may prescribe.</P> <P>(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. </P> <FP>This memorandum is intended to describe the statutory authority and set forth the prescribed duties and authority of the General Counsel of the Federal Labor Relations Authority, effective January 28, 1980.</FP> <P>I. <E T="03">Case handling</E>—A. <E T="03">Unfair labor practice cases.</E> 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.</P> <P>B. <E T="03">Compliance actions (injunction proceedings).</E> 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. </P> <FP>On behalf of the Authority, the General Counsel will, in full accordance with the directions of the Authority, initiate and prosecute injunction proceedings as provided in section 7123(d) of the Statute: <E T="03">Provided however,</E> That the General Counsel will initiate and conduct injunction proceedings under section 7123(d) of the Statute only upon approval of the Authority.</FP> <P>C. <E T="03">Representation cases.</E> <E T="11">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> </P> <P>(e)(1) The Authority may delegate to any regional director its authority under this chapter—</P> <P>(A) to determine whether a group of employees is an appropriate unit;</P> <P>(B) to conduct investigations and to provide for hearings;</P> <P>(C) to determine whether a question of representation exists and to direct an election; and</P> <P>(D) to supervise or conduct secret ballot elections and certify the results thereof.</P> <P>(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—</P> <P>(1) the date of the action, or</P> <P>(2) the date of the filing of any application under this subsection for review of the action; </P> <FP>the action shall become the action of the Authority at the end of such 60 day period.</FP> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>In the event a Regional Director directs an election or approves a consent election <PRTPAGE P="444"/>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.</P> <P>Decisions and Orders of Regional Directors made pursuant to this delegation of authority become the action of the Authority:</P> <P>(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</P> <P>(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;</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>II. <E T="03">Liaison with other governmental agencies.</E> 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.</P> <P>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.</P> <P>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 <PRTPAGE P="445"/>such duties, powers and authority, whether or not so specified.</P> <CITA>[45 FR 3523, Jan. 17, 1980, as amended at 48 FR 28814, June 23, 1983; 61 FR 16043, Apr. 11, 1996]</CITA> </APPENDIX> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XV (1-1-02 Edition)</LRH> <RRH>Ofc. of Admin., Exec. Ofc. of the President</RRH> <TOC> <TOCHD> <PRTPAGE P="447"/> <HD SOURCE="HED">CHAPTER XV—OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE PRESIDENT</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>2500</PT> <SUBJECT>Information security regulation</SUBJECT> <PG>449</PG> <PT>2502</PT> <SUBJECT>Availability of records</SUBJECT> <PG>450</PG> <PT>2504</PT> <SUBJECT>Privacy Act regulations</SUBJECT> <PG>460</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="449"/> <EAR>Pt. 2500</EAR> <HD SOURCE="HED">PART 2500—INFORMATION SECURITY REGULATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2500.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>2500.3</SECTNO> <SUBJECT>Original classification.</SUBJECT> <SECTNO>2500.5</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <SECTNO>2500.7</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <SECTNO>2500.9</SECTNO> <SUBJECT>Safeguarding.</SUBJECT> <SECTNO>2500.11</SECTNO> <SUBJECT>Implementation and review.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Executive Order 12356, 3 CFR, 1982 COMP., p. 166.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>44 FR 50039, Aug. 27, 1979; 45 FR 20453, Mar. 28, 1980; 45 FR 22873, Apr. 4, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2500.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>(a) <E T="03">References.</E> (1) Executive Order 12065, “National Security Information”, dated June 28, 1978.</P> <P>(2) Information Security Oversight Office Directive No. 1, “National Security Information”, dated October 2, 1978.</P> <P>(b) <E T="03">Purpose.</E> The purpose of this regulation is to ensure, consistent with the authorities listed in section (a), that national security information held by the Office of Administration is protected to the extent necessary to safeguard the national security.</P> <P>(c) <E T="03">Applicability.</E> This regulation governs the Office of Administration. Together with the authorities listed in section (a), it establishes the policies and procedures for safeguarding of information that is under the control of the Office of Administration.</P> </SECTION> <SECTION> <SECTNO>§ 2500.3</SECTNO> <SUBJECT>Original classification.</SUBJECT> <P>No one in the Office of Administration has been granted authority for original classification of information.</P> </SECTION> <SECTION> <SECTNO>§ 2500.5</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <P>The Office of Administration serves only as the temporary physical custodian of classified information which originated in other agencies of the Executive Office of the President. Therefore, no one in the Office of Administration incorporates, restates, paraphrases or generates in a new form information which is already classified.</P> </SECTION> <SECTION> <SECTNO>§ 2500.7</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <P>(a) <E T="03">Declassification authority.</E> No one in the Office of Administration has the authority to declassify or downgrade classified information.</P> <P>(b) <E T="03">Mandatory review for declassification.</E> (1) Requests for mandatory review of national security information contained in the records of any Executive Office of the President (EOP) agency for which OA provides services must be in writing and addressed to the Security Officer, OA, 725 17th Street, NW., Washington, DC 20503. Those agencies for which OA provides services include the Council of Economic Advisors, the Council on Environmental Quality, the Office of Administration, and the Office of the United States Trade Representative.</P> <P>(2) The OA Security Officer will receive and monitor all requests for mandatory review for declassification of information as received by the EOP agencies named above.</P> <P>(3) Requests for mandatory review for declassification of classified information contained in the records of any other Executive Office of the President agency for which OA provides services should be addressed directly to the agency which is the owner of the record, in accordance with that agency's published Information Security Regulation.</P> <CITA>[44 FR 50039, Aug. 27, 1979; 45 FR 20453, Mar. 28, 1980; 45 FR 22873, Apr. 4, 1980, as amended at 56 FR 8101, Feb. 27, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2500.9</SECTNO> <SUBJECT>Safeguarding.</SUBJECT> <P>The Office of Administration shall protect information in its custody against unauthorized disclosure commensurate with its level of classification.</P> </SECTION> <SECTION> <SECTNO>§ 2500.11</SECTNO> <SUBJECT>Implementation and review.</SUBJECT> <P>The Information Security Oversight Committee of the Office of Administration shall be chaired by the agency's General Counsel. The Committee shall be responsible for acting on all suggestions and complaints concerning the administration of the information security program. The chairperson shall also be responsible for conducting an active oversight program to ensure effective implementation of Executive Order 12356.</P> <CITA>[44 FR 50039, Aug. 27, 1979; 45 FR 20453, Mar. 28, 1980; 45 FR 22873, Apr. 4, 1980, as amended at 56 FR 8101, Feb. 27, 1991]</CITA> </SECTION> </PART> <PART> <PRTPAGE P="450"/> <EAR>Pt. 2502</EAR> <HD SOURCE="HED">PART 2502—AVAILABILITY OF RECORDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECHD>Sec.</SECHD> <SECTNO>2502.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2502.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2502.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <SECTNO>2502.4</SECTNO> <SUBJECT>Public reference facilities and current index.</SUBJECT> <SECTNO>2502.5</SECTNO> <SUBJECT>Records of other Agencies.</SUBJECT> <SECTNO>2502.6</SECTNO> <SUBJECT>How to request records—form and content.</SUBJECT> <SECTNO>2502.7</SECTNO> <SUBJECT>Initial determination.</SUBJECT> <SECTNO>2502.8</SECTNO> <SUBJECT>Prompt response.</SUBJECT> <SECTNO>2502.9</SECTNO> <SUBJECT>Responses—form and content.</SUBJECT> <SECTNO>2502.10</SECTNO> <SUBJECT>Appeals to the Deputy Director from initial denials.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTNO>2502.11</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2502.12</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <SECTNO>2502.13</SECTNO> <SUBJECT>Fees to be charged—categories of requestors.</SUBJECT> <SECTNO>2502.14</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <SECTNO>2502.15</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> <SECTNO>2502.16</SECTNO> <SUBJECT>Information to be disclosed.</SUBJECT> <SECTNO>2502.17</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>2502.18</SECTNO> <SUBJECT>Deletion of exempted information.</SUBJECT> <SECTNO>2502.19</SECTNO> <SUBJECT>Annual report.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities</HD> <SECTNO>2502.30</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2502.31</SECTNO> <SUBJECT>Production prohibited unless approved by Deputy Director.</SUBJECT> <SECTNO>2502.32</SECTNO> <SUBJECT>Procedure in the event of a demand for disclosure.</SUBJECT> <SECTNO>2502.33</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552, as amended by Pub. L. 93-502 and Pub. L. 99-570.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 47112, July 14, 1980, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECTION> <SECTNO>§ 2502.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Office</E> or <E T="03">OA</E> means the Office of Administration, Executive Office of the President;</P> <P>(b) <E T="03">Agency</E> means agency as defined in 5 U.S.C. 552(e);</P> <P>(c) <E T="03">Workday</E> means those days when the Office is open for the conduct of government business, and does not include Saturdays, Sundays and legal public holidays;</P> <P>(d) <E T="03">FOIA</E> means Freedom of Information Act, 5 U.S.C. 552, as amended.</P> <CITA>[45 FR 47112, July 14, 1980, as amended at 49 FR 28233, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains the regulations of the Office of Administration, Executive Office of the President, 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 Office of Administration. Official records of the Office made 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 Office 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 public interest.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28233, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <P>(a) The Office of Administration (OA) was created by Reorganization Plan No. 1 of 1977 and Executive Order 12028. Its primary function is to provide common administrative and support services for the various agencies and offices of the Executive Office of the President. It consists of: </P> <FP SOURCE="FP1-2">(1) Office of the Director</FP> <FP SOURCE="FP1-2">(2) Office of the Deputy Director</FP> <FP SOURCE="FP1-2">(3) Office of the Executive Secretary</FP> <FP SOURCE="FP1-2">(4) Office of the General Counsel</FP> <FP SOURCE="FP1-2">(5) Six Directors and their staffs, who are responsible for the following divisions:</FP> <FP SOURCE="FP1-2">(i) Administrative Operations</FP> <FP SOURCE="FP1-2">(ii) Facilities Management</FP> <FP SOURCE="FP1-2">(iii) Financial Management</FP> <FP SOURCE="FP1-2">(iv) Information Resources Management</FP> <FP SOURCE="FP1-2">(v) Library and Information Services</FP> <FP SOURCE="FP1-2">(vi) Personnel Management</FP> <P>(b) The Office has no field organization. Offices are presently located in the Old Executive Office Building, 17th <PRTPAGE P="451"/>and Pennsylvania Avenue NW., 20500, and in the New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Regular office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday. Both buildings are under security control. Persons desiring access are encourged to make advance arrangements by telephone with the office they plan to visit.</P> <CITA>[49 FR 28233, July 11, 1984; 49 FR 29769, July 24, 1984, as amended at 56 FR 5741 and 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.4</SECTNO> <SUBJECT>Public reference facilities and current index.</SUBJECT> <P>(a) The Office maintains a public reading area located in the Executive Office of the President Library, Room G-102, New Executive Office Building, 725 17th Street NW., Washington, DC, and makes available for public inspection and copying a copy of all material required by 5 U.S.C. 552(a)(2), including all documents published by OA in the <E T="04">Federal Register</E> and currently in effect.</P> <P>(b) The FOIA Officer or his or her designee shall maintain files containing all materials required to be retained by or furnished to the FOIA Officer under this subpart. The material 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.</P> <P>(c) The FOIA Officer shall also maintain a file open to the public, which shall contain copies of all grants or denials of appeals by the Office.</P> <CITA>[49 FR 28233, July 11, 1984, as amended at 56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.5</SECTNO> <SUBJECT>Records of other Agencies.</SUBJECT> <P>Requests for records that originated in another Agency and are in the custody of the Office of Administration, will be referred to that Agency for processing, and the person submitting the request shall be so notified. The decision made by that Agency with respect to such records will be honored by the Office of Administration.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28233, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.6</SECTNO> <SUBJECT>How to request records—form and content.</SUBJECT> <P>(a) A request made under the FOIA must be submitted in writing, addressed to: FOIA Officer, Office of Administration, 725 17th Street NW., Washington, DC 20503. The words “FOIA REQUEST” should be clearly marked on both the letter and the envelope. Due to security measures at the Old and New Executive Office Buildings, requests made in person should be delivered to Room G-1, at the above address.</P> <P>(b) Any Office employee or official who receives a FOIA Request shall promptly forward it to the FOIA Officer, at the above address. Any Office employee or official who receives an oral request made under the FOIA shall inform the person making the request of the provisions of this subpart requiring a written request according to the procedures set out herein.</P> <P>(c) Each request must reasonably describe the record(s) sought, including when known: Agency/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).</P> <P>(d) When a request is not considered reasonably descriptive, or requires the production of voluminous records, or places an extraordinary burden on the Office of Administration, seriously interfering with its normal functioning to the detriment of the business of the Government, the Office may require the person or agent making the FOIA request to confer with an Office representative in order to attempt to verify, and, if possible, narrow the scope of the request.</P> <P>(e) Upon receipt of the FOIA request, the FOIA Officer will make an initial determination of which officials and offices may be involved in the search and reviewing procedures. The FOIA Officer will circulate the request to all offices so identified and any others the FOIA Officer later determines should be notified.</P> <CITA>[49 FR 28233, July 11, 1984, as amended at 56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <PRTPAGE P="452"/> <SECTNO>§ 2502.7</SECTNO> <SUBJECT>Initial determination.</SUBJECT> <P>The General Counsel or his or her designee shall have the authority to approve or deny requests received pursuant to these regulations. The decision of the General Counsel shall be final, subject only to administrative review as provided in § 2502.10.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234, July 11, 1984; 56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.8</SECTNO> <SUBJECT>Prompt response.</SUBJECT> <P>(a) The General Counsel or his or her designee shall either approve or deny a request for records within 10 working days after receipt of the request unless additional time is required for one of the following reasons:</P> <P>(1) It is necessary to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or</P> <P>(2) It is necessary to consult 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.</P> <P>(b) When additional time is required for one of the reasons stated in paragraph (a) of this section, the General Counsel or his or her designee shall acknowledge receipt of the request within the 10 workday period and include a brief explanation of the reason for the delay, indicating the date by which a determination will be forthcoming. An extended deadline adopted for one of the reasons set forth above may not exceed 10 additional workdays.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.9</SECTNO> <SUBJECT>Responses—form and content.</SUBJECT> <P>(a) When a requested record has been identified and is available, the General Counsel or his or her designee shall notify the person making the request as to where and when the record is available for inspection or the copies will be available. The notification shall also advise the person making the request of any fees assessed under § 2502.13 hereof.</P> <P>(b) A denial or partial denial of a request for a record shall be in writing signed by the General Counsel or his or her designee and shall include:</P> <P>(1) The name and title of the person making the determination;</P> <P>(2) A reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record, and a brief explanation of how the exemption applies to the record withheld; or</P> <P>(3) A statement that, after diligent effort, the requested records have not been found or have not been adequately examined during the time allowed by § 2502.9, and that the denial will be reconsidered as soon as the search or examination is complete;</P> <P>(4) A statement that no agency records are responsive to the request.</P> <P>(5) A statement that the denial may be appealed to the Deputy Director within 30 days of receipt of the denial or partial denial.</P> <FP>If a requested record cannot be located from the information supplied, or is known to have been destroyed or otherwise disposed of, the person making the request shall be so notified and the legal authority for disposition shall be cited.</FP> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234, July 11, 1984; 56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.10</SECTNO> <SUBJECT>Appeals to the Deputy Director from initial denials.</SUBJECT> <P>(a) When the General Counsel or his or her designee had denied a request for records in whole or in part, the person making the request may, within 30 days of its receipt, appeal the denial to the Deputy Director. The appeal must be in writing, addressed to the Deputy Director, Office of Administration, 725 17th Street NW., Washington, DC 20503 and clearly labeled as a “Freedom of Information Act Appeal”.</P> <P>(b) The Deputy Director will act upon the appeal within 20 workdays of its receipt. The Deputy Director may extend the 20 day period of time by any number of workdays which could have been claimed and consumed by the General Counsel or his or her designee under § 2502.9 but which were not claimed and consumed in making the initial determination. The Office of Administration's action on an appeal shall be in <PRTPAGE P="453"/>writing, signed by the Deputy Director of the Office.</P> <P>(c) If the decision is in favor of the person making the request, the Deputy Director shall order records promptly made available to the person making the request.</P> <P>(d) A denial in whole or in part of a request on appeal shall set forth the exemption relied on and a brief explanation of how the exemption applied to the records withheld and the reasons for asserting it, if different from that described by the General Counsel or his or her designee under § 2502.10. The denial shall state that the person making the request may, if dissatisfied with the decision on appeal, file a civil action in the district in which the person resides or has his principal place of business, in the district where the records are located, or in the District of Columbia.</P> <P>(e) No personal appearance, oral argument or hearing will ordinarily be permitted in connection with an appeal to the Office of Administration.</P> <P>(f) On appeal, the Office may reduce any fees previously assessed.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234, July 11, 1984; 56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTION> <SECTNO>§ 2502.11</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of this part:</P> <P>(a) All the terms defined in the Freedom of Information Act apply.</P> <P>(b) A <E T="03">statute specifically providing for setting the level of fees for particular types of records</E> (5 U.S.C. 552(a)(4)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set the level of fees for particular types of agencies in order to:</P> <P>(1) Serve both the general public and private sector organizations by conveniently making available government information;</P> <P>(2) Ensure that groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public;</P> <P>(3) Operate an information dissemination activity on a self-sustaining basis to the maximum extent possible; or</P> <P>(4) Return overdue revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information.</P> <FP>Statutes, such as the User Fee Statute, which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents do not supersede the Freedom of Information Act under section (a)(4)(A)(vi) of that statute.</FP> <P>(c) The term <E T="03">direct costs</E> means those expenditures that OA incurs in searching for and duplicating (and in the case of commercial requestors, reviewing) documents 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 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.</P> <P>(d) The term <E T="03">search</E> 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. OA employees should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requestor. For example, employees should not engage in a line-by-line search when merely duplicating an entire document would prove the least expensive and quicker method of complying with a request. <E T="03">Search</E> should be distinguished, moreover, from <E T="03">review</E> of material in order to determine whether the material is exempt from disclosure (see paragraph (f) of this section). Searches may be done manually or by computer using existing programming.</P> <P>(e) The term <E T="03">duplication</E> 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, microform, audio-visual materials, or machine readable (e.g. magnetic tape or disk), among others. <PRTPAGE P="454"/>The copy provided must be in a form that is reasonably usable by the requestors.</P> <P>(f) The term <E T="03">review</E> refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (g) 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 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.</P> <P>(g) The term <E T="03">‘commercial use’ request</E> 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 requestor or the person on whose behalf the request is made. In determining whether the requestor properly belongs in this category, OA must determine the use to which a requestor will put the documents requested. Moreover, where an OA employee has reasonable cause to doubt the use to which a requestor will put the records sought, or where that use is not clear from the request itself, the employee should seek additional clarification before assigning the request to a specific category.</P> <P>(h) The term <E T="03">educational institution</E> refers to 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.</P> <P>(i) The term <E T="03">non-commercial scientific institution</E> refers to an institution that is not operated on a <E T="03">commercial</E> basis (as that term is referenced in paragraph (g) 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.</P> <P>(j) The term <E T="03">representative of the news media</E> refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> 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 in those instances when they can qualify as disseminators of <E T="03">news</E>) who make their products available for purchase and subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of <E T="03">free lance</E> journalists, they may be regarded as working for a news organization, if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but OA may also look to the past publication record of a requestor in making this determination.</P> <CITA>[56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.12</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <P>OA should charge fees that recoup the full allowable direct costs it incurs. Moreover, it shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in § 2502.11(b)), such as the NTIS, OA should inform requestors of the steps necessary to obtain records from those sources.</P> <P>(a) <E T="03">Manual searches for records.</E> OA will charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the search.</P> <P>(b) <E T="03">Computer searches for records.</E> OA will charge at the actual direct cost of providing this service. This will include the cost of operating the central processing unit for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and operator/programmer salary apportionable to the search.<PRTPAGE P="455"/> </P> <P>(c) <E T="03">Review of records.</E> Only requestors 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 undertaken the first time OA analyzes 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. The costs for such a subsequent review are assessable.</P> <P>(d) <E T="03">Duplication of records.</E> Records will be duplicated at a rate of $.15 per page. For copies prepared by computer such as tapes or printouts, OA shall charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, OA will charge the actual direct costs of producing the document(s). If OA estimates that duplication charges are likely to exceed $25.00, it shall notify the requestor of the estimated amount of fees, unless the requestor has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requestor the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(e) <E T="03">Other charges.</E> OA will recover the full costs of providing services such as those enumerated below when it elects to provide them:</P> <P>(1) Certifying that records are true copies;</P> <P>(2) Sending records by special methods such as express mail.</P> <P>(f) Remittances shall be in the form 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 FOIA Officer, Office of Administration, 725 17th Street, NW., Washington, DC 20503.</P> <P>(g) A receipt for fees paid will be given upon request. Refund of fees paid for services actually rendered will not be made.</P> <P>(h) <E T="03">Restrictions on assessing fees.</E> With the exception of requestors seeking documents for a commercial use, OA will provide the first 100 pages of duplication and the first two hours of search time without charge. Moreover, OA will not charge fees to any requestor, including commercial use requestors, if the cost of collecting a fee would be equal to or greater than the fee itself.</P> <P>(1) The elements to be considered in determining whether the “cost of collecting a fee” are the administrative costs of receiving and recording a requestor's remittance, and processing the fee for deposit in the Treasury Department's special account.</P> <P>(2) For purposes of these restrictions on assessment of fees, the word “pages” refers to copies of “8<FR>1/2</FR> × 11” or “11 × 14.” Thus, requestors are not entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout does meet the terms of the restriction.</P> <P>(3) Similarly, the term “search time” in this context has as its basis, manual search. To apply this term to searches made by computer, OA will determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of a 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, OA will begin assessing charges for a computer search.</P> <CITA>[56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.13</SECTNO> <SUBJECT>Fees to be charged—categories of requestors.</SUBJECT> <P>There are four categories of FOIA requestors: commercial use requestors educational and non-commercial scientific institutions; representatives of the news media; and all other requestors. The specific levels of fees for each of these categories are:</P> <P>(a) <E T="03">Commercial use requestors.</E> When OA 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. Requestors must reasonably <PRTPAGE P="456"/>describe the records sought. Commercial use requestors are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. OA may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see § 2502.14).</P> <P>(b) <E T="03">Educational and non-commercial scientific institution requestors.</E> OA shall provide documents to requestors in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requestors must show that the request is being made as authorized by and under the auspices of a qualifying 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 education institution) or scientific (if the request is from a non-commercial scientific institution) research. Requestors must reasonably describe the records sought.</P> <P>(c) <E T="03">Requestors who are representatives of the news media.</E> OA shall provide documents to requestors 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 requestor must meet the criteria in § 2502.11(j), and his or her request must not be made for commercial use. In reference to this class of requestors a request for records supporting the news dissemination function of the requestor shall not be considered to be a request that is for a commercial use. Requestors must reasonably describe the records sought.</P> <P>(d) <E T="03">All other requestors.</E> OA shall charge requestors who do not fit into any of the categories above fees that recover the full, reasonable, direct cost of searching for and reproducing the records that are responsive to the request, except that the first 100 pages and the first two hours of search time shall be furnished without charge. Moreover, requests for records about the requestors filed in OA's system of records will continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requestors must reasonably describe the records sought.</P> <CITA>[56 FR 5742, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.14</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <P>(a) <E T="03">Charging interest—notice and rate.</E> OA may begin assessing interest on an unpaid bill starting on the 31st day of the month following the date on which billing was sent. The fact that the fee has been received by OA within the thirty day grace period, even if not processed, will suffice to stay the accrual of interest. 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 billing.</P> <P>(b) <E T="03">Charges for an unsuccessful search.</E> OA may assess charges for time spent searching, even if it fails to locate the records or if records located are determined to be exempt from disclosure. If OA estimates that search charges are likely to exceed $25.00, it shall notify the requestor of the estimated amount of fees, unless the requestor has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the requestor the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(c) <E T="03">Aggregation results.</E> 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 OA reasonably believes that a requestor, or on rare occasions, a group of requestors acting in concert is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, OA may aggregate any such request and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.</P> <P>(d) <E T="03">Advance payments.</E> OA may not require a requestor to make an advance payment, i.e., payment before work is commenced or continued on a request unless:</P> <P>(1) OA estimates or determines that allowable charges that a requestor may be required to pay are likely to exceed $250.00. Then, OA will notify the requestor of the likely cost and obtain satisfactory assurance of full payment where the requestor has a history of prompt payment of FOIA fees, or require an advance payment of an <PRTPAGE P="457"/>amount up to the full estimated charges in the case of requestors with no history of payment; or</P> <P>(2) A requestor has previously failed to pay a fee charged in a timely fashion (i.e., within thirty days of the date of the billing). OA may require the requestor to pay the full amount owed plus any applicable interest as provided above or demonstate that he or she 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 requestor.</P> <FP>When OA acts under paragraph (d) (1) or (2) of this section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., ten working days from receipt of initial request and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after OA has received fee payments described above.</FP> <P>(e) <E T="03">Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).</E> OA should comply with the provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.</P> <CITA>[56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.15</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> <P>Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where it is determined 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 and is not primarily in the commercial interest of the requestor.</P> <CITA>[56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.16</SECTNO> <SUBJECT>Information to be disclosed.</SUBJECT> <P>(a) In general, all records of the Office of Administration are available to the public, as required by the Freedom of Information Act. However, the Office 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)).</P> <P>(b) <E T="03">Records from Non-U.S. Government Source.</E> (1) Upon receipt of a request for a record that was obtained from a non-U.S. Government source, or for a record containing information clearly identified as having been provided by a non-U.S. Government source, including a contract proposal or contract material, the Office will contact the source of the requested record or information requesting advice as to whether release of the record would adversely affect the source's competitive position or invade anyone's privacy. Subsequent to receipt of such advice, the Office will independently examine the requested document and will notify the requester of the final decision.</P> <P>(2) OA personnel will generally consider two exemptions in the FOIA in deciding whether to withhold from disclosure material from a non-U.S. Government source. Exemption 4 permits withholding of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Exemption 6 permits withholding certain information, the disclosure of which “would constitute a clearly unwarranted invasion of personal privacy.” The source whose material has been requested will be asked to supply convincing justification for any material it wishes withheld under the Act, in accordance with the following general guidelines.</P> <P>(i) For consideration under <E T="03">exemption 4,</E> the supplier of the record or information should identify material that would be likely to cause substantial harm to its present or future competitive position if it were released. If a contractor, the provider should assume that the material will be released to a competitor, even if that is not always the case. A contractor must provide detailed information on why release would be harmful, e.g., the general custom or usage in the business; the number and situation of the persons who have access to the information; the type and degree of risk of financial injury that release would cause; and the length of time the information will need to be kept confidential.</P> <P>(A) In this respect, the Office of Administration will—as a general rule—look favorably upon recommendations for withholding information about <PRTPAGE P="458"/>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.</P> <P>(B) OA 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.</P> <P>(C) OA will withhold all cost data submitted except the total estimated cost for each year of the contract. Where appropriate, OA will release unit pricing data except where that information would disclose confidential information such as profit margins. 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 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.</P> <P>(ii) <E T="03">Exemption 6</E> is not a blanket exemption for all personal information. The Office will balance the need to keep a person's private affairs from unnecessary public scrutiny with protection of the public's right to information on Government records.</P> <P>(A) As a general practice, the Office 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. Except for names and other identifying details, the Office usually releases all 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 which might 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.</P> <P>(B) The Office can protect the names of and identifying details about other staff members who are described in a contract proposal if it is clear that identification of these employees would assist competitors in raiding and hiring them away. In this regard, names and other identifying details could be protected under Exemption 4 (harmful to competitive position) and also under Exemption 6 (it would be an unwarranted invasion of personal privacy to release them). In such a case, the Office would withhold names, home addresses, salaries, telephone numbers, social security numbers, marital status and, if these served to identify them, perhaps some details about past employment or professional activities of these persons.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234, July 11, 1984. Redesignated and amended at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.17</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) 5 U.S.C. 552 exempts from all of its publication and disclosure requirements nine categories of records which are described in 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.</P> <P>(b) Executive Order 12028 (December 4, 1977) provides that the Office of Administration shall upon request, assist the White House office in performing its role of providing those administrative services which are primarily in direct support of the President. Due to this role of providing direct support of the President, members of the public should presume that communications between the Director of the Office of Administration and the President (and their staffs) are confidential or ordinarily will not be released; they will usually fall, at a minimum, within Exemption 5 of the Act.</P> <P>(c) The records of the Office of Administration which are part of systems of records subject to the Privacy Act of 1974 are exempt from disclosure to the <PRTPAGE P="459"/>public except as provided by 5 CFR part 2504.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28235, July 11, 1984, and further redesignated at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.18</SECTNO> <SUBJECT>Deletion of exempted information.</SUBJECT> <P>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 Office with deletions. To each such record, the Office shall attach a written justification for making deletions. A single such justification shall suffice for deletions made in a group of similar or related records.</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28235, July 11, 1984, and further redesignated 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.19</SECTNO> <SUBJECT>Annual report.</SUBJECT> <P>The General Counsel or his or her designee shall annually on or before March 1, submit a Freedom of Information report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate. The report shall include those matters required by 5 U.S.C. 552(d).</P> <CITA>[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28235, July 11, 1984. Redesignated at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities</HD> <SECTION> <SECTNO>§ 2502.30</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains the regulations of the Office concerning procedures to be followed when a subpoena, order or other demand (hereinafter in this subpart referred to as a “demand”) of a court or other authority is issued for the production or disclosure of:</P> <P>(a) Any material contained in the files of the Office of Administration;</P> <P>(b) Any information relating to materials contained in the files of the Office; or</P> <P>(c) Any information or material acquired by any person while such person as an employee of the Office of Administration as a part of the performance of his official duties or because of his official status.</P> </SECTION> <SECTION> <SECTNO>§ 2502.31</SECTNO> <SUBJECT>Production prohibited unless approved by the Deputy Director.</SUBJECT> <P>No employee or former employee of the Office of Administration shall, in response to a demand of a court or other authority, produce any material contained in the files of the Office of Administration or disclose any information or produce any material acquired as part of the performance of his official status without the prior approval of the Deputy Director.</P> <CITA>[45 FR 47112, July 14, 1980, as amended at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.32</SECTNO> <SUBJECT>Procedure in the event of a demand for disclosure.</SUBJECT> <P>(a) Whenever a demand is made upon an employee or former employee of the Office of Administration for the production of material or the disclosure of information described in § 2502.31, he shall immediately notify the Deputy Director. If possible, the Deputy Director shall be notified before the employee or former employee concerned replies to or appears before the court or other authority.</P> <P>(b) If response to the demand is required before instructions from the Deputy Director are received, an attorney designated for that purpose by the Office of Administration shall appear with the employee or former employee upon whom the demand has been made, 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 Deputy Director. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the Deputy Director.</P> <CITA>[45 FR 47112, July 14, 1980, as amended at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 2502.33</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <P>If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 2502.32(b) pending receipt of instructions from the Deputy <PRTPAGE P="460"/>Director, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the Deputy Director 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)).</P> <CITA>[45 FR 47112, July 14, 1980, as amended at 56 FR 5744, Feb. 13, 1991]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2504</EAR> <HD SOURCE="HED">PART 2504—PRIVACY ACT REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2504.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2504.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2504.3</SECTNO> <SUBJECT>Annual notice of systems of records maintained.</SUBJECT> <SECTNO>2504.4</SECTNO> <SUBJECT>Determining if an individual is the subject of a record.</SUBJECT> <SECTNO>2504.5</SECTNO> <SUBJECT>Granting access to a record.</SUBJECT> <SECTNO>2504.6</SECTNO> <SUBJECT>Special procedures for medical records.</SUBJECT> <SECTNO>2504.7</SECTNO> <SUBJECT>Granting access when accompanied by another individual.</SUBJECT> <SECTNO>2504.8</SECTNO> <SUBJECT>Action on request.</SUBJECT> <SECTNO>2504.9</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <SECTNO>2504.10</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <SECTNO>2504.11</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <SECTNO>2504.12</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <SECTNO>2504.13</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <SECTNO>2504.14</SECTNO> <SUBJECT>Action on request to amend a record.</SUBJECT> <SECTNO>2504.15</SECTNO> <SUBJECT>Procedures for appeal of determination to deny access to or amendment of records.</SUBJECT> <SECTNO>2504.16</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <SECTNO>2504.17</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>2504.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 41121, June 18, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2504.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>These regulations implement the Privacy Act of 1974, 5 U.S.C. 552a. The regulations apply to all records maintained by the Office of Administration that are contained in a system of records, and that contain information about an individual. The regulations also establish procedures that (a) authorize an individual's access to records maintained about him; (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.</P> </SECTION> <SECTION> <SECTNO>§ 2504.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part—(a) <E T="03">Office</E> means the Office of Administration, Executive Office of the President;</P> <P>(b) <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence.</P> <P>(c) <E T="03">Maintain</E> means collect, use or distribute;</P> <P>(d) <E T="03">Record</E> means any item collection or grouping of information about an individual that is maintained by the Office, including but not limited to education, financial transactions, medical history, and criminal or employment history and that contain's the individual's name, identifying number, symbol, or other identifiers assigned to the individual, such as a finger or voice print or photograph;</P> <P>(e) <E T="03">System of records</E> means a group of any records controlled by the Office and from which information is retrieved by the name of the individual;</P> <P>(f) <E T="03">System manager</E> means the employee of the Office who is responsible for the maintenance, collection, use or distribution of information contained in a system of records;</P> <P>(g) <E T="03">Routine use</E> means, with respect to the disclosure of a record, the use of that record for a purpose consistent with the purpose for which it was collected;</P> <P>(h) <E T="03">Subject individual</E> means the individual by whose name or other personal identifier a record is maintained or retrieved;</P> <P>(i) <E T="03">Statistical record</E> means 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 section 8 of title 13 U.S.C.;</P> <P>(j) <E T="03">Agency</E> means agency as defined in 5 U.S.C. 552(e);</P> <P>(k) <E T="03">Work days</E> as used in calculating the date when response is due does not include Saturdays, Sundays and legal public holidays.</P> </SECTION> <SECTION> <PRTPAGE P="461"/> <SECTNO>§ 2504.3</SECTNO> <SUBJECT>Annual notice of systems of records maintained.</SUBJECT> <P>The Office will publish in the <E T="04">Federal Register</E> upon establishment or revision a notice of the existence and character of the systems of records the Office maintains. The notices shall include (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 Office's authority to maintain the system, (6) the routine uses of the system, (7) the Office's policies and practice 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.</P> <CITA>[45 FR 47112, July 14, 1980, as amended at 49 FR 28236, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.4</SECTNO> <SUBJECT>Determining if an individual is the subject of a record.</SUBJECT> <P>(a) Individuals desiring to know if a specific system of records maintained by the Office contains a record pertaining to them should address inquiries to the Privacy Act Officer, Office of Administration, Washington, DC 20503.</P> <P>(b) Inquiries must be in writing and the words “PRIVACY ACT REQUEST” should be printed on both the letter and the envelope. The request letter should contain the complete name and identifying number of the pertinent system as published in the annual <E T="04">Federal Register</E> notice describing the Office's Systems of Records; the full name and address of the subject individual; a brief description of the nature, time, place and circumstances of the individual's prior association with the Office; and any other information the individual believes would help the Privacy Act Officer determine whether the information about the individual is included in the system of records. In instances when the information is insufficient to ensure disclosure to the subject individual to whom the record pertains, the Office reserves the right to ask the requestor for additional identifying information.</P> <P>(c) To the extent possible, the Privacy Act Officer will answer or acknowledge the inquiry within 10 work days of its receipt by the Office. When the response cannot be made within 10 work days, the Privacy Act Officer will provide the requestor with the date when a response may be expected and, whenever possible, the specific reasons for the delay.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.5</SECTNO> <SUBJECT>Granting access to a record.</SUBJECT> <P>(a) An individual requesting access to a record about himself in a system of records maintained by the Office should submit the request in writing to the Privacy Act Officer. Due to security measures at the Old and New Executive Office Buildings, requests made in person can only be accepted from current Office employees, who should make access requests to the Privacy Act Officer on regularly scheduled work days between 9:00 a.m. and 5:30 p.m.</P> <P>(b) The request for access should contain the same information set forth in § 2504.4(b). However, if the request for access follows a request made under § 2504.4(a) and (b) of this part, the same identifying information need not be included: <E T="03">Provided,</E> That a copy of the prior request or a copy of the Office's response to that request is attached. The request should state if a copy of the record is desired.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.6</SECTNO> <SUBJECT>Special procedures for medical records.</SUBJECT> <P>(a) When the Privacy Act Officer receives a request from an individual for access to those official medical records which belong to the Office of Personnel Management and are described in Chapter 339, Federal Personnel Manual (medical records about entrance qualification or fitness for duty, or medical records which are otherwise filed in the Official Personnel Folder), the pertinent records shall be referred to a Federal Medical Officer for review and determination in accordance with this section. If no Federal Medical Officer is available to make the determination required by this section, the Privacy Act Officer shall refer the request and the medical reports concerned to the <PRTPAGE P="462"/>Office of Personnel Management for determination.</P> <P>(b) If, in the opinion of a Federal Medical Officer, medical records requested by the subject individual indicate a condition about which a prudent physician would hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the Privacy Act Officer shall not release the medical information to the subject individual nor to any person other than a physician designated in writing by the subject individual, his guardian, or conservator.</P> <P>(c) If, in the opinion of a Federal Medical Officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the Privacy Act Officer shall release it to the subject individual or to any person, firm, or organization which the individual authorizes in writing to receive it.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.7</SECTNO> <SUBJECT>Granting access when accompanied by another individual.</SUBJECT> <P>An individual who wishes to have a person of his choosing review, accompany him (or her) in reviewing, or obtain a copy of a record must, prior to the disclosure, sign a statement authorizing the disclosure of his record. The statement shall be maintained with the record.</P> </SECTION> <SECTION> <SECTNO>§ 2504.8</SECTNO> <SUBJECT>Action on request.</SUBJECT> <P>(a) The Privacy Act Officer shall acknowledge requests for access within 10 work days of its receipt by the Office. At a minimum, the acknowledgement shall include:</P> <P>(1) When and where the records will be available;</P> <P>(2) The name, title and telephone number of the official who will make the records available;</P> <P>(3) Whether access will be granted only through 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 requestor's access would not be unduly impeded;</P> <P>(4) Fee, if any, charged for copies. (See § 2504.17); and</P> <P>(5) Identification documentation required to verify the identify of the requestor (see § 2504.9).</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.9</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <P>(a) A requestor should be prepared to identify himself (or herself) by signature, i.e., to note by signature the date of access and/or to produce two other legal forms of identification (driver's license, employee identification, annuitant card, passport, etc.).</P> <P>(b) If an individual is unable to produce adequate identification, the individual shall 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 (see § 2504.18). In addition, depending upon the sensitivity of the records, the Privacy Act Officer 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 requestor.</P> <P>(c) If access is granted by mail, the identity of the requestor shall be verified by comparing signatures. If, in the opinion of the Privacy Act Officer, after consulting with the appropriate system manager, the granting of access through the mail may result in harm or embarrassment if disclosed to a person other than the subject individual, a notarized statement of identify or some other similar assurance of identity will be required.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.10</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <P>(a) No official or employee of the Office shall disclose any record to any person or to another agency without the express written consent of the subject individual, unless the disclosure is:<PRTPAGE P="463"/> </P> <P>(1) To officers or employees of the Office who need the information to perform their official duties;</P> <P>(2) Under the requirements of the Freedom of Information Act;</P> <P>(3) For a routine use that has been published in a notice in the <E T="04">Federal Register;</E> </P> <P>(4) To the Bureau of the Census for uses under title 13 of the United States Code;</P> <P>(5) To a person or agency who has given the Office 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 shall ensure that the identity of the individual cannot reasonably be deduced by combining various statistical records);</P> <P>(6) To the National Archives of the United States if a record has sufficient historical or other value to be preserved by the United States Government, or to the Privacy Act Officer (or a designee) to determine whether the record has that value;</P> <P>(7) In response to 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;</P> <P>(8) To a person who, showing compelling circumstances, needs the information to prevent harm to the health or safety of an individual, but not necessarily the individual to whom the record pertains (upon such disclosure, a notification shall be sent to the last known address of the subject individual);</P> <P>(9) To either House of Congress, or to a Congressional committee or subcommittee if the subject matter is within its jurisdiction;</P> <P>(10) To the Comptroller General, or an authorized representative, to carry out the duties of the General Accounting Office;</P> <P>(11) Pursuant to a court order; or</P> <P>(12) To a consumer reporting agency in accordance with section 3711(f) of title 31.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.11</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <P>Rules governing access to the accounting of disclosures are the same as those granting access to the records.</P> </SECTION> <SECTION> <SECTNO>§ 2504.12</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <P>(a) The Privacy Act Officer may deny an individual access to his (or her) record if: (1) In the opinion of the Privacy Act Officer, the individual seeking access has not provided sufficient identification documentation to permit access; or</P> <P>(2) The Office has published rules in the <E T="04">Federal Register</E> exempting the pertinent system of records from the access requirement.</P> <P>(b) If access is denied, the requestor shall be informed of the reasons for denial and the procedures to obtain a review of the denial (see § 2504.15).</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.13</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <P>(a) Individuals who desire to correct or amend a record pertaining to them should submit a written request to the Privacy Act Officer, Office of Administration, Washington, DC 20503. The words “PRIVACY ACT—REQUEST TO AMEND RECORD” should be written on the letter and the envelope.</P> <P>(b) The request for amendment or correction of the record must state the exact name of the system of records as published in the <E T="04">Federal Register</E>; a precise description of the record proposed for amendment; a brief statement describing the information the requestor believes to be inaccurate or incomplete, and why; and, the amendment or correction desired. If the request to amend the record is the result of the individual's having accessed the record in accordance with §§ 2504.5, 2504.6, 2504.7, 2504.8 of this part, copies of previous correspondence between the requestor and the Office should be attached, if possible.<PRTPAGE P="464"/> </P> <P>(c) Individuals needing assistance in preparing a request to amend a record may contact the Privacy Act Officer at the address cited in § 2504.13(a) of this part.</P> <P>(d) If the individual's identity has not been previously verified, the Office may require identification documentation as described in § 2504.9.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.14</SECTNO> <SUBJECT>Action on request to amend a record.</SUBJECT> <P>(a) A request for amendment of a record will be acknowledged within 10 work days of its receipt by the Office. If a decision cannot be made within this time, the requestor 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.</P> <P>(b) The final response will include the Office's determination of whether to grant or deny the request. If the request is denied, the response will include:</P> <P>(1) The reasons for the decision;</P> <P>(2) The name and address of the official to whom an appeal should be directed;</P> <P>(3) The name and address of the official designated to assist the individual in preparing the appeal;</P> <P>(4) A description of the appeal process within the Office; and</P> <P>(5) A description of any other procedures which may be required of the individual in order to process the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 2504.15</SECTNO> <SUBJECT>Procedures for appeal of determination deny access to or amendment of records.</SUBJECT> <P>(a) Individuals who disagree with the refusal of the Office to grant them access to or to amend a record about them should submit a written request for review to the Privacy Act Officer, Office of Administration, Washington, DC 20503. The words “PRIVACY ACT—APPEAL” should be written on the letter and the envelope. Individuals desiring assistance preparing their appeal should contact the Privacy Act Officer.</P> <P>(b) The appeal letter must be received by the Office within 30 calendar days from the date the requestor received the notice of denial. At a minimum, the appeal letter should identify:</P> <P>(1) The records involved;</P> <P>(2) The date of the initial request for access to or amendment of the record;</P> <P>(3) The date of the Office denial of that request; and</P> <P>(4) The reasons supporting the request for reversal of the Office's decision.</P> <FP>Copies of previous correspondence from the Office denying the request to access or amend the record should also be attached, if possible.</FP> <P>(c) The Office reserves the right to dispose of correspondence concerning the request to access or amend a record if no request for review of the Office'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.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.16</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <P>(a) Within 20 work days of receiving the request for review, a review group composed of the Privacy Act Officer, the General Counsel and the Official having operational control over the record, will propose a determination on the appeal for the Director's final decision. If a final determination cannot be made in 20 days, the requestor will be informed of the reasons for the delay and the date on which a final decision can be expected. Such extensions are unusal, and should not exceed an additional 30 work days.</P> <P>(b) If the original request was for access and the initial determination is reversed, the procedures in § 2504.8 will be followed. If the initial determination is upheld, the requestor will be so informed and advised of the right to judicial review pursuant to 5 U.S.C. 552a(g).</P> <P>(c) If the initial denial of a request to amend a record is reversed, the Office will correct the record as requested and advise the individual of the correction. If the original decision is upheld, the requestor will be so advised and informed in writing of the right to judicial review pursuant to 5 U.S.C. 552a(g). <PRTPAGE P="465"/>In addition, the requestor will be advised of his (or her) right to file a concise statement of disagreement with the Director. The statement of disagreement should include an explanation of why the requestor believes the record is inaccurate, irrelevant, untimely or incomplete. The Director shall maintain the statement of disagreement with the disputed record, and shall include a copy of the statement of disagreement in any disclosure of the record. Additionally, the Privacy Act Officer shall provide 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 § 2504.10 (5 U.S.C. 552(a)(c)).</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.17</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) Individuals will not be charged for:</P> <P>(1) The search and review of the record;</P> <P>(2) Any copies produced to make the record available for access;</P> <P>(3) Copies of the requested record if access can only be accomplished by providing a copy through the mail; and</P> <P>(4) Copies of three (3) or less pages of a requested record.</P> <P>(b) Records will be photocopied for 10¢ per page for four pages or more (except for paragraphs (a), (1), (2), (3), (4) of this section). If the record is larger than 8<FR>1/2</FR> × 14 inches, the fee will be the cost of reproducing the record through Government or commerical sources.</P> <P>(c) Fees shall be paid in full prior to issuance of requested copies. Payment shall be by personal check or money order payable to the Treasurer of the United States, and mailed or delivered to the Deputy Director, Office of Administration, Washington, DC 20503.</P> <P>(d) The Deputy Director may waive the fee if: (1) The cost of collecting the fee exceeds the amount collected; or</P> <P>(2) The production of the copies at no charge is in the best interest of the government.</P> <P>(e) A receipt will be furnished on request.</P> <CITA>[45 FR 41121, June 18, 1980, as amended at 49 FR 28235, July 11, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 2504.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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) 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) or 5 U.S.C. 552a provide penalties for violations by agency employees of the Privacy Act or regulations established thereunder.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XVI (1-1-02 Edition)</LRH> <RRH>Office of Government Ethics</RRH> <TOC> <TOCHD> <PRTPAGE P="467"/> <HD SOURCE="HED">CHAPTER XVI—OFFICE OF GOVERNMENT ETHICS</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>2600</PT> <SUBJECT>Organization and functions of the Office of Government Ethics</SUBJECT> <PG>468</PG> <PT>2602</PT> <RESERVED>Employee responsibilities and conduct, addendum [Reserved]</RESERVED> <PT>2604</PT> <SUBJECT>Freedom of Information Act rules and schedule of fees for the production of public financial disclosure reports</SUBJECT> <PG>469</PG> <PT>2606</PT> <RESERVED>Privacy Act rules [Reserved]</RESERVED> <PT>2610</PT> <SUBJECT>Implementation of the Equal Access to Justice Act</SUBJECT> <PG>481</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—GOVERNMENT ETHICS</HD> </SUBCHAP> <CHAPTI> <PT>2634</PT> <SUBJECT>Executive branch financial disclosure, qualified trusts, and certificates of divestiture</SUBJECT> <PG>489</PG> <PT>2635</PT> <SUBJECT>Standards of ethical conduct for employees of the executive branch</SUBJECT> <PG>543</PG> <PT>2636</PT> <SUBJECT>Limitations on outside earned income, employment and affiliations for certain noncareer employees</SUBJECT> <PG>590</PG> <PT>2637</PT> <SUBJECT>Regulations concerning post employment conflict of interest</SUBJECT> <PG>596</PG> <PT>2638</PT> <SUBJECT>Office of Government Ethics and executive agency ethics program responsibilities</SUBJECT> <PG>619</PG> <PT>2640</PT> <SUBJECT>Interpretation, exemptions and waiver guidance concerning 18 U.S.C. 208 (Acts affecting a personal financial interest)</SUBJECT> <PG>636</PG> <PT>2641</PT> <SUBJECT>Post-employment conflict of interest restrictions</SUBJECT> <PG>653</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="P"> <PRTPAGE P="468"/> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> <PART> <EAR>Pt. 2600</EAR> <HD SOURCE="HED">PART 2600—ORGANIZATION AND FUNCTIONS OF THE OFFICE OF GOVERNMENT ETHICS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2600.101</SECTNO> <SUBJECT>Statement of the history and purpose of the Office of Government Ethics.</SUBJECT> <SECTNO>2600.102</SECTNO> <SUBJECT>Office of Government Ethics address.</SUBJECT> <SECTNO>2600.103</SECTNO> <SUBJECT>Office of Government Ethics divisions; functions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 39589, Sept. 28, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2600.101</SECTNO> <SUBJECT>Statement of the history and purpose of the Office of Government Ethics.</SUBJECT> <P>The U.S. Office of Government Ethics (OGE) is an executive branch agency which is responsible for overseeing and providing guidance on Government ethics for the executive branch, including the ethics programs of executive departments and agencies. OGE was created by the Ethics in Government Act (“the Act”) of 1978, Public Law No. 95-521, as amended. OGE was originally part of the Office of Personnel Management (OPM). Public Law No. 100-598 of November 3, 1988, provided for OGE's separate agency status, effective October 1, 1989. The Act created OGE to provide overall direction for executive branch policies designed to prevent conflicts of interest and to help insure high ethical standards on the part of agency officers and employees. Pursuant to the Ethics Reform Act of 1989 (Public Law No. 101-194), as revised by the technical amendments of May 4, 1990 (Public Law No. 101-280), OGE is the “supervising ethics office” for the executive branch for various purposes, including public and confidential financial disclosure reporting by executive agency officials. OGE also has various Government ethics guidance responsibilities under Executive Order 12674 of April 12, 1989, “Principles of Ethical Conduct for Government Officers and Employees” (3 CFR 1989 Compilation, pp. 215-218).</P> </SECTION> <SECTION> <SECTNO>§ 2600.102</SECTNO> <SUBJECT>Office of Government Ethics address.</SUBJECT> <P>The Office of Government Ethics is located at suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917. OGE has no regional offices.</P> </SECTION> <SECTION> <SECTNO>§ 2600.103</SECTNO> <SUBJECT>Office of Government Ethics divisions; functions.</SUBJECT> <P>(a) The Office of Government Ethics is divided into the following offices:</P> <P>(1) The Office of the Director;</P> <P>(2) The Office of the General Counsel;</P> <P>(3) The Office of Monitoring and Compliance;</P> <P>(4) The Office of Education; and</P> <P>(5) The Office of Administration.</P> <P>(b) <E T="03">The Office of the Director.</E> The Director of the Office of Government Ethics is appointed by the President and confirmed by the Senate. The responsibilities of the OGE Director include: Advising the White House and executive branch Presidential appointees on Government ethics matters; maintaining ethics liaison with and providing guidance on ethics to executive branch departments and agencies; providing ethics liaison to the Congress; responding to public and press inquiries on ethics; and overseeing and coordinating all OGE rules, regulations, formal advisory opinions and major policy decisions. The OGE Deputy Director is also attached to this office and assists the Director in carrying out OGE's responsibilities, including serving as Acting Director in the absence of the Director.</P> <P>(c) <E T="03">The Office of the General Counsel.</E> The responsibilities of the OGE Office of the General Counsel include: Developing regulations and approving executive agency implementation under conflict of interest laws, administrative standards of conduct, post-Government employment restrictions, and public and confidential financial disclosure reporting; initiating executive branch administrative ethics corrective actions; reviewing public financial disclosure statements of advice-and-consent Presidential executive branch nominees, to identify and resolve conflicts; advising the OGE Director whether to <PRTPAGE P="469"/>approve and reviewing the ongoing administration of executive branch Ethics in Government Act qualified trusts; issuing certificates of divestiture; providing informal ethics advisory opinions/advice; participating in training and public forums on ethics; monitoring and providing technical assistance on legislative Government ethics initiatives; making Freedom of Information Act and Privacy Act determinations for OGE; facilitating executive agency referrals of criminal conflict of interest violations to the Department of Justice; and advising on executive agency exemptions and designations under 18 U.S.C. 207 and 208.</P> <P>(d) <E T="03">The Office of Monitoring and Compliance.</E> The responsibilities of the OGE Office of Monitoring and Compliance include: auditing the ethics programs in executive branch departments and agencies, regional offices and military bases to insure compliance with ethics regulations and requirements; monitoring compliance with ethics agreements made by Presidential executive branch appointees requiring Senate advice and consent, and reviewing their annual and termination SF 278 financial disclosure reports, as well as assisting in the review of their nominee reports; reviewing executive agency designations pursuant to 18 U.S.C. 207; participating in training and public forums on ethics; and providing advice, review and liaison to the executive agencies on all ethics administrative matters pursuant to a desk officer system which the office operates.</P> <P>(e) <E T="03">The Office of Education.</E> The responsibilities of the OGE Office of Education include: providing information on and promoting understanding of ethical standards through training courses for executive agency ethics practitioners and development of instructional materials, such as the <E T="03">Government Ethics Newsgram,</E> handbooks and videotapes; carrying out the mandate of Executive Order 12674 to develop and disseminate an ethics reference manual for executive branch employees; coordinating on required annual executive agency ethics training plans and annual agency ethics program reports, including a yearly ethics survey; and providing liaison with the public and outside groups such as non-profit and educational organizations, as well as officials of state, local and foreign governments to promote understanding of Government ethics.</P> <P>(f) <E T="03">The Office of Administration.</E> The Office of Administration is responsible for providing and coordinating essential administrative support services to all OGE operating programs and divisions. These intra-agency functions include: Personnel; payroll; fiscal resource management; facilities management; procurement, records and property management; publishing and distribution; printing; management information systems support; library; personnel security; and funding mandatory overhead expenses necessary for the operation of OGE.</P> </SECTION> </PART> <PART> <HD SOURCE="HED">PART 2602—EMPLOYEE RESPONSIBILITIES AND CONDUCT, ADDENDUM [RESERVED]</HD> </PART> <PART> <EAR>Pt. 2604</EAR> <HD SOURCE="HED">PART 2604—FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2604.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2604.102</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>2604.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—FOIA Public Reading Room Facility and Web Site; Index Identifying Information for the Public</HD> <SECTNO>2604.201</SECTNO> <SUBJECT>Public reading room facility and Web site.</SUBJECT> <SECTNO>2604.202</SECTNO> <SUBJECT>Index identifying information for the public.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Production and Disclosure of Records Under FOIA</HD> <SECTNO>2604.301</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <SECTNO>2604.302</SECTNO> <SUBJECT>Response to requests.</SUBJECT> <SECTNO>2604.303</SECTNO> <SUBJECT>Form and content of responses.</SUBJECT> <SECTNO>2604.304</SECTNO> <SUBJECT>Appeal of denials.</SUBJECT> <SECTNO>2604.305</SECTNO> <SUBJECT>Time limits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Exemptions Under FOIA</HD> <SECTNO>2604.401</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>2604.402</SECTNO> <SUBJECT>Business information.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="470"/> <HD SOURCE="HED">Subpart E—Schedule of Fees</HD> <SECTNO>2604.501</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <SECTNO>2604.502</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <SECTNO>2604.503</SECTNO> <SUBJECT>Limitations on charging fees.</SUBJECT> <SECTNO>2604.504</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Annual OGE FOIA Report</HD> <SECTNO>2604.601</SECTNO> <SUBJECT>Electronic posting and submission of annual OGE FOIA report.</SUBJECT> <SECTNO>2604.602</SECTNO> <SUBJECT>Contents of annual OGE FOIA report.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Fees for the Reproduction and Mailing of Public Financial Disclosure Reports</HD> <SECTNO>2604.701</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>2604.702</SECTNO> <SUBJECT>Charges.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 10007, Feb. 23, 1995, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 2604 appear at 66 FR 3439, Jan. 16, 2001.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2604.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This part contains the regulations of the Office of Government Ethics (OGE) implementing the Freedom of Information Act (FOIA) and Executive Order 12600. 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, 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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.102</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">The relationship between the FOIA and the Privacy Act of 1974.</E> 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. Requests from individuals for records about themselves which are contained in an OGE system of records will be processed under the provisions of the Privacy Act as well as the FOIA. OGE will not deny access by a first party to a record under the FOIA or the Privacy Act unless the record is not available to that individual under both the Privacy Act and the FOIA.</P> <P>(c) <E T="03">Records available through routine distribution procedures.</E> When the record requested includes material published and offered for sale (e.g., by the Superintendent of Documents, Government Printing 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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part,</P> <P> <E T="03">Agency</E> has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 552(f).</P> <P> <E T="03">Business information</E> means trade secrets or other commercial or financial information, provided to the Office by a submitter, which arguably is protected from disclosure under Exemption 4 of the Freedom of Information Act.</P> <P> <E T="03">Business submitter</E> means any person who provides business information, directly or indirectly, to the Office and who has a proprietary interest in the information.</P> <P> <E T="03">Commercial use</E> 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 <PRTPAGE P="471"/>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.</P> <P> <E T="03">Direct costs</E> 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.</P> <P> <E T="03">Duplication</E> means the process of making a copy of a record. Such copies include paper copy, microform, audio-visual materials, and magnetic tapes, cards, and discs.</P> <P> <E T="03">Educational institution</E> 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.</P> <P> <E T="03">FOIA Officer</E> means the OGE employee designated to handle various initial FOIA matters, including requests and related matters such as fees.</P> <P> <E T="03">Freedom of Information Act</E> or <E T="03">FOIA</E> means 5 U.S.C. 552.</P> <P> <E T="03">He, his</E> and <E T="03">him</E> include she, hers and her.</P> <P> <E T="03">Noncommercial scientific institution</E> 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.</P> <P> <E T="03">Office</E> or <E T="03">OGE</E> means the United States Office of Government Ethics.</P> <P> <E T="03">Person</E> has the meaning given in 5 U.S.C. 551(2).</P> <P> <E T="03">Records</E> 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, punchcards, 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 the Office and are under Office control. It does not include objects or articles such as exhibits, models, equipment, and duplication machines or audiovisual processing materials.</P> <P> <E T="03">Representative of the news media</E> means a person actively gathering information for an entity organized and operated to publish or broadcast news to the public. News media entities include television and radio broadcasters, publishers of periodicals 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.</P> <P> <E T="03">Request</E> means any request for records made pursuant to 5 U.S.C. 552(a)(3).</P> <P> <E T="03">Requester</E> means any person who makes a request for records to OGE.</P> <P> <E T="03">Review</E> 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.</P> <P> <E T="03">Search</E> 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.<PRTPAGE P="472"/> </P> <P> <E T="03">Working days</E> means calendar days, excepting Saturdays, Sundays, and legal public holidays.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28090, May 25, 1999; 66 FR 3439, Jan. 16, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—FOIA Public Reading Room Facility and Web Site; Index Identifying Information for the Public</HD> <SECTION> <SECTNO>§ 2604.201</SECTNO> <SUBJECT>Public reading room facility and Web site.</SUBJECT> <P>(a)(1) <E T="03">Location of public reading room facility.</E> The Office of Government Ethics 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 the Office, in writing or by telephone at 202-208-8000 or FAX 202-208-8037, to arrange a time to inspect the materials available there.</P> <P>(2) <E T="03">Web site.</E> The records listed in paragraph (b) of this section, which are created on or after November 1, 1996, or which OGE is otherwise able to make electronically available (if feasible), along with the OGE FOIA and Public Records Guide and OGE's annual FOIA reports, are also available via OGE's Web site (Internet address: http://www.usoge.gov).</P> <P>(b) <E T="03">Records available.</E> The Office of Government Ethics public reading room facility contains OGE records which are required by 5 U.S.C. 552(a)(2) to be made available for public inspection and copying, including:</P> <P>(1) Any final opinions, as well as orders, made in the adjudication of cases;</P> <P>(2) Any statements of policy and interpretation which have been adopted by the agency and are not published in the <E T="04">Federal Register</E>;</P> <P>(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;</P> <P>(4) Copies of records created by OGE that have been released to any person under subpart C of this part which, 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, together with a general index of such records; and</P> <P>(5) Current indexes providing identifying information for the public as to any matter which was issued, adopted or promulgated after July 4, 1967, and is required by 5 U.S.C. 552(a)(2) to be made available or published.</P> <P>(c) <E T="03">Copying.</E> The cost of copying information available in OGE's public reading room facility shall be imposed on a requester in accordance with the provisions of subpart E of this part.</P> <P>(d) 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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28090, May 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.202</SECTNO> <SUBJECT>Index identifying information for the public.</SUBJECT> <P>(a) The Office of Government Ethics will maintain and make available for public inspection and copying a current index of the materials available at its public reading room facility which are required to be indexed under 5 U.S.C. 552(a)(2).</P> <P>(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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28090, May 25, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="473"/> <HD SOURCE="HED">Subpart C—Production and Disclosure of Records Under FOIA</HD> <SECTION> <SECTNO>§ 2604.301</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <P>(a) <E T="03">Addressing requests.</E> Requests for copies of records may be made in person or by telephone, 202-208-8000, or FAX, 202-208-8037, during normal business hours at the Office of Government Ethics, 1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917 or by mail addressed to the FOIA Officer of OGE. Although oral requests may be honored, a requester generally will be asked to submit his request under the FOIA in writing. In the case of a written request, the envelope containing the request and the letter itself should both clearly indicate that the subject is a Freedom of Information Act request.</P> <P>(b) <E T="03">Description of records.</E> Each request must reasonably describe the desired records in sufficient detail to enable Office 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 Office operations.</P> <P>(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.</P> <P>(2) If the FOIA Officer determines that a request does not reasonably describe the records sought, he 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 Office personnel with the objective of reformulating the request in a manner which will meet the requirements of this section.</P> <P>(c) <E T="03">Agreement to pay fees.</E> 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.</P> <P>(d) <E T="03">Requests for records relating to corrective actions.</E> No record developed pursuant to the authority of 5 U.S.C. app. (Ethics in Government Act of 1978, section 402(f)(2)) concerning the investigation of an employee for a possible violation of any provision relating to a conflict of interest shall 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 shall affect the application of subpart D of this part to any record so identified.</P> <P>(e) <E T="03">Seeking expedited processing.</E> (1) A requester may seek expedited processing of a FOIA request if a compelling need for the requested records can be shown.</P> <P>(2) “Compelling need” means:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28090, May 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.302</SECTNO> <SUBJECT>Response to requests.</SUBJECT> <P>(a) <E T="03">Response to initial request.</E> The FOIA Officer is authorized to grant or deny any request for a record and to determine appropriate fees.<PRTPAGE P="474"/> </P> <P>(b) <E T="03">Referral to, or consultation with, another agency.</E> When a requester seeks access to records that originated in another Government agency, 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. If release of certain records may adversely affect United States relations with foreign governments, the Office 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.</P> <P>(c) <E T="03">Honoring form or format requests.</E> 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.</P> <P>(d) <E T="03">Record cannot be located.</E> If a requested record cannot be located from the information supplied, the FOIA Officer will so notify the requester in writing.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28090, May 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.303</SECTNO> <SUBJECT>Form and content of responses.</SUBJECT> <P>(a) <E T="03">Form of notice granting a request.</E> 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 shall 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 the operations of the Office. 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.</P> <P>(b) <E T="03">Form of notice denying a request.</E> When the FOIA Officer denies a request in whole or in part, he will so notify the requester in writing. The response will be signed by the FOIA Officer and will include:</P> <P>(1) The name and title or position of the person making the denial;</P> <P>(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;</P> <P>(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</P> <P>(4) A statement that the denial may be appealed under § 2604.304 of this subpart, and a description of the requirements of that section.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28091, May 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.304</SECTNO> <SUBJECT>Appeal of denials.</SUBJECT> <P>(a) <E T="03">Right of appeal.</E> If a request has been denied in whole or in part, the requester may appeal the denial to the General Counsel of the Office of Government Ethics, 1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917.</P> <P>(b) <E T="03">Letter of appeal.</E> The appeal must be in writing and must be sent within 30 days of receipt of the denial letter. An appeal should include a copy of the <PRTPAGE P="475"/>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 request for the record. Both the envelope and the letter of appeal must be clearly marked “Freedom of Information Act Appeal.”</P> <P>(c) <E T="03">Action on appeal.</E> The disposition of an appeal will be in writing and will constitute the final action of the Office 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.</P> <P>(d) <E T="03">Judicial review.</E> If the denial of the request for records is upheld in whole or in part, the Office will notify the person making the request of his right to seek judicial review under 5 U.S.C. 552(a)(4).</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 66 FR 3439, Jan. 16, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.305</SECTNO> <SUBJECT>Time limits.</SUBJECT> <P>(a)(1) <E T="03">Initial request.</E> 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 his determination within 20 working days.</P> <P>(2) <E T="03">Request for expedited processing.</E> When a request for expedited processing under § 2604.301(e) is received, the FOIA Officer will respond within ten 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.</P> <P>(b) <E T="03">Appeal.</E> A written determination on an appeal submitted in accordance with § 2604.304 will be issued within 20 working days after receipt of the appeal.</P> <P>(c) <E T="03">Extension of time limits.</E> The time limits specified in either paragraph (a) or (b) of this section may be extended in unusual circumstances up to a total of 10 working days, after written notice to the requester setting forth the reasons for the extension and the date on which a determination is expected to be made.</P> <P>(d) For the purposes of paragraph (c) of this section, <E T="03">unusual circumstances</E> means that there is a need to:</P> <P>(1) Search for and collect records from archives;</P> <P>(2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or</P> <P>(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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28091, May 25, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Exemptions Under FOIA</HD> <SECTION> <SECTNO>§ 2604.401</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) <E T="03">Policy on application of exemptions.</E> Section 552(b) of the Freedom of Information Act contains nine exemptions to the mandatory disclosure of records. 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. In making its determination on withholding, OGE will consider whether another statute, Executive order or regulation prohibits release or, if not, whether there is a need in the public interest to withhold material which is otherwise exempt under FOIA.</P> <P>(b) <E T="03">Pledge of confidentiality.</E> 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 does not itself authorize the giving of any pledge of confidentiality by any officer or employee of the Office of Government Ethics.</P> <P>(c) <E T="03">Exception for law enforcement information.</E> The Office may treat records compiled for law enforcement purposes as not subject to the requirements of the Freedom of Information Act when:<PRTPAGE P="476"/> </P> <P>(1) The investigation or proceeding involves a possible violation of criminal law;</P> <P>(2) There is reason to believe that the subject of the investigation or proceeding is unaware of its pendency; and</P> <P>(3) The disclosure of the existence of the records could reasonably be expected to interfere with the enforcement proceedings.</P> <P>(d) <E T="03">Partial application of exemptions.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.402</SECTNO> <SUBJECT>Business information.</SUBJECT> <P>(a) <E T="03">In general.</E> Business information provided to the Office of Government Ethics by a submitter will not be disclosed pursuant to a Freedom of Information Act request except in accordance with this section.</P> <P>(b) <E T="03">Designation of business information.</E> 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.</P> <P>(c) <E T="03">Predisclosure notification.</E> The FOIA Officer will provide a submitter with prompt written notice of a FOIA request regarding its business information if:</P> <P>(1) The information has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the FOIA; or</P> <P>(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 shall either describe the exact nature of the business information requested or provide copies of the records containing the business information. The requester also shall be notified that notice and an opportunity to object are being provided to a submitter.</P> <P>(d) <E T="03">Opportunity to object to disclosure.</E> A submitter has five working days from receipt of the predisclosure notification to provide a written statement of any objection to disclosure. Such statement shall specify all the grounds for withholding any of the information under any exemption of the FOIA and, in the case of Exemption 4, shall 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 may itself be subject to disclosure under the FOIA.</P> <P>(e) <E T="03">Notice of intent to disclose.</E> 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, he will send the submitter a written notice at least 10 working days before the date of disclosure containing:</P> <P>(1) A statement of the reasons why the submitter's objections were not sustained;</P> <P>(2) A copy of the records which will be disclosed or a written description of the records; and</P> <P>(3) A specified disclosure date. The requester shall also be notified of the FOIA Officer's determination to disclose records over a submitter's objections.</P> <P>(f) <E T="03">Notice of FOIA lawsuit.</E> Whenever a requester brings suit seeking to compel disclosure of business information, the FOIA Officer shall promptly notify the submitter.</P> <P>(g) <E T="03">Exceptions to predisclosure notification.</E> The notice requirements in paragraph (c) of this section do not apply if:</P> <P>(1) The FOIA Officer determines that the information should not be disclosed;</P> <P>(2) The information has been published previously or has been officially made available to the public;</P> <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or</P> <P>(4) The designation made by the submitter in accordance with paragraph (b) of this section appears obviously <PRTPAGE P="477"/>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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28091, May 25, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Schedule of Fees</HD> <SECTION> <SECTNO>§ 2604.501</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <P>(a) <E T="03">Policy.</E> Fees shall 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 shall 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 shall pay fees by check or money order made payable to the Treasury of the United States.</P> <P>(b) <E T="03">Types of charges.</E> The types of charges that may be assessed in connection with the production of records in response to a FOIA request are as follows:</P> <P>(1) <E T="03">Searches</E>—(i) <E T="03">Manual searches for records.</E> Whenever feasible, the Office 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) the Office will charge $11.00 per hour for clerical time and $22.00 per hour for professional time. Charges for search time will be billed by fifteen minute segments.</P> <P>(ii) <E T="03">Computer searches for records.</E> Requesters will be charged the actual direct cost of conducting a search using existing programming. These direct costs shall 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. The Office will not alter or develop programming to conduct a search.</P> <P>(iii) <E T="03">Unproductive searches.</E> The Office 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.</P> <P>(2) <E T="03">Duplication.</E> The standard copying charge for documents in paper copy is $.15 per page. When responsive information is provided in a format other than paper copy, such as in the form of computer tapes and discs, the requester may be charged the direct costs of the tape, disc, or whatever medium is used to produce the information, as well as any related reproduction costs.</P> <P>(3) <E T="03">Review.</E> 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.</P> <P>(4) <E T="03">Other services and materials.</E> Where the Office 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.</P> <CITA>[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28091, May 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2604.502</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <P>(a) <E T="03">Fees for various requester categories.</E> The paragraphs below state, for each category of requester, the type of fees <PRTPAGE P="478"/>generally charged by the Office. 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, the Office will determine the use to which the requester will put the documents requested. If the Office 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, the Office will seek clarification before assigning the request to a specific category.</P> <P>(b) <E T="03">Commercial use requester.</E> The Office 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 de minimis fees provision of § 2604.503(b) does apply to such requesters.</P> <P>(c) <E T="03">Educational and noncommercial scientific institutions and news media.</E> 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, the Office will charge only for duplication of documents, excluding charges for the first 100 pages.</P> <P>(d) <E T="03">All other requesters.</E> If the request is not one described in paragraph (b) or (c) of this section, the Office 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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.503</SECTNO> <SUBJECT>Limitations on charging fees.</SUBJECT> <P>(a) <E T="03">In general.</E> Except for requesters seeking records for a commercial use as described in § 2604.502(b), the Office will provide, without charge, the first 100 pages of duplication and the first two hours of search time, or their cost equivalent.</P> <P>(b) <E T="03">De minimis fees.</E> The Office will not assess fees for individual requests if the total charge would be $10.00 or less.</P> <P>(c) <E T="03">Waiver or reduction of fees.</E> Records responsive to a request under 5 U.S.C. 552 will be furnished without charge or at a reduced charge where the Office determines, based upon information provided by a requester in support of a fee waiver request, 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. Requests for a waiver or reduction of fees will be considered on a case-by-case basis.</P> <P>(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, the Office will consider the following factors:</P> <P>(i) <E T="03">The subject of the request: Whether the subject of the requested records concerns the operations or activities of the Government.</E> 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;</P> <P>(ii) <E T="03">The informative value of the information to be disclosed: Whether the information is likely to contribute to an understanding of Government operations or activities.</E> 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;</P> <P>(iii) <E T="03">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.</E> The disclosure must contribute to the understanding of the public at large, as <PRTPAGE P="479"/>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</P> <P>(iv) <E T="03">The significance of the contribution to public understanding: Whether the disclosure is likely to contribute significantly to public understanding of Government operations or activities.</E> 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.</P> <P>(2) In determining whether disclosure of the requested information is not primarily in the commercial interest of the requester, the Office will consider the following factors:</P> <P>(i) <E T="03">The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure.</E> The Office 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</P> <P>(ii) <E T="03">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.</E> 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. The Office 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.</P> <P>(3) Where only a portion of the requested record satisfies the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion.</P> <P>(4) A request for a waiver or reduction of fees must accompany the request for disclosure of records, and should include:</P> <P>(i) A clear statement of the requester's interest in the documents;</P> <P>(ii) The proposed use of the documents and whether the requester will derive income or other benefit from such use;</P> <P>(iii) A statement of how the public will benefit from release of the requested documents; and</P> <P>(iv) If specialized use of the documents is contemplated, a statement of the requester's qualifications that are relevant to the specialized use.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.504</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <P>(a) <E T="03">Notice of anticipated fees in excess of $25.00.</E> Where the Office determines or estimates that the fees to be assessed under this section may amount to more than $25.00, the Office shall notify the requester as soon as practicable of the actual or estimated amount of fees, unless the requester has indicated in advance his 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 will include the opportunity to confer with Office personnel in order to reformulate the request to meet the requester's needs at a lower cost.</P> <P>(b) <E T="03">Aggregating requests.</E> 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 <PRTPAGE P="480"/>for the purpose of evading the assessment of fees, the Office may aggregate the requests and charge accordingly. The Office will presume that multiple requests of this type made within a 30-day period have been made in order to evade fees. Multiple requests regarding unrelated matters will not be aggregated.</P> <P>(c) <E T="03">Advance payments.</E> An advance payment before work is commenced or continued will not be required unless:</P> <P>(1) 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 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</P> <P>(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 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 the Office begins to process a new request.</P> <P>(3) When the Office requests an advance payment of fees, the administrative time limits described in subsection (a)(6) of the FOIA will begin to run only after the Office has received the advance payment.</P> <P>(d) <E T="03">Billing and payment.</E> Normally the Office will require a requester to pay all fees before furnishing the requested records. However, the Office may send a bill along with, or following the furnishing of records, in cases where the requester has a history of prompt payment.</P> <P>(e) <E T="03">Interest charges.</E> 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 <E T="03">et seq.</E>) including the use of consumer reporting agencies, collection agencies, and offset.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Annual OGE FOIA Report</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 28091, May 25, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2604.601</SECTNO> <SUBJECT>Electronic posting and submission of annual OGE FOIA report.</SUBJECT> <P>On or before February 1 of each year, OGE shall electronically post on its Web site and submit to the Office of Information and Privacy at the United States Department of Justice a report of its activities relating to the Freedom of Information Act (FOIA) during the preceding fiscal year.</P> </SECTION> <SECTION> <SECTNO>§ 2604.602</SECTNO> <SUBJECT>Contents of annual OGE FOIA report.</SUBJECT> <P>(a) The Office of Government Ethics will include in its annual FOIA report the following information for the preceding fiscal year:</P> <P>(1) The number of FOIA requests for records pending before OGE as of the end of the fiscal year;</P> <P>(2) The median number of calendar days that such requests had been pending before OGE as of that date;</P> <P>(3) The number of FOIA requests for records received by OGE;</P> <P>(4) The number of FOIA requests that OGE processed;</P> <P>(5) The median number of calendar days taken by OGE to process different types of requests;</P> <P>(6) The number of determinations made by OGE not to comply with FOIA requests in full or in part;</P> <P>(7) The reasons for each such determination;</P> <P>(8) A complete list of all statutes upon which OGE relies to authorize withholding of information under FOIA Exemption 3, 5 U.S.C. 552(b)(3);</P> <P>(9) A description of whether a court has upheld the decision of the agency to withhold information under each such statute;</P> <P>(10) A concise description of the scope of any information withheld under each such statute;<PRTPAGE P="481"/> </P> <P>(11) The number of administrative appeals made by persons under 5 U.S.C. 552(a)(6);</P> <P>(12) The result of such appeals;</P> <P>(13) The reason for the action upon each appeal that results in a denial of information;</P> <P>(14) The total amount of fees collected by OGE for processing requests;</P> <P>(15) The number of full-time staff and part-time/occasional staff (in estimated work years) of OGE devoted to processing requests for records under the FOIA; and</P> <P>(16) The estimated total amount expended by OGE for processing such requests.</P> <P>(b) In addition, OGE will include in the report such additional information about its FOIA activities as is appropriate and useful in accordance with Justice Department guidance and as otherwise determined by OGE.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Fees for the Reproduction and Mailing of Public Financial Disclosure Reports</HD> <SECTION> <SECTNO>§ 2604.701</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>Fees for the reproduction and mailing of public financial disclosure reports (SF 278s) requested pursuant to section 105 of the Ethics in Government Act of 1978, as amended, and § 2634.603 of this chapter shall be assessed according to the schedule contained in § 2604.702. Requesters shall 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.</P> </SECTION> <SECTION> <SECTNO>§ 2604.702</SECTNO> <SUBJECT>Charges.</SUBJECT> <P>(a) <E T="03">Duplication.</E> Except as provided in paragraph (c) of this section, copies of public financial disclosure reports (SF 278s) 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 $.03 per page furnished.</P> <P>(b) <E T="03">Mailing.</E> 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 the Office 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.</P> <P>(c) <E T="03">De minimis fees.</E> The Office will not assess fees for individual requests if the total charge would be $10.00 or less.</P> <P>(d) <E T="03">Miscellaneous fee provisions.</E> The miscellaneous fee provisions set forth in § 2604.504 apply to requests for public financial disclosure reports pursuant to § 2634.603 of this chapter.</P> </SECTION> </SUBPART> </PART> <PART> <HD SOURCE="HED">PART 2606—PRIVACY ACT RULES [RESERVED]</HD> </PART> <PART> <EAR>Pt. 2610</EAR> <HD SOURCE="HED">PART 2610—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2610.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2610.102</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2610.103</SECTNO> <SUBJECT>When the Act applies.</SUBJECT> <SECTNO>2610.104</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <SECTNO>2610.105</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <SECTNO>2610.106</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>2610.107</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <SECTNO>2610.108</SECTNO> <SUBJECT>Rulemaking on maximum rate for attorney and agent fees.</SUBJECT> <SECTNO>2610.109</SECTNO> <SUBJECT>Awards against other agencies.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required From Applicants</HD> <SECTNO>2610.201</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>2610.202</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <SECTNO>2610.203</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <SECTNO>2610.204</SECTNO> <SUBJECT>When an application may be filed.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTNO>2610.301</SECTNO> <SUBJECT>Jurisdiction of adjudicative officer.</SUBJECT> <SECTNO>2610.302</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>2610.303</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <SECTNO>2610.304</SECTNO> <SUBJECT>Reply.</SUBJECT> <SECTNO>2610.305</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <SECTNO>2610.306</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>2610.307</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <SECTNO>2610.308</SECTNO> <SUBJECT>Decision.</SUBJECT> <SECTNO>2610.309</SECTNO> <SUBJECT>Agency review.</SUBJECT> <SECTNO>2610.310</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>2610.311</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 504(c)(1); 5 U.S.C. App. (Ethics in Government Act of 1978).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 33268, July 28, 1992, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="482"/> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2610.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Act</E> means the Equal Access to Justice Act, 5 U.S.C. 504, as amended.</P> <P>(b) <E T="03">Adjudicative officer</E> 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.</P> <P>(c) <E T="03">Adversary adjudication</E> means:</P> <P>(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</P> <P>(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).</P> <P>(d) <E T="03">Agency counsel</E> means:</P> <P>(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</P> <P>(2) When the position of another agency of the United States is being represented, the representative or representatives as designated by that agency.</P> <P>(e) <E T="03">Office</E> 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.</P> <P>(f) <E T="03">Proceeding</E> means an adversary adjudication as defined above.</P> <P>(g) <E T="03">Director</E> means the Director of the United States Office of Government Ethics.</P> </SECTION> <SECTION> <SECTNO>§ 2610.102</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2610.103</SECTNO> <SUBJECT>When the Act applies.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.104</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <P>(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:</P> <P>(1) The Debt Collection Act of 1982, 5 U.S.C. 5514;</P> <P>(2) The Contract Disputes Act of 1978, 41 U.S.C. 605, 607;</P> <P>(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.</P> <P>(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 <PRTPAGE P="483"/>will then be an issue for resolution in the proceedings on the application.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.105</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <P>(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.</P> <P>(b) The types of eligible applicants are as follows:</P> <P>(1) An individual with a net worth of not more than $2,000,000;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(6) For purposes of § 2610.106(b), a small entity as defined in 5 U.S.C. 601.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2610.106</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(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 <PRTPAGE P="484"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 60 FR 38666, July 28, 1995; 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2610.107</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative officer shall consider the following:</P> <P>(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;</P> <P>(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;</P> <P>(3) The time actually spent in the representation of the applicant;</P> <P>(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and</P> <P>(5) Such other factors as may bear on the value of the services provided.</P> <P>(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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2610.108</SECTNO> <SUBJECT>Rulemaking on maximum rate for attorney and agent fees.</SUBJECT> <P>(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 <PRTPAGE P="485"/>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.</P> <P>(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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2610.109</SECTNO> <SUBJECT>Awards against other agencies.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required From Applicants</HD> <SECTION> <SECTNO>§ 2610.201</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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)).</P> <P>(c) The application shall state the amount of fees and expenses for which an award is sought.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 59 FR 34755, July 7, 1994; 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> <SECTION> <PRTPAGE P="486"/> <SECTNO>§ 2610.202</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.203</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.204</SECTNO> <SUBJECT>When an application may be filed.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="487"/>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.</P> <CITA>[57 FR 33268, July 28, 1992, as amended at 63 FR 13116, Mar. 18, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTION> <SECTNO>§ 2610.301</SECTNO> <SUBJECT>Jurisdiction of adjudicative officer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.302</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.303</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.304</SECTNO> <SUBJECT>Reply.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.305</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.306</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="488"/> <SECTNO>§ 2610.307</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.308</SECTNO> <SUBJECT>Decision.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.309</SECTNO> <SUBJECT>Agency review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2610.310</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 2610.311</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="489"/> <HD SOURCE="HED">SUBCHAPTER B—GOVERNMENT ETHICS</HD> <PART> <EAR>Pt. 2634</EAR> <HD SOURCE="HED">PART 2634—EXECUTIVE BRANCH FINANCIAL DISCLOSURE, QUALIFIED TRUSTS, AND CERTIFICATES OF DIVESTITURE</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2634.101</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>2634.102</SECTNO> <SUBJECT>Purpose and overview.</SUBJECT> <SECTNO>2634.103</SECTNO> <SUBJECT>Executive agency supplemental regulations.</SUBJECT> <SECTNO>2634.104</SECTNO> <SUBJECT>Policies.</SUBJECT> <SECTNO>2634.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Persons Required to File Public Financial Disclosure Reports</HD> <SECTNO>2634.201</SECTNO> <SUBJECT>General requirements, filing dates, and extensions.</SUBJECT> <SECTNO>2634.202</SECTNO> <SUBJECT>Public filer defined.</SUBJECT> <SECTNO>2634.203</SECTNO> <SUBJECT>Persons excluded by rule.</SUBJECT> <SECTNO>2634.204</SECTNO> <SUBJECT>Employment of sixty days or less.</SUBJECT> <SECTNO>2634.205</SECTNO> <SUBJECT>Special waiver of public reporting requirements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Contents of Reports</HD> <SECTNO>2634.301</SECTNO> <SUBJECT>Interests in property.</SUBJECT> <SECTNO>2634.302</SECTNO> <SUBJECT>Income.</SUBJECT> <SECTNO>2634.303</SECTNO> <SUBJECT>Purchases, sales, and exchanges.</SUBJECT> <SECTNO>2634.304</SECTNO> <SUBJECT>Gifts and reimbursements.</SUBJECT> <SECTNO>2634.305</SECTNO> <SUBJECT>Liabilities.</SUBJECT> <SECTNO>2634.306</SECTNO> <SUBJECT>Agreements and arrangements.</SUBJECT> <SECTNO>2634.307</SECTNO> <SUBJECT>Outside positions.</SUBJECT> <SECTNO>2634.308</SECTNO> <SUBJECT>Reporting periods and contents of public financial disclosure reports.</SUBJECT> <SECTNO>2634.309</SECTNO> <SUBJECT>Spouses and dependent children.</SUBJECT> <SECTNO>2634.310</SECTNO> <SUBJECT>Trusts, estates, and investment funds.</SUBJECT> <SECTNO>2634.311</SECTNO> <SUBJECT>Special rules.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Qualified Trusts</HD> <SECTNO>2634.401</SECTNO> <SUBJECT>General considerations.</SUBJECT> <SECTNO>2634.402</SECTNO> <SUBJECT>Special notice for advice-and-consent nominees.</SUBJECT> <SECTNO>2634.403</SECTNO> <SUBJECT>Qualified blind trusts.</SUBJECT> <SECTNO>2634.404</SECTNO> <SUBJECT>Qualified diversified trusts.</SUBJECT> <SECTNO>2634.405</SECTNO> <SUBJECT>Certification of trusts.</SUBJECT> <SECTNO>2634.406</SECTNO> <SUBJECT>Independent trustees.</SUBJECT> <SECTNO>2634.407</SECTNO> <SUBJECT>Restrictions on fiduciaries and interested parties.</SUBJECT> <SECTNO>2634.408</SECTNO> <SUBJECT>Special filing requirements for qualified trusts.</SUBJECT> <SECTNO>2634.409</SECTNO> <SUBJECT>OMB control number.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Revocation of Trust Certificates and Trustee Approvals</HD> <SECTNO>2634.501</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2634.502</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2634.503</SECTNO> <SUBJECT>Determinations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedure</HD> <SECTNO>2634.601</SECTNO> <SUBJECT>Report forms.</SUBJECT> <SECTNO>2634.602</SECTNO> <SUBJECT>Filing of reports.</SUBJECT> <SECTNO>2634.603</SECTNO> <SUBJECT>Custody of and access to public reports.</SUBJECT> <SECTNO>2634.604</SECTNO> <SUBJECT>Custody of and denial of public access to confidential reports.</SUBJECT> <SECTNO>2634.605</SECTNO> <SUBJECT>Review of reports.</SUBJECT> <SECTNO>2634.606</SECTNO> <SUBJECT>Updated disclosure of advice-and-consent nominees.</SUBJECT> <SECTNO>2634.607</SECTNO> <SUBJECT>Advice and opinions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Penalties</HD> <SECTNO>2634.701</SECTNO> <SUBJECT>Failure to file or falsifying reports.</SUBJECT> <SECTNO>2634.702</SECTNO> <SUBJECT>Breaches by trust fiduciaries and interested parties.</SUBJECT> <SECTNO>2634.703</SECTNO> <SUBJECT>Misuse of public reports.</SUBJECT> <SECTNO>2634.704</SECTNO> <SUBJECT>Late filing fee.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Ethics Agreements</HD> <SECTNO>2634.801</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>2634.802</SECTNO> <SUBJECT>Requirements.</SUBJECT> <SECTNO>2634.803</SECTNO> <SUBJECT>Notification of ethics agreements.</SUBJECT> <SECTNO>2634.804</SECTNO> <SUBJECT>Evidence of compliance.</SUBJECT> <SECTNO>2634.805</SECTNO> <SUBJECT>Retention.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Confidential Financial Disclosure Reports</HD> <SECTNO>2634.901</SECTNO> <SUBJECT>Policies of confidential financial disclosure reporting.</SUBJECT> <SECTNO>2634.902</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2634.903</SECTNO> <SUBJECT>General requirements, filing dates, and extensions.</SUBJECT> <SECTNO>2634.904</SECTNO> <SUBJECT>Confidential filer defined.</SUBJECT> <SECTNO>2634.905</SECTNO> <SUBJECT>Exclusions from filing requirements.</SUBJECT> <SECTNO>2634.906</SECTNO> <SUBJECT>Review of confidential filer status.</SUBJECT> <SECTNO>2634.907</SECTNO> <SUBJECT>Report contents.</SUBJECT> <SECTNO>2634.908</SECTNO> <SUBJECT>Reporting periods.</SUBJECT> <SECTNO>2634.909</SECTNO> <SUBJECT>Procedures, penalties, and ethics agreements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Certificates of Divestiture</HD> <SECTNO>2634.1001</SECTNO> <SUBJECT>Nonrecognition for sales to comply with conflict of interest requirements; general considerations.</SUBJECT> <SECTNO>2634.1002</SECTNO> <SUBJECT>Issuance of Certificates of Divestiture.</SUBJECT> <SECTNO>2634.1003</SECTNO> <SUBJECT>Permitted property.</SUBJECT> <SECTNO>2634.1004</SECTNO> <SUBJECT>Special rule.</SUBJECT> <APP>Appendix A to Part 2634—Certificate of Independence (Form Approved: OMB Control No. 3209-0007)</APP> <APP>Appendix B to Part 2634—Certificate of Compliance (Form Approved: OMB Control No. 3209-0007)</APP> <APP>Appendix C to Part 2634—Privacy Act and Paperwork Reduction Act Notices for Appendixes A and B</APP> </SUBPART> </CONTENTS> <AUTH> <PRTPAGE P="490"/> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); 26 U.S.C. 1043; Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Sec. 31001, Pub. L. 104-134, 110 Stat. 1321 (Debt Collection Improvement Act of 1996); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11804, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.101</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>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 Executive Order 12674 of April 12, 1989, as modified by Executive Order 12731 of October 17, 1990.</P> <CITA>[64 FR 47096, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.102</SECTNO> <SUBJECT>Purpose and overview.</SUBJECT> <P>(a) This regulation supplements and implements title I of the 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 regulation 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.</P> <P>(b) The rules in this part govern both the public and confidential (nonpublic) financial disclosure systems, except as otherwise indicated. Subpart I of this part contains special rules unique to the confidential disclosure system.</P> </SECTION> <SECTION> <SECTNO>§ 2634.103</SECTNO> <SUBJECT>Executive agency supplemental regulations.</SUBJECT> <P>(a) This regulation 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, issue supplemental regulations implementing this part, if necessary to address special or unique agency circumstances. Such regulations:</P> <P>(1) Shall be consistent with the Act, Executive Orders 12674 and 12731, and this part; and</P> <P>(2) Shall impose no additional reporting requirements on either public or confidential filers, unless specifically authorized by the Office of Government Ethics as supplemental confidential reporting.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(b) Requests for approval of supplemental regulations under paragraph (a) of this section shall be submitted in writing to the Office of Government Ethics, and shall set forth the agency's need for any proposed supplemental reporting requirements. See § 2634.901 (b) and (c).</P> <P>(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 shall be processed in accordance with paragraphs (a) and (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 2634.104</SECTNO> <SUBJECT>Policies.</SUBJECT> <P>(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.</P> <P>(b) Public and confidential financial disclosure serves to prevent conflicts of <PRTPAGE P="491"/>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.</P> <P>(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.</P> <P>(d) Nothing in the Act or this part requiring reporting of information or the filing of any report shall 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.</P> <P>(e) The provisions of title I of the Act and this part requiring the reporting of information shall 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 shall not supersede the requirements of 5 U.S.C. 7342 (the Foreign Gifts and Decorations Act).</P> <P>(f) This regulation is intended to be gender-neutral; therefore, use of the terms he, his, and him include she, hers, and her, and vice versa.</P> </SECTION> <SECTION> <SECTNO>§ 2634.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Act</E> means the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended), as modifed by the Ethics Reform Act of 1989 (Pub. L. 101-194, as amended).</P> <P>(b) <E T="03">Agency</E> 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 Rate Commission. It does not include the General Accounting Office.</P> <P>(c) <E T="03">Confidential filer</E>. For the definition of “confidential filer,” see § 2634.904.</P> <P>(d) <E T="03">Dependent child</E> means, when used with respect to any reporting individual, any individual who is a son, daughter, stepson, or stepdaughter and who:</P> <P>(1) Is unmarried, under age 21, and living in the household of the reporting individual; or</P> <P>(2) 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.</P> <P>(e) <E T="03">Designated agency ethics official</E> 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 his 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 subpart B of part 2638 of this chapter on the appointment and additional responsibilities of a designated agency ethics official and alternate.</P> <P>(f) <E T="03">Executive branch</E> means any agency as defined in paragraph (b) of this section and any other entity or administrative unit in the executive branch.</P> <P>(g) <E T="03">Filer</E> 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.</P> <P>(h) <E T="03">Gift</E> means a payment, advance, forbearance, rendering, or deposit of money, or anything of value, unless consideration of equal or greater value is received by the donor, but does not include:</P> <P>(1) Bequests and other forms of inheritance;</P> <P>(2) Suitable mementos of a function honoring the reporting individual;</P> <P>(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 <PRTPAGE P="492"/>local government or political subdivision thereof;</P> <P>(4) Food and beverages which are not consumed in connection with a gift of overnight lodging;</P> <P>(5) Communications to the offices of a reporting individual, including subscriptions to newspapers and periodicals;</P> <P>(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</P> <P>(7) Exclusions and exceptions as described at § 2634.304(c) and (d).</P> <P>(i) <E T="03">Honorarium</E> means a payment of money or anything of value for an appearance, speech, or article.</P> <P>(j) <E T="03">Income</E> 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.</P> <P>(k) <E T="03">Personal hospitality of any individual</E> 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 his family.</P> <P>(l) <E T="03">Personal residence</E> means any real 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.</P> <P>(m) <E T="03">Public filer.</E> For the definition of “public filer,” see § 2634.202.</P> <P>(n) <E T="03">Reimbursement</E> 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:</P> <P>(1) Provided by the United States Government, the District of Columbia, or a State or local government or political subdivision thereof;</P> <P>(2) Required to be reported by the reporting individual under 5 U.S.C. 7342 (the Foreign Gifts and Decorations Act); or</P> <P>(3) Required to be reported under section 304 of the Federal Election Campaign Act of 1971 (2 U.S.C. 434) (relating to reports of campaign contributions).</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 2634, 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).</P> </NOTE> <P>(o) <E T="03">Relative</E> 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 shall be deemed <PRTPAGE P="493"/>to include the fiance or fiancee of the reporting individual.</P> <P>(p) <E T="03">Reporting individual</E> 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.</P> <P>(q) <E T="03">Reviewing official</E> means the designated agency ethics official or his delegate, the Secretary concerned, the head of the agency, or the Director of the Office of Government Ethics.</P> <P>(r) <E T="03">Secretary concerned</E> has the meaning set forth in 10 U.S.C. 101(8) (relating to the Secretaries of the Army, Navy, Air Force, and for certain Coast Guard matters, the Secretary of Transportation); and, in addition, means:</P> <P>(1) The Secretary of Commerce, in matters concerning the National Oceanic and Atmospheric Administration;</P> <P>(2) The Secretary of Health and Human Services, with respect to matters concerning the Public Health Service; and</P> <P>(3) The Secretary of State with respect to matters concerning the Foreign Service.</P> <P>(s) <E T="03">Special Government employee</E> 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.</P> <P>(t) <E T="03">Value</E> 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).</P> <CITA>[57 FR 11804, Apr. 7, 1992; 57 FR 21854, May 22, 1992; 62 FR 48747, Sept. 17, 1997; 63 FR 69992, Dec. 18, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Persons Required to File Public Financial Disclosure Reports</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11806, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.201</SECTNO> <SUBJECT>General requirements, filing dates, and extensions.</SUBJECT> <P>(a) <E T="03">Incumbents</E>. A public filer as defined in § 2634.202 of this subpart who, during any calendar year, performs the duties of his position or office, as described in that section, for a period in excess of 60 days shall 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An SES official commences performing the duties of his position on November 15. He will not be required to file an incumbent report for that calendar year.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An employee, who is classified at GS-15, is assigned to fill an SES position in an acting capacity, from October 15 through December 31. Having performed the duties of a covered position for more than 60 days during the calendar year, he will be required to file an incumbent report. In addition, he must file a new entrant report the first time he serves more than 60 days in a calendar year in the position, in accordance with § 2634.201(b) and § 2634.204(c)(1).</P> </EXAMPLE> <P>(b) <E T="03">New entrants.</E> (1) Within 30 days of assuming a public filer position or office described in § 2634.202 of this subpart, an individual shall file a public financial disclosure report containing the information prescribed in subpart C of this part.</P> <P>(2) However, no report shall be required if the individual:</P> <P>(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</P> <P>(ii) Has already filed such a report as a nominee or candidate for the position. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>Y, an employee of the Treasury Department who has previously filed reports in accordance with the rules of this section, terminates employment with that Department on January 12, 1991, and begins employment with the Commerce Department on February 10, 1991, in a Senior Executive Service position. Y is not a new entrant since he has assumed a position described in § 2634.202 of this subpart within thirty days of leaving another position so described. Accordingly, he need not file a new report with the Commerce Department.</P> </EXAMPLE> <NOTE> <HD SOURCE="HED">Note:</HD> <P>While Y did not have to file a new entrant report with the Commerce Department, that Department should request a <PRTPAGE P="494"/>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 1990 calendar year, in accordance with paragraph (a) of this section, due not later than May 15, 1991, with Commerce, which should provide a copy to Treasury so that both may review it.</P> </NOTE> <P>(c) <E T="03">Nominees.</E> (1) At any time after a public announcement by the President or President-elect of his 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 shall, file a public financial disclosure report containing the information prescribed in subpart C of this part.</P> <P>(2) This requirement shall not apply to any individual who is nominated to a position as:</P> <P>(i) An officer of the uniformed services; or</P> <P>(ii) A Foreign Service Officer. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(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 shall file new entrant reports, if required by paragraph (b) of this section.</P> <P>(d) <E T="03">Candidates.</E> A candidate (as defined in section 301 of the Federal Election Campaign Act of 1971, 2 U.S.C. 431) for nomination or election to the office of President or Vice President (other than an incumbent) shall file a public financial disclosure report containing the information prescribed in subpart C of this part, in accordance with the following:</P> <P>(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</P> <P>(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 he becomes a candidate for a vacancy during that year. </P> <EXAMPLE> <HD SOURCE="HED">Example</HD> <P>P became a candidate for President in January 1991. P will be required to file a public financial disclosure report on or before May 15, 1991. If P had become a candidate on June 1, 1991, he would have been required to file a disclosure report within 30 days of that date.</P> </EXAMPLE> <P>(e) <E T="03">Termination of employment.</E> (1) On or before the thirtieth day after termination of employment from a public filer position or office described in § 2634.202 of this subpart, an individual shall file a public financial disclosure report containing the information prescribed in subpart C of this part.</P> <P>(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 shall be required by the provisions of this paragraph. See the related <E T="03">Example</E> in paragraph (b) of this section.</P> <P>(f) <E T="03">Extensions.</E> The reviewing official may, for good cause shown, grant to any public filer or class thereof an extension of time for filing which shall not exceed 45 days. The Director of the Office of Government Ethics, for good cause shown, may grant an additional extension of time which shall not exceed 45 days. The employee shall set forth specific reasons for such additional extension, which shall be forwarded to the Director through the reviewing official. The reviewing official shall also submit his comments on the request. (For extensions on <E T="03">confidential</E> financial disclosure reports, see § 2634.903(d).)</P> <CITA>[57 FR 11806, Apr. 7, 1992; 57 FR 21854, May 22, 1992, as amended at 63 FR 69992, Dec. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.202</SECTNO> <SUBJECT>Public filer defined.</SUBJECT> <P>The term <E T="03">public filer</E> includes:</P> <P>(a) The President;<PRTPAGE P="495"/> </P> <P>(b) The Vice President;</P> <P>(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;</P> <P>(d) Each employee who is an administrative law judge appointed pursuant to 5 U.S.C. 3105;</P> <P>(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 of this subpart;</P> <P>(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 Rate 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;</P> <P>(g) The Director of the Office of Government Ethics and each agency's primary designated agency ethics official;</P> <P>(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</P> <P>(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) of this subpart.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>References in this section and in §§ 2634.203 and 2634.904 to position classifications have been adjusted to reflect elimination of General Schedule classifications GS-16, GS-17, and GS-18 by the Federal Employees Pay Comparability Act of 1990, as incorporated in section 529 of Public Law 101-509.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 2634.203</SECTNO> <SUBJECT>Persons excluded by rule.</SUBJECT> <P>(a) <E T="03">In general.</E> Any individual or group of individuals described in § 2634.202(e) of this subpart (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.</P> <P>(b) <E T="03">Exclusion determination.</E> The determination required by paragraph (a) of this section has been made for the following group of individuals who, therefore, may be excluded from the public reporting requirements of this subpart, pursuant to the procedures in paragraph (c) of this section: Individuals in any position classified at GS-15 of the General Schedule or below, or the rate of basic pay for which is less than 120% of the minimum rate of basic pay fixed for GS-15, who have no policy-making role with respect to agency programs. Such individuals may include chauffeurs, private secretaries, stenographers, and others holding positions of a similar nature whose exclusion would be consistent with the basic criterion set forth in paragraph (a) of this section. See § 2634.904(d) for possible coverage by confidential disclosure rules.</P> <P>(c) <E T="03">Procedure.</E> (1) The exclusion of any individual from reporting requirements pursuant to this section will be effective as of the time the employing agency files with the Office of Government Ethics a list and description of each position for which exclusion is sought, and the identity of any incumbent employees in those positions. Exclusions should be requested prior to due dates for the reports which such employees would otherwise have to file.</P> <P>(2) If the Office of Government Ethics finds that one or more positions has <PRTPAGE P="496"/>been improperly excluded, it will advise the agency and set a date for the filing of the report.</P> <CITA>[57 FR 11806, Apr. 7, 1992; 57 FR 21854, May 22, 1992, as amended at 58 FR 38912, July 21, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.204</SECTNO> <SUBJECT>Employment of sixty days or less.</SUBJECT> <P>(a) <E T="03">In general.</E> 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 of this subpart for more than 60 days in any calendar year shall not be subject to the reporting requirements of § 2634.201 (b), (c), or (e) of this subpart. This determination will be made by:</P> <P>(1) The designated agency ethics official or Secretary concerned, in a case to which the provisions of § 2634.201 (b) or (e) of this subpart (relating to new entrant and termination reports) would otherwise apply; or</P> <P>(2) The Director of the Office of Government Ethics, in a case to which the provisions of § 2634.201(c) of this subpart (relating to nominee reports) would otherwise apply.</P> <P>(b) <E T="03">Alternative reporting.</E> 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(b).</P> <P>(c) <E T="03">Exception.</E> 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:</P> <P>(1) Section 2634.201 (b) or (c) of this subpart (relating to new entrant and nominee reports) shall be filed within 15 calendar days after the sixtieth day of duty; and</P> <P>(2) Section 2634.201(e) of this subpart (relating to termination reports) shall be filed as provided in that paragraph.</P> </SECTION> <SECTION> <SECTNO>§ 2634.205</SECTNO> <SUBJECT>Special waiver of public reporting requirements.</SUBJECT> <P>(a) <E T="03">General rule.</E> 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:</P> <P>(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;</P> <P>(2) The individual is able to provide services specially needed by the Government;</P> <P>(3) It is unlikely that the individual's outside employment or financial interests will create a conflict of interest; and</P> <P>(4) Public financial disclosure by the individual is not necessary under the circumstances.</P> <P>(b) <E T="03">Procedure.</E> (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 he will hold a position which requires reporting and that he 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.</P> <P>(2) The request shall consist of:</P> <P>(i) A cover letter which identifies the individual and his position, states the approximate number of days in a calendar year which he expects to serve in that position, and requests a waiver of public reporting requirements under this section;</P> <P>(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</P> <P>(iii) The report otherwise required by this subpart B, as a factual basis for the determination required by this section. The report shall bear the legend at the top of page 1: “CONFIDENTIAL: WAIVER REQUEST PENDING PURSUANT TO 5 CFR 2634.205.”</P> <P>(3) The agency in which the individual serves shall advise the Office of Government Ethics as to the justification for a waiver.</P> <P>(4) In the event a waiver is granted, the report shall not be subject to the public disclosure requirements of § 2634.603; however, the waiver request <PRTPAGE P="497"/>cover letter shall be subject to those requirements. In the event that a waiver is not granted, the confidential legend shall be removed from the report, and the report shall be subject to public disclosure; however, the waiver request cover letter shall not then be subject to public disclosure.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3209-0004)</APPRO> <CITA>[57 FR 11806, Apr. 7, 1992, as amended at 59 FR 34756, July 7, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Contents of Reports</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11808, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.301</SECTNO> <SUBJECT>Interests in property.</SUBJECT> <P>(a) <E T="03">In general.</E> Each financial disclosure report filed pursuant to this part, whether public or confidential, shall 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. In the case of public financial disclosure reports, the report shall designate the category of value of the property in accordance with paragraph (d) of this section. Each item of real and personal property shall be disclosed separately. Note that for Individual Retirement Accounts (IRA's), 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 § 2634.310 of this subpart.</P> <P>(b) <E T="03">Types of property reportable.</E> 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:</P> <P>(1) Real estate;</P> <P>(2) Stocks, bonds, securities, and futures contracts;</P> <P>(3) Livestock owned for commercial purposes;</P> <P>(4) Commercial crops, either standing or held in storage;</P> <P>(5) Antiques or art held for resale or investment;</P> <P>(6) Beneficial interests in trusts and estates;</P> <P>(7) Deposits in banks or other financial institutions;</P> <P>(8) Pensions and annuities;</P> <P>(9) Mutual funds;</P> <P>(10) Accounts or other funds receivable; and</P> <P>(11) Capital accounts or other asset ownership in a business.</P> <P>(c) <E T="03">Exceptions.</E> The following property interests are exempt from the reporting requirements under paragraphs (a) and (b) of this section:</P> <P>(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;</P> <P>(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;</P> <P>(3) A personal residence of the filer or spouse, as defined in § 2634.105(l); and</P> <P>(4) Financial interests in any retirement system of the United States (including the Thrift Savings Plan) or under the Social Security Act.</P> <P>(d) <E T="03">Valuation categories.</E> The valuation categories specified for property items on public financial disclosure reports are as follows:</P> <P>(1) Not more than $15,000;</P> <P>(2) Greater than $15,000 but not more than $50,000;</P> <P>(3) Greater than $50,000 but not more than $100,000;</P> <P>(4) Greater than $100,000 but not more than $250,000;</P> <P>(5) Greater than $250,000 but not more than $500,000;</P> <P>(6) Greater than $500,000 but not more than $1,000,000; and</P> <P>(7) Greater than $1,000,000;</P> <P>(8) 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 shall apply:</P> <P>(i) Greater than $1,000,000 but not more than $5,000,000;</P> <P>(ii) Greater than $5,000,000 but not more than $25,000,000;</P> <P>(iii) Greater than $25,000,000 but not more than $50,000,000; and<PRTPAGE P="498"/> </P> <P>(iv) Greater than $50,000,000.</P> <P>(e) <E T="03">Valuation of interests in property.</E> 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. Fair market value may also be determined by:</P> <P>(1) The purchase price (in which case, the filer should indicate date of purchase);</P> <P>(2) Recent appraisal;</P> <P>(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);</P> <P>(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;</P> <P>(5) The net worth of a business partnership;</P> <P>(6) The equity value of an individually owned business; or</P> <P>(7) Any other recognized indication of value (such as the last sale on a stock exchange). </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An official has a $4,000 savings account in Bank A. His spouse has a $2,500 certificate of deposit issued by Bank B and his dependent daughter has a $200 savings account in Bank C. The official does not have to disclose the deposits, as the total value of the deposits in any one bank does not exceed $5,000. Note, however, that the source, and if he is a public filer the amount, of interest income from any bank is required to be reported under § 2634.302(b) of this subpart if it exceeds the reporting threshold for income. See § 2634.309 of this subpart for disclosure coverage of spouses and dependent children.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>Public filer R has a collection of post-impressionist paintings which have been carefully selected over the years. From time to time, as new paintings have been acquired to add to the collection, R has made sales of both less desirable works from his collection and paintings of various schools which he acquired through inheritance. Under these circumstances, R must report the value of all the paintings he retains as interests in property pursuant to this section, as well as income from the sales of paintings pursuant to § 2634.302(b) of this subpart. Recurrent sales from a collection indicate that the collection is being held for investment or the production of income.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>A reporting individual has investments which her broker holds as an IRA and invests in stocks, bonds, and mutual funds. Each such asset having a fair market value in excess of $1,000 at the close of the reporting period must be separately listed, and also the value must be shown if she is a public filer. See § 2634.311(c) of this subpart for attachment of brokerage statements in lieu of listing, in the event of extensive holdings. Note that for a mutual fund held in this IRA investment account, its underlying assets must also be separately detailed, unless it qualifies as an excepted investment fund, pursuant to § 2634.310 of this subpart.</P> </EXAMPLE> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 21854, May 22, 1992, as amended at 65 FR 69656, Nov. 20, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.302</SECTNO> <SUBJECT>Income.</SUBJECT> <P>(a) <E T="03">Noninvestment income.</E> (1) Each financial disclosure report filed pursuant to this part, whether public or confidential, shall disclose the source, type, and in the case of public financial disclosure reports 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 or has accrued to his benefit during the reporting period, including:</P> <P>(i) Salaries, fees, commissions, wages and any other compensation for personal services (other than from United States Government employment);</P> <P>(ii) Retirement benefits (other than from United States Government employment, including the Thrift Savings Plan, or from Social Security);</P> <P>(iii) 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</P> <P>(iv) Any other noninvestment income, such as prizes, awards, or discharge of indebtedness. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>In calculating the amount of an honorarium, subtract any actual and necessary travel expenses incurred by the recipient and one relative. For example, if such expenses are paid or reimbursed by the honorarium source, they shall not be counted as part of the honorarium payment; if the expenses are paid or reimbursed by the individual receiving the honorarium, the amount of honorarium shall be reduced by the amount of such expenses.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An official is a participant in a retirement plan of Coastal Airlines. Pursuant to such plan, the official and his spouse receive passage on some Coastal flights without charge, and they receive passage on <PRTPAGE P="499"/>other flights at a discounted fare. The difference between what Coastal charges members of the public generally and what the official and his spouse are charged for a particular flight is deemed income in-kind and must be disclosed by this reporting individual if it exceeds the $200 threshold.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An official serves on the board of directors at a bank, for which he receives a $500 fee each calendar quarter. He also receives an annual fee of $1,500 for service as trustee of a private trust. In both instances, such fees received or earned during the reporting period must be disclosed, and if he is a public filer the actual amount must be shown.</P> </EXAMPLE> <P>(2) In the case of payments to charitable organizations in lieu of honoraria, public filers shall also file a separate confidential listing of recipients, along with dates and amounts of payments, to the extent known. (See 5 U.S.C. app. 102(a)(1)(A) and app. 501(c).)</P> <P>(b) <E T="03">Investment income.</E> Each financial disclosure report filed pursuant to this part, whether public or confidential, shall disclose:</P> <P>(1) The source and type of investment income, characterized as dividends, rents, interest, capital gains, or income from qualified or excepted trusts or excepted investment funds (see § 2634.310 of this subpart), which is received by the filer or accrued to his benefit 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) of this subpart). Note that for entities with portfolio holdings, such as Individual Retirement Accounts (IRA's), brokerage accounts, trusts, and mutual or pension funds, each underlying source of income must be separately disclosed, unless the entity qualifies for special treatment under § 2634.310 of this subpart. For public financial disclosure reports, the amount or value of income from each reported source shall also be disclosed and categorized in accordance with the following table:</P> <P>(i) Not more than $1,000;</P> <P>(ii) Greater than $1,000 but not more than $2,500;</P> <P>(iii) Greater than $2,500 but not more than $5,000;</P> <P>(iv) Greater than $5,000 but not more than $15,000;</P> <P>(v) Greater than $15,000 but not more than $50,000;</P> <P>(vi) Greater than $50,000 but not more than $100,000;</P> <P>(vii) Greater than $100,000 but not more than $1,000,000; and</P> <P>(viii) Greater than $1,000,000;</P> <P>(ix) 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 shall apply:</P> <P>(A) Greater than $1,000,000 but not more than $5,000,000; and</P> <P>(B) Greater than $5,000,000.</P> <P>(2) The source, type, and in the case of public financial disclosure reports 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 or accrued to his benefit during the reporting period and which exceed $200 from any one source. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An official rents out a portion of his residence. He receives rental income of $600 from one individual for four months and $1,200 from another individual for the remaining eight months of the year covered by his incumbent financial disclosure report. He must identify the property, specify the type of income (rent), and if he is a public filer indicate the category of the total amount of rent received. (He must also disclose the asset information required by § 2634.301 of this subpart.)</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>A reporting individual has three savings accounts with Bank A. One is in his name and earned $85 in interest during the reporting period. One is in a joint account with his spouse and earned $120 in interest. One is in his name and his dependent daughter's name and earned $35 in interest. Since the aggregate interest income from this source exceeds $200, the official must disclose the name of the bank, the type of income, and if he is a public filer, the category of the total amount of interest earned from all three accounts. (He must also disclose the accounts as assets under § 2634.301 of this subpart if, in the aggregate, they total more than $5,000 in that bank.)</P> </EXAMPLE> <EXAMPLE> <PRTPAGE P="500"/> <HD SOURCE="HED">Example 3.</HD> <P>An official has an ownership interest in a fast-food restaurant, from which she receives $10,000 in annual income. She must specify on her financial disclosure report the type of income, such as partnership distributive share or gross business income, and if she is a public filer indicate the actual amount of such income. (Additionally, she must describe the business and categorize its asset value, pursuant to § 2634.301 of this subpart).</P> </EXAMPLE> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 21854, May 22, 1992, as amended at 63 FR 43068, Aug. 12, 1998; 65 FR 69656, Nov. 20, 2000]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 63 FR 43068, Aug. 12, 1998, in § 2634.302, paragragh (a)(2) was revised and immediately stayed indefinitely.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 2634.303</SECTNO> <SUBJECT>Purchases, sales, and exchanges.</SUBJECT> <P>(a) <E T="03">In general.</E> Except as indicated in § 2634.308(b) of this subpart, each public financial disclosure report filed pursuant to subpart B of this part shall include a brief description, the date and value (using the categories of value in § 2634.301(d) of this subpart) of any purchase, sale, or exchange by the filer during the reporting period, in which the amount involved in the transaction exceeds $1,000:</P> <P>(1) Of real property, other than a personal residence of the filer or spouse, as defined in § 2634.105(l) of this part; and</P> <P>(2) Of stocks, bonds, commodity futures, mutual fund shares, and other forms of securities.</P> <P>(b) <E T="03">Exceptions.</E> (1) Any transaction solely by and between the reporting individual, his spouse, and dependent children need not be reported under paragraph (a) of this section.</P> <P>(2) Transactions involving Treasury bills, notes, and bonds; money market mutual funds or accounts; and personal savings accounts (as defined in § 2634.301(c)(2) of this subpart) need not be reported when occurring at rates, terms, and conditions available generally to members of the public. Likewise, transactions involving portfolio holdings of trusts and investment funds described in § 2634.310 (b) and (c) of this subpart need not be reported.</P> <P>(3) Any transaction which occurred at a time when the reporting individual was not a Federal Government officer or employee need not be reported under paragraph (a) of this section. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An official sells her personal residence in Virginia for $100,000 and purchases a personal residence in the District of Columbia for $200,000. She need not report the sale of the Virginia residence or the purchase of the D.C. residence.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An official sells his beach home in Maryland for $50,000. Because he has rented it out for one month every summer, it does not qualify as a personal residence. He must disclose the sale under this section and any capital gain over $200 realized on the sale under § 2634.302 of this subpart.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>An official sells a ranch to his dependent daughter. The official need not report the sale because it is a transaction between the reporting individual and a dependent child; however, any capital gain, except for that portion attributable to a personal residence, is required to be reported under § 2634.302 of this subpart.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4.</HD> <P>An official sells an apartment building and realizes a loss of $100,000. He must report the sale of the building if the sale price of the property exceeds $1,000; however, he need not report anything under § 2634.302 of this subpart, as the sale did not result in a capital gain.</P> </EXAMPLE> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.304</SECTNO> <SUBJECT>Gifts and reimbursements.</SUBJECT> <P>(a) <E T="03">Gifts.</E> Except as indicated in §§ 2634.308(b) and 2634.907(a), each financial disclosure report filed pursuant to this part, whether public or confidential, shall contain the identity of the source, a brief description, and in the case of public financial disclosure reports the value, of all gifts aggregating more than $260 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.</P> <P>(b) <E T="03">Reimbursements.</E> Except as indicated in §§ 2634.308(b) and 2634.907(a), each financial disclosure report filed pursuant to this part, whether public or confidential, shall contain the identity of the source, a brief description (including a travel itinerary, dates, and the nature of expenses provided), and in the case of public financial disclosure reports the value, of any travel-related reimbursements aggregating more than $260 in value, which are received by the filer during the reporting period from any one source.</P> <P>(c) <E T="03">Exclusions.</E> Reports need not contain any information about gifts and <PRTPAGE P="501"/>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).</P> <P>(d) <E T="03">Aggregation exception.</E> Any gift or reimbursement with a fair market value of $104 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An official accepts a print, a pen and pencil set, and a letter opener from a community service organization he has worked with solely in his private capacity. He determines, in accordance with paragraph (e) of this section, that these gifts are valued as follows: </P> <FP SOURCE="FP-1">Gift 1—Print: $190</FP> <FP SOURCE="FP-1">Gift 2—Pen and pencil set: $105</FP> <FP SOURCE="FP-1">Gift 3—Letter opener: $20</FP> <P>The official must disclose Gifts 1 and 2, since together they aggregate more than $260 in value from the same source. Gift 3 need not be aggregated, because its value does not exceed $104.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An official receives the following gifts from a single source: </P> <FP SOURCE="FP-1">1. Dinner for two at a local restaurant—$120.</FP> <FP SOURCE="FP-1">2. Round-trip taxi fare to meet donor at the restaurant—$25.</FP> <FP SOURCE="FP-1">3. Dinner at donor's city residence—(value uncertain).</FP> <FP SOURCE="FP-1">4. Round-trip airline transportation and hotel accommodations to visit Epcot Center in Florida-$400.</FP> <FP SOURCE="FP-1">5. Weekend at donor's country home, including duck hunting and tennis match—(value uncertain).</FP> <P>The official need only disclose Gift 4. Gift 1 falls within the exception in § 2634.105(h) 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 $104.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>An official receives free tickets from an outside source for himself and his spouse to attend an awards banquet at a local club. The value of each ticket is $150. Even though this is a gift which exceeds the more than $260 threshold amount for disclosure, the official need not report it, because of the exception in § 2634.105(h) for food and beverages not consumed in connection with a gift of overnight lodging.</P> </EXAMPLE> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Prior to accepting this gift of tickets, the individual should consult ethics officials at his agency to determine whether standards of conduct rules will permit acceptance, depending on whether or not the donor is a prohibited source and the exact nature of the event.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 4.</HD> <P>An official is asked to speak at an out-of-town meeting on a matter which is unrelated to her official duties and her agency. The round-trip airfare exceeds $260. If the official pays for the ticket and is then reimbursed by the organization to which she spoke, she must disclose this reimbursement under paragraph (b) of this section. If the organization simply provided the ticket, that must be disclosed as a gift under paragraph (a) of this section.</P> </EXAMPLE> <P>(e) <E T="03">Valuation of gifts and reimbursements.</E> The value to be assigned to a gift or 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:</P> <P>(1) If the gift has been newly purchased or is readily available in the market, the value shall 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.</P> <P>(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.</P> <P>(3) The term readily available in the market means that an item generally is available for retail purchase in the metropolitan area nearest to the official's residence. </P> <EXAMPLE> <HD SOURCE="HED">Example.</HD> <P>Items such as a pen and pencil set, letter opener, leather case or engraved pen are generally available in the market and can be determined by contacting stores which sell like items and ascertaining the retail price of each.</P> </EXAMPLE> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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, <PRTPAGE P="502"/>which may exceed the actual cost of the food and other benefits. The value of food and beverages may be excludable under § 2634.105(h)(4), if applicable, by making a good faith estimate, or by determining their actual cost from the caterer, restaurant, or similar source.</P> </NOTE> <P>(f) <E T="03">Waiver rule in the case of certain gifts</E>—(1) <E T="03">In general.</E> 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 by public filers, and therefore the gift need not be reported on an SF 278, if the Director of OGE receives a written request for and issues a waiver, after determining that:</P> <P>(i) Both the basis of the relationship between the grantor and the grantee and the motivation behind the gift are personal; and</P> <P>(ii) No countervailing public purpose requires public disclosure of the nature, source, and value of the gift. </P> <EXAMPLE> <HD SOURCE="HED">Example to paragraph (f)(1).</HD> <P>i. The Secretary of Education and her spouse receive the following two wedding gifts:</P> <P>A. Gift 1—A crystal decanter valued at $285 from the Secretary's former college roommate and lifelong friend, who is a real estate broker in Wyoming.</P> <P>B. Gift 2—A gift of a print valued at $300 from a business partner of the spouse, who owns a catering company.</P> <P>ii. Under these circumstances, the Director of OGE may grant a request for a waiver of the requirement to aggregate and report on an SF 278 each of these gifts.</P> </EXAMPLE> <P>(2) <E T="03">Public disclosure of waiver request.</E> If approved in whole or in part, the cover letter requesting the waiver shall be subject to the public disclosure requirements in § 2634.603 of this part.</P> <P>(3) <E T="03">Procedure.</E> (i) A public filer seeking a waiver under this paragraph (f) shall submit a request to the Office of Government Ethics, through his agency. The request shall be made by a cover letter which identifies the filer and his position and which states that a waiver is requested under this section.</P> <P>(ii) On an enclosure to the cover letter, the filer shall set forth:</P> <P>(A) The identity and occupation of the donor;</P> <P>(B) A statement that the relationship between the donor and the filer is personal in nature;</P> <P>(C) A statement that neither the donor nor any person or organization who employs the donor or whom the donor represents, conducts or seeks business with, engages in activities regulated by, or is directly affected by action taken by, the agency employing the filer. If the preceding statement cannot be made without qualification, the filer shall indicate those qualifications, along with a statement demonstrating that he plays no role in any official action which might directly affect the donor or any organization for which the donor works or serves as a representative; and</P> <P>(D) A brief description of the gift and the value of the gift.</P> <P>(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.</P> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 62605, Dec. 31, 1992, as amended at 63 FR 69992, Dec. 18, 1998; 64 FR 49640, Sept. 14, 1999; 65 FR 69656, Nov. 20, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.305</SECTNO> <SUBJECT>Liabilities.</SUBJECT> <P>(a) <E T="03">In general.</E> Each financial disclosure report filed pursuant to this part, whether public or confidential, shall identify and include a brief description of the filer's liabilities over $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. For public financial disclosure reports, the report shall designate the category of value of the liabilities in accordance with § 2634.301(d) of this subpart, using the greatest amount owed to the creditor during the period.</P> <P>(b) <E T="03">Exceptions.</E> The following are not required to be reported under paragraph (a) of this section:</P> <P>(1) Personal liabilities owed to a spouse or to the parent, brother, sister, or child of the filer, spouse, or dependent child;</P> <P>(2) Any mortgage secured by a personal residence of the filer or his spouse;</P> <P>(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; and<PRTPAGE P="503"/> </P> <P>(4) Any revolving charge account with an outstanding liability which does not exceed $10,000 at the close of the reporting period. </P> <EXAMPLE> <HD SOURCE="HED">Example</HD> <P>An incumbent official has the following debts outstanding at the end of the calendar year:</P> <P>1. Mortgage on personal residence—$80,000.</P> <P>2. Mortgage on rental property—$50,000.</P> <P>3. VISA Card—$1,000.</P> <P>4. Master Card—$11,000.</P> <P>5. Loan balance of $15,000, secured by family automobile purchased for $16,200.</P> <P>6. Loan balance of $10,500, secured by antique furniture purchased for $8,000.</P> <P>7. Loan from parents—$20,000.</P> <P>The loans indicated in items 2, 4, and 6 must be disclosed. Loan 1 is exempt from disclosure under paragraph (b)(2) of this section because it is secured by the personal residence. Loan 3 need not be disclosed under paragraph (b)(4) 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 5 need not be disclosed under paragraph (b)(3) of this section because it is secured by a personal motor vehicle which was purchased for more than the value of the loan. Loan 7 need not be disclosed because the creditors are persons specified in paragraph (b)(1) of this section.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2634.306</SECTNO> <SUBJECT>Agreements and arrangements.</SUBJECT> <P>Each financial disclosure report filed pursuant to this part, whether public or confidential, shall identify the parties to and the date of, and shall briefly describe the terms of, any agreement or arrangement of the filer in existence at any time during the reporting period with respect to:</P> <P>(a) Future employment;</P> <P>(b) A leave of absence from employment during the period of the reporting individual's Government service;</P> <P>(c) Continuation of payments by a former employer other than the United States Government; and</P> <P>(d) Continuing participation in an employee welfare or benefit plan maintained by a former employer.</P> </SECTION> <SECTION> <SECTNO>§ 2634.307</SECTNO> <SUBJECT>Outside positions.</SUBJECT> <P>(a) <E T="03">In general</E>. Each financial disclosure report filed pursuant to this part, whether public or confidential, shall 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.</P> <P>(b) <E T="03">Exceptions</E>. The following need not be reported under paragraph (a) of this section:</P> <P>(1) Positions held in any religious, social, fraternal, or political entity; and</P> <P>(2) Positions solely of an honorary nature, such as those with an emeritus designation.</P> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.308</SECTNO> <SUBJECT>Reporting periods and contents of public financial disclosure reports.</SUBJECT> <P>(a) <E T="03">Incumbents</E>. Each public financial disclosure report filed pursuant to § 2634.201(a) shall include on the standard form prescribed by the Office of Government Ethics consistent with subpart F of this part and in accordance with instructions issued by that Office, a full and complete statement of the information required to be reported according to the provisions of subpart C of this part, for the preceding calendar year (or for any portion of that year not already covered by a new entrant or nominee report filed under paragraph (b) or (c) of § 2634.201), and, in the case of §§ 2634.306 and 2634.307, for the additional period up to the date of filing.</P> <P>(b) <E T="03">New entrants, nominees, and candidates</E>. Each public financial disclosure report filed pursuant to § 2634.201(b), (c), or (d) shall include, on the standard form prescribed by the Office of Government Ethics consistent with subpart F of this part and in accordance with instructions issued by that Office, a full and complete statement of the information required to be reported according to the provisions of subpart C of this part, 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:</P> <P>(1) <E T="03">Interests in property</E>. For purposes of § 2634.301 of this subpart, the report shall include all interests in property <PRTPAGE P="504"/>specified by that section which are held on or after a date which is fewer than thirty-one days before the date on which the report is filed.</P> <P>(2) <E T="03">Income</E>. For puposes of § 2634.302 of this subpart, the report shall include all income items specified by that section which are received or accrued 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.</P> <P>(3) <E T="03">Liabilities</E>. For purposes of § 2634.305 of this subpart, the report shall 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 thirty-one days before the date on which the report is filed.</P> <P>(4) <E T="03">Agreements and arrangements</E>. For purposes of § 2634.306 of this subpart, the report shall include only those agreements and arrangements which still exist at the time of filing.</P> <P>(5) <E T="03">Outside positions</E>. For purposes of § 2634.307 of this subpart, the report shall include all such positions held during the preceding two calendar years and the current calendar year up to the date of filing.</P> <P>(6) <E T="03">Certain sources of compensation.</E> Except in the case of the President, the Vice President, or a candidate referred to in § 2634.201(d), the report shall 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, and shall briefly describe the nature of the duties performed or services rendered by the reporting individual for each such source of compensation. Information need not be reported, however, which is considered confidential as a result of a privileged relationship, established by law, between the reporting individual and any person. The report also need not contain any information with respect to any person for whom services were provided by any firm or association of which the reporting individual was a member, partner, or employee, unless such individual was directly involved in the provision of such services. </P> <EXAMPLE> <HD SOURCE="HED">Example</HD> <P>A nominee who is a partner or employee of a law firm and who has worked on a matter involving a client from which the firm received over $5,000 in fees during a calendar year must report the name of the client only if the value of the services rendered by the nominee exceeded $5,000. The name of the client would not normally be considered confidential.</P> </EXAMPLE> <P>(c) <E T="03">Termination reports.</E> Each public financial disclosure report filed under § 2634.201(e) shall include, on the standard form prescribed by the Office of Government Ethics consistent with subpart F of this part and in accordance with instructions issued by that Office, a full and complete statement of the information required to be reported according to the provisions of subpart C of this part, for the period beginning on the last date covered by the most recent public financial disclosure report filed by the reporting individual under this part, or on January 1 of the preceding calendar year, whichever is later, and ending on the date on which the filer's employment terminates.</P> </SECTION> <SECTION> <SECTNO>§ 2634.309</SECTNO> <SUBJECT>Spouses and dependent children.</SUBJECT> <P>(a) <E T="03">Special disclosure rules.</E> Each report required by the provisions of either subpart B or subpart I of this part shall also include the following information with respect to the spouse or dependent children of the reporting individual:</P> <P>(1) <E T="03">Income.</E> For purposes of § 2634.302 of this subpart:</P> <P>(i) With respect to a spouse, the source but not the amount of items of earned income (other than honoraria) which exceed $1,000 from any one source; and if items of earned income are 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;</P> <P>(ii) With respect to a spouse, the source, and for a public financial disclosure report the actual amount or value, of any honoraria received by or accrued to 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<PRTPAGE P="505"/> </P> <P>(iii) With respect to a spouse or dependent child, the type and source, and for a public financial disclosure report the amount or value (category or actual amount, in accordance with § 2634.302 of this subpart), 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 of this subpart). </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>The spouse of a filer is employed as a teller at Bank X and earns $23,000 per year. The report must disclose that the spouse is employed by Bank X. The amount of the spouse's earnings need not be disclosed, either on a public or confidential financial disclosure report.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>The spouse of a reporting individual is self-employed as a pediatrician. The report must disclose that he is a physician, but need not disclose the amount of income, either on a public or confidential financial disclosure report.</P> </EXAMPLE> <P>(2) <E T="03">Gifts and reimbursements.</E> For purposes of § 2634.304 of this subpart, gifts and reimbursements received by a spouse or dependent child which are not received totally independent of their relationship to the filer.</P> <P>(3) <E T="03">Interests in property, transactions, and liabilities.</E> For purposes of §§ 2634.301, 2634.303 (applicable only to public filers), and 2634.305 of this subpart, all information concerning property interests, transactions, or liabilities referred to by those sections of a spouse or dependent child, unless the following three conditions are satisfied:</P> <P>(i) The filer certifies that the item represents the spouse's or dependent child's sole financial interest or responsibility, and that the filer has no specific knowledge regarding that item;</P> <P>(ii) The item is not in any way, past or present, derived from the income, assets or activities of the filer; and</P> <P>(iii) The filer neither derives, nor expects to derive, any financial or economic benefit from the item.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>One who prepares a joint tax return with his spouse will normally derive a financial or economic benefit from assets held by the spouse, and will also be charged with knowledge of such items; therefore he could not avail himself of this exception. Likewise, a trust for the education of one's minor child normally will convey a financial benefit to the parent. If so, the assets of the trust would be reportable on a financial disclosure statement.</P> </NOTE> <P>(b) <E T="03">Exception.</E> For reports filed as a new entrant, nominee, or candidate under § 2634.201(b), (c), or (d), or as a new entrant under § 2634.908(b), no information regarding gifts and reimbursements or transactions is required for a spouse or dependent child.</P> <P>(c) <E T="03">Divorce and separation.</E> A reporting individual need not report any information about:</P> <P>(1) A spouse living separate and apart from the reporting individual with the intention of terminating the marriage or providing for permanent separation;</P> <P>(2) A former spouse or a spouse from whom the reporting individual is permanently separated; or</P> <P>(3) Any income or obligations of the reporting individual arising from dissolution of the reporting individual's marriage or permanent separation from a spouse.</P> </SECTION> <SECTION> <SECTNO>§ 2634.310</SECTNO> <SUBJECT>Trusts, estates, and investment funds.</SUBJECT> <P>(a) <E T="03">In general.</E> (1) Except as otherwise provided in this section, each financial disclosure report shall include the information required by this subpart or subpart I of this part 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, his spouse, or dependent child.</P> <P>(2) No information, however, is required about a nonvested beneficial interest in the principal or income of an estate or trust. A vested interest is 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 the immediate possession or enjoyment of the property, upon the ceasing of another's interest. Accordingly, it is not the uncertainty of the time of enjoyment in the future, but the uncertainty of the right of enjoyment (title and alienation), which differentiates a “vested” and a “nonvested” interest.<PRTPAGE P="506"/> </P> <P>(b) <E T="03">Qualified trusts and excepted trusts.</E> (1) A filer should not report information about the holdings of or income from holdings of, any qualified blind trust (as defined in § 2634.403) or any qualified diversified trust (as defined in § 2634.404). For a qualified blind trust, a public financial disclosure report shall disclose the category of the aggregate amount of the trust's income attributable to the beneficial interest of the filer, his spouse, or dependent child in the trust. For a qualified diversified trust, a public financial disclosure report shall disclose the category of the aggregate amount of income with respect to such a trust which is actually received by the filer, his spouse, or dependent child, or applied for the benefit of any of them.</P> <P>(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 or accrued to the benefit of the filer, his spouse, or dependent child shall be reported on public financial disclosure reports. For purposes of this part, the term “excepted trust” means a trust:</P> <P>(i) Which was not created directly by the filer, spouse, or dependent child; and</P> <P>(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.</P> <P>(c) <E T="03">Excepted investment funds.</E> (1) No information is required under paragraph (a) of this section about the underlying holdings of or income from underlying holdings of an <E T="03">excepted investment fund</E> as defined in paragraph (c)(2) of this section, except that the fund itself shall be identified as an interest in property and/or a source of income. Public financial disclosure reports must also disclose the category of value of the fund interest held; aggregate amount of income from the fund which is received by or accrued to the benefit of the filer, his spouse, or dependent child; and value of any transactions involving shares or units of the fund.</P> <P>(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 investment fund), if:</P> <P>(i)(A) The fund is publicly traded or available; or</P> <P>(B) The assets of the fund are widely diversified; and</P> <P>(ii) The filer neither exercises control over nor has the ability to exercise control over the financial interests held by the fund.</P> <P>(3) A fund is widely diversified if it holds no more than 5% of the value of its portfolio 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.</P> <CITA>[57 FR 11808, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.311</SECTNO> <SUBJECT>Special rules.</SUBJECT> <P>(a) <E T="03">Political campaign funds.</E> 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.</P> <P>(b) <E T="03">Certificates of Divestiture.</E> Each public financial disclosure report required by the provisions of this part shall identify those sales which have occurred pursuant to a Certificate of Divestiture during the period covered by such report. See subpart J of this part for the rules relating to the issuance of such Certificates.</P> <P>(c) <E T="03">Reporting standards.</E> (1) In lieu of entering data on a schedule of the report form designated by the Office of Government Ethics, a filer may attach to the reporting form a copy of a brokerage report, bank statement, or other material, which, in a clear and <PRTPAGE P="507"/>concise fashion, readily discloses all information which the filer would otherwise have been required to enter on the schedule.</P> <P>(2) In lieu of reporting the category of amount or value of any item listed in any public financial disclosure report filed pursuant to this part, a filer may report the actual dollar amount of such item.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Qualified Trusts</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11814, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.401</SECTNO> <SUBJECT>General considerations.</SUBJECT> <P>(a) <E T="03">Statutory standards governing qualified trusts</E>—(1) <E T="03">Types of qualified trusts and their relationshp to conflict of interest laws</E>. The Ethics in Government Act of 1978 created, and provided special public financial disclosure requirements for, two types of qualified trusts, It was envisioned that the use of those trusts by Government employees would reduce the real and apparent conflicts of interest which might arise between the financial interests held by those employees (or attributable to them) and their official responsibilities.</P> <P>(i) <E T="03">Interested party</E> means a Government employee, his spouse, any minor or dependent child, and their representatives in any case in which the employee, spouse, or child has a beneficial interest in the principal or income of a trust proposed for certification or certified.</P> <P>(ii) <E T="03">Qualified blind trust.</E> The most universally adaptable qualified trust is the qualified blind trust, defined in § 2634.403 of this subpart. A trust is considered to be “blind” only with regard to those trust assets about which no interested party has knowledge. When an interested party originally places assets in trust, that party still possesses knowledge about those assets. Those original assets remain financial interests of the Government official for purposes of 18 U.S.C. 208 or for any other Federal conflict of interest statutes or regulations, until the trustee notifies the official either that a particular original asset has been disposed of or that the asset's value is less than $1000. If the trustee sells or disposes of original trust assets and then uses the proceeds to acquire new trust holdings, or if the trustee reinvests trust income to acquire new trust holdings, a “blind” trust exists for those new holdings because the interested parties possess no information about the newly acquired assets. The holdings of a “blind” trust are not classified as financial interests of the Government official for purposes of 18 U.S.C. 208 or for any other Federal conflict of interest statutes or regulations.</P> <P>(iii) <E T="03">Qualified diversified trust.</E> The second type of qualified trust established by the Act is the qualified diversified trust, defined in § 2634.404 of this subpart. Among other requirements, a trust is considered to be “diversified” if it can be demonstrated, to the satisfaction of the Director of the Office of Government Ethics, pursuant to § 2634.404(b), that the trust assets comprise a widely diversified portfolio of readily marketable securities, and do not initially include the securities of any entities having substantial activities in the same area as the Government official's primary area of responsiblity. The trust holdings are never classified as financial interests of the Government official for purposes of 18 U.S.C. 208 or for any other Federal conflict of interest statutes or regulations.</P> <P>(2) <E T="03">Independence of trustees and other fiduciaries.</E> Under the Act and § 2634.406 of this subpart, those entities that are authorized by the Act or by the trust instrument to manage the assets of, and to control and administer, either a qualified blind or a qualified diversified trust must be independent, in fact and in appearance, from those parties who hold beneficial interests in the trust.</P> <P>(i) The independence of trustees is facilitated by limiting the entities which may serve in this capacity to certain financial institutions.</P> <P>(ii) In addition to the trustee, the Act extends the independence requirement to other entities which manage trust assets or administer the trust, including officers and employees of the trustee, any other entity designated in the trust instrument to perform fiduciary duties on behalf of the trust, and the officers and employees of any other <PRTPAGE P="508"/>entity that is involved in the management or control of the trust, such as investment counsel, investment advisers, accountants, or tax preparers and their assistants.</P> <P>(iii) Those entities governed by the Act will be considered “independent” for purposes of this subpart if, among other requirements, the entities are not affiliated with, associated with, related to, or subject to the control or influence of, any of the parties that hold a beneficial interest in the trust.</P> <P>(3) <E T="03">Communications betweeen trust administrators and interested parties.</E> For purposes of Federal ethics laws, the most important feature of those qualified trusts that are recognized under the Act is the separation which those trusts foster between parties with beneficial interests in the trust and entities which manage trust assets and administer the trust instrument. Once a qualified trust has been certified, the beneficiaries and their representatives are expressly prohibited from commenting directly to the trustee about matters relating to asset management and trust holdings, or to trust administration and activities. Likewise, the trustee must make investment decisions for the trust without consulting, or being controlled by, interested parties, and the trustee is prohibited from informing interested parties directly about trust activities, except to the limited extent required under the Act. The Act requires the trustee to provide trust beneficiaries with certain standard periodic reports. Beyond receipt of these standard reports, trust beneficiaries are prohibited from actively attempting to obtain, and from passively but knowningly obtaining, directly or indirectly, any additional information which the Act prohibits beneficiaries from obtaining, including information about trust holdings and activities. Finally, instruments creating qualified trusts must require interested parties and trustees to make all permissible communications relating to the trust and to its assets in writing, with the prior written approval of the Director of the Office of Government Ethics. Sections 2634.403-2634.405 and 2634.407 of this subpart contain standards implementing these restrictions.</P> <P>(4) <E T="03">Trust and beneficiary taxes.</E> For tax purposes, because a trust is a separate entity distinct from its beneficiaries, a trustee must file an annual fiduciary tax return for the trust (IRS Form 1041). In addition, the trust beneficiaries must report income received from the trust on their individual tax returns. The Act establishes special filing procedures to be used by the trustee and trust beneficiaries in order to maintain the substantive separation between trust beneficiaries and trust administration. For beneficiaries of qualified blind trusts, the trustee sends a Schedule K-1 form summarizing trust income in appropriate categories to enable the beneficiaries to file individual tax returns. For beneficiaries of qualified diversified trusts, the statute requires the trustee to file the individual tax returns on behalf of the trust beneficiaries. 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.</P> <P>(b) <E T="03">Policy considerations and objectives underlying the qualified trust program.</E> (1) Prior to enactment of the Act's qualified trust provisions, there was no accepted definition of a properly formulated blind or diversified trust. However, there was general agreement that the use of blind or diversified trusts often reduced the potential for conflicts of interest. If Government employees do not know the exact identity, nature, and extent of their financial interests, then the employees cannot be influenced in the performance of their official duties by those interests. Their official actions, under these circumstances, should be free from collateral attack arising out of real or apparent conflicts of interest. Therefore, the most significant objective to be achieved through the use of a blind trust is the lack of knowledge, or actual “blindness,” by a Government official with respect to the holdings in his trust. The same goal may be achieved through the use of a diversified trust, if that trust holds securities from different issuers in different economic sectors, and if the trust's interest in any one issuer is limited. Under <PRTPAGE P="509"/>these conditions, it is unlikely that official actions taken by the Government employee who holds a beneficial interest in the trust would affect individual securities to such a degree that the overall value of the trust's portfolio would be materially enhanced. Thus, wide diversification is tantamount to actual “blindness.”</P> <P>(2) Because, for the trusts certified under the provisions of this subpart D, the Government official is or will become blind to the identity and nature of his actual trust holdings, the reporting requirements of section 102(f)(1) of the Act and subparts C or I of this part, which generally require Government filers to disclose the contents of a trust's portfolio, do not apply. See § 2634.310 of this part. Further, as discussed in paragraphs (a)(1) (ii) and (iii) of this section, 18 U.S.C. 208 and other Federal conflict of interest laws do not generally apply to the holdings of qualified trusts, except in the case of the original assets transferred to a qualified blind trust until notice that a particular original asset has been disposed of or that the asset's value is below $1,000.</P> <P>(c) <E T="03">Qualified trust provisions of the regulation.</E> This subpart D prescribes standards which implement the statutory requirements and policy objectives underlying the Act's qualified blind and diversified trust provisions. The Office of Government Ethics will apply the standards of this subpart to specific cases.</P> <P>(1) Classification as a qualified trust. In order to be classified as a qualified trust for purposes of the Act, blind and diversified trusts must satisfy the following three requirements:</P> <P>(i) <E T="03">The trust document must conform to announced standards.</E> As provided under § 2634.403(b) for blind trusts and § 2634.404(c) for diversified trusts, the trust document must conform to the model trust instruments which are drafted and distributed by the Office of Government Ethics for use by interested parties when drafting their trust arrangements. Prior to certifying a trust under § 2634.405 of this subpart, as discussed in paragraph (c)(1)(iii) of this section, the Office of Government Ethics must approve every proposed trust document. In addition to other required provisions, the trust instrument must contain language which implements the communications restrictions discussed in paragraph (a)(3) of this section. By requiring interested parties, trustees, and other signatories to the trust instrument to include communications provisions, these regulations compel the signatories diligently to safeguard against inadvertent disclosures of precluded information to the interested parties.</P> <P>(ii) <E T="03">Truly independent fiduciaries.</E> As discussed in paragraph (a)(2) of this section, the fiduciaries in charge of administering and managing the assets of a qualified trust must be actually and apparently independent of the parties who hold beneficial interests in the trust, and of their representatives. To ensure such independence, § 2634.406 of this subpart limits the range of permissible fiduciaries. Before a trust may be classified as a qualified blind or diversified trust, the Director of the Office of Government Ethics must conclude, in his judgment, that the trust fiduciaries named in the trust instrument satisfy the standards for independence contained in § 2634.406 of this subpart.</P> <P>(iii) <E T="03">Certification by the Office of Government Ethics.</E> Before a trust may be classified as a qualified blind or diversified trust, the Director of the Office of Government Ethics must certify, in accordance with the standards and procedures established in § 2634.405 of this subpart, that the trust meets the requirements of section 102(f) of the Act and of this subpart, that certification is in the public interest, and that certification is consistent with the policies established by these provisions and by other applicable laws and regulations. This certification is essential so that the Office can ensure, in advance that the proposed trust arrangement satisfies the established standards.</P> <P>(2) <E T="03">Certification of pre-existing trusts</E>. Normally, those trusts certified as qualified trusts by the Director of the Office of Government Ethics under § 2634.405 of this subpart are newly created trust arrangements, formulated in accordance with established standards by representatives of the interested parties in consultation with the Office of Government Ethics. However, the Director may certify a pre-existing <PRTPAGE P="510"/>trust as a qualified blind or qualified diversified trust under § 2634.403 (blind) or § 2634.404 (diversified) if he determines that such action is appropriate and is sufficient to ensure compliance with applicable laws and regulations. The pre-existing trust proposed for certification must meet both the generally applicable trust requirements, and several special requirements contained in § 2634.405(c) of this subpart, including that all of the parties to the original trust agree to administer the trust in accordance with the requirements of this subpart. The pre-existing trust may be certified only if all of the conditions of this subpart are fulfilled, and if the requisite confidentially can be assured with respect to the trust.</P> <P>(3) <E T="03">Reporting requirements</E>. Once a trust is classified as a qualified blind or qualified diversified trust in the manner discussed under paragraph (c)(1) of this section, § 2634.310(b) applies less inclusive financial disclosure requirements to the trust assets.</P> <P>(4) <E T="03">Sanctions and enforcement</E>. Section 2634.702 provides civil sanctions which apply to any Government official or trust fiduciary who violates his obligations under the Act, its implementing regulations, or the trust instrument. In addition, the Office of Government Ethics has authority under the Act to impose appropriate administrative or other sanctions. Subpart E of this part delineates the procedure which must be followed with respect to the revocation of trust certificates and trustee approvals.</P> <P>(d) <E T="03">Drafting and implementation of the qualified trust instrument.</E> (1) The overview of the qualified trust program contained in this section cannot anticipate every concern or question, or discuss every scenario which might arise in the course of formulating and implementing a qualified trust instrument. The Office of Government Ethics should be contacted by an interested party or by his professional representatives if the Act, the implementing regulations, and the trust instrument itself do not provide guidance in a particular instance.</P> <P>(2) No trust will be considered “qualified” for purposes of the Act until the Office of Government Ethics certifies the trust prior to execution. The Office of Government Ethics makes available to attorneys model trust agreements for use in drafting proposed trust agreements which are to be submitted to the Office for certification. Attorneys are cautioned to consider each model provision in light of the circumstances presented by the particular case, and to modify provisions to the extent that such modifications are necessary or appropriate. Attorneys should not rely uncritically upon the language of the model agreements. However, many of the model provisions implement the minimum requirements which must be contained in any trust instrument certified by the Office. Certificates of Independence for fiduciaries must be executed in the form indicated in appendix A of this part.</P> <P>(3) The Office of Government Ethics does not draft trust instruments for use in individual cases. However, its staff is always willing to cooperate with attorneys and to make its experience available to them in developing appropriate trust instruments which satisfy applicable Federal laws, Executive orders and regulations. If the use of a qualified trust is contemplated in a particular case, it is strongly recommended that the interested parties or their representatives contact the Office of Government Ethics as early as possible.</P> <P>(4) Prior to trust certification, prospective trustees or their representatives should schedule with the staff of the Office of Government Ethics an appointment for an orientation to the specialized requirements and procedures which have been established by the Act and the regulations with respect to qualified trust administration.</P> </SECTION> <SECTION> <SECTNO>§ 2634.402</SECTNO> <SUBJECT>Special notice for advice-and-consent nominees.</SUBJECT> <P>(a) <E T="03">In general.</E> In any case in which the establishment of a qualified diversified trust is contemplated with respect to a reporting individual whose nomination is being considered by a Senate committee, that individual shall inform the committee of the intention to establish a qualified diversified trust at the time of filing a financial disclosure report with the committee.<PRTPAGE P="511"/> </P> <P>(b) <E T="03">Applicability.</E> The rule of this section is not applicable to members of the uniformed services or Foreign Service officers. The special notice requirement of this section shall 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.</P> </SECTION> <SECTION> <SECTNO>§ 2634.403</SECTNO> <SUBJECT>Qualified blind trusts.</SUBJECT> <P>(a) <E T="03">Definition.</E> A <E T="03">qualified blind trust</E> is a trust in which the filer, his spouse, or his minor or dependent child has a beneficial interest, which is certified pursuant to § 2634.405 of this subpart by the Director of the Office of Government Ethics, and which includes in the trust instrument in the provisions required by paragraph (b) of this section, and has an independent trustee as defined in § 2634.406 of this subpart. See section 102(f)(3) of the Act.</P> <P>(b) <E T="03">Required provisions.</E> The instrument which establishes a blind trust must adhere substantively to model drafts circulated by the Office of Government Ethics, and must provide that:</P> <P>(1) The primary purpose of the blind trust is to confer on the independent trustee and any other designated fiduciary the sole responsibility to administer the trust and to manage trust assets without the participation by, or the knowledge of, any interested party. This 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;</P> <P>(2) The trustee and any other designated fiduciary in the exercise of their authority and discretion to manage and control the assets of the trust shall not consult or notify any interested party;</P> <P>(3) None of the assets initially placed in the trust's portfolio shall include assets the holding of which by any interested party would be prohibited by the Act, by the implementing regulations, or by any other applicable Federal law, Executive order, or regulation;</P> <P>(4) Any portfolio asset transferred to the trust by an interested party is 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 of the Office of Government Ethics;</P> <P>(5) During the term of the trust, the interested parties shall not pledge, mortgage, or otherwise encumber their interests in the property held by the trust;</P> <P>(6) The trustee shall promptly notify the filer and the Director of the Office of Government Ethics 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;</P> <P>(7) The trustee or his designee shall prepare the trust's income tax return. Under no circumstances shall the trustee or any other designated fiduciary disclose publicly, or to any interested party, the trust's tax return, any information relating to that return except for a summary of trust income in categories necessary for an interested party to complete his individual tax return, or any 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 under paragraph (b)(6) of this section;</P> <P>(8) An interested party shall not receive any report on trust holdings and sources of trust income, except that the trustee shall, without identifying specifically any asset or holding:</P> <P>(i) Report quarterly the aggregate market value of the assets representing the interested party's interest in the trust;</P> <P>(ii) Report the net income or loss of the trust, and any other information necessary to enable the interested party to complete his individual income tax return; and</P> <P>(iii) Report annually, for purposes of section 102(a)(1)(B) of the Act, 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);</P> <P>(9) There shall be no direct or indirect communication with respect to the trust between an interested party and the independent trustee or any <PRTPAGE P="512"/>other designated fiduciary with respect to the trust unless:</P> <P>(i) Such communication is in writing, with the prior written approval of the Director of the Office of Government Ethics and is filed with the Director in accordance with § 2634.408(c) of this subpart; and</P> <P>(ii) It relates only:</P> <P>(A) To the request for a distribution from the trust, which does not specify whether the distribution shall be made in cash or in kind;</P> <P>(B) To the general financial interest and needs of the interested party including, but not limited to, a preference for maximizing current income or long-term capital appreciation;</P> <P>(C) To notification of the trustee by the interested party that the interested party is prohibited by subsequently applicable statute, Executive order, or regulation from holding an asset, and to directions to the trustee that the trust shall not hold that asset; or</P> <P>(D) To instructions to the 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 filer creates a real or apparent conflict due to duties subsequently assumed by the filer (but the filer is not required to give such directions);</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 which do not contain language conforming to this policy, except in unusual cases where compelling necessity is demonstrated to the Director, in his sole discretion.</P> </NOTE> <P>(10) The interested parties shall not take any action to obtain, and shall 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 trustee, or any information relating to that return, except for the reports and information specified in paragraphs (b)(6) and (b)(8) of this section;</P> <P>(11) An independent trustee and any other designated fiduciary shall file, with the Director of the Office of Government Ethics by May 15th following any calendar year during which the trust was in existence, a properly executed Certificate of Compliance in the form prescribed in appendix B to this part. In addition, the independent trustee and such fiduciary shall 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;</P> <P>(12) Neither the trustee nor any other designated fiduciary shall knowingly and willfully, or negligently:</P> <P>(i) Disclose to any interested party any information regarding the trust that may not be disclosed pursuant to title I of the Act, the implementing regulations, or the trust instrument;</P> <P>(ii) Acquire any holding the ownership of which is prohibited by, or not in accordance with, the terms of the trust instrument;</P> <P>(iii) Solicit advice from any interested party with respect to the trust, if such solicitation is prohibited by title I of the Act, the implementing regulations, or the trust instrument; or</P> <P>(iv) Fail to file any document required by title I of the Act or by this part;</P> <P>(13) An interested party shall not knowingly and willfully, or negligently:</P> <P>(i) Solicit or receive any information regarding the trust that may not be disclosed pursuant to title I of the Act, the implementing regulations, or the trust instrument; or</P> <P>(ii) Fail to file any document required by title I of the Act or by this part;</P> <P>(14) No person, including investment counsel, investment advisers, accountants, and tax preparers, may be employed or consulted by an independent <PRTPAGE P="513"/>trustee or any other designated fiduciary to assist in any capacity to administer the trust or to manage and control the trust assets, unless the following four conditions are met:</P> <P>(i) When any 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 of the Office of Government Ethics;</P> <P>(ii) Under all the facts and circumstances, the person is determined pursuant to the requirements for eligible entities under § 2634.406 of this subpart to be independent of any interested party with respect to the trust arrangement;</P> <P>(iii) 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 which have been sold or disposed of from trust holdings, other than information relating to the sale or disposition of original trust assets under paragraph (b)(6) of this section; and</P> <P>(iv) The person is instructed by the trustee or other designated fiduciary to have no direct communication with respect to the trust with any interested party, and to make all indirect communications with respect to the trust only through the trustee, pursuant to paragraph (b)(9) of this section;</P> <P>(15) The trustee shall not acquire by purchase, grant, gift, exercise of option, or otherwise, without the prior written approval of the Director of the Office of Government Ethics, securities, cash, or other property from any interested party;</P> <P>(16) The existence of any banking or other client relationship between any interested party and an independent trustee or any other designated fiduciary shall be disclosed in schedules attached to the trust instrument, and no other such relationship shall be instituted unless that relationship is disclosed to the Director of the Office of Government Ethics; and</P> <P>(17) The independent trustee and any other designated fiduciary shall be compensated in accordance with schedules annexed to the trust instrument.</P> <CITA>[57 FR 11814, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.404</SECTNO> <SUBJECT>Qualified diversified trusts.</SUBJECT> <P>(a) <E T="03">Definition.</E> A <E T="03">qualified diversified trust</E> is any trust in which the filer, his spouse, or his minor or dependent child has a beneficial interest, which is certified pursuant to § 2634.405 of this subpart by the Director of the Office of Government Ethics, which has a portfolio as specified in paragraph (b) of this section, and which includes in the trust instrument the provisions required by paragraph (c) of this section and has an independent trustee as defined in § 2634.406 of this subpart. See section 102(f)(4)(B) of the Act.</P> <P>(b) <E T="03">Required portfolio</E>—(1) <E T="03">Standards for initial assets.</E> It must be established, to the satisfaction of the Director of the Office of Government Ethics, that the initial assets of the trust proposed for certification comprise a widely diversified portfolio of readily marketable securities. The reporting individual or other interested party shall provide the Director with a detailed list of the securities proposed for inclusion in the portfolio, specifying their fair market values and demonstrating that these securities meet the requirements of this paragraph. The initial trust portfolio may not contain securities of issuers having substantial activities in the reporting individual's primary area of responsibility. If requested by the Director, the designated agency ethics official for the reporting individual's employing agency shall certify whether the proposed portfolio meets this standard.</P> <P>(2) <E T="03">Diversification standards.</E> For purposes of paragraph (b)(1) of this section, a portfolio will be widely diversified if:</P> <P>(i) The value of the securities concentrated in any particular or limited industrial, economic or geographic sector is no more than twenty percent of the total; and</P> <P>(ii) The value of the securities of any single issuer (other than the United States Government) is no more than five percent of the total.<PRTPAGE P="514"/> </P> <P>(3) <E T="03">Marketability standard.</E> For purposes of paragraph (b)(1) of this section, a security will be readily marketable if:</P> <P>(i) Daily price quotations for the security appear regularly in newspapers of general circulation; and</P> <P>(ii) The trust holds the security in a quantity that does not unduly impair liquidity.</P> <P>(c) <E T="03">Required provisions.</E> The instrument which establishes a diversified trust must adhere substantively to model drafts circulated by the Office of Government Ethics, and must provide that:</P> <P>(1) The primary purpose of the diversified trust is to confer on the independent trustee and any other designated fiduciary the sole responsibility to administer the trust and to manage trust assets without the participation by, or the knowledge of, any interested party. This 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;</P> <P>(2) The trustee and any other designated fiduciary in the exercise of their authority and discretion to manage and control the assets of the trust shall not consult or notify any interested party;</P> <P>(3) The trust's initial assets shall comprise a widely diversified portfolio of readily marketable securities, in accordance with the principles of paragraph (b) of this section, and the trustee shall not acquire additional securities in excess of the diversification standards;</P> <P>(4) Any portfolio asset transferred to the trust by an interested party is 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 of the Office of Government Ethics;</P> <P>(5) During the term of the trust, the interested parties shall not pledge, mortgage, or otherwise encumber their interests in the property held under the trust;</P> <P>(6) None of the assets initially placed in the trust's portfolio shall consist of securities of issuers having substantial activities in the reporting individual's primary area of Federal responsibility;</P> <P>(7) The trustee or designee shall prepare the trust's income tax return and, on behalf of any interested party, the personal income tax returns and similar tax documents which may contain information relating to the trust. Under no circumstances shall the trustee or any other designated fiduciary disclose publicly or to any interested party, any of the returns prepared by the trustee or his designee, any information relating to those returns, or any information which might specifically identify current trust assets, or those assets which have been sold or disposed of from trust holdings;</P> <P>(8) An interested party shall not receive any report on trust holding and sources of trust income, except that the trustee shall, without identifying specifically any asset or holding:</P> <P>(i) Report quarterly the aggregate market value of the assets representing the interested party's interest in the trust; and</P> <P>(ii) Report annually, for purposes of section 102(a)(1)(B) of the Act, the aggregate amount actually distributed from the trust to such interested party, or applied for the party's benefit;</P> <P>(9) There shall be no direct or indirect communication with respect to the trust between an interested party and the independent trustee or any other designated fiduciary unless:</P> <P>(i) Such communication is in writing, with the prior written approval of the Director of the Office of Government Ethics and is filed with the Director in accordance with § 2634.408(c) of this subpart; and,</P> <P>(ii) It relates only:</P> <P>(A) To the request for a distribution from the trust, which does not specify whether the distribution shall be made in cash or in kind;</P> <P>(B) To the general financial interest and needs of the interested party including, but not limited to, a preference for maximizing current income or long-term capital appreciation; or</P> <P>(C) To information, documents, and funds concerning income tax obligations arising from sources other than the property held in trust, which are required by the trustee to enable him to file, on behalf of an interested party, <PRTPAGE P="515"/>the personal income tax returns and similar tax documents which may contain information relating to the trust;</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>By the terms of paragraph (3)(C)(vi) of section 102(f) of the Act, communications which soley 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 which do not contain language conforming to this policy, except in unusual cases where compelling necessity is demonstrated to the Director, in his sole discretion.</P> </NOTE> <P>(10) The interested parties shall not seek to obtain, and shall take reasonable action to avoid receiving, information with respect to trust holdings and sources of trust income, including a copy of any tax return filed by the trustee, or any information relating to that return, except for the reports and information specified in paragraph (c)(8) of this section;</P> <P>(11) An independent trustee and any other designated fiduciary shall file, with the Director of the Office of Government Ethics, by May 15 following any calendar year during which the trust was in existence, a properly executed Certificate of Compliance in the form prescribed in appendix B to this part. In addition, the independent trustee and any other designated fiduciary shall 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;</P> <P>(12) Neither the trustee nor any other designated fiduciary shall knowingly and willfully, or negligently:</P> <P>(i) Disclose to any interested party any information regarding the trust that may not be disclosed pursuant to title I of the Act, the implementing regulations, or the trust instrument;</P> <P>(ii) Acquire any holding the ownership of which is prohibited by, or not in accordance with, the terms of the trust instrument;</P> <P>(iii) Solicit advice from any interested party with respect to the trust, if such solicitation is prohibited by title I of the Act, the implementing regulations, or the trust instrument; or</P> <P>(iv) Fail to file any document required by title I of the Act or by this part;</P> <P>(13) An interested party shall not knowingly and willfully, or negligently:</P> <P>(i) Solicit or receive any information regarding the trust that may not be disclosed pursuant to title I of the Act, the implementing regulations, or the trust instrument; or</P> <P>(ii) Fail to file any document required by title I of the Act or by this part;</P> <P>(14) No person, including investment counsel, investment advisers, accountants, and tax preparers, may be employed or consulted by an independent trustee or any other designated fiduciary to assist in any capacity to administer the trust or to manage and control the trust assets, unless, the following four conditions are met:</P> <P>(i) When 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 of the Office of Government Ethics;</P> <P>(ii) Under all the facts and circumstances, the person is determined pursuant to the requirements for eligible entities under § 2634.406 of this subpart to be independent of any interested party with respect to the trust arrangement;</P> <P>(iii) 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; and</P> <P>(iv) The person is instructed by an independent trustee or other designated fiduciary to have no direct communication with respect to the trust with any interested party, and to make all indirect communications <PRTPAGE P="516"/>with respect to the trust only through the trustee, pursuant to paragraph (c)(9) of this section;</P> <P>(15) The trustee shall not acquire by purchase, grant, gift, exercise of option, or otherwise, without the prior written approval of the Director of the Office of Government Ethics, any securities, cash, or other property from any interested party;</P> <P>(16) The existence of any banking or other client relationship between any interested party and an independent trustee or other designated fiduciary shall be disclosed in schedules attached to the trust instrument, and no other such relationship shall be instituted unless that relationship is disclosed to the Director of the Office of Government Ethics; and</P> <P>(17) The independent trustee and any other designated fiduciary shall be compensated in accordance with schedules annexed to the trust instrument.</P> <P>(d) <E T="03">Personal income tax returns</E>. In the case of a trust to which this section applies, the trustee shall be given power of attorney to prepare, and shall file, on behalf of any interested party, 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 shall be used for this purpose.</P> <CITA>[57 FR 11814, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.405</SECTNO> <SUBJECT>Certification of trusts.</SUBJECT> <P>(a) <E T="03">Standards</E>. Before a trust may be classified as a qualified blind or a qualified diversified trust, under the provisions of § 2634.403 or § 2634.404 of this subpart, respectively, the trust must be certified by the Director of the Office of Government Ethics.</P> <P>(1) A trust will be certified for purposes of this subpart only if:</P> <P>(i) It is established to the Director's satisfaction that the requirements of section 102(f) of the Act and this subpart have been met;</P> <P>(ii) Certification is in the public interest; and</P> <P>(iii) Certification is consistent with the policies established by the Act, this subpart and other applicable laws and regulations.</P> <P>(2) Certification will not be granted in any case in which, in the Director's sole judgment, such action would not be appropriate because of the ready availability of other remedies, the lack of any substantive ethical concern which would warrant the establishment of a qualified trust, or the nature or negligible value of the assets proposed for a trust's initial portfolio.</P> <P>(b) <E T="03">Certification procedures.</E> The interested parties or their representatives should first consult the staff of the Office of Government Ethics concerning the appropriateness of, and requirements for, certification in the particular case. In order to assure timely trust certification, the interested parties shall be responsible for the expeditious submission to the Office of all required documents and responses to requests for information, including a statement that any interested party who will be a party to a certified trust instrument has read and understands the overview of executive branch qualified trusts in § 2634.401(a) of this subpart. Certification shall be indicated by a letter from the Director to the interested parties or their representatives.</P> <P>(c) <E T="03">Certification of pre-existing trusts.</E> In addition to the normally applicable rules of this subpart D, other considerations apply to pre-existing trusts. Generally, in the case of a pre-existing trust whose terms do not permit amendments satisfying the rules of this subpart, all of the relevant parties (including the reporting individual, any other interested parties, the trustee of the pre-existing trust, and all of its other parties and beneficiaries) will be required pursuant to section 102(f)(7) of the Act to enter into an umbrella agreement specifying that the pre-existing (underlying) trust will be administered in accordance with the provisions of this subpart. A parent or guardian may execute the umbrella agreement on behalf of a required participant who is a dependent child. The umbrella agreement will be certified as a qualified trust if all requirements of this subpart are fulfilled under conditions where required confidentiality with respect to the trust can be assured. A copy of the underlying trust instrument, and a list of its assets at <PRTPAGE P="517"/>the time the umbrella agreement is certified as a qualified trust (categorized as to value in accordance with § 2634.301(d)), shall be filed with the executed umbrella trust instrument as specified by § 2634.408(a)(1)(i) of this subpart.</P> <P>(d) <E T="03">Review of certification.</E> The Office of Government Ethics shall maintain a program to assess, on a frequent basis, the appropriateness of any trust certification which has been granted.</P> <P>(e) <E T="03">Revocation of certification and modification of trust instrument.</E> Certification of a trust may be revoked pursuant to the rules of subpart E of this part. The terms of a qualified trust may not be revoked or amended, except with the prior written approval of the Director, and upon a showing of necessity and appropriateness.</P> </SECTION> <SECTION> <SECTNO>§ 2634.406</SECTNO> <SUBJECT>Independent trustees.</SUBJECT> <P>(a) <E T="03">Standards.</E> (1) The term <E T="03">independent trustee</E> means any entity referred to in paragraph (a)(2) of this section which, under all the facts and circumstances, is determined by the Director of the Office of Government Ethics and in the Director's sole discretion, to be independent of any interested party with respect to a trust proposed for certification under this subpart. The term includes, unless the context indicates otherwise, in addition to the party to a trust instrument who is designated to serve as trustee, those parties who are designated to perform fiduciary duties. Approval of a proposed trustee or other designated fiduciary shall be granted only if it is established to the Director's satisfaction that the requirements of section 102 of the Act and this subpart have been met, and that approval in the case is in the public interest and consistent with the policies established by those provisions and other applicable laws and regulations.</P> <P>(2) <E T="03">Eligible entities.</E> Eligibility to serve as a trustee or other fiduciary under this section is limited to a financial institution (not a person), not more than 10 percent of which is owned or controlled by a single individual, which is:</P> <P>(i) A bank, as defined in 12 U.S.C. 1841(c); or</P> <P>(ii) An investment adviser, as defined in 15 U.S.C. 80b-2(a)(11).</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 sole discretion.</P> </NOTE> <P>(3) <E T="03">Requirements.</E> No eligible entity shall be determined to be an independent trustee under this section unless:</P> <P>(i) That 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; and</P> <P>(ii) That 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</P> <P>(iii) Any director, officer, or employee of such entity:</P> <P>(A) 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;</P> <P>(B) 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</P> <P>(C) Is not a relative of any interested party.</P> <P>(b) <E T="03">Approval procedures.</E> (1) Appropriate documentation to establish, pursuant to the requirements of paragraph (a)(3) of this section, the independence of a proposed trustee or any other person to be designated in a trust instrument to perform fiduciary duties shall <PRTPAGE P="518"/>be submitted to the Office of Government Ethics in writing, including the Certificate of Independence in the form prescribed in appendix A of this part. The existence of any other banking or client relationship between an interested party and a proposed trustee or other designated fiduciary must be disclosed in such documentation, and may be subject to discontinuance as a condition of approval.</P> <P>(2) The Director shall indicate approval of a proposed trustee, and of any other person designated in the trust instrument to perform fiduciary duties, including those of an investment adviser, by reporting such approval in writing to the interested parties or to their representatives.</P> <P>(c) <E T="03">Review of approval.</E> The Office of Government Ethics shall maintain a program to assess, on a frequent basis, the appropriateness of any approval which has been granted under this section.</P> <P>(d) <E T="03">Revocation of approval.</E> Approval of a trustee or any other designated fiduciary may be revoked pursuant to the rules of subpart E of this part.</P> </SECTION> <SECTION> <SECTNO>§ 2634.407</SECTNO> <SUBJECT>Restrictions on fiduciaries and interested parties.</SUBJECT> <P>(a) <E T="03">Restrictions applicable to trustees and other fiduciaries.</E> Any trustee or any other designated fiduciary of a qualified trust shall not knowingly or negligently:</P> <P>(1) Disclose any information to an interested party with respect to the trust that may not be disclosed under title I of the Act, the implementing regulations or the trust instrument;</P> <P>(2) Acquire any holding:</P> <P>(i) Directly from an interested party without the prior written approval of the Director; or</P> <P>(ii) 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;</P> <P>(3) Solicit advice from any interested party with respect to such trust, which solicitation is prohibited by title I of the Act, the implementing regulations, or the trust instrument; or</P> <P>(4) Fail to file any document required by the implementing regulations or the trust instrument.</P> <P>(b) <E T="03">Restrictions applicable to interested parties.</E> An interested party to a qualified trust shall not knowingly or negligently:</P> <P>(1) 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</P> <P>(2) Fail to file any document required by this subpart or the trust instrument.</P> </SECTION> <SECTION> <SECTNO>§ 2634.408</SECTNO> <SUBJECT>Special filing requirements for qualified trusts.</SUBJECT> <P>(a) <E T="03">The interested party.</E> In the case of any qualified trust, the Government employee or other interested party shall:</P> <P>(1) <E T="03">Execution of the trust.</E> Within thirty days after the trust is certified under § 2634.405 of this subpart by the Director of the Office of Government Ethics, file with the Director a copy of:</P> <P>(i) The executed trust instrument of the trust (other than those provisions which relate to the testamentary disposition of the trust assets); and</P> <P>(ii) A list of the assets which were transferred to the trust, categorized as to value of each asset in accordance with § 2634.301(d).</P> <P>(2) <E T="03">Transfer of assets.</E> Within thirty days of transferring an asset, other than cash, to a qualified trust, file a report with the Director of the Office of Government Ethics, which identifies and briefly describes each asset, categorized as to value in accordance with § 2634.301(d).</P> <P>(3) <E T="03">Dissolution of the trust.</E> Within thirty days of the dissolution of a qualified trust:</P> <P>(i) File a report of the dissolution with the Director of the Office of Government Ethics; and</P> <P>(ii) File with the Director a list of assets of the trust at the time of the dissolution, categorized as to value in accordance with § 2634.301(d).</P> <P>(b) <E T="03">Trustees and other designated fiduciaries.</E> An independent trustee of a qualified trust, and any other person designated in the trust instrument to perform fiduciary duties, shall file, <PRTPAGE P="519"/>with the Director of the Office of Government Ethics by May 15th following any calendar year during which the trust was in existence, a properly executed Certificate of Compliance in the form prescribed by appendix B of this part. In addition, an independent trustee and other fiduciaries shall 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.</P> <P>(c) <E T="03">Written communications.</E> All communications between an interested party and the trustee of a qualified trust must, under this subpart, have the prior written approval of the Director of the Office of Government Ethics. After such an approved written communication (including those communications described in § 2634.403(b)(9) or § 2634.404(c)(9) of this subpart) has been transmitted, the person initiating the communication shall file a copy of the communication within five days of its date, with the Director of the Office of Government Ethics.</P> <P>(d) <E T="03">Public access.</E> Any document filed under the requirements of paragraph (a) of this section by a public filer, nominee, or candidate shall be subject to the public disclosure requirements of § 2634.603. Any document (and the information contained therein) inspected under the requirements of paragraph (b) of this section (other than a Certificate of Compliance), or filed under the requirements of paragraph (c) of this section, shall be exempt from the public disclosure requirements of § 2634.603, and shall not be disclosed to any interested party.</P> </SECTION> <SECTION> <SECTNO>§ 2634.409</SECTNO> <SUBJECT>OMB control number.</SUBJECT> <P>The various model trust documents and Certificates of Independence and Compliance referenced in this subpart, together with the underlying regulatory provisions (and appendixes A, B and C to this part for the Certificates), are all approved by the Office of Management and Budget under control number 3209-0007.</P> <CITA>[59 FR 34756, July 7, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Revocation of Trust Certificates and Trustee Approvals</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11821, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.501</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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).</P> <P>(b) <E T="03">Scope.</E> This subpart applies to all trust certifications and trustee approvals pursuant to §§ 2634.405(a) and 2634.406(a), respectively.</P> </SECTION> <SECTION> <SECTNO>§ 2634.502</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart (unless otherwise indicated):</P> <P>(a) <E T="03">Senior Attorney</E> means the Office of Government Ethics employee designated as the manager of the qualified trust program.</P> <P>(b) <E T="03">Trust restrictions</E> means the applicable provisions of title I of the Ethics in Government Act of 1978, subpart D of this part, and the trust instrument.</P> </SECTION> <SECTION> <SECTNO>§ 2634.503</SECTNO> <SUBJECT>Determinations.</SUBJECT> <P>(a) Where the Senior Attorney concludes that violations or apparent violations of the trust restrictions exist and may warrant revocation of trust certification or trustee approval previously granted under § 2634.405 or § 2634.406 of this subpart, the Senior Attorney may, pursuant to the procedure specified in paragraph (b) of this section, conduct a review of the matter, and may submit findings and a recommendation concerning final action to the Director of the Office of Government Ethics.</P> <P>(b) Review procedure. (1) In his review of the matter, the Senior Attorney shall perform such examination and analysis of violations or apparent violations as he deems reasonable.</P> <P>(2) The Senior Attorney shall provide an independent trustee and, if appropriate, the interested parties, with:</P> <P>(i) Notice that revocation of trust certification or trustee approval is <PRTPAGE P="520"/>under consideration pursuant to the procedures in this subpart;</P> <P>(ii) A summary of the violation or apparent violations which shall 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</P> <P>(iii) Notice that the recipients may present evidence and submit statements on any matter in issue within ten business days of the recipient's actual receipt of the notice and summary.</P> <P>(c) Determination. (1) In making determinations with respect to the violations or apparent violations under this section, the Director of the Office of Government Ethics shall consider the findings and recommendations of final action submitted by the Senior Attorney under paragraph (a) of this section, as well as the written record of review compiled under paragraph (b) of this section.</P> <P>(2) If the Director finds a violation or violations of the trust restrictions he may, as he deems appropriate:</P> <P>(i) Issue an order revoking trust certification or trust approval;</P> <P>(ii) Resolve the matter through any other remedial action within the Director's authority;</P> <P>(iii) Order further examination and analysis of the violation or apparent violation; or</P> <P>(iv) Decline to take further action.</P> <P>(3) If an order of revocation is issued, the parties to the trust instrument shall be expeditiously notified in writing. The notice shall state the basis for the revocation, and shall inform the parties either that the trust is no longer a qualified blind or qualified diversified trust for any purpose under Federal law; or that 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; or both where appropriate.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedure</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11821, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.601</SECTNO> <SUBJECT>Report forms.</SUBJECT> <P>(a) The Office of Government Ethics provides, through the Federal Supply Service of the General Services Administration (GSA), a standard form, the SF 278 (Public Financial Disclosure Report), for reporting the information described in subpart B of this part on executive branch public disclosure. The Office of Government Ethics also provides two uniform formats relating to confidential financial disclosure: OGE Form 450 (Confidential Financial Disclosure Report) for reporting the information described in subpart I of this part on executive branch confidential disclosure; and OGE Optional Form 450-A (Confidential Certificate of No New Interests) for voluntary use by certain employees in lieu of filing an annual OGE Form 450, if authorized by their agency, in accordance with § 2634.905(d) of subpart I of this part. Supplies of the two confidential forms are to be reproduced locally by each agency, from a camera-ready copy or an electronic format made available by the Office of Government Ethics. (Until August 31, 1997, the old SF 450 remains usable, rather than the new OGE Form 450, and is available from GSA's Federal Supply Service.)</P> <P>(b) 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 either or both of the standard forms referred to in paragraph (a) 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.</P> <P>(c) The information collection and recordkeeping requirements have been approved by the Office of Management and Budget under control number 3209-0001 for the SF 278, and control number 3209-0006 for OGE Form 450/SF 450. OGE Optional Form 450-A has been determined not to require an OMB paperwork control number, as its use is strictly optional for employees, it is <PRTPAGE P="521"/>used exclusively by current Government employees, and it does not require affirmative disclosure of substantive information.</P> <CITA>[57 FR 11821, Apr. 7, 1992, as amended at 58 FR 38912, July 21, 1993; 59 FR 34756, July 7, 1994; 62 FR 33976, June 24, 1997; 63 FR 43068, Aug. 12, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.602</SECTNO> <SUBJECT>Filing of reports.</SUBJECT> <P>(a) Except as otherwise provided in this section, the reporting individual shall file financial disclosure reports required under this part with the designated agency ethics official or his delegate at the agency where the individual is employed, or was employed immediately prior to termination of employment, or in which he will serve. Detailees shall file with their primary agency. Reports are due at the times indicated in § 2634.201 of subpart B (public disclosure) or § 2634.903 of subpart I (confidential disclosure) of this part, unless an extension is granted pursuant to the provisions of subparts B or I of this part.</P> <P>(b) The President, the Vice President, any independent counsel, and persons appointed by independent counsel under 28 U.S.C. chapter 40, shall file the public financial disclosure reports required under this part with the Director of the Office of Government Ethics.</P> <P>(c)(1) Each agency receiving the public financial disclosure reports required to be filed under this part by the following individuals shall transmit copies to the Director of the Office of Government Ethics:</P> <P>(i) The Postmaster General;</P> <P>(ii) The Deputy Postmaster General;</P> <P>(iii) The Governors of the Board of Governors of the United States Postal Service;</P> <P>(iv) The designated agency ethics official;</P> <P>(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</P> <P>(vi) Officers and employees in, and nominees to, offices or positions which require confirmation by the Senate, other than members of the uniformed services.</P> <P>(2) Prior to transmitting a copy of a report to the Director of the Office of Government Ethics, the designated agency ethics official or his delegate shall review that report in accordance with § 2634.605 of this subpart, except for his own report, which shall be reviewed by the agency head or by a delegate of the agency head.</P> <P>(3) For nominee reports, the Director of the Office of Government Ethics shall forward a copy to the Senate committee that is considering the nomination. (See § 2634.605(c) of this subpart for special procedures regarding the review of such reports.)</P> <P>(d) The Director of the Office of Government Ethics shall file his financial disclosure report with his Office, which shall make it immediately available to the public in accordance with this part.</P> <P>(e) Candidates for President and Vice President identified in § 2634.201(d), other than an incumbent President or Vice President, shall file their financial disclosure reports with the Federal Election Commission, which shall review and send copies of such reports to the Director of the Office of Government Ethics.</P> <P>(f) Members of the uniformed services identified in § 2634.202(c) shall file their financial disclosure reports with the Secretary concerned, or his delegate.</P> </SECTION> <SECTION> <SECTNO>§ 2634.603</SECTNO> <SUBJECT>Custody of and access to public reports.</SUBJECT> <P>(a) Each agency shall 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.</P> <P>(b) This section does not require public availability of those reports filed by:</P> <P>(1) Any individual in the Central Intelligence Agency, the Defense 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 <PRTPAGE P="522"/>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</P> <P>(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.</P> <P>(c) Each agency shall, within thirty 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 shall state:</P> <P>(1) The requesting person's name, occupation, and address;</P> <P>(2) The name and address of any other person or organization on whose behalf the inspection or copy is requested; and</P> <P>(3) That the requesting person is aware of the prohibitions on obtaining or using the report set forth in paragraph (f) of this section.</P> <P>(d) Applications for the inspection of or copies of public reports shall 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.</P> <P>(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 shall be established by regulation. Agency regulations contemplated by paragraph (e) of this section do not require approval pursuant to § 2634.103.</P> <P>(f) It is unlawful for any person to obtain or use a public report:</P> <P>(1) For any unlawful purpose;</P> <P>(2) For any commercial purpose, other than by news and communications media for dissemination to the general public;</P> <P>(3) For determining or establishing the credit rating of any individual; or</P> <P>(4) For use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>The deputy general counsel of Agency X is responsible for reviewing the public financial disclosure reports filed by persons within that agency. The agency personnel director, who does not exercise functions within the ethics program, wishes to review the disclosure report of an individual within the agency. The personnel director must file an application to review the report. However, the supervisor of an official with whom the deputy general counsel consults concerning matters arising in the review process need not file such an application.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>A state law enforcement agent is conducting an investigation which involves the private financial dealings of an individual who has filed a public financial disclosure report. The agent must complete a written application in order to inspect or obtain a copy.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>A financial institution has received an application for a loan from an official which indicates her present financial status. The official has filed a public financial disclosure statement with her agency. The financial institution cannot be given access to the disclosure form for purposes of verifying the information contained on the application.</P> </EXAMPLE> <P>(g)(1) Any public report filed with an agency or transmitted to the Director of the Office of Government Ethics under this section shall be retained by the agency, and by the Office of Government Ethics when it receives a copy. The report shall be made available to the public for a period of six years after receipt. After the six-year period, the report shall be destroyed unless needed in an ongoing investigation, except that in the case of an individual who filed the report pursuant to <PRTPAGE P="523"/>§ 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, shall 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), as well as any applicable agency system of records.</P> <P>(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 shall 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.</P> <APPRO>(Approved by the Office of Management and Budget under control numbers 3209-0001 and 3209-0002)</APPRO> <CITA>[57 FR 11821, Apr. 7, 1992; 57 FR 21854, May 22, 1992, as amended at 59 FR 34756, July 7, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.604</SECTNO> <SUBJECT>Custody of and denial of public access to confidential reports.</SUBJECT> <P>(a) Any report filed with an agency under subpart I of this part shall be retained by the agency for a period of six years after receipt. After the six-year period, the report shall 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), as well as any applicable agency system of records.</P> <P>(b) The reports filed pursuant to subpart I of this part are confidential. No member of the public shall 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).</P> <CITA>[57 FR 11821, Apr. 7, 1992; 57 FR 21854, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.605</SECTNO> <SUBJECT>Review of reports.</SUBJECT> <P>(a) <E T="03">In general.</E> The designated agency ethics official shall normally serve as the reviewing official for reports submitted to his 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). He shall 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 shall be reviewed within 60 days after the date of filing. Reports reviewed by the Director of the Office of Government Ethics shall be reviewed within 60 days from the date on which they are received by that Office. Final certification in accordance with paragraph (b)(2) of this section may, of necessity, occur later, where additional information is being sought or remedial action is being taken under this section.</P> <P>(b) <E T="03">Responsibilities of reviewing officials—</E>(1) <E T="03">Initial review.</E> The reviewing official may request an intermediate review by the filer's supervisor. In the case of a filer who is detailed to another agency for more than 60 days during the reporting period, the reviewing official shall obtain an intermediate review by the agency where the filer served as a detailee. After obtaining any intermediate review or determining that such review is not required, the reviewing official shall examine the report to determine, to his satisfaction that:</P> <P>(i) Each required item is completed; and</P> <P>(ii) No interest or position disclosed on the form violates or appears to violate:</P> <P>(A) Any applicable provision of chapter 11 of title 18, United States Code;</P> <P>(B) The Act, as amended, and the implementing regulations;<PRTPAGE P="524"/> </P> <P>(C) Executive Order 12674, as modified by Executive Order 12731, and the implementing regulations; or</P> <P>(D) Any other agency-specific statute or regulation which governs the filer.</P> <P>(2) <E T="03">Signature by reviewing official</E>. If the reviewing official determines that the report meets the requirements of paragraph (b)(1) of this section, he shall certify it by signature and date. The reviewing official need not audit the report to ascertain whether the disclosures are correct. Disclosures shall 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, and that the reviewing official has concluded that each required item 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)(1)(ii) of this section.</P> <P>(3) <E T="03">Requests for, and review based on, additional information</E>. If the reviewing official believes that additional information is required, he shall request that it be submitted by a specified date. This additional information shall be made a part of 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)(1) of this section, the reviewing official shall sign and date the report.</P> <P>(4) <E T="03">Compliance with applicable laws and regulations</E>. 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)(1)(ii) of this section, the official shall:</P> <P>(i) Notify the filer of that conclusion;</P> <P>(ii) Afford the filer a reasonable opportunity for an oral or written response; and</P> <P>(iii) Determine, after considering any response, whether or not the filer is then in compliance with applicable laws and regulations specified in paragraph (b)(1)(ii) of this section. If the reviewing official concludes that the report does fulfill the requirements, he shall sign and date the report. If he determines that it does not, he shall:</P> <P>(A) Notify the filer of the conclusion;</P> <P>(B) Afford the filer an opportunity for personal consultation if practicable;</P> <P>(C) Determine what remedial action under paragraph (b)(5) of this section should be taken to bring the report into compliance with the requirements of paragraph (b)(1)(ii) of this section; and</P> <P>(D) Notify the filer in writing of the remedial action which is needed, and the date by which such action should be taken.</P> <P>(5) <E T="03">Remedial action</E>. (i) Except in unusual circumstances, which must be fully documented to the satisfaction of the reviewing official, remedial action shall be completed not later than three months from the date on which the filer received notice that the action is required.</P> <P>(ii) Remedial action may include, as appropriate:</P> <P>(A) Divestiture of a conflicting interest (see subpart J of this part);</P> <P>(B) Resignation from a position with a non-Federal business or other entity;</P> <P>(C) Restitution;</P> <P>(D) Establishment of a qualified blind or diversified trust under the Act and subpart D of this part;</P> <P>(E) Procurement of a waiver under 18 U.S.C. 208(b)(1) or (b)(3);</P> <P>(F) Preparation of a written instrument of recusal (disqualification); or</P> <P>(G) Voluntary request by the filer for transfer, reassignment, limitation of duties, or resignation.</P> <P>(6) <E T="03">Compliance or referral</E>. (i) If the filer complies with a written request for remedial action under paragraph (b)(4) of this section, the reviewing official shall indicate, in the comment section of the report, what remedial action has been taken. The official shall also sign and date the report.</P> <P>(ii) If the filer does not comply by the designated date with the written request for remedial action transmitted under paragraph (b)(4) of this section, the reviewing official shall, 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 <PRTPAGE P="525"/>(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.</P> <P>(c) <E T="03">Expedited procedure in the case of individuals appointed by the President and subject to confirmation by the Senate.</E> 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:</P> <P>(1) The Executive Office of the President shall furnish the applicable financial disclosure report form to the nominee. It shall 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.</P> <P>(2) The designated agency ethics official shall 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 conflict of interest under applicable laws and regulations, the official shall:</P> <P>(i) Attach to the report a description (when available) of the position to be filled by the nominee;</P> <P>(ii) Personally certify the report by signature, and date the certification;</P> <P>(iii) 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, and discussing:</P> <P>(A) Any actual or apparent conflicts of interest that were detected during the review process; and</P> <P>(B) The resolution of those real or apparent conflicts, including any specific commitment, ethics agreement entered under the provisions of subpart H of this part, or other undertaking by the nominee to resolve any such conflicts. A copy of any commitment, agreement, or other undertaking which is reduced to writing shall be sent to the Director, in accordance with subpart H of this part; and</P> <P>(iv) Deliver 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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. See § 2638.203 of this chapter.</P> </NOTE> <P>(3) The Director of the Office of Government Ethics shall 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 shall sign and date the report form. The Director shall 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.</P> <P>(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 shall 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.</P> </SECTION> <SECTION> <SECTNO>§ 2634.606</SECTNO> <SUBJECT>Updated disclosure of advice-and-consent nominees.</SUBJECT> <P>(a) <E T="03">General rule</E>. 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, shall, at or before the commencement of the first Senate committee hearing to consider the nomination, submit to the committee an amendment to the report previously filed under § 2634.201(c) and transmit copies of the amendment to the designated agency ethics official referred <PRTPAGE P="526"/>to in § 2634.605(c)(1) of this subpart and to the Office of Government Ethics, which shall update, through the period ending no more than five days prior to the commencement of the hearing, the disclosure of information required with respect to receipt of:</P> <P>(1) Outside earned income; and</P> <P>(2) Honoraria, as defined in § 2634.105(i).</P> <P>(b) <E T="03">Additional certification</E>. In each case to which this section applies, the Director of the Office of Government Ethics shall, 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) of this subpart concerning the updated disclosure. If the committee requests such a letter, the expedited procedure provided by § 2634.605(c) of this subpart shall govern review of the updated disclosure, which shall be deemed a report filed for purposes of that paragraph.</P> </SECTION> <SECTION> <SECTNO>§ 2634.607</SECTNO> <SUBJECT>Advice and opinions.</SUBJECT> <P>To assist employees in avoiding situations in which they might violate applicable financial disclosure laws and regulations:</P> <P>(a) The Director of the Office of Government Ethics shall render formal advisory opinions and informal advisory letters on generally applicable matters, or on important matters of first impression. See also subpart C of part 2638 of this chapter. The Director shall insure that these advisory opinions and letters are compiled, published, and made available to agency ethics officials and the public. Good faith reliance on such opinions shall provide a defense to any penalty or sanction provided by this part for fact situations indistinguishable in all material aspects from those in the opinion.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Penalties</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11824, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.701</SECTNO> <SUBJECT>Failure to file or falsifying reports.</SUBJECT> <P>(a) <E T="03">Referral of cases</E>. The head of each agency, each Secretary concerned, or the Director of the Office of Government Ethics, as appropriate, shall 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.</P> <P>(b) <E T="03">Civil action</E>. 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 $10,000, as provided by section 104(a) of the Act, for any such violation occurring before September 29, 1999, as adjusted effective September 29, 1999 to $11,000 for any such violation occurring on or after that date, in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.</P> <P>(c) <E T="03">Criminal action</E>. An individual may also be prosecuted under criminal statutes for supplying false information on any financial disclosure report.</P> <P>(d) <E T="03">Administrative remedies</E>. 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.</P> <CITA>[57 FR 11824, Apr. 7, 1992, as amended at 64 FR 47096, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="527"/> <SECTNO>§ 2634.702</SECTNO> <SUBJECT>Breaches by trust fiduciaries and interested parties.</SUBJECT> <P>(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 § 2634.407 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 $10,000, as provided by section 102(f)(6)(C)(i) of the Act, for such violation occurring before September 29, 1999, as adjusted effective September 29, 1999 to $11,000 for any such violation occurring on or after that date, in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.</P> <P>(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 § 2634.407. The court in which the action is brought may assess against the individual a civil monetary penalty in any amount, not to exceed $5,000, as provided by section 102(f)(6)(C)(ii) of the Act, for any such violation occurring before September 29, 1999, as adjusted effective September 29, 1999 to $5,500 for any such violation occurring on or after that date, in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.</P> <CITA>[57 FR 11824, Apr. 7, 1992, as amended at 64 FR 47097, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.703</SECTNO> <SUBJECT>Misuse of public reports.</SUBJECT> <P>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 section 105(c)(1) of the Act, 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 $10,000, as provided by section 105(c)(2) of the Act, for any such violation occurring before September 29, 1999, as adjusted effective September 29, 1999 to $11,000 for any such violation occurring on or after that date, in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. This remedy shall be in addition to any other remedy available under statutory or common law.</P> <CITA>[57 FR 11824, Apr. 7, 1992, as amended at 64 FR 47097, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.704</SECTNO> <SUBJECT>Late filing fee.</SUBJECT> <P>(a) <E T="03">In general.</E> 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 shall remit a late filing fee of $200 to the appropriate agency, payable to the U.S. Treasury, if such report is filed more than thirty days after the later of:</P> <P>(1) The date such report is required to be filed pursuant to the provisions of this part; or</P> <P>(2) The last day of any filing extension period granted pursuant to § 2634.201(f).</P> <P>(b) <E T="03">Exceptions.</E> (1) The Director of the Office of Government Ethics may waive the late filing fee if he determines that the delay in filing was caused by extraordinary circumstances which made the delay reasonably necessary.</P> <P>(2) Any request for a waiver of this filing fee provision must be made in writing and submitted with supporting documentation to the designated agency ethics official. That official shall review the request, and then forward it, with an opinion on the merits, to the Office of Government Ethics.</P> <P>(c) <E T="03">Procedure.</E> (1) The designated agency ethics official shall maintain a record of the due dates for all public reports which the employees of that agency must file, along with the new filing dates under extensions which have been granted. Each report received by the agency shall 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 shall advise the delinquent filer, in writing, that:</P> <P>(i) Because his financial disclosure report is more than thirty 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;<PRTPAGE P="528"/> </P> <P>(ii) The filer is directed to remit to the agency, with the completed report, the $200 fee, payable to the United States Treasury;</P> <P>(iii) If the filer fails to remit the $200 fee when filing his late report, it shall be subject to agency debt collection procedures; and</P> <P>(iv) If extraordinary circumstances exist that would justify a request for a fee waiver, pursuant to paragraph (b) of this section, such request and supporting documentation must be submitted immediately.</P> <P>(2) Upon receipt from the reporting individual of the $200 late filing fee, the collecting agency shall note the payment in its records, and shall then forward the money to the U.S. Treasury for deposit as miscellaneous receipts, in accordance with 31 U.S.C. 3302 and section 8030.30 of Volume 1 of the Treasury Financial Manual. If payment is not forthcoming, agency debt collection procedures shall be utilized, which may include salary or administrative offset, initiation of a tax refund offset, or other authorized action.</P> <P>(d) <E T="03">Late filing fee not exclusive remedy.</E> The late filing fee is in addition to other sanctions which may be imposed for late filing. See § 2634.701 of this subpart.</P> <P>(e) <E T="03">Confidential filers.</E> The late filing fee does not apply to confidential filers. Late filing of confidential reports will be handled administratively under § 2634.701(d) of this subpart.</P> <P>(f) <E T="03">Date of filing</E>. The date of filing for purposes of determining whether a public financial disclosure report is filed more than thirty 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 thirty-day grace period on imposing a late filing fee is adequate allowance for administrative delays in the receipt of reports by an agency.</P> <CITA>[57 FR 11824, Apr. 7, 1992, as amended at 58 FR 38912, July 21, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Ethics Agreements</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11825, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.801</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2634.802</SECTNO> <SUBJECT>Requirements.</SUBJECT> <P>(a) <E T="03">Ethics agreement defined.</E> The term <E T="03">ethics agreement</E> shall 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:</P> <P>(1) Preparation of a written instrument for recusing (disqualifying) the individual from one or more particular matters or categories of official action;</P> <P>(2) Divestiture of a financial interest;</P> <P>(3) Resignation from a position with a non-Federal business or other entity;</P> <P>(4) Procurement of a waiver pursuant to 18 U.S.C. 208(b)(1) or (b)(3); or</P> <P>(5) Establishment of a qualified blind or diversified trust under the Act and subpart D of this part.</P> <P>(b) <E T="03">Time limit.</E> The ethics agreement shall 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 (a), (b), or (c) of this subpart), or by the designated agency ethics official for all other ethics agreements. </P> <EXAMPLE> <HD SOURCE="HED">Example</HD> <P>An official of the ABC Aircraft Company is nominated to a Department of Defense position requiring the advice and consent of the Senate. As a condition of assuming the position, the individual has agreed to divest himself of his ABC Aircraft stock which he recently acquired while he was an officer with the company. However, the Securities and Exchange Commission prohibits officers of public corporations from deriving a profit from the sale of stock in the corporation in which they hold office within six months of acquiring the stock, and directs that any such profit must be returned to the issuing corporation or its stock holders. Since meeting the usual three-month <PRTPAGE P="529"/>time limit specified in this subpart for satisfying an ethics agreement might entail losing any profit that could be realized on the sale of this stock, the nominee requests that the limit be extended beyond the six-month period imposed by the Commission. Written approval would have to be obtained from the Office of Government Ethics to extend the customary three-month period.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2634.803</SECTNO> <SUBJECT>Notification of ethics agreements.</SUBJECT> <P>(a) <E T="03">Nominees to positions requiring the advice and consent of the Senate.</E> (1) In the case of a nominee referred to in § 2634.201(c), the designated agency ethics official shall include with the report submitted to the Office of Government Ethics any ethics agreement which the nominee has made.</P> <P>(2) A designated agency ethics official shall 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 shall immediately report to the designated agency ethics official any ethics agreement made with the committee.</P> <P>(3) The Office of Government Ethics shall 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.</P> <P>(b) <E T="03">Incumbents in positions requiring the advice and consent of the Senate.</E> In the case of a position which required the advice and consent of the Senate, the designated agency ethics official shall keep the Office of Government Ethics apprised of any ethics agreements which the incumbent makes, or which become known to the designated agency ethics official during the incumbent's term in his position.</P> <P>(c) <E T="03">Designated agency ethics officials not holding advice-and-consent positions, and employees of the Offices referred to in § 2634.602(c)(1)(v).</E> A designated agency ethics official who has entered into a ethics agreement, and who is neither a nominee to, nor an incumbent in, a position which requires the advice and consent of the Senate, as well as each employee of the Executive Office of the President or the Office of the Vice President who is referred to in § 2634.602(c)(1)(v), shall include with his initial financial disclosure report submitted to the Office of Government Ethics any ethics agreement undertaken by such official or employee. He shall also apprise the Office of Government Ethics promptly of any subsequent ethics agreement.</P> <P>(d) <E T="03">Other reporting individuals.</E> Other reporting individuals desiring to enter into ethics agreement may do so 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 shall promptly apprise the designated agency ethics official of the agreement.</P> <CITA>[57 FR 11825, Apr. 7, 1992; 57 FR 21855, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.804</SECTNO> <SUBJECT>Evidence of compliance.</SUBJECT> <P>(a) <E T="03">Requisite evidence of action taken.</E> (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 shall be submitted by the designated agency ethics official, upon receipt of the evidence, to the Office of Government Ethics and to the Senate confirmation committee.</P> <P>(2) For ethics agreements of incumbents in positions which required the advice and consent of the Senate, evidence of any action taken to comply with the terms of such ethics agreements shall be submitted promptly by the designated agency ethics official to the Office of Government Ethics. A designated agency ethics official or an employee referred to in § 2634.803(c) of this subpart who is neither a nominee to, nor an incumbent in, an advice-and-consent position, must also promptly send evidence of any action taken to comply with the terms of an ethics agreement to the Office of Government Ethics.</P> <P>(3) In the case of all other reporting individuals, evidence of any action taken to comply with the terms of an <PRTPAGE P="530"/>ethics agreement must be sent promptly to the designated agency ethics official.</P> <P>(b) The following materials and any other appropriate information constitute evidence of the action taken:</P> <P>(1) <E T="03">Recusal</E>. A copy of any recusal instrument 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, and a list of the positions of those agency employees involved in the enforcement (i.e., the individual's immediate subordinates and supervisors). </P> <EXAMPLE> <HD SOURCE="HED">Example</HD> <P>A new employee of a Federal safety board owns stock in Nationwide Airlines. She has entered into an ethics agreement to recuse herself from participating in any accident investigations involving that company's aircraft until such time as she can complete a divestiture of the asset. She must give a copy of the recusal instrument to her immediate subordinates and supervisors, and to the designated agency ethics official. The employee has also agreed to recuse herself from any particular matter (as that term is used in 18 U.S.C. 208) that might arise with respect to any of her present or future holdings. There is no requirement to execute a recusal instrument for this type of general recusal, because it is simply a promise to abide by the terms of the statute.</P> </EXAMPLE> <P>(2) <E T="03">Divestiture or resignation.</E> Written notification that the divestiture or resignation has occurred.</P> <P>(3) <E T="03">Waivers.</E> 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.</P> <P>(4) <E T="03">Blind or diversified trusts.</E> 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.</P> <CITA>[57 FR 11825, Apr. 7, 1992; 57 FR 21855, May 22, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.805</SECTNO> <SUBJECT>Retention.</SUBJECT> <P>Records of ethics agreements and actions described in this subpart shall be maintained with the individual's financial disclosure report at the agency and additionally, in the case of filers described in paragraphs (a), (b), and (c) of § 2634.803 of this subpart, at the Office of Government Ethics.</P> <CITA>[57 FR 11825, Apr. 7, 1992; 57 FR 21855, May 22, 1992]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Confidential Financial Disclosure Reports</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 11826, Apr. 7, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.901</SECTNO> <SUBJECT>Policies of confidential financial disclosure reporting.</SUBJECT> <P>(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.</P> <P>(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 of this subpart 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 <PRTPAGE P="531"/>the procedures of §§ 2634.103 and 2634.601(b).</P> <P>(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).</P> <P>(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 shall 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.</P> <P>(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.</P> <P>(f) For additional policies and definitions of terms applicable to both the public and confidential reporting systems, see §§ 2634.104 and 2634.105.</P> </SECTION> <SECTION> <SECTNO>§ 2634.902</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 2634.903</SECTNO> <SUBJECT>General requirements, filing dates, and extensions.</SUBJECT> <P>(a) <E T="03">Incumbents</E>. A confidential filer who holds a position or office described in § 2634.904 of this subpart and who performs the duties of that position or office for a period in excess of 60 days during the twelve-month period ending September 30 (including more than 60 days in an acting capacity) shall file a confidential report as an incumbent, containing the information prescribed in §§ 2634.907 and 2634.908 of this subpart on or before October 31 immediately following that period. This requirement does not apply if the employee has left Government service prior to the due date for the report. No incumbent reports are required of special Government employees described in § 2634.904(b) of this subpart, but they must file new entrant reports under § 2634.903(b) of this subpart upon each appointment or reappointment. For confidential filers under § 2634.904(c) of this subpart, consult agency supplemental regulations.<PRTPAGE P="532"/> </P> <P>(b) <E T="03">New entrants.</E> (1) Not later than 30 days after assuming a new position or office described in § 2634.904 of this subpart (which also encompasses the reappointment or redesignation of a special Government employee, including one who is serving on an advisory committee), a confidential filer shall file a confidential report containing the information prescribed in §§ 2634.907 and 2634.908 of this subpart. For confidential filers under § 2634.904(c) of this subpart, consult agency supplemental regulations.</P> <P>(2) However, no report shall be required if the individual:</P> <P>(i) Has, within 30 days prior to assuming his position, left another position or office referred to in § 2634.904 of this subpart 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;</P> <P>(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</P> <P>(iii) Is not reasonably expected to perform the duties of an office or position referred to in § 2634.904 of this subpart for more than 60 days in the following twelve-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) of this subpart. If the individual actually performs the duties of such position for more than 60 days in the twelve-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 § 2634.903 does not apply to new entrants filing as special Government employees under § 2634.904(b) of this subpart.</P> <P>(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 of this subpart file their new entrant confidential financial disclosure reports prior to serving in such positions, to insure that there are no insurmountable ethics concerns. Additionally, a special Government employee who has been appointed to serve on an advisory committee shall 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.</P> <P>(c) <E T="03">Advisory committee definition.</E> For purposes of this subpart, the term <E T="03">advisory committee</E> shall 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.</P> <P>(d) <E T="03">Extensions</E>—(1) <E T="03">Agency extensions.</E> 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.</P> <P>(2) <E T="03">Certain service during period of national emergency.</E> 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 his permanent duty station in support of the Armed Forces or <PRTPAGE P="533"/>other governmental entities following a declaration by the President of a national emergency, the agency reviewing official may grant such individual a filing extension to last no longer than 90 days after the last day of:</P> <P>(i) The individual's service in the combat zone or away from his permanent duty station; or</P> <P>(ii) The individual's hospitalization as a result of injury received or disease contracted while serving during the national emergency.</P> <P>(3) <E T="03">Agency procedures.</E> Each agency may prescribe procedures to provide for the implementation of the extensions provided for by this paragraph.</P> <CITA>[57 FR 11826, Apr. 7, 1992, as amended at 58 FR 38912, July 21, 1993; 63 FR 69992, Dec. 18, 1998; 66 FR 55872, Nov. 5, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.904</SECTNO> <SUBJECT>Confidential filer defined.</SUBJECT> <P>The term <E T="03">confidential filer</E> includes:</P> <P>(a) 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 O-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:</P> <P>(1) 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) of this chapter) through decision or the exercise of significant judgment, in taking a Government action regarding:</P> <P>(i) Contracting or procurement;</P> <P>(ii) Administering or monitoring grants, subsidies, licenses, or other federally conferred financial or operational benefits;</P> <P>(iii) Regulating or auditing any non-Federal entity; or</P> <P>(iv) 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</P> <P>(2) 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, and to carry out the purposes behind any statute, Executive order, rule, or regulation applicable to or administered by that 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A contracting officer drafts the requests for proposals for data processing equipment of significant value which is to be purchased by his agency. He works with substantial independence of action. The contracting officer should be required to file a confidential financial disclosure report.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An agency environmental engineer inspects a manufacturing plant to ascertain whether the plant complies with a permit to release a certain effluent into a nearby stream. Any violation of the permit standards may result in civil penalties for the plant, and in criminal penalties for the plant's management based upon any action which they took to create the violation. If the agency engineer determines that the plant does not meet the permit requirements, he can require the plant to terminate release of the effluent until the plant satisfies the permit standards. Because the engineer exercises substantial discretion in regulating the plant's activities, and because his final decisions will have a substantial economic effect on the plant's interests, the engineer should be required to file a confidential financial disclosure report.</P> </EXAMPLE> <P>(b) Unless required to file public financial disclosure reports by subpart B of this part, all executive branch special Government employees as defined in 18 U.S.C 202(a) and § 2634.105(s), including those who serve on advisory committees. The term special Government employees does not include an advisory committee member who serves only as a representative of an industry or other outside entity or who is already a Federal employee. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A consultant to an agency periodically advises the agency regarding important foreign policy matters. The consultant <PRTPAGE P="534"/>must file a confidential report if he is retained as a special Government employee and not an independent contractor.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An advisory committee member (who is not a private group representative) attends four committee meetings every year to provide advice to an agency about pharmaceutical matters. No compensation is received by the committee member, other than travel expenses. The advisory committee member must file a confidential disclosure report, since she is a special Government employee.</P> </EXAMPLE> <P>(c) Each public filer referred to in § 2634.202 on public disclosure who is required by agency regulations issued in accordance with § 2634.907(b) of this subpart 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.</P> <P>(d) Any employee who, notwithstanding his 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) of this section.</P> <CITA>[57 FR 11826, Apr. 7, 1992, as amended at 63 FR 69992, Dec. 18, 1998; 64 FR 2422, Jan. 14, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.905</SECTNO> <SUBJECT>Exclusions from filing requirements.</SUBJECT> <P>Any individual or class of individuals described in § 2634.904 of this subpart, 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:</P> <P>(a) The duties of a position make remote the possibility that the incumbent will be involved in a real or apparent conflict of interest;</P> <P>(b) The duties of a position involve such a low level of responsibility that the submission of a confidential financial disclosure report is unnecessary because of:</P> <P>(1) The substantial degree of supervision and review over the position; or</P> <P>(2) The inconsequential effect of any potential conflict on the integrity of the Government;</P> <P>(c) The use of an alternative procedure approved in writing by the Office of Government Ethics is adequate to prevent possible conflicts of interest; or</P> <P>(d) The use of OGE Optional Form 450-A (Confidential Certificate of No New Interests) is adequate to prevent possible conflicts of interest. This form may be used by eligible filers, as described in this paragraph, who can certify, after reexamining their most recent previous OGE Form 450, that they (and their spouse and dependent children) have acquired no new interests required to be reported on OGE Form 450, and that they have not changed jobs (no new position description or other significant change in duties) at their agency since filing that previous report. OGE Optional Form 450-A will be used under the following conditions:</P> <P>(1) OGE Optional Form 450-A will only be made available for use by current employees who are not special Government employees.</P> <P>(2) OGE Optional Form 450-A will only be used by incumbent filers, as described in § 2634.903(a) of this subpart, in lieu of filing an annual OGE Form 450, who have a previous OGE Form 450 on file with their agency for the position they currently hold. Its due date is as specified in § 2634.903(a), unless extended under § 2634.903(d).</P> <P>(3) As indicated on the OGE Optional Form 450-A, eligible filers may use OGE Optional Form 450-A, if applicable to their circumstances, or they may file a new OGE Form 450, at their option. Therefore, a blank OGE Form 450 and its accompanying written instructions should ordinarily be distributed to them, along with the blank OGE Optional Form 450-A. The instructions to OGE Form 450 will also provide guidance on what is meant by “reportable” interests on OGE Optional Form 450-A. In lieu of distributing a blank OGE Form 450 and its instructions, agencies may choose to develop separate guidance on the meaning of “reportable” interests, or they may refer certificate users to guidance contained in any available source, such as the Office of Government Ethics’ Web site on the Internet or agency-approved electronic software for OGE Form 450. Filers would then also have to be advised of where to obtain a blank OGE Form 450, if needed.<PRTPAGE P="535"/> </P> <P>(4) OGE Optional Form 450-A may be used by eligible filers for a maximum of three consecutive years before they are required to complete a new OGE Form 450 every fourth year, on a uniform basis for all incumbent (annual) filers, as provided in paragraph (d)(5) of this section. Agencies may, however, elect to permit use of the OGE Optional Form 450-A for only one year (or two years), and to require a new OGE Form 450 every second (or third) year, on a uniform basis for all incumbent filers, as provided in paragraph (d)(5) of this section.</P> <P>(5) In each year divisible by four, beginning in 2000 (or divisible by two or three, beginning in 1998, for agencies that choose one of the more frequent options described in the second sentence of paragraph (d)(4) of this section), all incumbent filers, as described in § 2634.903(a) of this subpart, must file a new OGE Form 450 rather than OGE Optional Form 450-A, regardless of how recently they may have filed an OGE Form 450 (either as a new entrant or as an annual filer who was not eligible to use, or chose not to use, the optional certificate).</P> <P>(6) When submitting OGE Optional Form 450-A, filers are not required to attach a copy of their previous OGE Form 450, unless their agency determines that it is necessary. Filers should be encouraged, however, to retain a copy of their previous OGE Form 450, so that it will be readily available for their examination prior to completing an OGE Optional Form 450-A. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>An agency special Government employee who is a draftsman prepares the drawings to be used by an agency in soliciting bids for construction work on a bridge. Because he is not involved in the contracting process associated with the construction, the likelihood that his actions will create a conflict of interest is remote. The draftsman need not be required by the agency to file a confidential financial disclosure report.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An investigator is principally assigned as the field agent to investigate alleged violations of conflict of interest laws. The investigator works under the direct supervision of an agent-in-charge. The agent-in-charge reviews all of the investigator's work product and then uses those materials to prepare the agency's report which is submitted under his own name. The agency may decide not to require the investigator to file a confidential disclosure report.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>A nonsupervisory auditor at an agency is regularly assigned to cases involving possible loan improprieties by financial institutions. Prior to undertaking each enforcement review, the auditor reviews the file to determine if she, her spouse, minor or dependent child, or any general partner, organization in which she serves as an officer, director, trustee, employee, or general partner, or organization with which she is negotiating or has an agreement or an arrangement for future employment, or a close friend or relative is a subject of the investigation, or will be in any way affected by the investigation. Once she determines that there is no such relationship, she signs and dates a certification which verifies that she has reviewed the file and has determined that no conflict of interest exists. She then files the certification with the head of her auditing division at the agency. On the other hand, if she cannot execute the certification, she informs the head of her auditing division. In response, the division will either reassign the case or review the conflicting interest to determine whether a waiver would be appropriate. This alternate procedure, if approved by the Office of Government Ethics in writing, will suffice for a conflict of interest review. Therefore, the agency may exclude the auditor from filing a confidential disclosure report under this subpart.</P> </EXAMPLE> <CITA>[57 FR 11826, Apr. 7, 1992; 57 FR 21855, May 22, 1992; 62 FR 33976, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.906</SECTNO> <SUBJECT>Review of confidential filer status.</SUBJECT> <P>The head of each agency, or an officer designated by the head of the agency for that purpose, shall review any complaint by an individual that his 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 shall be final and conclusive for all purposes, notwithstanding any other provision of law or regulation. This procedure is the sole and exclusive means of seeking review of an agency's decision to designate positions and the employees therein for filing confidential financial disclosure reports. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The provision in this section for a final decision by the agency head or designee is intended to preclude administrative or negotiated grievances, arbitration procedures, and any other review or appeal, either within or outside the agency. This finality of the agency head's (or designee's) decision is necessary in order to maintain the prompt and <PRTPAGE P="536"/>orderly administration of the executive branch confidential financial disclosure system.</P> </NOTE> <CITA>[57 FR 11826, Apr. 7, 1992, as amended at 63 FR 15274, Mar. 31, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.907</SECTNO> <SUBJECT>Report contents.</SUBJECT> <P>(a) Other than the reports of confidential filers described in § 2634.904(c), each confidential financial disclosure report filed pursuant to § 2634.903 of this subpart shall include on the standard form prescribed by the Office of Government Ethics (see § 2634.601 of subpart F of this part) and in accordance with instructions issued by the Office, a full and complete statement of information about himself, his spouse and his dependent children, required to be reported according to the provisions of subpart C of this part, (except for those provisions in subpart C requiring the reporting of the amounts or values of any item), with respect to the following:</P> <P>(1) <E T="03">Interests in property.</E> All the interests in property specified by § 2634.301, except:</P> <P>(i) Accounts (including both demand and time deposits) in depository institutions, including banks, savings and loan associations, credit unions, and similar depository financial institutions;</P> <P>(ii) Money market mutual funds and accounts;</P> <P>(iii) U.S. Government obligations, including Treasury bonds, bills, notes, and savings bonds; and</P> <P>(iv) Government securities issued by U.S. Government agencies;</P> <P>(2) <E T="03">Income.</E> All the income items specified by § 2634.302, except from:</P> <P>(i) Accounts (including both demand and time deposits) in depository institutions, including banks, savings and loan associations, credit unions, and similar depository financial institutions;</P> <P>(ii) Money market mutual funds and accounts;</P> <P>(iii) U.S. Government obligations, including Treasury bonds, bills, notes, and savings bonds; and</P> <P>(iv) Government securities issued by U.S. Government agencies;</P> <P>(3) <E T="03">Gifts and reimbursements.</E> All gifts and reimbursements specified by § 2634.304 (except that new entrants, as described in § 2634.903(b) of this subpart, need not report any information on gifts and reimbursements);</P> <P>(4) <E T="03">Liabilities.</E> All liabilities specified by § 2634.305;</P> <P>(5) <E T="03">Agreements and arrangements.</E> All agreements and arrangements specified by § 2634.306; and</P> <P>(6) <E T="03">Outside positions.</E> All outside positions specified by § 2634.307.</P> <P>(b) For reports of confidential filers described in § 2634.904(c) of this subpart, each supplemental confidential financial disclosure report shall include only the supplemental information:</P> <P>(1) Which is more extensive than that required in the reporting individual's public financial disclosure report under this part; and</P> <P>(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) of this subpart).</P> <CITA>[57 FR 11826, Apr. 7, 1992, as amended at 58 FR 63024, Nov. 30, 1993; 63 FR 69992, Dec. 18, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.908</SECTNO> <SUBJECT>Reporting periods.</SUBJECT> <P>(a) <E T="03">Incumbents.</E> Each confidential financial disclosure report filed under § 2634.903(a) of this subpart shall include on the standard form prescribed by the Office of Government Ethics and in accordance with instructions issued by the Office, a full and complete statement of the information required to be reported according to the provisions of this subpart for the preceding twelve months ending September 30, or for any portion of that period not covered by a previous confidential or public financial disclosure report filed under this part.</P> <P>(b) <E T="03">New entrants.</E> Each confidential financial disclosure report filed under § 2634.903(b) of this subpart shall include, on the standard form prescribed by the Office of Government Ethics and in accordance with instructions issued by the Office, a full and complete statement of the information required to be reported according to the provisions of this subpart for the preceding twelve months from the date of filing.</P> </SECTION> <SECTION> <PRTPAGE P="537"/> <SECTNO>§ 2634.909</SECTNO> <SUBJECT>Procedures, penalties, and ethics agreements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Subpart H of this part on ethics agreements applies to both the public and confidential reporting systems under this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Certificates of Divestiture</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 14408, Apr. 18, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2634.1001</SECTNO> <SUBJECT>Nonrecognition for sales to comply with conflict of interest requirements; general considerations.</SUBJECT> <P>(a) <E T="03">Purpose.</E> This subpart establishes the procedures and policies of the Office of Government Ethics with respect to the issuance of Certificates of Divestiture pursuant to section 1043 of the Internal Revenue Code of 1986 (hereinafter in this subpart referred to as “section 1043”).</P> <P>(b) <E T="03">Scope.</E> Section 1043 and the rules of this subpart provide for nonrecognition of gain in the case of sales to comply with conflict of interest requirements. The rules of this subpart relate to the issuance of Certificates of Divestiture and the permitted property into which a reinvestment must be made during the 60-day period beginning on the date of such a sale in order for nonrecognition to be permitted. Such reinvestments are called rollovers, and are limited to obligations of the United States and diversified investment funds as defined in § 2634.1003. The substantive and procedural rules relating to the tax aspects of such sales and rollovers pursuant to the statutory scheme are subject to the jurisdiction of the Internal Revenue Service. Eligible persons should seek the advice of their personal tax advisors for guidance as to the tax aspects of divestiture transactions and whether proposed acquisitions meet the requirements for permitted property. Internal Revenue Service regulations and other guidance should be consulted as to these matters. Internal Revenue Service requirements for reporting dispositions of property and making an election not to recognize gain under section 1043 must be followed by eligible persons wishing to make such an election.</P> <P>(c) <E T="03">Policy.</E> The Federal purpose reflected in section 1043 of the Internal Revenue Code and these rules is to minimize the burden of Government service resulting from gain on the sale of assets for which divestiture is reasonably necessary because of the conflict of interest laws, in order to attract and retain highly qualified personnel in the executive branch and to ensure the confidence of the public in the integrity of Government officials and decision-making processes.</P> <CITA>[55 FR 14408, Apr. 18, 1990, as amended at 61 FR 32635, June 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.1002</SECTNO> <SUBJECT>Issuance of Certificates of Divestiture.</SUBJECT> <P>(a) <E T="03">General rule.</E> Pursuant to section 1043, a Certificate of Divestiture with respect to specific property shall be issued by the Director of the Office of Government Ethics pursuant to the procedures of paragraph (b) of this section upon a determination that such divestiture by an eligible person as defined in paragraph (c) of this section 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 pursuant to the request of a congressional committee as a condition of confirmation.</P> <P>(b) <E T="03">Procedural requirements—</E>(1) <E T="03">Required submissions.</E> A determination to issue a Certificate of Divestiture may be made by the Director of the Office of Government Ethics only upon the submission by the designated agency ethics official of the agency of employment or proposed employment of the individual referred to in paragraph (c)(1) of this section of full and complete case materials to the Office of Government Ethics. Such case materials shall include:</P> <P>(i) A copy of a written request from the eligible person who is to divest the <PRTPAGE P="538"/>property (a Certificate of Divestiture cannot be issued for property which has already been divested) to the designated agency ethics official to pursue certification in the case of the property to be divested, which includes:</P> <P>(A) A commitment to complete the divestiture on or before a specified date which is no later than the end of the three-month period referred to by § 2634.802(b) (or a similarly structured agreement in any case to which paragraph (b)(1)(ii)(B) of this section applies), or any extension thereof granted, or concurred with in writing, by the Office of Government Ethics; and</P> <P>(B) Full and complete information concerning the facts and circumstances relating to the acquisition of such property and its contemplated divestiture;</P> <P>(ii) In the case of an individual referred to in paragraph (c)(1) of this section who:</P> <P>(A) Is required by the rules of this part or this title, to file a financial disclosure report, a copy of the latest report which has been filed; or</P> <P>(B) Is not required to file a report referred to in paragraph (b)(1)(ii)(A) of this section, a memorandum from such individual which discloses the information with respect to the specification of interests in property, income, liabilities, agreements and arrangements, and outside positions which are required to be disclosed on such a report;</P> <P>(iii) A detailed description of the specific property as to which divestiture is contemplated;</P> <P>(iv) Complete statements of: (A) The facts and circumstances relevant to whether there is a reasonable necessity for divestiture (including a description of the position or applicable statutory citation setting forth the duties of the subject position); and</P> <P>(B) Analysis and opinion from such designated agency ethics official concerning the application of the rules of this part in the case of the proposed certification, including specification of the date on which the three-month period referred to by § 2634.802(b) (or a similarly structured agreement in any case to which paragraph (b)(1)(ii)(B) of this section applies), or any extension thereof granted, or concurred with in writing, by the Office of Government Ethics, will lapse; and</P> <P>(v) In lieu of the materials described in paragraph (b)(1)(iv) of this section, in the case of the contemplated divestiture of specific property pursuant to the request of a congressional committee as a condition of confirmation, such materials shall include the written acknowledgement of the Chairman of such committee of such request, a letter to the committee containing a promise from the nominee to divest specified property in accordance with such request, or a transcript of congressional testimony containing such a commitment by the nominee pursuant to such request.</P> <P>(2) <E T="03">Standards for issuance.</E> Certification pursuant to the rules of this subpart relates to the reasonable necessity for the divestiture of specific property pursuant to section 1043. Divestiture is one of the standard remedial actions available to comply with conflict of interest statutes, regulations, rules, and executive orders (see § 2634.604(b)(5)), and certification ameliorates the impact of a divestiture. In cases in which the contemplated divestiture is not pursuant to the request of a congressional committee as a condition of confirmation, a Certificate of Divestiture will be issued by the Director of the Office of Government Ethics only if he concurs with the opinion of the designated agency ethics official referred to in paragraph (b)(1)(iv)(B) of this section that such divestiture is reasonably necessary to comply with 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or executive order. Issues relating to whether the terms of a contemplated divestiture constitute a sale or other disposition of the property under Internal Revenue Service Rules and other tax matters are under the jurisdiction of the Internal Revenue Service. See § 2634.1001(b).</P> <P>(3) <E T="03">Documentation of the certification.</E> Certification shall be indicated by a letter from the Director to the eligible party or his representative.</P> <P>(c) <E T="03">Eligible person.</E> For purposes of section 1043 and this subpart, the term “eligible person” includes:<PRTPAGE P="539"/> </P> <P>(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;</P> <P>(2) The spouse and any minor or dependent child of an individual referred to in paragraph (c)(1) of this section whose ownership of property required to be divested is attributable to such person by 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or executive order; and</P> <P>(3) Any trustee holding property in trust required to be divested in which:</P> <P>(i) An individual referred to in paragraph (c)(1) of this section has a beneficial interest in principal or income; or</P> <P>(ii) A spouse or any minor or dependent child of an individual referred to in paragraph (c)(2) of this section has a beneficial interest in principal or income which is attributable to a person referred to in paragraph (c)(1) of this section by 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or executive order.</P> <P>(d) <E T="03">Special rules in the case of a trustee who is an eligible person.</E> (1) Notwithstanding any other rule of this subpart, in the case of a trustee who is an eligible person pursuant to paragraph (c)(3) of this section, a Certificate of Divestiture will not be issued unless the parties take those actions which, in the opinion of the Director of the Office of Government Ethics, are appropriate to exclude parties in addition to those referred to in paragraph (c) (1) and (2) of this section from participation in the nonrecognition mechanism. Such measures may include, as permitted by applicable State trust and estate law, division of the trust into separate portfolios, special distributions, dissolution of the trust, or any other method deemed by the Director, in his sole discretion, to be feasible under the facts and circumstances to exclude additional parties from benefiting from the nonrecognition mechanism.</P> <P>(2) In view of the further analysis which must be undertaken by the Office of Government Ethics in the case of a Certificate of Divestiture request with respect to a trustee, the required submissions in such a case shall include in addition to the materials described in paragraph (b)(1) of this section, a copy of the trust instrument, full details as to its current portfolio, and a memorandum analyzing all beneficial interests in principal and income. To the extent that there may be additional parties with beneficial interests, the staff of the Office of Government Ethics may consult with representatives of the Government official, trustee, and other concerned parties, as appropriate, in order to resolve the issues presented in light of the principles described in paragraph (d)(1) of this section.</P> <P>(e) <E T="03">Special rules in the case of employees; unfair and unintended benefits</E>—(1) <E T="03">In general.</E> Notwithstanding any other rule of this subpart, a Certificate of Divestiture will not be issued in any case in which, in the opinion of the Director of the Office of Government Ethics, in his sole discretion, an unfair or unintended benefit would be conferred on an eligible person. Paragraphs (e)(2) through (e)(6) of this section give examples of the application of the general rule of this paragraph (e)(1).</P> <P>(2) <E T="03">Employee benefit plans.</E> With respect to interests in pension, profit-sharing, stock bonus and other employee benefit plans, such an unfair or unintended benefit would occur upon certification of property held or received during one step of a sequence in avoidance of transferring an otherwise qualifying rollover distribution to an eligible retirement plan within 60 days. In other words, Certificates of Divestiture may not be used to achieve a tax advantaged removal of employee benefit plan funds from the rules which normally pertain to such plans in cases where no capital gains tax would be imposed if those rules were followed. Accordingly, in the absence of a demonstration that an interest in an employee benefit plan is not eligible for rollover treatment, a certificate will not be issued with respect to such an interest. Such a demonstration must satisfy the Office of Government Ethics that the plan administrator cannot make a qualifying distribution in the case of the eligible person to which the provisions of section 402(f) of the Internal Revenue Code of 1986 would apply <PRTPAGE P="540"/>and that the particular property interest proposed for certification falls within the statutory scheme.</P> <P>(3) <E T="03">Certain property received as compensation for services.</E> Such an unfair and unintended benefit would occur upon certification of property received as compensation for services, the gain from which would otherwise be treated as earned income. For example, with respect to the contemplated exercise of a stock option granted by an employer, such an unfair and unintended benefit would occur upon certification if such exercise or the sale of the resultant stock would otherwise result in earned income to the employee.</P> <P>(4) <E T="03">Nontimely divestitures.</E> With respect to any contemplated divestiture, such an unfair or unintended benefit would occur upon certification after the three-month period referred to by § 2634.802(b) (or a similarly structured agreement in any case to which paragraph (b)(1)(ii)(B) of this section applies) has lapsed, unless there is an extension of time in a case of unusual hardship as determined pursuant to such section by the Office of Government Ethics or the designated agency ethics official (with the written concurrence of the Office of Government Ethics). In the case of such an agreement to implement a divestiture required by statute, regulation, rule, or executive order, such three-month period shall be deemed, for purposes of this subpart, to have started no later than 10 days after such requirement had become applicable.</P> <P>(5) <E T="03">Similar or related interests.</E> With respect to any contemplated divestiture, such an unfair or unintended benefit would occur unless all similar or related interests in property were also subject to a divestiture commitment.</P> <P>(6) <E T="03">Property acquired under improper circumstances.</E> With respect to any contemplated divestiture, such an unfair advantage or unintended benefit would occur if the property was acquired at a time when the holding of such property was prohibited by any law or regulation or under circumstances which otherwise would create the appearance of a conflict with the conscientious performance of governmental responsibilities.</P> <CITA>[55 FR 14408, Apr. 18, 1990, as amended at 61 FR 32635, June 25, 1996; 61 FR 40145, Aug. 1, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2634.1003</SECTNO> <SUBJECT>Permitted property.</SUBJECT> <P>(a) <E T="03">In general.</E> The categories of permitted property into which rollovers are permitted to be made have been drawn through the rules of this section so as to be neutral in respect of the vast majority of Federal programs and responsibilities. The Internal Revenue Service has jurisdiction with respect to determinations concerning the application of the rules of this section in specific cases (see § 2634.1001(b)). However, the ethics program rules applicable to specific agencies and positions may further limit an eligible person's choices. The advice of the designated agency ethics official should be sought in this regard. For example, there are restrictions on the purchases of shares in regulated investment companies by some Securities and Exchange Commission personnel and on purchases of obligations of the United States by some officials of the Department of the Treasury. Additionally, it may not be appropriate for some officials of agencies having international responsibilities to invest in mutual funds which exclusively invest in securities outside of the United States.</P> <P>(b) <E T="03">Definition of “permitted property”.</E> For purposes of section 1043 and this subpart, the term <E T="03">permitted property</E> means:</P> <P>(1) Any obligation of the United States; and</P> <P>(2) Any “diversified investment fund”, as defined in paragraph (c) of this section.</P> <P>(c) <E T="03">Diversified investment fund—</E>(1) <E T="03">Definition.</E> The term <E T="03">diversified investment fund</E> means any open-end mutual fund (which is a “regulated investment company”, as defined by section 851 of the Internal Revenue Code of 1986), which by its prospectus, or any common trust fund maintained by a bank (which is a “common trust fund”, as defined by section 584(a) of the Internal Revenue Code of 1986), which by the literature it distributes to prospective <PRTPAGE P="541"/>and current investors describing its objectives and practices, does not indicate the objective or practice of devoting its investments to particular or limited industrial, economic, or geographic sectors.</P> <P>(2) <E T="03">Ownership limitation.</E> Notwithstanding any other rule of this paragraph (c), a fund may not be considered to be a diversified investment fund in any case in which the ownership of more than one percent of the market value of the fund would be attributable to an individual referred to in § 2634.1002(c)(1) immediately after a rollover. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Alpha Group is a family of funds which markets numerous open-end mutual funds which are typical of those generally available to the general public:</P> <P>(i) The following funds of the Alpha Group would be presumed to be diversified investment funds for purposes of paragraph (c)(1) of this section, unless their prospectuses indicated an objective or practice of devoting their investments to particular or limited industrial, economic, or geographic sectors: the Common Stock Fund, the Growth Stock Fund, the S&P Index Fund, the Global Fund (investing in common stocks world-wide), the Blue Chip Fund, the Corporate Bond Fund, the Municipal Bond Fund, and the Government Bond Fund (which invests exclusively in obligations of the United States).</P> <P>(ii) The following funds of the Alpha Group would not be presumed to qualify as diversified investment funds, unless their prospectuses indicated that they do not have an objective or practice of devoting their investments to particular or limited industrial, economic, or geographic sectors for purposes of paragraph (c)(1) of this section: The Pacific fund, the Mexico Fund, the New England Fund, the Gold Fund, the Commodity Futures Fund, the Venture Capital Fund, and the Drug Industry Sector Fund.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The Omega Fund is a closed-end mutual fund which is listed on the New York Stock Exchange. The Omega Fund is not a diversified investment fund, as only open-end mutual funds are within the definition of that term pursuant to paragraph (c)(1) of this section.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2634.1004</SECTNO> <SUBJECT>Special rule.</SUBJECT> <P> <E T="03">Public access to Certificates of Divestiture.</E> The Certificates of Divestiture issued pursuant to the provisions of this part shall be available to the public in accordance with the rules of § 2634.603 of this part.</P> </SECTION> <APPENDIX> <EAR>Pt. 2634, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 2634—Certificate of Independence (Form Approved: OMB Control No. 3209-0007)</HD> <P>The Certificate of Independence required by § 2634.406(b) shall be executed as follows:</P> <HD SOURCE="HD1">Certificate of Independence</HD> <P>With respect to the trust of <E T="72">_____</E> (Settlor), which has been submitted to the Office of Government Ethics for certification pursuant to the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended), the undersigned proposed [Trustee] [<E T="72">_____</E>] of such trust is a financial institution which is eligible to serve in such fiduciary capacity in accordance with section 102(f)(3)(A) of such Act:</P> <P>FIRST: The undersigned is (check one)—</P> <P>() a bank, as defined in 12 U.S.C. 1841(c), or</P> <P>() an investment adviser, as defined in 15 U.S.C. 80b-2(a)(11),</P> <P>not more than 10 percent of which is owned or controlled by a single individual.</P> <P>SECOND: The undersigned—</P> <P>(1) Is independent of and unassociated with any interested party so that the undersigned cannot be controlled or influenced in the administration of the trust by any interested party; and</P> <P>(2) 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.</P> <P>THIRD: Any director, officer, or employee of the undersigned—</P> <P>(1) 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;</P> <P>(2) Is not and has not been employed by any interested party, nor 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 or business with, any interested party; and</P> <P>(3) Is not a relative of any interested party.</P> <P>FOURTH: The undersigned certifies that the statements contained herein are true, complete and correct to the best of such undersigned's knowledge and belief.</P> <P>Date<E T="72">____</E> </P> <P>(firm)<E T="72">____</E> </P> <P>By:<E T="72">____</E> </P> <P>(title)<E T="72">____</E> </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>See Appendix C of this part for Privacy Act and Paperwork Reduction Act notices.</P> </NOTE> <CITA>[57 FR 11829, Apr. 7, 1992, as amended at 63 FR 58620, Nov. 2, 1998]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="542"/> <EAR>Pt. 2634, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 2634—Certificate of Compliance (Form Approved: OMB Control No. 3209-0007)</HD> <P>The Certificate of Compliance required by § 2634.408(b) shall be executed as follows:</P> <HD SOURCE="HD1">Certificate of Compliance</HD> <P>With respect to the qualified blind trust (qualified diversified trust) of<E T="72">____</E> (Settlor), the undersigned, the approved [Trustee] [<E T="72">____</E>] of such trust, pursuant to 5 CFR 2634.406, has served in such fiduciary capacity during the calendar year [or for the period beginning<E T="72">____</E> and ending<E T="72">____</E>] and is eligible to continue in such capacity by virtue of the following:</P> <P>FIRST: The undersigned (and any director, officer, or employee) has not knowingly or negligently, and will not—</P> <P>(A) disclose any information to an interested party with respect to the trust that may not be disclosed pursuant to title I of the Act, the implementing regulations (including 5 CFR 2634.403(b)(12)(i) for a qualified blind trust, and 5 CFR 2634.404(c)(12)(i) for a qualified diversified trust), or the trust instrument;</P> <P>(B) acquire any holding the ownership of which is prohibited by, or not in accordance with, applicable statute, regulation, or the terms of the trust instrument;</P> <P>(C) solicit advice from any interested party with respect to such trust, which solicitation is prohibited by title I of the Act, the implementing regulations (including 5 CFR 2634.403(b)(12)(iii) for a qualified blind trust and 5 CFR 2634.404(c)(12)(iii), for a qualified diversified trust), or the trust instrument;</P> <P>(D) fail to file any document required by title I of the Act, the implementing regulations (including 5 CFR 2634.408(b) and (c)), or the trust instrument; or</P> <P>(E) violate or fail to comply with any provision or requirement of title I of the Act, the implementing regulations, or the trust instrument.</P> <P>SECOND: The undersigned (and any director, officer, or employee) will not knowingly or negligently engage in the above-mentioned activities.</P> <P>THIRD: The undersigned certifies that the statements contained herein are true, complete and correct to the best of such undersigned's knowledge and belief.</P> <P>Date<E T="72">____</E> </P> <P>(firm)<E T="72">____</E> </P> <P>By:<E T="72">____</E> </P> <P>(title)<E T="72">____</E> </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>See appendix C of this part for Privacy Act and Paperwork Reduction Act notices.</P> </NOTE> <CITA>[57 FR 11830, Apr. 7, 1992; 57 FR 21855, May 22, 1992]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2634, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 2634—Privacy Act and Paperwork Reduction Act Notices for Appendixes A and B</HD> <HD SOURCE="HD1">Privacy Act Statement</HD> <P>Section 102(f) of the Ethics in Government Act of 1978 as amended (the “Ethics Act”) (5 U.S.C. App.) and subpart D of 5 CFR part 2634 of the regulations of the Office of Government Ethics (OGE) require the reporting of this information for the administration of qualified trusts under the Ethics Act. The primary use of the information on this certificate is for review by Government officials of OGE and the agency of the Government employee for whom the trust is established to determine compliance with applicable Federal laws and regulations as regards qualified trusts. Additional disclosures of the information on this certificate may be made:</P> <P>(1) to any requesting person in accordance with the access provisions of section 105 of the Ethics Act;</P> <P>(2) to a Federal, State or local law enforcement agency if the disclosing agency becomes aware of a violation or potential violation of law or regulation;</P> <P>(3) to a court or party in a court or Federal administrative proceeding if the Government is a party or in order to comply with a subpoena;</P> <P>(4) to a source when necessary to obtain information relevant to a conflict of interest issue;</P> <P>(5) to the National Archives and Records Administration or the General Services Administration in records management inspections;</P> <P>(6) to the Office of Management and Budget during legislative coordination on private relief legislation; and</P> <P>(7) in response to a discovery request or for the appearance of a witness in a pending judicial or administrative proceeding, if the information is relevant to the subject matter. </P> <FP>Knowing or willful falsification of information on this certificate or failure to file or report information required to be reported under title I of the Ethics Act and 5 CFR part 2634 of the OGE regulations may lead to disqualification as a trustee or other fiduciary as well as possible disqualification of the underlying trust itself. Knowing and willful falsification of information required under the Ethics Act and the regulations may also subject you to criminal prosecution.</FP> <HD SOURCE="HD1">Public Burden Information and Paperwork Reduction Act Statement</HD> <P>This collection of information is estimated to take an average of twenty minutes per response. You can send comments regarding the burden estimate or any other aspect of <PRTPAGE P="543"/>this collection of information, including suggestions for reducing this burden, to: Associate Director for Administration, U.S. Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917. <E T="03">Do not</E> send your completed certificate to that official; rather, send it to the Director of the Office of Government Ethics at that address as provided in the part 2634 regulation.</P> <P>Pursuant to the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and no person is required to respond to, a collection of information unless it displays a currently valid OMB control number (that number, 3209-0007, is displayed here and in the headings of the OGE model qualified trust certificates of independence and compliance, appendixes A and B to this part 2634).</P> <CITA>[57 FR 11830, Apr. 7, 1992, as amended at 63 FR 58620, Nov. 2, 1998]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 2635</EAR> <HD SOURCE="HED">PART 2635—STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2635.101</SECTNO> <SUBJECT>Basic obligation of public service.</SUBJECT> <SECTNO>2635.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2635.103</SECTNO> <SUBJECT>Applicability to members of the uniformed services.</SUBJECT> <SECTNO>2635.104</SECTNO> <SUBJECT>Applicability to employees on detail.</SUBJECT> <SECTNO>2635.105</SECTNO> <SUBJECT>Supplemental agency regulations.</SUBJECT> <SECTNO>2635.106</SECTNO> <SUBJECT>Disciplinary and corrective action.</SUBJECT> <SECTNO>2635.107</SECTNO> <SUBJECT>Ethics advice.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Gifts From Outside Sources</HD> <SECTNO>2635.201</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.202</SECTNO> <SUBJECT>General standards.</SUBJECT> <SECTNO>2635.203</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2635.204</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <SECTNO>2635.205</SECTNO> <SUBJECT>Proper disposition of prohibited gifts.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Gifts Between Employees</HD> <SECTNO>2635.301</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.302</SECTNO> <SUBJECT>General standards.</SUBJECT> <SECTNO>2635.303</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2635.304</SECTNO> <SUBJECT>Exceptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Conflicting Financial Interests</HD> <SECTNO>2635.401</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.402</SECTNO> <SUBJECT>Disqualifying financial interests.</SUBJECT> <SECTNO>2635.403</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Impartiality in Performing Official Duties</HD> <SECTNO>2635.501</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.502</SECTNO> <SUBJECT>Personal and business relationships.</SUBJECT> <SECTNO>2635.503</SECTNO> <SUBJECT>Extraordinary payments from former employers.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Seeking Other Employment</HD> <SECTNO>2635.601</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.602</SECTNO> <SUBJECT>Applicability and related considerations.</SUBJECT> <SECTNO>2635.603</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2635.604</SECTNO> <SUBJECT>Disqualification while seeking employment.</SUBJECT> <SECTNO>2635.605</SECTNO> <SUBJECT>Waiver or authorization permitting participation while seeking employment.</SUBJECT> <SECTNO>2635.606</SECTNO> <SUBJECT>Disqualification based on an arrangement concerning prospective employment or otherwise after negotiations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Misuse of Position</HD> <SECTNO>2635.701</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.702</SECTNO> <SUBJECT>Use of public office for private gain.</SUBJECT> <SECTNO>2635.703</SECTNO> <SUBJECT>Use of nonpublic information.</SUBJECT> <SECTNO>2635.704</SECTNO> <SUBJECT>Use of Government property.</SUBJECT> <SECTNO>2635.705</SECTNO> <SUBJECT>Use of official time.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Outside Activities</HD> <SECTNO>2635.801</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2635.802</SECTNO> <SUBJECT>Conflicting outside employment and activities.</SUBJECT> <SECTNO>2635.803</SECTNO> <SUBJECT>Prior approval for outside employment and activities.</SUBJECT> <SECTNO>2635.804</SECTNO> <SUBJECT>Outside earned income limitations applicable to certain Presidential appointees and other noncareer employees.</SUBJECT> <SECTNO>2635.805</SECTNO> <SUBJECT>Service as an expert witness.</SUBJECT> <SECTNO>2635.806</SECTNO> <SUBJECT>Participation in professional associations. [Reserved]</SUBJECT> <SECTNO>2635.807</SECTNO> <SUBJECT>Teaching, speaking and writing.</SUBJECT> <SECTNO>2635.808</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> <SECTNO>2635.809</SECTNO> <SUBJECT>Just financial obligations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Related Statutory Authorities</HD> <SECTNO>2635.901</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>2635.902</SECTNO> <SUBJECT>Related statutes.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 35042, Aug. 7, 1992, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2635.101</SECTNO> <SUBJECT>Basic obligation of public service.</SUBJECT> <P>(a) <E T="03">Public service is a public trust.</E> Each employee has a responsibility to the <PRTPAGE P="544"/>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.</P> <P>(b) <E T="03">General principles.</E> 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.</P> <P>(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.</P> <P>(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty.</P> <P>(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.</P> <P>(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.</P> <P>(5) Employees shall put forth honest effort in the performance of their duties.</P> <P>(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.</P> <P>(7) Employees shall not use public office for private gain.</P> <P>(8) Employees shall act impartially and not give preferential treatment to any private organization or individual.</P> <P>(9) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.</P> <P>(10) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.</P> <P>(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Related statutes.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="545"/> <SECTNO>§ 2635.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Agency</E> 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.</P> <P>(b) <E T="03">Agency designee</E> 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.</P> <P>(c) <E T="03">Agency ethics official</E> 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.</P> <P>(d) <E T="03">Agency programs or operations</E> refers to any program or function carried out or performed by an agency, whether pursuant to statute, Executive order, or regulation.</P> <P>(e) <E T="03">Corrective action</E> 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.</P> <P>(f) <E T="03">Designated agency ethics official</E> refers to the official designated under § 2638.201 of this chapter.</P> <P>(g) <E T="03">Disciplinary action</E> 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.</P> <P>(h) <E T="03">Employee</E> means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. 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.</P> <P>(i) <E T="03">Head of an agency</E> means, in the case of an agency headed by more than one person, the chair or comparable member of such agency.</P> <P>(j) <E T="03">He, his,</E> and <E T="03">him</E> include she, hers and her.</P> <P>(k) <E T="03">Person</E> 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.</P> <P>(l) <E T="03">Special Government employee</E> means those executive branch officers or employees specified in 18 U.S.C. 202(a). A <PRTPAGE P="546"/>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.</P> <P>(m) <E T="03">Supplemental agency regulation</E> means a regulation issued pursuant to § 2635.105.</P> </SECTION> <SECTION> <SECTNO>§ 2635.103</SECTNO> <SUBJECT>Applicability to members of the uniformed services.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.104</SECTNO> <SUBJECT>Applicability to employees on detail.</SUBJECT> <P>(a) <E T="03">Details to other agencies.</E> 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.</P> <P>(b) <E T="03">Details to the legislative or judicial branch.</E> 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.</P> <P>(c) <E T="03">Details to non-Federal entities.</E> 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.</P> <P>(d) <E T="03">Applicability of special agency statutes.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.105</SECTNO> <SUBJECT>Supplemental agency regulations.</SUBJECT> <P>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.</P> <P>(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:</P> <P>(1) In the form of a supplement to the regulations in this part; and</P> <P>(2) In addition to the substantive provisions of this part.<PRTPAGE P="547"/> </P> <P>(b) After concurrence and co-signature by the Office of Government Ethics, the agency shall submit its supplemental agency regulations to the <E T="04">Federal Register</E> for publication and codification at the expense of the agency in title 5 of the Code of Federal Regulations. Supplemental agency regulations issued under this section are effective only after concurrence and co-signature by the Office of Government Ethics and publication in the <E T="04">Federal Register</E>.</P> <P>(c) This section applies to any supplemental agency regulations or amendments thereof issued under this part. It does not apply to:</P> <P>(1) A handbook or other issuance intended merely as an explanation of the standards contained in this part or in supplemental agency regulations;</P> <P>(2) An instruction or other issuance the purpose of which is to:</P> <P>(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</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.106</SECTNO> <SUBJECT>Disciplinary and corrective action.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.107</SECTNO> <SUBJECT>Ethics advice.</SUBJECT> <P>(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.</P> <P>(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. <PRTPAGE P="548"/>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Gifts From Outside Sources</HD> <SECTION> <SECTNO>§ 2635.201</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or 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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.202</SECTNO> <SUBJECT>General standards.</SUBJECT> <P>(a) <E T="03">General prohibitions.</E> Except as provided in this subpart, an employee shall not, directly or indirectly, solicit or accept a gift:</P> <P>(1) From a prohibited source; or</P> <P>(2) Given because of the employee's official position.</P> <P>(b) <E T="03">Relationship to illegal gratuities statute.</E> Unless accepted in violation of paragraph (c)(1) of this section, a gift accepted under the standards set forth in this subpart shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).</P> <P>(c) <E T="03">Limitations on use of exceptions.</E> Notwithstanding any exception provided in this subpart, other than § 2635.204(j), an employee shall not:</P> <P>(1) Accept a gift in return for being influenced in the performance of an official act;</P> <P>(2) Solicit or coerce the offering of a gift;</P> <P>(3) 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 his public office for private gain; </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A purchasing agent for a Veterans Administration hospital routinely deals with representatives of pharmaceutical manufacturers who provide information about new company products. Because of his crowded calendar, the purchasing agent has offered to meet with manufacturer representatives during his lunch hours Tuesdays through Thursdays and the representatives routinely arrive at the employee's office bringing a sandwich and a soft drink for the employee. Even though the market value of each of the lunches is less than $6 and the aggregate value from any one manufacturer does not exceed the $50 aggregate limitation in § 2635.204(a) on de minimis gifts of $20 or less, the practice of accepting even these modest gifts on a recurring basis is improper.</P> </EXAMPLE> <P>(4) Accept a gift in violation of any statute. Relevant statutes applicable to all employees include:</P> <P>(i) 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. 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</P> <P>(ii) 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; or</P> <P>(5) Accept vendor promotional training contrary to applicable regulations, policies or guidance relating to the <PRTPAGE P="549"/>procurement of supplies and services for the Government, except pursuant to § 2635.204(l).</P> <CITA>[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992, as amended at 62 FR 48747, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.203</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart, the following definitions shall apply:</P> <P>(a) <E T="03">Agency</E> 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.</P> <P>(b) <E T="03">Gift</E> 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. It does not include:</P> <P>(1) Modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal;</P> <P>(2) Greeting cards and items with little intrinsic value, such as plaques, certificates, and trophies, which are intended solely for presentation;</P> <P>(3) Loans from banks and other financial institutions on terms generally available to the public;</P> <P>(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;</P> <P>(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 his official duties;</P> <P>(6) Pension and other benefits resulting from continued participation in an employee welfare and benefits plan maintained by a former employer;</P> <P>(7) Anything which is paid for by the Government or secured by the Government under Government contract;</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Some airlines encourage those purchasing tickets to join programs that award free flights and other benefits to frequent fliers. Any such benefit earned on the basis of Government-financed travel belongs to the agency rather than to the employee and may be accepted only insofar as provided under 41 CFR 301-53.</P> </NOTE> <P>(8) Any gift accepted by the Government under specific statutory authority, including:</P> <P>(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 his official duties which takes place away from his duty station. The agency's acceptance must be in accordance with the implementing regulations at 41 CFR part 304-1; and</P> <P>(ii) Other gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute; or</P> <P>(9) Anything for which market value is paid by the employee.</P> <P>(c) <E T="03">Market value</E> means the retail cost the employee would 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 shall be the face value of the ticket. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee who has been given an acrylic paperweight embedded with the corporate logo of a prohibited source may determine its market value based on her observation that a comparable acrylic paperweight, not embedded with a logo, generally sells for about $20.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A prohibited source has offered an employee a ticket to a charitable event consisting of a cocktail reception to be followed by an evening of chamber music. Even though the food, refreshments, and entertainment provided at the event may be worth only $20, the market value of the ticket is its $250 face value.</P> </EXAMPLE> <P>(d) <E T="03">Prohibited source</E> means any person who:</P> <P>(1) Is seeking official action by the employee's agency;<PRTPAGE P="550"/> </P> <P>(2) Does business or seeks to do business with the employee's agency;</P> <P>(3) Conducts activities regulated by the employee's agency;</P> <P>(4) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties; or</P> <P>(5) Is an organization a majority of whose members are described in paragraphs (d) (1) through (4) of this section.</P> <P>(e) A gift is solicited or accepted because of the employee's official position if it is from a person other than an employee and would not have been solicited, offered, or given had the employee not held the status, authority or duties associated with his Federal position. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Gifts between employees are subject to the limitations set forth in subpart C of this part.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Where free season tickets are offered by an opera guild to all members of the Cabinet, the gift is offered because of their official positions.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Employees at a regional office of the Department of Justice (DOJ) work in Government-leased space at a private office building, along with various private business tenants. A major fire in the building during normal office hours causes a traumatic experience for all occupants of the building in making their escape, and it is the subject of widespread news coverage. A corporate hotel chain, which does not meet the definition of a prohibited source for DOJ, seizes the moment and announces that it will give a free night's lodging to all building occupants and their families, as a public goodwill gesture. Employees of DOJ may accept, as this gift is not being given because of their Government positions. The donor's motivation for offering this gift is unrelated to the DOJ employees’ status, authority or duties associated with their Federal position, but instead is based on their mere presence in the building as occupants at the time of the fire.</P> </EXAMPLE> <P>(f) A gift which is solicited or accepted indirectly includes a gift:</P> <P>(1) Given with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative because of that person's relationship to the employee, or</P> <P>(2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee, except as permitted for the disposition of perishable items by § 2635.205(a)(2) or for payments made to charitable organizations in lieu of honoraria under § 2636.204 of this chapter. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee who must decline a gift of a personal computer pursuant to this subpart may not suggest that the gift be given instead to one of five charitable organizations whose names are provided by the employee.</P> </EXAMPLE> <P>(g) <E T="03">Vendor promotional training</E> means training provided by any person for the purpose of promoting its products or services. It does not include training provided under a Government contract or by a contractor to facilitate use of products or services it furnishes under a Government contract.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 60 FR 51667, Oct. 3, 1995; 63 FR 69993, Dec. 18, 1998; 64 FR 2422, Jan. 14, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.204</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>The prohibitions set forth in § 2635.202(a) do not apply to a gift accepted under the circumstances described in paragraphs (a) through (l) of this section, and an employee's acceptance of a gift in accordance with one of those paragraphs will be deemed not to violate the principles set forth in § 2635.101(b), including appearances. Even though acceptance of a gift may be permitted by one of the exceptions contained in paragraphs (a) through (l) of this section, it is never inappropriate and frequently prudent for an employee to decline a gift offered by a prohibited source or because of his official position.</P> <P>(a) <E T="03">Gifts of $20 or less.</E> 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 shall 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 <PRTPAGE P="551"/>single occasion exceeds $20, the employee may decline any distinct and separate item in order to accept those items aggregating $20 or less. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Securities and Exchange Commission and his spouse have been invited by a representative of a regulated entity to a Broadway play, tickets to which have a face value of $30 each. The aggregate market value of the gifts offered on this single occasion is $60, $40 more than the $20 amount that may be accepted for a single event or presentation. The employee may not accept the gift of the evening of entertainment. He and his spouse may attend the play only if he pays the full $60 value of the two tickets.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Defense Mapping Agency has been invited by an association of cartographers to speak about his agency's role in the evolution of missile technology. At the conclusion of his speech, the association presents the employee a framed map with a market value of $18 and a book about the history of cartography with a market value of $15. The employee may accept the map or the book, but not both, since the aggregate value of these two tangible items exceeds $20.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>On four occasions during the calendar year, an employee of the Defense Logistics Agency was given gifts worth $10 each by four employees of a corporation that is a DLA contractor. For purposes of applying the yearly $50 limitation on gifts of $20 or less from any one person, the four gifts must be aggregated because a person is defined at § 2635.102(k) to mean not only the corporate entity, but its officers and employees as well. However, for purposes of applying the $50 aggregate limitation, the employee would not have to include the value of a birthday present received from his cousin, who is employed by the same corporation, if he can accept the birthday present under the exception at § 2635.204(b) for gifts based on a personal relationship.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>Under the authority of 31 U.S.C. 1353 for agencies to accept payments from non-Federal sources in connection with attendance at certain meetings or similar functions, the Environmental Protection Agency has accepted an association's gift of travel expenses and conference fees for an employee of its Office of Radiation Programs to attend an international conference on “The Chernobyl Experience.” While at the conference, the employee may accept a gift of $20 or less from the association or from another person attending the conference even though it was not approved in advance by the EPA. Although 31 U.S.C. 1353 is the only authority under which an agency may accept gifts from certain non-Federal sources in connection with its employees’ attendance at such functions, a gift of $20 or less accepted under § 2635.204(a) is a gift to the employee rather than to his employing agency.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>During off-duty time, an employee of the Department of Defense (DOD) attends a trade show involving companies that are DOD contractors. He is offered a $15 computer program disk at X Company's booth, a $12 appointments calendar at Y Company's booth, and a deli lunch worth $8 from Z Company. The employee may accept all three of these items because they do not exceed $20 per source, even though they total more than $20 at this single occasion.</P> </EXAMPLE> <P>(b) <E T="03">Gifts based on a personal relationship.</E> An employee may accept a gift given 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 of the relationship and whether the family member or friend personally pays for the gift. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Federal Deposit Insurance Corporation has been dating a secretary employed by a member bank. For Secretary's Week, the bank has given each secretary 2 tickets to an off-Broadway musical review and has urged each to invite a family member or friend to share the evening of entertainment. Under the circumstances, the FDIC employee may accept his girlfriend's invitation to the theater. Even though the tickets were initially purchased by the member bank, they were given without reservation to the secretary to use as she wished, and her invitation to the employee was motivated by their personal friendship.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Three partners in a law firm that handles corporate mergers have invited an employee of the Federal Trade Commission to join them in a golf tournament at a private club at the firm's expense. The entry fee is $500 per foursome. The employee cannot accept the gift of one-quarter of the entry fee even though he and the three partners have developed an amicable relationship as a result of the firm's dealings with the FTC. As evidenced in part by the fact that the fees are to be paid by the firm, it is not a personal friendship but a business relationship that is the motivation behind the partners’ gift.</P> </EXAMPLE> <P>(c) <E T="03">Discounts and similar benefits.</E> In addition to those opportunities and benefits excluded from the definition of a gift by § 2635.203(b)(4), an employee may accept:<PRTPAGE P="552"/> </P> <P>(1) Reduced 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</P> <P>(2) Opportunities and benefits, including favorable rates and commercial discounts not precluded by paragraph (c)(3) of this section:</P> <P>(i) Offered to members of a group or class in which membership is unrelated to Government employment;</P> <P>(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; or</P> <P>(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; provided, however, that</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Consumer Product Safety Commission may accept a discount of $50 on a microwave oven offered by the manufacturer to all members of the CPSC employees’ association. Even though the CPSC is currently conducting studies on the safety of microwave ovens, the $50 discount is a standard offer that the manufacturer has made broadly available through a number of similar organizations to large segments of the public.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An Assistant Secretary may not accept a local country club's offer of membership to all members of Department Secretariats which includes a waiver of its $5,000 membership initiation fee. Even though the country club is not a prohibited source, the offer discriminates in favor of higher ranking officials.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The administrative officer for a district office of the Immigration and Naturalization Service has signed an INS order to purchase 50 boxes of photocopy paper from a supplier whose literature advertises that it will give a free briefcase to anyone who purchases 50 or more boxes. Because the paper was purchased with INS funds, the administrative officer cannot keep the briefcase which, if claimed and received, is Government property.</P> </EXAMPLE> <P>(d) <E T="03">Awards and honorary degrees.</E> (1) An employee may accept gifts, other than cash or an investment interest, with an aggregate market value of $200 or less if such gifts are a bona fide award or incident to a bona fide award that is given for meritorious public service or achievement by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee's official duties or by an association or other organization the majority of whose members do not have such interests. Gifts with an aggregate market value in excess of $200 and awards of cash or investment interests offered by such persons as awards or incidents of awards that are given for these purposes may be accepted upon a written determination by an agency ethics official that the award is made as part of an established program of recognition:</P> <P>(i) Under which awards have been made on a regular basis or which is funded, wholly or in part, to ensure its continuation on a regular basis; and</P> <P>(ii) Under which selection of award recipients is made pursuant to written standards.</P> <P>(2) An employee may accept an honorary degree from an institution of higher education as defined at 20 U.S.C. 1141(a) 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.</P> <P>(3) An employee who may accept an award or honorary degree pursuant to paragraph (d)(1) or (2) of this section may also accept meals and entertainment given to him and to members of his family at the event at which the presentation takes place. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Based on a determination by an agency ethics official that the prize meets the criteria set forth in § 2635.204(d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Prestigious University wishes to give an honorary degree to the Secretary of <PRTPAGE P="553"/>Labor. The Secretary may accept the honorary degree only if an agency ethics official determines in writing that the timing of the award of the degree would not cause a reasonable person to question the Secretary's impartiality in a matter affecting the university.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An ambassador selected by a nonprofit organization as recipient of its annual award for distinguished service in the interest of world peace may, together with his wife, and children, attend the awards ceremony dinner and accept a crystal bowl worth $200 presented during the ceremony. However, where the organization has also offered airline tickets for the ambassador and his family to travel to the city where the awards ceremony is to be held, the aggregate value of the tickets and the crystal bowl exceeds $200 and he may accept only upon a written determination by the agency ethics official that the award is made as part of an established program of recognition.</P> </EXAMPLE> <P>(e) <E T="03">Gifts based on outside business or employment relationships.</E> An employee may accept meals, lodgings, transportation and other benefits:</P> <P>(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; </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Department of Agriculture employee whose husband is a computer programmer employed by an Agriculture Department contractor may attend the company's annual retreat for all of its employees and their families held at a resort facility. However, under § 2635.502, the employee may be disqualified from performing official duties affecting her husband's employer.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Where the spouses of other clerical personnel have not been invited, an employee of the Defense Contract Audit Agency whose wife is a clerical worker at a defense contractor may not attend the contractor's annual retreat in Hawaii for corporate officers and members of the board of directors, even though his wife received a special invitation for herself and her spouse.</P> </EXAMPLE> <P>(2) Resulting from his outside business or employment activities when it is clear that such benefits have not been offered or enhanced because of his official status; or </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The members of an Army Corps of Engineers environmental advisory committee that meets 6 times per year are special Government employees. A member who has a consulting business may accept an invitation to a $50 dinner from her corporate client, an Army construction contractor, unless, for example, the invitation was extended in order to discuss the activities of the committee.</P> </EXAMPLE> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Federal Communications Commission with responsibility for drafting regulations affecting all cable television companies wishes to apply for a job opening with a cable television holding company. Once she has properly disqualified herself from further work on the regulations as required by subpart F of this part, she may enter into employment discussions with the company and may accept the company's offer to pay for her airfare, hotel and meals in connection with an interview trip.</P> </EXAMPLE> <P>(4) For purposes of paragraphs (e)(1) through (3) of this section, employment shall have the meaning set forth in § 2635.603(a).</P> <P>(f) <E T="03">Gifts in connection with political activities permitted by the Hatch Act Reform Amendments.</E> 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, 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 to accompany an employee to a political event may accept meals, free attendance and entertainment provided at the event by such an organization. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Secretary of the Department of Health and Human Services may accept an airline ticket and hotel accommodations furnished by the campaign committee of a candidate for the United States Senate in order to give a speech in support of the candidate.</P> </EXAMPLE> <PRTPAGE P="554"/> <P>(g) <E T="03">Widely attended gatherings and other events</E>—(1) <E T="03">Speaking and similar engagements.</E> When an employee is assigned to participate as a speaker or panel participant or otherwise to present information on behalf of the agency at a conference or other event, his acceptance of an offer of free attendance at the event on the day of his presentation is permissible when provided by the sponsor of the event. The employee's participation in the event on that day is viewed as a customary and necessary part of his performance of the assignment and does not involve a gift to him or to the agency.</P> <P>(2) <E T="03">Widely attended gatherings.</E> When there has been a determination that his attendance is in the interest of the agency because it will further agency programs and operations, an employee may accept an unsolicited gift of free attendance at all or appropriate parts of a widely attended gathering of mutual interest to a number of parties from the sponsor of the event or, if more than 100 persons are expected to attend the event and the gift of free attendance has a market value of $260 or less, from a person other than the sponsor of the event. A gathering is widely attended if it is expected that a large number of persons will attend and 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. For employees subject to a leave system, attendance at the event shall 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.</P> <P>(3) <E T="03">Determination of agency interest.</E> The determination of agency interest required by paragraph (g)(2) of this section shall be made orally or in writing by the agency designee.</P> <P>(i) If the person who has extended the invitation has interests that may be substantially affected by the performance or nonperformance of an employee's official duties or is an association or organization the majority of whose members have such interests, the employee's participation may be determined to be in the interest of the agency only where there is a written finding by the agency designee that the agency's interest in the employee's participation in the event outweighs the concern that acceptance of the gift of free attendance may or may appear to improperly influence the employee in the performance of his official duties. Relevant factors that should be considered by the agency designee include the importance of the event to the agency, the nature and sensitivity of any pending matter affecting the interests of the person who has extended the invitation, the significance of the employee's role in any such matter, the purpose of the event, the identity of other expected participants and the market value of the gift of free attendance.</P> <P>(ii) A blanket determination of agency interest may be issued to cover all or any category of invitees other than those as to whom the finding is required by paragraph (g)(3)(i) of this section. Where a finding under paragraph (g)(3)(i) of this section is required, a written determination of agency interest, including the necessary finding, may be issued to cover two or more employees whose duties similarly affect the interests of the person who has extended the invitation or, where that person is an association or organization, of its members.</P> <P>(4) <E T="03">Free attendance.</E> For purposes of paragraphs (g)(1) and (g)(2) of this section, free attendance may include waiver of all or part of a conference or other fee or the provision of food, refreshments, entertainment, instruction and materials furnished to all attendees as an integral part of the event. It does not include travel expenses, lodgings, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. Where the invitation has been extended to an accompanying spouse or other guest (see paragraph (g)(6) of this section), the market value of the gift of free attendance includes the market value of free attendance by the spouse or other guest as well as the market value of the employee's own attendance. </P> <NOTE> <PRTPAGE P="555"/> <HD SOURCE="HED">Note:</HD> <P>There are statutory authorities implemented other than by part 2635 under which an agency or an employee may be able to accept free attendance or other items not included in the definition of free attendance, such as travel expenses.</P> </NOTE> <P>(5) <E T="03">Cost provided by sponsor of event.</E> The cost of the employee's attendance will not be considered to be provided by the sponsor, and the invitation is not considered to be from the sponsor of the event, where a person other than the sponsor designates the employee to be invited and bears the cost of the employee's attendance through a contribution or other payment intended to facilitate that 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.</P> <P>(6) <E T="03">Accompanying spouse or other guest.</E> 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 to another 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) or (g)(2) of this section. The authorization required by this paragraph may be provided orally or in writing. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An aerospace industry association that is a prohibited source sponsors an industrywide, two-day seminar for which it charges a fee of $400 and anticipates attendance of approximately 400. An Air Force contractor pays $2,000 to the association so that the association can extend free invitations to five Air Force officials designated by the contractor. The Air Force officials may not accept the gifts of free attendance. Because the contractor specified the invitees and bore the cost of their attendance, the gift of free attendance is considered to be provided by the company and not by the sponsoring association. Had the contractor paid $2,000 to the association in order that the association might invite any five Federal employees, an Air Force official to whom the sponsoring association extended one of the five invitations could attend if his participation were determined to be in the interest of the agency. The Air Force official could not in any case accept an invitation directly from the nonsponsor contractor because the market value of the gift exceeds $260.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Transportation is invited by a news organization to an annual press dinner sponsored by an association of press organizations. Tickets for the event cost $260 per person and attendance is limited to 400 representatives of press organizations and their guests. If the employee's attendance is determined to be in the interest of the agency, she may accept the invitation from the news organization because more than 100 persons will attend and the cost of the ticket does not exceed $260. However, if the invitation were extended to the employee and an accompanying guest, her guest could not be authorized to attend for free since the market value of the gift of free attendance would be $520 and the invitation is from a person other than the sponsor of the event.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the Department of Energy (DOE) and his wife have been invited by a major utility executive to a small dinner party. A few other officials of the utility and their spouses or other guests are also invited, as is a representative of a consumer group concerned with utility rates and her husband. The DOE official believes the dinner party will provide him an opportunity to socialize with and get to know those in attendance. The employee may not accept the free invitation under this exception, even if his attendance could be determined to be in the interest of the agency. The small dinner party is not a widely attended gathering. Nor could the employee be authorized to accept even if the event were instead a corporate banquet to which forty company officials and their spouses or other guests were invited. In this second case, notwithstanding the larger number of persons expected (as opposed to the small dinner party just noted) and despite the presence of the consumer group representative and her husband who are not officials of the utility, those in attendance would still not represent a diversity of views or interests. Thus, the company banquet would not qualify as a widely attended gathering under those circumstances either.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An employee of the Department of the Treasury authorized to participate in a panel discussion of economic issues as part of a one-day conference may accept the sponsor's waiver of the conference fee. Under the separate authority of § 2635.204(a), he may accept a token of appreciation for his speech having a market value of $20 or less.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An Assistant U.S. Attorney is invited to attend a luncheon meeting of a local bar association to hear a distinguished judge lecture on cross-examining expert witnesses. Although members of the bar association are assessed a $15 fee for the meeting, the Assistant U.S. Attorney may accept the bar association's offer to attend for free, <PRTPAGE P="556"/>even without a determination of agency interest. The gift can be accepted under the $20 de minimis exception at § 2635.204(a).</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>An employee of the Department of the Interior authorized to speak on the first day of a four-day conference on endangered species may accept the sponsor's waiver of the conference fee for the first day of the conference. If the conference is widely attended, he may be authorized, based on a determination that his attendance is in the agency's interest, to accept the sponsor's offer to waive the attendance fee for the remainder of the conference.</P> </EXAMPLE> <P>(h) <E T="03">Social invitations from persons other than prohibited sources.</E> An employee may accept food, refreshments and entertainment, not including travel or lodgings, at a social event attended by several persons where:</P> <P>(1) The invitation is from a person who is not a prohibited source; and</P> <P>(2) No fee is charged to any person in attendance. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Along with several other Government officials and a number of individuals from the private sector, the Administrator of the Environmental Protection Agency has been invited to the premier showing of a new adventure movie about industrial espionage. The producer is paying all costs of the showing. The Administrator may accept the invitation since the producer is not a prohibited source and no attendance fee is being charged to anyone who has been invited.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the White House Press Office has been invited to a cocktail party given by a noted Washington hostess who is not a prohibited source. The employee may attend even though he has only recently been introduced to the hostess and suspects that he may have been invited because of his official position.</P> </EXAMPLE> <P>(i) <E T="03">Meals, refreshments and entertainment in foreign areas.</E> An employee assigned to duty in, or on official travel to, a foreign area as defined in 41 CFR 301-7.3(c) may accept food, refreshments or entertainment in the course of a breakfast, luncheon, dinner or other meeting or event provided:</P> <P>(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 from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402;</P> <P>(2) There is participation in the meeting or event by non-U.S. citizens or by representatives of foreign governments or other foreign entities;</P> <P>(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</P> <P>(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). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A number of local businessmen in a developing country are anxious for a U.S. company to locate a manufacturing facility in their province. An official of the Overseas Private Investment Corporation may accompany the visiting vice president of the U.S. company to a dinner meeting hosted by the businessmen at a province restaurant where the market value of the food and refreshments does not exceed the per diem rate for that country.</P> </EXAMPLE> <P>(j) <E T="03">Gifts to the President or Vice President.</E> 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 own behalf or on behalf of any family member, provided that such acceptance does not violate § 2635.202(c) (1) or (2), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.</P> <P>(k) <E T="03">Gifts authorized by supplemental agency regulation.</E> An employee may accept any gift the acceptance of which is specifically authorized by a supplemental agency regulation.</P> <P>(l) <E T="03">Gifts accepted under specific statutory authority.</E> The prohibitions on acceptance of gifts from outside sources contained in this subpart do not apply to any item, receipt of which is specifically authorized by statute. Gifts which may be received by an employee under the authority of specific statutes include, but are not limited to:</P> <P>(1) Free attendance, course or meeting materials, transportation, lodgings, <PRTPAGE P="557"/>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 from an organization with tax-exempt status under 26 U.S.C. 501(c)(3) or from a person to whom the prohibitions in 18 U.S.C. 209 do not apply. The employee's acceptance must be approved by the agency in accordance with part 410 of this title; or</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>26 U.S.C. 501(c)(3) is authority for tax-exempt treatment of a limited class of nonprofit organizations, including those organized and operated for charitable, religious or educational purposes. Many nonprofit organizations are not exempt from taxation under this section.</P> </NOTE> <P>(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.</P> <CITA>[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992; 61 FR 42969, Aug. 20, 1996; 61 FR 48733, Sept. 16, 1996; 61 FR 50691, Sept. 27, 1996; 62 FR 48747, Sept. 17, 1997; 63 FR 69993, 69994, Dec. 18, 1998; 65 FR 69657, Nov. 20, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.205</SECTNO> <SUBJECT>Proper disposition of prohibited gifts.</SUBJECT> <P>(a) An employee who has received a gift that cannot be accepted under this subpart shall, unless the gift is accepted by an agency acting under specific statutory authority:</P> <P>(1) Return any tangible item to the donor or pay the donor its market value. 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. See § 2635.203(c). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>To avoid public embarrassment to the seminar sponsor, an employee of the National Park Service did not decline a barometer worth $200 given at the conclusion of his speech on Federal lands policy. The employee must either return the barometer or promptly reimburse the sponsor $200.</P> </EXAMPLE> <P>(2) When it is not practical to return a tangible item because it is perishable, the item may, at the discretion of the employee's supervisor or an agency ethics official, be given to an appropriate charity, shared within the recipient's office, or destroyed. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>With approval by the recipient's supervisor, a floral arrangement sent by a disability claimant to a helpful employee of the Social Security Administration may be placed in the office's reception area.</P> </EXAMPLE> <P>(3) For any entertainment, favor, service, benefit or other intangible, reimburse the donor the market value. Subsequent reciprocation by the employee does not constitute reimbursement. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Department of Defense employee wishes to attend a charitable event to which he has been offered a $300 ticket by a prohibited source. Although his attendance is not in the interest of the agency under § 2635.204(g), he may attend if he reimburses the donor the $300 face value of the ticket.</P> </EXAMPLE> <P>(4) Dispose of gifts from foreign governments or international organizations in accordance with 41 CFR part 101-49, and dispose of materials received in conjunction with official travel in accordance with 41 CFR 101-25.103.</P> <P>(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.</P> <P>(c) An employee who, on his 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 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 his own initiative.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Gifts Between Employees</HD> <SECTION> <SECTNO>§ 2635.301</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>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 <PRTPAGE P="558"/>the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 2635.302</SECTNO> <SUBJECT>General standards.</SUBJECT> <P>(a) <E T="03">Gifts to superiors.</E> Except as provided in this subpart, an employee may not:</P> <P>(1) Directly or indirectly, give a gift to or make a donation toward a gift for an official superior; or</P> <P>(2) Solicit a contribution from another employee for a gift to either his own or the other employee's official superior.</P> <P>(b) <E T="03">Gifts from employees receiving less pay.</E> 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:</P> <P>(1) The two employees are not in a subordinate-official superior relationship; and</P> <P>(2) There is a personal relationship between the two employees that would justify the gift.</P> <P>(c) <E T="03">Limitation on use of exceptions.</E> Notwithstanding any exception provided in this subpart, an official superior shall not coerce the offering of a gift from a subordinate.</P> </SECTION> <SECTION> <SECTNO>§ 2635.303</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart, the following definitions shall apply:</P> <P>(a) <E T="03">Gift</E> 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.</P> <P>(b) <E T="03">Indirectly,</E> 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:</P> <P>(1) Given with the employee's knowledge and acquiescence by his parent, sibling, spouse, child, or dependent relative; or</P> <P>(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.</P> <P>(c) Subject to paragraph (a) of this section, market value has the meaning set forth in § 2635.203(c).</P> <P>(d) <E T="03">Official superior</E> 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.</P> <P>(e) <E T="03">Solicit</E> means to request contributions by personal communication or by general announcement.</P> <P>(f) <E T="03">Voluntary contribution</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A supervisory employee of the Agency for International Development has just been reassigned from Washington, DC to Kabul, Afghanistan. As a farewell party, 12 of her subordinates have decided to take her out to lunch at the Khyber Repast. It is understood that each will pay for his own meal and that the cost of the supervisor's lunch will be divided equally among the twelve. Even though the amount they will contribute is not determined until the supervisor orders lunch, the contribution made by those who choose to participate in the farewell lunch is voluntary.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2635.304</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>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 <PRTPAGE P="559"/>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.</P> <P>(a) <E T="03">General exceptions.</E> 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:</P> <P>(1) Items, other than cash, with an aggregate market value of $10 or less per occasion;</P> <P>(2) Items such as food and refreshments to be shared in the office among several employees;</P> <P>(3) Personal hospitality provided at a residence which is of a type and value customarily provided by the employee to personal friends;</P> <P>(4) Items given in connection with the receipt of personal hospitality if of a type and value customarily given on such occasions; and</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Upon returning to work following a vacation at the beach, a claims examiner with the Department of Veterans Affairs may give his supervisor, and his supervisor may accept, a bag of saltwater taffy purchased on the boardwalk for $8.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Federal Deposit Insurance Corporation whose bank examination responsibilities require frequent travel may not bring her supervisor, and her supervisor may not accept, souvenir coffee mugs from each of the cities she visits in the course of performing her duties, even though each of the mugs costs less than $5. Gifts given on this basis are not occasional.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The Secretary of Labor has invited the agency's General Counsel to a dinner party at his home. The General Counsel may bring a $15 bottle of wine to the dinner party and the Secretary may accept this customary hostess gift from his subordinate, even though its cost is in excess of $10.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>For Christmas, a secretary may give his supervisor, and the supervisor may accept, a poinsettia plant purchased for $10 or less. The secretary may also invite his supervisor to a Christmas party in his home and the supervisor may attend.</P> </EXAMPLE> <P>(b) <E T="03">Special, infrequent occasions.</E> A gift appropriate to the occasion may be given to an official superior or accepted from a subordinate or other employee receiving less pay:</P> <P>(1) In recognition of infrequently occurring occasions of personal significance such as marriage, illness, or the birth or adoption of a child; or</P> <P>(2) Upon occasions that terminate a subordinate-official superior relationship, such as retirement, resignation, or transfer. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The administrative assistant to the personnel director of the Tennessee Valley Authority may send a $30 floral arrangement to the personnel director who is in the hospital recovering from surgery. The personnel director may accept the gift.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A chemist employed by the Food and Drug Administration has been invited to the wedding of the lab director who is his official superior. He may give the lab director and his bride, and they may accept, a place setting in the couple's selected china pattern purchased for $70.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>Upon the occasion of the supervisor's retirement from Federal service, an employee of the Fish and Wildlife Service may give her supervisor a book of wildlife photographs which she purchased for $19. The retiring supervisor may accept the book.</P> </EXAMPLE> <P>(c) <E T="03">Voluntary contributions.</E> 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:</P> <P>(1) On a special, infrequent occasion as described in paragraph (b) of this section; or</P> <P>(2) On an occasional basis, for items such as food and refreshments to be shared in the office among several employees.</P> <P>An employee may accept such gifts to which a subordinate or other employee receiving less pay than himself has contributed. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>To mark the occasion of his retirement, members of the immediate staff of the Under Secretary of the Army would like to give him a party and provide him with a gift certificate. They may distribute an announcement of the party and include a nominal amount for a retirement gift in the fee for the party.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The General Counsel of the National Endowment for the Arts may not collect contributions for a Christmas gift for the Chairman. Christmas occurs annually <PRTPAGE P="560"/>and is not an occasion of personal significance.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>Subordinates may not take up a collection for a gift to an official superior on the occasion of the superior's swearing in or promotion to a higher grade position within the supervisory chain of that organization. These are not events that mark the termination of the subordinate-official superior relationship, nor are they events of personal significance within the meaning of § 2635.304(b). However, subordinates may take up a collection and employees may contribute $3 each to buy refreshments to be consumed by everyone in the immediate office to mark either such occasion.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>Subordinates may each contribute a nominal amount to a fund to give a gift to an official superior upon the occasion of that superior's transfer or promotion to a position outside the organization.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An Assistant Secretary at the Department of the Interior is getting married. His secretary has decided that a microwave oven would be a nice gift from his staff and has informed each of the Assistant Secretary's subordinates that they should contribute $5 for the gift. Her method of collection is improper. Although she may recommend a $5 contribution, the recommendation must be coupled with a statement that the employee whose contribution is solicited is free to contribute less or nothing at all.</P> </EXAMPLE> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Conflicting Financial Interests</HD> <SECTION> <SECTNO>§ 2635.401</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>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.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48747, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.402</SECTNO> <SUBJECT>Disqualifying financial interests.</SUBJECT> <P>(a) <E T="03">Statutory prohibition.</E> 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(b) <E T="03">Definitions.</E> For purposes of this section, the following definitions shall apply:</P> <P>(1) <E T="03">Direct and predictable effect.</E> (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.</P> <P>(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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>If a particular matter involves a specific party or parties, generally the matter <PRTPAGE P="561"/>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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the National Library of Medicine at the National Institutes of Health has just been asked to serve on the technical evaluation panel to review proposals for a new library computer search system. DEF Computer Corporation, a closely held company in which he and his wife own a majority of the stock, has submitted a proposal. Because award of the systems contract to DEF or to any other offeror will have a direct and predictable effect on both his and his wife's financial interests, the employee cannot participate on the technical evaluation team unless his disqualification has been waived.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Upon assignment to the technical evaluation panel, the employee in the preceding example finds that DEF Computer Corporation has not submitted a proposal. Rather, LMN Corp., with which DEF competes for private sector business, is one of the six offerors. The employee is not disqualified from serving on the technical evaluation panel. Any effect on the employee's financial interests as a result of the agency's decision to award or not award the systems contract to LMN would be at most indirect and speculative.</P> </EXAMPLE> <P>(2) <E T="03">Imputed interests.</E> 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:</P> <P>(i) The employee's spouse;</P> <P>(ii) The employee's minor child;</P> <P>(iii) The employee's general partner;</P> <P>(iv) An organization or entity which the employee serves as officer, director, trustee, general partner or employee; and</P> <P>(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). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Education serves without compensation on the board of directors of Kinder World, Inc., a nonprofit corporation that engages in good works. Even though her personal financial interests will not be affected, the employee must disqualify herself from participating in the review of a grant application submitted by Kinder World. Award or denial of the grant will affect the financial interests of Kinder World and its financial interests are imputed to her as a member of its board of directors.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The spouse of an employee of the Food and Drug Administration has obtained a position with a well established biomedical research company. The company has developed an artificial limb for which it is seeking FDA approval and the employee would ordinarily be asked to participate in the FDA's review and approval process. The spouse is a salaried employee of the company and has no direct ownership interest in the company. Nor does she have an indirect ownership interest, as would be the case, for example, if she were participating in a pension plan that held stock in the company. Her position with the company is such that the granting or withholding of FDA approval will not have a direct and predictable effect on her salary or on her continued employment with the company. Since the FDA approval process will not affect his spouse's financial interests, the employee is not disqualified under § 2635.402 from participating in that process. Nevertheless, the financial interests of the spouse's employer may be disqualifying under the impartiality principle, as implemented at § 2635.502.</P> </EXAMPLE> <P>(3) <E T="03">Particular matter.</E> 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 <PRTPAGE P="562"/>include a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation or arrest. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Internal Revenue Service's amendment of its regulations to change the manner in which depreciation is calculated is not a particular matter, nor is the Social Security Administration's consideration of changes to its appeal procedures for disability claimants.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Consideration by the Interstate Commerce Commission of regulations establishing safety standards for trucks on interstate highways involves a particular matter.</P> </EXAMPLE> <P>(4) <E T="03">Personal and substantial.</E> 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.</P> <P>(c) <E T="03">Disqualification.</E> 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.</P> <P>(1) <E T="03">Notification.</E> 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.</P> <P>(2) <E T="03">Documentation.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An Assistant Secretary of the Department of the Interior owns recreational property that borders on land which is being considered for annexation to a national park. Annexation would directly and predictably increase the value of her vacation property and, thus, she is disqualified from participating in any way in the Department's deliberations or decisions regarding the annexation. Because she is responsible for determining which matters she will work on, she may accomplish her disqualification merely by ensuring that she does not participate in the matter. Because of the level of her position, however, the Assistant Secretary might be wise to establish a record that she has acted properly by providing a written disqualification statement to an official superior and by providing written notification of the disqualification to subordinates to ensure that they do not raise or discuss with her any issues related to the annexation.</P> </EXAMPLE> <P>(d) <E T="03">Waiver of or exemptions from disqualification.</E> An employee who would otherwise be disqualified by 18 U.S.C. 208(a) may be permitted to participate <PRTPAGE P="563"/>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).</P> <P>(1) <E T="03">Regulatory exemptions.</E> 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.</P> <P>(2) <E T="03">Individual waivers.</E> 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:</P> <P>(i) The employee:</P> <P>(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</P> <P>(B) Makes full disclosure to such official of the nature and extent of the disqualifying financial interest; and</P> <P>(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.</P> <P>(3) <E T="03">Federal advisory committee member waivers.</E> 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):</P> <P>(i) Reviews the financial disclosure report filed by the special Government employee pursuant to the Ethics in Government Act of 1978; and</P> <P>(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.</P> <P>(4) <E T="03">Consultation and notification regarding waivers.</E> 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.</P> <P>(e) <E T="03">Divestiture of a disqualifying financial interest.</E> 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.</P> <P>(1) <E T="03">Voluntary divestiture.</E> 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.</P> <P>(2) <E T="03">Directed divestiture.</E> 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.</P> <P>(3) <E T="03">Eligibility for special tax treatment.</E> 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.</P> <P>(f) <E T="03">Official duties that give rise to potential conflicts.</E> Where an employee's official duties create a substantial likelihood that the employee may be <PRTPAGE P="564"/>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.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48747, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.403</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(a) <E T="03">Agency regulation prohibiting certain financial interests.</E> 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.</P> <P>(b) <E T="03">Agency determination of substantial conflict.</E> 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:</P> <P>(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</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An Air Force employee who owns stock in a major aircraft engine manufacturer is being considered for promotion to a position that involves responsibility for development of a new fighter airplane. If the agency determined that engineering and other decisions about the Air Force's requirements for the fighter would directly and predictably affect his financial interests, the employee could not, by virtue of 18 U.S.C. 208(a), perform these significant duties of the position while retaining his stock in the company. The agency can require the employee to sell his stock as a condition of being selected for the position rather than allowing him to disqualify himself in particular matters.</P> </EXAMPLE> <P>(c) <E T="03">Definition of financial interest.</E> For purposes of this section:</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A regulatory agency has concluded that ownership by its employees of <PRTPAGE P="565"/>stock in entities regulated by the agency would significantly diminish public confidence in the agency's performance of its regulatory functions and thereby interfere with the accomplishment of its mission. In its supplemental agency regulations, the agency may prohibit its employees from acquiring or continuing to hold stock in regulated entities.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An agency that insures bank deposits may, by supplemental agency regulation, prohibit its employees who are bank examiners from obtaining loans from banks they examine. Examination of a member bank could have no effect on an employee's fixed obligation to repay a loan from that bank and, thus, would not affect an employee's financial interests so as to require disqualification under § 2635.402. Nevertheless, a loan from a member bank is a discrete financial interest within the meaning of § 2635.403(c) that may, when appropriate, be prohibited by supplemental agency regulation.</P> </EXAMPLE> <P>(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). </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>The Foundation for the Preservation of Wild Horses maintains herds of horses that graze on public and private lands. Because its costs are affected by Federal policies regarding grazing permits, the Foundation routinely comments on all proposed rules governing use of Federal grasslands issued by the Bureau of Land Management. BLM may require an employee to resign his uncompensated position as Vice President of the Foundation as a condition of his promotion to a policy-level position within the Bureau rather than allowing him to rely on disqualification in particular cases.</P> </EXAMPLE> <P>(d) <E T="03">Reasonable period to divest or terminate.</E> 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.</P> <P>(e) <E T="03">Eligibility for special tax treatment.</E> 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.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 59 FR 4780, Feb. 2, 1994; 60 FR 6391, Feb. 2, 1995; 60 FR 66858, Dec. 27, 1995; 61 FR 40951, Aug. 7, 1996; 62 FR 48748, Sept. 17, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Impartiality in Performing Official Duties</HD> <SECTION> <SECTNO>§ 2635.501</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>(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.</P> <P>(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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 <PRTPAGE P="566"/>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.</P> </NOTE> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.502</SECTNO> <SUBJECT>Personal and business relationships.</SUBJECT> <P>(a) <E T="03">Consideration of appearances by the employee.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) An employee has a <E T="03">covered relationship</E> with:</P> <P>(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;</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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. <PRTPAGE P="567"/>Payment of dues or the donation or solicitation of financial support does not, in itself, constitute active participation.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(2) <E T="03">Direct and predictable effect</E> has the meaning set forth in § 2635.402(b)(1).</P> <P>(3) <E T="03">Particular matter involving specific parties</E> has the meaning set forth in § 2637.102(a)(7) of this chapter. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the General Services Administration has made an offer to purchase a restaurant owned by a local developer. The developer has submitted an offer in response to a GSA solicitation for lease of office space. Under the circumstances, she would be correct in concluding that a reasonable person would be likely to question her impartiality if she were to participate in evaluating that developer's or its competitor's lease proposal.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Labor is providing technical assistance in drafting occupational safety and health legislation that will affect all employers of five or more persons. His wife is employed as an administrative assistant by a large corporation that will incur additional costs if the proposed legislation is enacted. Because the legislation is not a particular matter involving specific parties, the employee may continue to work on the legislation and need not be concerned that his wife's employment with an affected corporation would raise a question concerning his impartiality.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the Defense Logistics Agency who has responsibilities for testing avionics being produced by an Air Force contractor has just learned that his sister-in-law has accepted employment as an engineer with the contractor's parent corporation. Where the parent corporation is a conglomerate, the employee could reasonably conclude that, under the circumstances, a reasonable person would not be likely to question his impartiality if he were to continue to perform his test and evaluation responsibilities.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An engineer has just resigned from her position as vice president of an electronics company in order to accept employment with the Federal Aviation Administration in a position involving procurement responsibilities. Although the employee did not receive an extraordinary payment in connection with her resignation and has severed all financial ties with the firm, under the circumstances she would be correct in concluding that her former service as an officer of the company would be likely to cause a reasonable person to question her impartiality if she were to participate in the administration of a DOT contract for which the firm is a first-tier subcontractor.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An employee of the Internal Revenue Service is a member of a private organization whose purpose is to restore a Victorian-era railroad station and she chairs its annual fundraising drive. Under the circumstances, the employee would be correct in concluding that her active membership in the organization would be likely to cause a reasonable person to question her impartiality if she were to participate in an IRS determination regarding the tax-exempt status of the organization.</P> </EXAMPLE> <P>(c) <E T="03">Determination by agency designee.</E> 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.</P> <P>(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.</P> <P>(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, <PRTPAGE P="568"/>that the employee's participation in the matter would be proper.</P> <P>(d) <E T="03">Authorization by agency designee.</E> 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:</P> <P>(1) The nature of the relationship involved;</P> <P>(2) The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;</P> <P>(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;</P> <P>(4) The sensitivity of the matter;</P> <P>(5) The difficulty of reassigning the matter to another employee; and</P> <P>(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.</P> <P>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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Deputy Director of Personnel for the Department of the Treasury and an attorney with the Department's Office of General Counsel are general partners in a real estate partnership. The Deputy Director advises his supervisor, the Director of Personnel, of the relationship upon being assigned to a selection panel for a position for which his partner has applied. If selected, the partner would receive a substantial increase in salary. The agency designee cannot authorize the Deputy Director to participate on the panel under the authority of this section since the Deputy Director is prohibited by criminal statute, 18 U.S.C. 208(a), from participating in a particular matter affecting the financial interest of a person who is his general partner. See § 2635.402.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A new employee of the Securities and Exchange Commission is assigned to an investigation of insider trading by the brokerage house where she had recently been employed. Because of the sensitivity of the investigation, the agency designee may be unable to conclude that the Government's interest in the employee's participation in the investigation outweighs the concern that a reasonable person may question the integrity of the investigation, even though the employee has severed all financial ties with the company. Based on consideration of all relevant circumstances, the agency designee might determine, however, that it is in the interest of the Government for the employee to pass on a routine filing by the particular brokerage house.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An Internal Revenue Service employee involved in a long and complex tax audit is advised by her son that he has just accepted an entry-level management position with a corporation whose taxes are the subject of the audit. Because the audit is essentially complete and because the employee is the only one with an intimate knowledge of the case, the agency designee might determine, after considering all relevant circumstances, that it is in the Government's interest for the employee to complete the audit, which is subject to additional levels of review.</P> </EXAMPLE> <P>(e) <E T="03">Disqualification.</E> 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.</P> <P>(1) <E T="03">Notification.</E> 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 <PRTPAGE P="569"/>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.</P> <P>(2) <E T="03">Documentation.</E> 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.</P> <P>(f) <E T="03">Relevant considerations.</E> An employee's reputation for honesty and integrity is not a relevant consideration for purposes of any determination required by this section.</P> </SECTION> <SECTION> <SECTNO>§ 2635.503</SECTNO> <SUBJECT>Extraordinary payments from former employers.</SUBJECT> <P>(a) <E T="03">Disqualification requirement.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Following his confirmation hearings and one month before his scheduled swearing in, a nominee to the position of Assistant Secretary of a department received an extraordinary payment from his employer. For one year and 11 months after his swearing in, the Assistant Secretary may not participate in any particular matter to which his former employer is a party.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee received an extraordinary payment from her former employer, a coal mine operator, prior to entering on duty with the Department of the Interior. For two years thereafter, she may not participate in a determination regarding her former employer's obligation to reclaim a particular mining site, because her former employer is a party to the matter. However, she may help to draft reclamation legislation affecting all coal mining operations because this legislation does not involve any parties.</P> </EXAMPLE> <P>(b) <E T="03">Definitions.</E> For purposes of this section, the following definitions shall apply:</P> <P>(1) <E T="03">Extraordinary payment</E> means any item, including cash or an investment interest, with a value in excess of $10,000, which is paid:</P> <P>(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</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The vice president of a small corporation is nominated to be an ambassador. In recognition of his service to the corporation, the board of directors votes to pay him $50,000 upon his confirmation in addition to the regular severance payment provided for by the corporate bylaws. The regular severance payment is not an extraordinary payment. The gratuitous payment of $50,000 is an extraordinary payment, since the corporation had not made similar payments to other departing officers.</P> </EXAMPLE> <P>(2) <E T="03">Former employer</E> includes any person which the employee served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee.</P> <P>(c) <E T="03">Waiver of disqualification.</E> 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 <PRTPAGE P="570"/>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Seeking Other Employment</HD> <SECTION> <SECTNO>§ 2635.601</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>This subpart contains a disqualification requirement that applies to employees when seeking 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 disqualify himself from participation in any particular matter that will have a direct and predictable effect on the financial interests of a person “with whom he is negotiating or has any arrangement concerning prospective employment.” See § 2635.402 and § 2640.103 of this chapter. Beyond this statutory requirement, it also addresses the issues of lack of impartiality that require disqualification 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.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.602</SECTNO> <SUBJECT>Applicability and related considerations.</SUBJECT> <P>To ensure that he does not violate 18 U.S.C. 208(a) 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 shall comply with the applicable disqualification requirements of §§ 2635.604 and 2635.606 if particular matters in which the employee will be participating personally and substantially would directly and predictably affect the financial interests of a prospective employer or of a person with whom he 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>An employee who is seeking employment with a person whose financial interests are not affected directly and predictably by particular matters in which he participates personally and substantially has no obligation under this subpart. An employee may, however, be subject to other statutes which impose requirements on employment contacts or discussions, such as 41 U.S.C. 423(c), applicable to agency officials involved in certain procurement matters.</P> </NOTE> <P>(a) <E T="03">Related employment restrictions—</E>(1) <E T="03">Outside employment while a Federal employee.</E> An employee who is contemplating outside employment to be undertaken concurrently with his Federal employment must abide by any limitations applicable to his outside activities under subparts G and H of this part. He must also comply with any disqualification requirement that may be applicable under subpart D or E of this part as a result of his outside employment activities.</P> <P>(2) <E T="03">Post-employment restrictions.</E> An employee who is contemplating employment to be undertaken following the termination of his Federal employment should consult an agency ethics official to obtain advice regarding any post-employment restrictions that may be applicable. Regulations implementing the Governmentwide post-employment statute, 18 U.S.C. 207, are contained in parts 2637 and 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. 423(d).</P> <P>(b) <E T="03">Interview trips and entertainment.</E> 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).</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.603</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart:</P> <P>(a) <E T="03">Employment</E> means any form of non-Federal employment or business relationship involving the provision of <PRTPAGE P="571"/>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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Bureau of Indian Affairs who has announced her intention to retire is approached by tribal representatives concerning a possible consulting contract with the tribe. The independent contractual relationship the tribe wishes to negotiate is employment for purposes of this subpart.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Health and Human Services is invited to a meeting with officials of a nonprofit corporation to discuss the possibility of his serving as a member of the corporation's board of directors. Service, with or without compensation, as a member of the board of directors constitutes employment for purposes of this subpart.</P> </EXAMPLE> <P>(b) An employee is seeking employment once he has begun seeking employment within the meaning of paragraph (b)(1) of this section and until he is no longer seeking employment within the meaning of paragraph (b)(2) of this section.</P> <P>(1) An employee has begun seeking employment if he has directly or indirectly:</P> <P>(i) Engaged in negotiations for employment with any person. For these purposes, as for 18 U.S.C. 208(a), 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;</P> <P>(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:</P> <P>(A) For the sole purpose of requesting a job application; or</P> <P>(B) For the purpose of submitting a resume or other employment proposal to a person affected by the performance or nonperformance of the employee's duties only as part of an industry or other discrete class. The employee will be considered to have begun seeking employment upon receipt of any response indicating an interest in employment discussions; or</P> <P>(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.</P> <P>(2) An employee is no longer seeking employment when:</P> <P>(i) The employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have terminated; or</P> <P>(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.</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Health Care Financing Administration is complimented on her work by an official of a State Health Department who asks her to call if she is ever interested in leaving Federal service. The employee explains to the State official that she is very happy with her job at HCFA and is not interested in another job. She thanks him for his compliment regarding her work and adds that she'll remember his interest if she ever decides to leave the Government. The employee has rejected the unsolicited employment overture and has not begun seeking employment.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The employee in the preceding example responds by stating that she cannot discuss future employment while she is working on a project affecting the State's health care funding but would like to discuss employment with the State when the project is completed. Because the employee has merely deferred employment discussions until the foreseeable future, she has begun seeking employment with the State Health Department.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the Defense Contract Audit Agency is auditing the overhead accounts of an Army contractor. While at the contractor's headquarters, the head of the contractor's accounting division tells the employee that his division is thinking about <PRTPAGE P="572"/>hiring another accountant and asks whether the employee might be interested in leaving DCAA. The DCAA employee says he is interested in knowing what kind of work would be involved. They discuss the duties of the position the accounting division would like to fill and the DCAA employee's qualifications for the position. They do not discuss salary. The head of the division explains that he has not yet received authorization to fill the particular position and will get back to the employee when he obtains the necessary approval for additional staffing. The employee and the contractor's official have engaged in negotiations regarding possible employment. The employee has begun seeking employment with the Army contractor.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An employee of the Occupational Safety and Health Administration helping to draft safety standards applicable to the textile industry has mailed his resume to 25 textile manufacturers. He has not begun seeking employment with any of the twenty-five. If he receives a response from one of the resume recipients indicating an interest in employment discussions, the employee will have begun seeking employment with the respondent at that time.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>A special Government employee of the Federal Deposit Insurance Corporation is serving on an advisory committee formed for the purpose of reviewing rules applicable to all member banks. She mails an unsolicited letter to a member bank offering her services as a contract consultant. She has not begun seeking employment with the bank until she receives some response indicating an interest in discussing her employment proposal. A letter merely acknowledging receipt of the proposal is not an indication of interest in employment discussions.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>A geologist employed by the U.S. Geological Survey has been working as a member of a team preparing the Government's case in an action brought by the Government against six oil companies. The geologist sends her resume to an oil company that is a named defendant in the action. The geologist has begun seeking employment with that oil company and will be seeking employment for two months from the date the resume was mailed. However, if she withdraws her application or is notified within the two-month period that her resume has been rejected, she will no longer be seeking employment with the oil company as of the date she makes such withdrawal or receives such notification.</P> </EXAMPLE> <P>(c) <E T="03">Prospective employer</E> 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 includes:</P> <P>(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</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Federal Aviation Administration has overall responsibility for airport safety inspections in a three-state area. She has retained an employment search firm to help her find another job. The search firm has just reported to the FAA employee that it has given her resume to and had promising discussions with two airport authorities within her jurisdiction. Even though the employee has not personally had employment discussions with either, each airport authority is her prospective employer. She began seeking employment with each upon learning its identity and that it has been given her resume.</P> </EXAMPLE> <P>(d) <E T="03">Direct and predictable effect, particular matter,</E> and <E T="03">personal and substantial</E> have the respective meanings set forth in § 2635.402(b)(1), (3), and (4).</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.604</SECTNO> <SUBJECT>Disqualification while seeking employment.</SUBJECT> <P>(a) <E T="03">Obligation to disqualify.</E> Unless the employee's participation is authorized in accordance with § 2635.605, the employee shall not participate personally and substantially in a particular matter that, to his knowledge, has a direct and predictable effect on the financial interests of a prospective employer with whom he is seeking employment within the meaning of § 2635.603(b). Disqualification is accomplished by not participating in the particular matter.</P> <P>(b) <E T="03">Notification.</E> 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 <PRTPAGE P="573"/>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.</P> <P>(c) <E T="03">Documentation.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Veterans Affairs is participating in the audit of a contract for laboratory support services. Before sending his resume to a lab which is a subcontractor under the VA contract, the employee should disqualify himself from participation in the audit. Since he cannot withdraw from participation in the contract audit without the approval of his supervisor, he should disclose his intentions to his supervisor in order that appropriate adjustments in his work assignments can be made.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Food and Drug Administration is contacted in writing by a pharmaceutical company concerning possible employment with the company. The employee is involved in testing a drug for which the company is seeking FDA approval. Before making a response that is not a rejection, the employee should disqualify himself from further participation in the testing. Where he has authority to ask his colleague to assume his testing responsibilities, he may accomplish his disqualification by transferring the work to that coworker. However, to ensure that his colleague and others with whom he had been working on the recommendations do not seek his advice regarding testing or otherwise involve him in the matter, it may be necessary for him to advise those individuals of his disqualification.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The General Counsel of a regulatory agency wishes to engage in discussions regarding possible employment as corporate counsel of a regulated entity. Matters directly affecting the financial interests of the regulated entity are pending within the Office of General Counsel, but the General Counsel will not be called upon to act in any such matter because signature authority for that particular class of matters has been delegated to an Assistant General Counsel. Because the General Counsel is responsible for assigning work within the Office of General Counsel, he can in fact accomplish his disqualification by simply avoiding any involvement in matters affecting the regulated entity. However, because it is likely to be assumed by others that the General Counsel is involved in all matters within the cognizance of the Office of General Counsel, he would be wise to file a written disqualification statement with the Commissioners of the regulatory agency and provide his subordinates with written notification of his disqualification, or he may be specifically asked by an agency ethics official or the Commissioners to file a written disqualification statement.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>A scientist is employed by the National Science Foundation as a special Government employee to serve on a panel that reviews grant applications to fund research relating to deterioration of the ozone layer. She is discussing possible employment as a member of the faculty of a university that several years earlier received an NSF grant to study the effect of fluorocarbons, but has no grant application pending. As long as the university does not submit a new application for the panel's review, the employee would not have to take any action to effect disqualification.</P> </EXAMPLE> <P>(d) <E T="03">Agency determination of substantial conflict.</E> Where the agency determines that the employee's action in seeking employment with a particular person will require his 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, the agency may allow the employee to take annual leave or leave without pay while seeking employment, or may take other appropriate administrative action.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.605</SECTNO> <SUBJECT>Waiver or authorization permitting participation while seeking employment.</SUBJECT> <P>(a) <E T="03">Waiver.</E> Where, as defined in § 2635.603(b)(1)(i), an employee is engaged in discussions that constitute employment negotiations for purposes of 18 U.S.C. 208(a), the employee may participate personally and substantially in a particular matter that has a <PRTPAGE P="574"/>direct and predictable effect on the financial interests of a prospective employer only after receiving a written waiver issued under the authority of 18 U.S.C. 208(b)(1) or (b)(3). These waivers are described in § 2635.402(d). See also subpart C of part 2640 of this chapter. For certain employees, a regulatory exemption under the authority of 18 U.S.C. 208(b)(2) may also apply (see subpart B of part 2640 of this chapter). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Agriculture has had two telephone conversations with an orange grower regarding possible employment. They have discussed the employee's qualifications for a particular position with the grower, but have not yet discussed salary or other specific terms of employment. The employee is negotiating for employment within the meaning of 18 U.S.C. 208(a) and § 2635.603(b)(1)(i). In the absence of a written waiver issued under 18 U.S.C. 208(b)(1), she may not take official action on a complaint filed by a competitor alleging that the grower has shipped oranges in violation of applicable quotas.</P> </EXAMPLE> <P>(b) <E T="03">Authorization by agency designee.</E> Where an employee is seeking employment within the meaning of § 2635.603(b)(1) (ii) or (iii), a reasonable person would be likely to question his impartiality if he were to participate personally and substantially in a particular matter that 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 his participation in accordance with the standards set forth in § 2635.502(d). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Within the past month, an employee of the Education Department mailed her resume to a university. She is thus seeking employment with the university within the meaning of § 2635.603(b)(1)(ii) even though she has received no reply. In the absence of specific authorization by the agency designee in accordance with § 2635.502(d), she may not participate in an assignment to review a grant application submitted by the university.</P> </EXAMPLE> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.606</SECTNO> <SUBJECT>Disqualification based on an arrangement concerning prospective employment or otherwise after negotiations.</SUBJECT> <P>(a) <E T="03">Employment or arrangement concerning employment.</E> An employee shall be disqualified from participating personally and substantially in a particular matter that has a direct and predictable effect on the financial interests of the person by whom he is employed or with whom he 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 (b)(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). See also subparts B and C of part 2640 of this chapter. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A military officer has accepted a job with a defense contractor to begin in six months, after his retirement from military service. During the period that he remains with the Government, the officer may not participate in the administration of a contract with that particular defense contractor unless he has received a written waiver under the authority of 18 U.S.C. 208(b)(1).</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An accountant has just been offered a job with the Comptroller of the Currency which involves a two-year limited appointment. Her private employer, a large corporation, believes the job will enhance her skills and has agreed to give her a two-year unpaid leave of absence at the end of which she has agreed to return to work for the corporation. During the two-year period she is to be a COC employee, the accountant will have an arrangement concerning future employment with the corporation that will require her disqualification from participation in any particular matter that will have a direct and predictable effect on the corporation's financial interests.</P> </EXAMPLE> <P>(b) <E T="03">Offer rejected or not made.</E> 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 shall be subject to a period of disqualification upon the conclusion of employment negotiations. Any such determination <PRTPAGE P="575"/>shall 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 decisionmaking process outweighs the Government's interest in the employee's participation in the particular matter. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Securities and Exchange Commission was relieved of responsibility for an investigation of a broker-dealer while seeking employment with the law firm representing the broker-dealer in that matter. The firm did not offer her the partnership position she sought. Even though she is no longer seeking employment with the firm, she may continue to be disqualified from participating in the investigation based on a determination by the agency designee that the concern that a reasonable person might question whether, in view of the history of the employment negotiations, she could act impartially in the matter outweighs the Government's interest in her participation.</P> </EXAMPLE> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 64 FR 13064, Mar. 17, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Misuse of Position</HD> <SECTION> <SECTNO>§ 2635.701</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>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:</P> <P>(a) Use of public office for private gain;</P> <P>(b) Use of nonpublic information;</P> <P>(c) Use of Government property; and</P> <P>(d) Use of official time.</P> </SECTION> <SECTION> <SECTNO>§ 2635.702</SECTNO> <SUBJECT>Use of public office for private gain.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Inducement or coercion of benefits.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Offering to pursue a relative's consumer complaint over a household appliance, an employee of the Securities and Exchange Commission called the general counsel of the manufacturer and, in the course of discussing the problem, stated that he worked at the SEC and was responsible for reviewing the company's filings. The employee violated the prohibition against use of public office for private gain by invoking his official authority in an attempt to influence action to benefit his relative.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Commerce was asked by a friend to determine why his firm's export license had not yet been granted by another office within the Department of Commerce. At a department-level staff meeting, the employee raised as a matter for official inquiry the delay in approval of the particular license and asked that the particular license be expedited. The official used her public office in an attempt to benefit her friend and, in acting as her friend's agent for the purpose of pursuing the export license with the Department of Commerce, may also have violated 18 U.S.C. 205.</P> </EXAMPLE> <P>(b) <E T="03">Appearance of governmental sanction.</E> 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 <PRTPAGE P="576"/>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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of the Treasury who is asked to provide a letter of recommendation for a former subordinate on his staff may provide the recommendation using official stationery and may sign the letter using his official title. If, however, the request is for the recommendation of a personal friend with whom he has not dealt in the Government, the employee should not use official stationery or sign the letter of recommendation using his official title, unless the recommendation is for Federal employment. In writing the letter of recommendation for his personal friend, it may be appropriate for the employee to refer to his official position in the body of the letter.</P> </EXAMPLE> <P>(c) <E T="03">Endorsements.</E> 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:</P> <P>(1) In furtherance of statutory authority to promote products, services or enterprises; or</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Commissioner of the Consumer Product Safety Commission may not appear in a television commercial in which she endorses an electrical appliance produced by her former employer, stating that it has been found by the CPSC to be safe for residential use.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Foreign Commercial Service officer from the Department of Commerce is asked by a United States telecommunications company to meet with representatives of the Government of Spain, which is in the process of procuring telecommunications services and equipment. The company is bidding against five European companies and the statutory mission of the Department of Commerce includes assisting the export activities of U.S. companies. As part of his official duties, the Foreign Commercial Service officer may meet with Spanish officials and explain the advantages of procurement from the United States company.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The Administrator of the Environmental Protection Agency may sign a letter to an oil company indicating that its refining operations are in compliance with Federal air quality standards even though he knows that the company has routinely displayed letters of this type in television commercials portraying it as a “trustee of the environment for future generations.”</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An Assistant Attorney General may not use his official title or refer to his Government position in a book jacket endorsement of a novel about organized crime written by an author whose work he admires. Nor may he do so in a book review published in a newspaper.</P> </EXAMPLE> <P>(d) <E T="03">Performance of official duties affecting a private interest.</E> 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.</P> <P>(e) <E T="03">Use of terms of address and ranks.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.703</SECTNO> <SUBJECT>Use of nonpublic information.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">Definition of nonpublic information.</E> For purposes of this section, <E T="03">nonpublic information</E> 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:</P> <P>(1) Is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive order or regulation;<PRTPAGE P="577"/> </P> <P>(2) Is designated as confidential by an agency; or</P> <P>(3) Has not actually been disseminated to the general public and is not authorized to be made available to the public on request. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Navy employee learns in the course of her duties that a small corporation will be awarded a Navy contract for electrical test equipment. She may not take any action to purchase stock in the corporation or its suppliers and she may not advise friends or relatives to do so until after public announcement of the award. Such actions could violate Federal securities statutes as well as this section.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A General Services Administration employee involved in evaluating proposals for a construction contract cannot disclose the terms of a competing proposal to a friend employed by a company bidding on the work. Prior to award of the contract, bid or proposal information is nonpublic information specifically protected by 41 U.S.C. 423.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee is a member of a source selection team assigned to review the proposals submitted by several companies in response to an Army solicitation for spare parts. As a member of the evaluation team, the employee has access to proprietary information regarding the production methods of Alpha Corporation, one of the competitors. He may not use that information to assist Beta Company in drafting a proposal to compete for a Navy spare parts contract. The Federal Acquisition Regulation in 48 CFR parts 3, 14 and 15 restricts the release of information related to procurements and other contractor information that must be protected under 18 U.S.C. 1905 and 41 U.S.C. 423.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An employee of the Nuclear Regulatory Commission inadvertently includes a document that is exempt from disclosure with a group of documents released in response to a Freedom of Information Act request. Regardless of whether the document is used improperly, the employee's disclosure does not violate this section because it was not a knowing unauthorized disclosure made for the purpose of furthering a private interest.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An employee of the Army Corps of Engineers is actively involved in the activities of an organization whose goals relate to protection of the environment. The employee may not, other than as permitted by agency procedures, give the organization or a newspaper reporter nonpublic information about long-range plans to build a particular dam.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2635.704</SECTNO> <SUBJECT>Use of Government property.</SUBJECT> <P>(a) <E T="03">Standard.</E> 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.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Government property</E> 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.</P> <P>(2) <E T="03">Authorized purposes</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Under regulations of the General Services Administration at 41 CFR 101-35.201, an employee may make a personal long distance call charged to her personal calling card.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Commodity Futures Trading Commission whose office computer gives him access to a commercial service providing information for investors may not use that service for personal investment research.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>In accordance with Office of Personnel Management regulations at part 251 of this title, an attorney employed by the Department of Justice may be permitted to use her office word processor and agency photocopy equipment to prepare a paper to be presented at a conference sponsored by a professional association of which she is a member.</P> </EXAMPLE> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.705</SECTNO> <SUBJECT>Use of official time.</SUBJECT> <P>(a) <E T="03">Use of an employee's own time.</E> 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 <PRTPAGE P="578"/>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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Social Security Administration may use official time to engage in certain representational activities on behalf of the employee union of which she is a member. Under 5 U.S.C. 7131, this is a proper use of her official time even though it does not involve performance of her assigned duties as a disability claims examiner.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A pharmacist employed by the Department of Veterans Affairs has been granted excused absence to participate as a speaker in a conference on drug abuse sponsored by the professional association to which he belongs. Although excused absence granted by an agency in accordance with guidance in chapter 630 of the Federal Personnel Manual allows an employee to be absent from his official duties without charge to his annual leave account, such absence is not on official time.</P> </EXAMPLE> <P>(b) <E T="03">Use of a subordinate's time.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Housing and Urban Development may not ask his secretary to type his personal correspondence during duty hours. Further, directing or coercing a subordinate to perform such activities during nonduty hours constitutes an improper use of public office for private gain in violation of § 2635.702(a). Where the arrangement is entirely voluntary and appropriate compensation is paid, the secretary may type the correspondence at home on her own time. Where the compensation is not adequate, however, the arrangement would involve a gift to the superior in violation of the standards in subpart C of this part.</P> </EXAMPLE> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Outside Activities</HD> <SECTION> <SECTNO>§ 2635.801</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) The prohibition on outside employment or any other outside activity that conflicts with the employee's official duties;</P> <P>(2) Any agency-specific requirement for prior approval of outside employment or activities;</P> <P>(3) The limitations on receipt of outside earned income by certain Presidential appointees and other noncareer employees;</P> <P>(4) The limitations on paid and unpaid service as an expert witness;</P> <P>(5) The limitations on participation in professional organizations;</P> <P>(6) The limitations on paid and unpaid teaching, speaking, and writing; and</P> <P>(7) The limitations on fundraising activities.</P> <P>(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.</P> <P>(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:</P> <P>(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;<PRTPAGE P="579"/> </P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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 <E T="03">et seq.;</E> </P> <P>(7) The Hatch Act Reform Amendments, 5 U.S.C. 7321 through 7326, which govern the political activities of executive branch employees; and</P> <P>(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.</P> <CITA>[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992; 61 FR 50691, Sept. 27, 1996; 62 FR 48748, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.802</SECTNO> <SUBJECT>Conflicting outside employment and activities.</SUBJECT> <P>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:</P> <P>(a) If it is prohibited by statute or by an agency supplemental regulation; or</P> <P>(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.</P> <P>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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Environmental Protection Agency has just been promoted. His principal duty in his new position is to write regulations relating to the disposal of hazardous waste. The employee may <PRTPAGE P="580"/>not continue to serve as president of a nonprofit environmental organization that routinely submits comments on such regulations. His service as an officer would require his disqualification from duties critical to the performance of his official duties on a basis so frequent as to materially impair his ability to perform the duties of his position.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Occupational Safety and Health Administration who was and is expected again to be instrumental in formulating new OSHA safety standards applicable to manufacturers that use chemical solvents has been offered a consulting contract to provide advice to an affected company in restructuring its manufacturing operations to comply with the OSHA standards. The employee should not enter into the consulting arrangement even though he is not currently working on OSHA standards affecting this industry and his consulting contract can be expected to be completed before he again works on such standards. Even though the consulting arrangement would not be a conflicting activity within the meaning of § 2635.802, it would create an appearance that the employee had used his official position to obtain the compensated outside business opportunity and it would create the further appearance of using his public office for the private gain of the manufacturer.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2635.803</SECTNO> <SUBJECT>Prior approval for outside employment and activities.</SUBJECT> <P>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.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 59 FR 4780, Feb. 2, 1994; 60 FR 6391, Feb. 2, 1995; 60 FR 66858, Dec. 27, 1995; 61 FR 40951, Aug. 7, 1996; 62 FR 48748, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.804</SECTNO> <SUBJECT>Outside earned income limitations applicable to certain Presidential appointees and other noncareer employees.</SUBJECT> <P>(a) <E T="03">Presidential appointees to full-time noncareer positions.</E> 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.</P> <P>(b) <E T="03">Covered noncareer employees.</E> 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. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Outside earned income</E> has the meaning set forth in § 2636.303(b) of this chapter, except that § 2636.303(b)(8) shall not apply.</P> <P>(2) <E T="03">Presidential appointee to a full-time noncareer position</E> 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:</P> <P>(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;</P> <P>(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;<PRTPAGE P="581"/> </P> <P>(iii) A position within the uniformed services; or</P> <P>(iv) A position in which a member of the foreign service is serving that does not require advice and consent of the Senate. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A career Department of Justice employee who is detailed to a policy-making position in the White House Office that is ordinarily filled by a noncareer employee is not a Presidential appointee to a full-time noncareer position.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Department of Energy employee appointed under § 213.3301 of this title to a Schedule C position is appointed by the agency and, thus, is not a Presidential appointee to a full-time noncareer position.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2635.805</SECTNO> <SUBJECT>Service as an expert witness.</SUBJECT> <P>(a) <E T="03">Restriction.</E> 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.</P> <P>(b) <E T="03">Additional restriction applicable to certain special Government employees.</E> (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.</P> <P>(2) The restriction in paragraph (b)(1) of this section shall apply to a special Government employee who:</P> <P>(i) Is appointed by the President;</P> <P>(ii) Serves on a commission established by statute; or</P> <P>(iii) Has served or is expected to serve for more than 60 days in a period of 365 consecutive days.</P> <P>(c) <E T="03">Authorization to serve as an expert witness.</E> 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:</P> <P>(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</P> <P>(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).</P> <P>(d) Nothing in this section prohibits an employee from serving as a fact witness when subpoenaed by an appropriate authority.</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.806</SECTNO> <RESERVED>Participation in professional associations. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2635.807</SECTNO> <SUBJECT>Teaching, speaking and writing.</SUBJECT> <P>(a) <E T="03">Compensation for teaching, speaking or writing.</E> 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.</P> <P>(1) <E T="03">Relationship to other limitations on receipt of compensation.</E> The compensation prohibition contained in this section is in addition to any other limitation on receipt of compensation set forth in this chapter, including:</P> <P>(i) The requirement contained in § 2636.307 of this chapter that covered noncareer employees obtain advance <PRTPAGE P="582"/>authorization before engaging in teaching for compensation; and</P> <P>(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.</P> <P>(2) <E T="03">Definitions.</E> For purposes of this paragraph:</P> <P>(i) Teaching, speaking or writing relates to the employee's official duties if:</P> <P>(A) The activity is undertaken as part of the employee's official duties;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(E) Except as provided in paragraph (a)(2)(i)(E)(<E T="03">4</E>) of this section, the subject of the activity deals in significant part with:</P> <P>(<E T="03">1</E>) Any matter to which the employee presently is assigned or to which the employee had been assigned during the previous one-year period;</P> <P>(<E T="03">2</E>) Any ongoing or announced policy, program or operation of the agency; or</P> <P>(<E T="03">3</E>) 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.</P> <P>(<E T="03">4</E>) The restrictions in paragraphs (a)(2)(i)(E) (<E T="03">2</E>) and (<E T="03">3</E>) of this section do not apply to a special Government employee. The restriction in paragraph (a)(2)(i)(E)(<E T="03">1</E>) 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Director of the Division of Enforcement at the Commodity Futures Trading Commission has a keen interest in stamp collecting and has spent years developing his own collection as well as studying the field generally. He is asked by an international society of philatelists to give a series of four lectures on how to assess the value of American stamps. Because the subject does not relate to his official duties, the Director may accept compensation for the lecture series. He could not, however, accept a similar invitation from a commodities broker.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A scientist at the National Institutes of Health, whose principal area of Government research is the molecular basis of the development of cancer, could not be compensated for writing a book which focuses specifically on the research she conducts in her position at NIH, and thus, relates to her official duties. However, the scientist could receive compensation for writing or editing a textbook on the treatment of all cancers, provided that the book does not focus on recent research at NIH, but rather conveys scientific knowledge gleaned from the scientific community as a whole. The book might include a chapter, among many other chapters, which discusses the molecular basis of cancer development. Additionally, the book could contain brief discussions of recent developments in cancer treatment, even though some of those developments are derived from NIH research, as long as it is available to the public.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>On his own time, a National Highway Traffic Safety Administration employee prepared a consumer's guide to purchasing a safe automobile that focuses on automobile crash worthiness statistics gathered and made public by NHTSA. He may not receive royalties or any other form of compensation for the guide. The guide deals in significant part with the programs or operations of NHTSA and, therefore, relates to the employee's official duties. On the other hand, the employee could receive royalties <PRTPAGE P="583"/>from the sale of a consumer's guide to values in used automobiles even though it contains a brief, incidental discussion of automobile safety standards developed by NHTSA.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An employee of the Securities and Exchange Commission may not receive compensation for a book which focuses specifically on the regulation of the securities industry in the United States, since that subject concerns the regulatory programs or operations of the SEC. The employee may, however, write a book about the advantages of investing in various types of securities as long as the book contains only an incidental discussion of any program or operation of the SEC.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An employee of the Department of Commerce who works in the Department's employee relations office is an acknowledged expert in the field of Federal employee labor relations, and participates in Department negotiations with employee unions. The employee may receive compensation from a private training institute for a series of lectures which describe the decisions of the Federal Labor Relations Authority concerning unfair labor practices, provided that her lectures do not contain any significant discussion of labor relations cases handled at the Department of Commerce, or the Department's labor relations policies. Federal Labor Relations Authority decisions concerning Federal employee unfair labor practices are not a specific program or operation of the Department of Commerce and thus do not relate to the employee's official duties. However, an employee of the FLRA could not give the same presentations for compensation.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>A program analyst employed at the Environmental Protection Agency may receive royalties and other compensation for a book about the history of the environmental movement in the United States even though it contains brief references to the creation and responsibilities of the EPA. A covered noncareer employee of the EPA, however, could not receive compensation for writing the same book because it deals with the general subject matter area affected by EPA programs and operations. Neither employee could receive compensation for writing a book that focuses on specific EPA regulations or otherwise on its programs and operations.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 7:</HD> <P>An attorney in private practice has been given a one year appointment as a special Government employee to serve on an advisory committee convened for the purpose of surveying and recommending modification of procurement regulations that deter small businesses from competing for Government contracts. Because his service under that appointment is not expected to exceed 60 days, the attorney may accept compensation for an article about the anticompetitive effects of certain regulatory certification requirements even though those regulations are being reviewed by the advisory committee. The regulations which are the focus of the advisory committee deliberations are not a particular matter involving specific parties. Because the information is nonpublic, he could not, however, accept compensation for an article which recounts advisory committee deliberations that took place in a meeting closed to the public in order to discuss proprietary information provided by a small business.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 8:</HD> <P>A biologist who is an expert in marine life is employed for more than 60 days in a year as a special Government employee by the National Science Foundation to assist in developing a program of grants by the Foundation for the study of coral reefs. The biologist may continue to receive compensation for speaking, teaching and writing about marine life generally and coral reefs specifically. However, during the term of her appointment as a special Government employee, she may not receive compensation for an article about the NSF program she is participating in developing. Only the latter would concern a matter to which the special Government employee is assigned.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 9:</HD> <P>An expert on international banking transactions has been given a one-year appointment as a special Government employee to assist in analyzing evidence in the Government's fraud prosecution of owners of a failed savings and loan association. It is anticipated that she will serve fewer than 60 days under that appointment. Nevertheless, during her appointment, the expert may not accept compensation for an article about the fraud prosecution, even though the article does not reveal nonpublic information. The prosecution is a particular matter that involves specific parties.</P> </EXAMPLE> <P>(ii) <E T="03">Agency</E> 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.</P> <P>(iii) <E T="03">Compensation</E> 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:<PRTPAGE P="584"/> </P> <P>(A) Items offered by any source that could be accepted from a prohibited source under subpart B of this part;</P> <P>(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;</P> <P>(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</P> <P>(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. </P> <NOTE> <HD SOURCE="HED">Note to Paragraph (a)(2)(iii):</HD> <P>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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1 to paragraph (a)(2)(iii):</HD> <P>A GS-15 employee of the Forest Service has developed and marketed, in her private capacity, a speed reading technique for which popular demand is growing. She is invited to speak about the technique by a representative of an organization that will be substantially affected by a regulation on land management which the employee is in the process of drafting for the Forest Service. The representative offers to pay the employee a $200 speaker's fee and to reimburse all her travel expenses. She may accept the travel reimbursements, but not the speaker's fee. The speaking activity is related to her official duties under § 2635.807(a)(2)(i)(C) and the fee is prohibited compensation for such speech; travel expenses incurred in connection with the speaking engagement, on the other hand, are not prohibited compensation for a GS-15 employee. </P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2 to paragraph (a)(2)(iii):</HD> <P>Solely because of her recent appointment to a Cabinet-level position, a Government official is invited by the Chief Executive Officer of a major international corporation to attend firm meetings to be held in Aspen for the purpose of addressing senior corporate managers on the importance of recreational activities to a balanced lifestyle. The firm offers to reimburse the official's travel expenses. The official may not accept the offer. The speaking activity is related to official duties under § 2635.807(a)(2)(i)(B) and, because she is a covered noncareer employee as defined in § 2636.303(a) of this chapter, the travel expenses are prohibited compensation as to her. </P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3 to paragraph (a)(2)(iii):</HD> <P>A GS-14 attorney at the Federal Trade Commission (FTC) who played a lead role in a recently concluded merger case is invited to speak about the case, in his private capacity, at a conference in New York. The attorney has no public speaking responsibilities on behalf of the FTC apart from the judicial and administrative proceedings to which he is assigned. The sponsors of the conference offer to reimburse the attorney for expenses incurred in connection with his travel to New York. They also offer him, as compensation for his time and effort, a free trip to San Francisco. The attorney may accept the travel expenses to New York, but not the expenses to San Francisco. The lecture relates to his official duties under paragraphs (a)(2)(i)(E)(<E T="03">1</E>) and (a)(2)(i)(E)(<E T="03">2</E>) of § 2635.807, but because he is not a covered noncareer employee as defined in § 2636.303(a) of this chapter, the expenses associated with his travel to New York are not a prohibited form of compensation as to him. The travel expenses to San Francisco, on the other hand, not incurred in connection with the speaking activity, are a prohibited form of compensation. If the attorney were a covered noncareer employee he would be barred from accepting the travel expenses to New York as well as the travel expenses to San Francisco.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4 to paragraph (a)(2)(iii):</HD> <P>An advocacy group dedicated to improving treatments for severe pain asks the NationalInstitutes of Health (NIH) to provide a conference speaker who can discuss recent advances in the agency's research on pain. The group also offers to pay the employee's travel expenses to attend the conference. After performing the required conflict of interest analysis, NIH authorizes acceptance of the travel expenses under 31 U.S.C. 1353 and the implementing General Services Administration regulation, as codified under 41 CFR chapter 304, and authorizes an employee to undertake the travel. At the conference the advocacy group, as agreed, pays the employee's hotel bill and provides several of his meals. Subsequently the group reimburses the agency for the cost of the employee's airfare and some additional meals. All of the payments by the advocacy group are permissible. Since the employee is speaking officially and the expense payments are accepted under 31 U.S.C. 1353, they are not prohibited compensation under § 2635.807(a)(2)(iii). The same result would obtain with respect to expense payments made by non-Government sources properly authorized under an agency <PRTPAGE P="585"/>gift acceptance statute, the Government Employees Training Act, 5 U.S.C. 4111, or the foreign gifts law,5 U.S.C. 7342. </P> </EXAMPLE> <P>(iv) <E T="03">Receive</E> 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:</P> <P>(A) Paid to another person, including a charitable organization, on the basis of designation, recommendation or other specification by the employee; or</P> <P>(B) Paid with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative.</P> <P>(v) <E T="03">Particular matter involving specific parties</E> has the meaning set forth in § 2637.102(a)(7) of this chapter.</P> <P>(vi) <E T="03">Personal and substantial participation</E> has the meaning set forth in § 2635.402(b)(4).</P> <P>(3) <E T="03">Exception for teaching certain courses.</E> 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:</P> <P>(i) The regularly established curriculum of:</P> <P>(A) An institution of higher education as defined at 20 U.S.C. 1141(a);</P> <P>(B) An elementary school as defined at 20 U.S.C. 2891(8); or</P> <P>(C) A secondary school as defined at 20 U.S.C. 2891(21); or</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Cost Accounting Standards Board who teaches an advanced accounting course as part of the regular business school curriculum of an accredited university may receive compensation for teaching the course even though a substantial portion of the course deals with cost accounting principles applicable to contracts with the Government.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An attorney employed by the Equal Employment Opportunity Commission may accept compensation for teaching a course at a state college on the subject of Federal employment discrimination law. The attorney could not accept compensation for teaching the same seminar as part of a continuing education program sponsored by her bar association because the subject of the course is focused on the operations or programs of the EEOC and the sponsor of the course is not an accredited educational institution.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the National Endowment for the Humanities is invited by a private university to teach a course that is a survey of Government policies in support of artists, poets and writers. As part of his official duties, the employee administers a grant that the university has received from the NEH. The employee may not accept compensation for teaching the course because the university has interests that may be substantially affected by the performance or nonperformance of the employee's duties. Likewise, an employee may not receive compensation for any teaching that is undertaken as part of his official duties or that involves the use of nonpublic information.</P> </EXAMPLE> <P>(b) <E T="03">Reference to official position.</E> 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:</P> <P>(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;</P> <P>(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</P> <P>(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 <PRTPAGE P="586"/>of that term of address or rank in connection with his teaching, speaking or writing. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A meteorologist employed with the National Oceanic and Atmospheric Administration is asked by a local university to teach a graduate course on hurricanes. The university may include the meteorologist's Government title and position together with other information about his education and previous employment in course materials setting forth biographical data on all teachers involved in the graduate program. However, his title or position may not be used to promote the course, for example, by featuring the meteorologist's Government title, Senior Meteorologist, NOAA, in bold type under his name. In contrast, his title may be used in this manner when the meteorologist is authorized by NOAA to speak in his official capacity.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A doctor just employed by the Centers for Disease Control has written a paper based on his earlier independent research into cell structures. Incident to the paper's publication in the Journal of the American Medical Association, the doctor may be given credit for the paper, as Dr. M. Wellbeing, Associate Director, Centers for Disease Control, provided that the article also contains a disclaimer, concurred in by the CDC, indicating that the paper is the result of the doctor's independent research and does not represent the findings of the CDC.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the Federal Deposit Insurance Corporation has been asked to give a speech in his private capacity, without compensation, to the annual meeting of a committee of the American Bankers Association on the need for banking reform. The employee may be described in his introduction at the meeting as an employee of the Federal Deposit Insurance Corporation provided that other pertinent biographical details are mentioned as well.</P> </EXAMPLE> <CITA>[57 FR 35042, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 65 FR 53652, Sept. 5, 2000; 66 FR 59674, Nov. 30, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.808</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Definitions.</E> For purposes of this section: (1) <E T="03">Fundraising</E> means the raising of funds for a nonprofit organization, other than a political organization as defined in 26 U.S.C. 527(e), through:</P> <P>(i) Solicitation of funds or sale of items; or</P> <P>(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.</P> <P>(2) <E T="03">Participation in the conduct of an event</E> 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. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Secretary of Transportation has been asked to serve as master of ceremonies for an All-Star Gala. Tickets to the event cost $150 and are tax deductible as a <PRTPAGE P="587"/>charitable donation, with proceeds to be donated to a local hospital. By serving as master of ceremonies, the Secretary would be participating in fundraising.</P> </EXAMPLE> <P>(3) <E T="03">Official speech</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Secretary of Labor is invited to speak at a banquet honoring a distinguished labor leader, the proceeds of which will benefit a nonprofit organization that assists homeless families. She devotes a major portion of her speech to the Administration's Points of Light initiative, an effort to encourage citizens to volunteer their time to help solve serious social problems. Because she is authorized to speak on Administration policy, her remarks at the banquet are an official speech. However, the Secretary would be engaged in fundraising if she were to conclude her official speech with a request for donations to the nonprofit organization.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A charitable organization is sponsoring a two-day tennis tournament at a country club in the Washington, DC area to raise funds for recreational programs for learning disabled children. The organization has invited the Secretary of Education to give a speech on federally funded special education programs at the awards dinner to be held at the conclusion of the tournament and a determination has been made that the dinner is an appropriate forum for the particular speech. The Secretary may speak at the dinner and, under § 2635.204(g)(1), he may partake of the meal provided to him at the dinner.</P> </EXAMPLE> <P>(4) <E T="03">Personally solicit</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Energy who signs a letter soliciting funds for a local private school does not “personally solicit” funds when 500 copies of the letter, which makes no mention of his DOE position and title, are mailed to members of the local community, even though some individuals who are employed by Department of Energy contractors may receive the letter.</P> </EXAMPLE> <P>(b) <E T="03">Fundraising in an official capacity.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Because participation in his official capacity is authorized under part 950 of this title, the Secretary of the Army may sign a memorandum to all Army personnel encouraging them to donate to the Combined Federal Campaign.</P> </EXAMPLE> <P>(c) <E T="03">Fundraising in a personal capacity.</E> An employee may engage in fundraising in his personal capacity provided that he does not:</P> <P>(1) Personally solicit funds or other support from a subordinate or from any person:</P> <P>(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</P> <P>(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 <PRTPAGE P="588"/>person whose interests may be substantially affected by performance or nonperformance of his official duties;</P> <P>(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</P> <P>(3) Engage in any action that would otherwise violate this part. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A nonprofit organization is sponsoring a golf tournament to raise funds for underprivileged children. The Secretary of the Navy may not enter the tournament with the understanding that the organization intends to attract participants by offering other entrants the opportunity, in exchange for a donation in the form of an entry fee, to spend the day playing 18 holes of golf in a foursome with the Secretary of the Navy.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Merit Systems Protection Board may not use the agency's photocopier to reproduce fundraising literature for her son's private school. Such use of the photocopier would violate the standards at § 2635.704 regarding use of Government property.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An Assistant Attorney General may not sign a letter soliciting funds for a homeless shelter as “John Doe, Assistant Attorney General.” He also may not sign a letter with just his signature, “John Doe,” soliciting funds from a prohibited source, unless the letter is one of many identical, mass-produced letters addressed to a large group where the solicitation is not known to him to be targeted at persons who are either prohibited sources or subordinates.</P> </EXAMPLE> <CITA>[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992; 61 FR 50691, Sept. 27, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2635.809</SECTNO> <SUBJECT>Just financial obligations.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Related Statutory Authorities</HD> <SECTION> <SECTNO>§ 2635.901</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2635.902</SECTNO> <SUBJECT>Related statutes.</SUBJECT> <P>(a) The prohibition against solicitation or receipt of bribes (18 U.S.C. 201(b)).</P> <P>(b) The prohibition against solicitation or receipt of illegal gratuities (18 U.S.C. 201(c)).</P> <P>(c) The prohibition against seeking or receiving compensation for certain representational services before the Government (18 U.S.C. 203).</P> <P>(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).</P> <P>(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).</P> <P>(f) The prohibition on certain former agency officials’ acceptance of compensation from a contractor (41 U.S.C. 423(d)).<PRTPAGE P="589"/> </P> <P>(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).</P> <P>(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)).</P> <P>(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).</P> <P>(j) The prohibition against gifts to superiors (5 U.S.C. 7351).</P> <P>(k) The prohibition against solicitation or receipt of gifts from specified prohibited sources (5 U.S.C. 7353).</P> <P>(l) The prohibition against fraudulent access and related activity in connection with computers (18 U.S.C. 1030).</P> <P>(m) The provisions governing receipt and disposition of foreign gifts and decorations (5 U.S.C. 7342).</P> <P>(n) [Reserved]</P> <P>(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> <P>(p) The prohibitions against disloyalty and striking (5 U.S.C. 7311 and 18 U.S.C. 1918).</P> <P>(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).</P> <P>(r) The prohibition against employment of a person convicted of participating in or promoting a riot or civil disorder (5 U.S.C. 7313).</P> <P>(s) The prohibition against employment of an individual who habitually uses intoxicating beverages to excess (5 U.S.C. 7352).</P> <P>(t) The prohibition against misuse of a Government vehicle (31 U.S.C. 1344).</P> <P>(u) The prohibition against misuse of the franking privilege (18 U.S.C. 1719).</P> <P>(v) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).</P> <P>(w) The prohibition against concealing, mutilating or destroying a public record (18 U.S.C. 2071).</P> <P>(x) The prohibition against counterfeiting or forging transportation requests (18 U.S.C. 508).</P> <P>(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).</P> <P>(z) The prohibitions against disclosure of classified information (18 U.S.C. 798 and 50 U.S.C. 783(a)).</P> <P>(aa) The prohibition against disclosure of proprietary information and certain other information of a confidential nature (18 U.S.C. 1905).</P> <P>(bb) The prohibitions on disclosing and obtaining certain procurement information (41 U.S.C. 423(a) and (b)).</P> <P>(cc) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).</P> <P>(dd) The prohibition against certain personnel practices (5 U.S.C. 2302).</P> <P>(ee) The prohibition against interference with civil service examinations (18 U.S.C. 1917).</P> <P>(ff) The restrictions on use of public funds for lobbying (18 U.S.C. 1913).</P> <P>(gg) The prohibition against participation in the appointment or promotion of relatives (5 U.S.C. 3110).</P> <P>(hh) The prohibition against solicitation or acceptance of anything of value to obtain public office for another (18 U.S.C. 211).</P> <P>(ii) The prohibition against conspiracy to commit an offense against or to defraud the United States (18 U.S.C. 371).</P> <P>(jj) The prohibition against embezzlement or conversion of Government money or property (18 U.S.C. 641).</P> <P>(kk) The prohibition against failing to account for public money (18 U.S.C. 643).</P> <P>(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).</P> <CITA>[57 FR 35042, Aug. 7, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 64 FR 2422, Jan. 14, 1999; 65 FR 69657, Nov. 20, 2000]</CITA> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="590"/> <EAR>Pt. 2636</EAR> <HD SOURCE="HED">PART 2636—LIMITATIONS ON OUTSIDE EARNED INCOME, EMPLOYMENT AND AFFILIATIONS FOR CERTAIN NONCAREER EMPLOYEES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2636.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2636.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2636.103</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> <SECTNO>2636.104</SECTNO> <SUBJECT>Civil, disciplinary and other action.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart B[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Outside Earned Income Limitation and Employment and Affiliation Restrictions Applicable to Certain Noncareer Employees</HD> <SECTNO>2636.301</SECTNO> <SUBJECT>General standards.</SUBJECT> <SECTNO>2636.302</SECTNO> <SUBJECT>Relationship to other laws and regulations.</SUBJECT> <SECTNO>2636.303</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2636.304</SECTNO> <SUBJECT>The 15 percent limitation on outside earned income.</SUBJECT> <SECTNO>2636.305</SECTNO> <SUBJECT>Compensation and other restrictions relating to professions involving a fiduciary relationship.</SUBJECT> <SECTNO>2636.306</SECTNO> <SUBJECT>Compensation restriction applicable to service as an officer or member of a board.</SUBJECT> <SECTNO>2636.307</SECTNO> <SUBJECT>Requirement for advance authorization to engage in teaching for compensation.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Sec. 31001, Pub. L. 104-134, 110 Stat. 1321 (Debt Collection Improvement Act of 1996); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 1723, Jan. 17, 1991, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2636.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <CITA>[63 FR 43068, Aug. 12, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Agency ethics official</E> 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.</P> <P>(b) <E T="03">Designated agency ethics official</E> refers to the official described in § 2638.201 of this subchapter.</P> <P>(c) <E T="03">Employee</E> 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.</P> <P>(d) <E T="03">Executive branch</E> 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.</P> <P>(e) The terms <E T="03">he, his,</E> and <E T="03">him</E> include “she,” “hers” and “her.”</P> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 63 FR 43068, Aug. 12, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.103</SECTNO> <SUBJECT>Advisory opinions.</SUBJECT> <P>(a) <E T="03">Request for an advisory opinion.</E> (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.</P> <P>(2) An advisory opinion may not be obtained for the purpose of establishing:</P> <P>(i) Whether a particular entity qualifies as a charitable organization to which a payment in lieu of honoraria may be excluded from the definition of outside earned income and compensation under § 2636.303(b)(7) of this part; or</P> <P>(ii) Whether a noncareer employee who is subject to the restrictions in <PRTPAGE P="591"/>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.</P> <P>(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.</P> <P>(b) <E T="03">Issuance of advisory opinion.</E> 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.</P> <P>(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.</P> <P>(2) A copy of the request and advisory opinion shall be retained for a period of 6 years.</P> <P>(c) <E T="03">Good faith reliance on an advisory opinion.</E> 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.</P> <P>(d) <E T="03">Revision of an ethics opinion.</E> 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.</P> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 63 FR 43068, Aug. 12, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.104</SECTNO> <SUBJECT>Civil, disciplinary and other action.</SUBJECT> <P>(a) <E T="03">Civil action.</E> Except when the employee engages in conduct in good faith reliance upon an advisory opinion issued under § 2636.103 of this subpart, 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. app. 504(a) and a civil monetary penalty of not more than $10,000 for any such violation occurring before September 29, 1999, as adjusted effective September 29, 1999 to $11,000 for any such violation occurring on or after that date, 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.</P> <P>(b) <E T="03">Disciplinary and corrective action.</E> 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, <PRTPAGE P="592"/>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.</P> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 63 FR 43068, Aug. 12, 1998; 64 FR 47097, Aug. 30, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart B[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Outside Earned Income Limitation and Employment and Affiliation Restrictions Applicable to Certain Noncareer Employees</HD> <SECTION> <SECTNO>§ 2636.301</SECTNO> <SUBJECT>General standards.</SUBJECT> <P>A covered noncareer employee shall not:</P> <P>(a) Receive outside earned income in excess of the 15 percent limitation described in § 2636.304 of this subpart;</P> <P>(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;</P> <P>(c) Receive compensation for serving as an officer or board member in violation of the restriction described in § 2636.306 of this subpart; or</P> <P>(d) Receive compensation for teaching without having first obtained advance authorization as required by § 2636.307 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 2636.302</SECTNO> <SUBJECT>Relationship to other laws and regulations.</SUBJECT> <P>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 <E T="03">any</E> outside earned income for outside employment or for any other activity performed during that Presidential appointment.</P> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 63 FR 43069, Aug. 12, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.303</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this section:</P> <P>(a) <E T="03">Covered noncareer employee</E> 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:</P> <P>(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:</P> <P>(i) A position within the uniformed services; or</P> <P>(ii) A position within the foreign service below the level of Assistant Secretary or Chief of Mission;</P> <P>(2) A noncareer member of the Senior Executive Service or of another SES-type system, such as the Senior Foreign Service;</P> <P>(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<PRTPAGE P="593"/> </P> <P>(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.</P> <FP>For purposes of applying this definition to an individual who holds a General Schedule or other position that provides several rates of pay or steps per grade, his rate of basic pay shall be the rate of pay for the lowest step of the grade at which he is employed.</FP> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A Schedule C appointee to a position with the United States Information Agency who holds a GS-15 position and who is compensated at the rate for GS-15, Step 9 is not a covered noncareer employee even though the pay he receives in a calendar year exceeds the annual pay for a position above GS-15. Notwithstanding that he is compensated at Step 9, the basic rate of pay for the GS-15 position he holds is the rate in effect for GS-15, Step 1 of the General Schedule, which is lower than the rate for a position above GS-15.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An employee of the Environmental Protection Agency who has been a career GS-15 employee for 10 years and who is offered a non-career SES position with the Federal Aviation Administration will, if he accepts the offer, become a covered noncareer employee by reason of that appointment, regardless of his former status.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>A Department of Justice employee who holds a Schedule A appointment is not a covered noncareer employee even though he does not have competitive status within the meaning of § 212.301 of this title.</P> </EXAMPLE> <P>(b) <E T="03">Outside earned income</E> and <E T="03">compensation</E> 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:</P> <P>(1) Items that may be accepted under applicable standards of conduct gift regulations if they were offered by a prohibited source;</P> <P>(2) Income attributable to service with the military reserves or national guard;</P> <P>(3) Income from pensions and other continuing benefits attributable to previous employment or services;</P> <P>(4) Income from investment activities where the individual's services are not a material factor in the production of income;</P> <P>(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;</P> <P>(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;</P> <P>(7) Payments to charitable organizations in lieu of honoraria, as described in 5 U.S.C. app. 501(c) and app. 505; or</P> <P>(8) Compensation for:</P> <P>(i) Services rendered prior to January 1, 1991, or prior to becoming a covered noncareer employee;</P> <P>(ii) Services rendered in satisfaction of a covered noncareer employee's obligation under a contract entered into prior to January 1, 1991; or</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A covered noncareer employee is a limited partner in a partnership that invests in commercial real estate. Because he does not take an active role in the management of the partnership, his share of the partnership income is neither “outside earned income” nor “compensation.”</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>A covered noncareer employee of the Civil Rights Commission serves without compensation as a member of the Board of Visitors for a university. The roundtrip airfare and hotel expenses paid by the university to permit him to attend quarterly meetings of the Board are neither “outside earned income” or “compensation.”</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>Where a covered noncareer employee pays for transcripts of a hearing in which he is providing pro bono legal representation, reimbursements for those expenses by a legal aid organization are neither “outside earned income” nor “compensation.”</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4.</HD> <P>During the term of his appointment, a Deputy Assistant Secretary of Labor <PRTPAGE P="594"/>enters into a contract to write a book of fictional short stories. Royalties based on actual sales of the book after publication are investment income attributable to the property interest he retains in the book and, as such, are neither “outside earned income” nor “compensation.”</P> </EXAMPLE> <P>(c) <E T="03">Receive</E> 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:</P> <P>(1) If it is paid to any other person on the basis of designation, recommendation or other specification by the employee; or</P> <P>(2) If, with the employee's knowledge and acquiescence, it is paid to his parent, sibling, spouse, child or dependent relative. </P> <FP>Compensation that is prohibited by § 2636.305 through § 2636.307 of this subpart is received while an individual is an employee if it is for conduct by him that occurs while an employee, even though actual payment may be deferred until after Federal employment has terminated. Payments made to charitable organizations in lieu of honoraria under 5 U.S.C. app. 501(c) are not compensation or outside earned income and thus are not received in violation of any of the limitations contained in his subpart. However, other compensation or outside earned income donated to a charitable organization is received by the employee.</FP> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 63 FR 43069, Aug. 12, 1998; 64 FR 2422, Jan. 14, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.304</SECTNO> <SUBJECT>The 15 percent limitation on outside earned income.</SUBJECT> <P>(a) <E T="03">Limitation applicable to individuals who are covered noncareer employees on January 1 of any calendar year.</E> 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 <E T="03">any</E> outside earned income for outside employment or any other activity performed during that Presidential appointment.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>Notwithstanding that the compensation he will receive would not exceed 15 percent of the rate for level II of the Executive Schedule, a covered noncareer employee of the Department of Energy may not receive any compensation for teaching a university course unless he first receives the authorization required by § 2636.307 of this subpart.</P> </EXAMPLE> <P>(b) <E T="03">Limitation applicable to individuals who become covered noncareer employees after January 1 of any calendar year.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A former college professor received an appointment to a noncareer Senior Executive Service position on November 1, 1991. The rate of basic pay in effect for Executive Level II on January 1, 1991 was $125,100. For the 61 day period from November 1, 1991 through December 31, 1991, the amount of outside income he may earn is limited to $3,129. That amount is determined as follows:</P> <P>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;</P> <P>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;</P> <P>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.</P> </EXAMPLE> <PRTPAGE P="595"/> <P>(c) <E T="03">Computation principle.</E> 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.</P> <P>(d) <E T="03">Year to which outside earned income is attributable.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2636.305</SECTNO> <SUBJECT>Compensation and other restrictions relating to professions involving a fiduciary relationship.</SUBJECT> <P>(a) <E T="03">Applicable restrictions.</E> A covered noncareer employee shall not:</P> <P>(1) Receive compensation for:</P> <P>(i) Practicing a profession which involves a fiduciary relationship; or</P> <P>(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</P> <P>(2) Permit his name to be used by any firm, partnership, association, corporation, or other entity which provides professional services involving a fiduciary relationship. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A covered noncareer employee of the White House Office who is an attorney may not receive compensation for drafting a will for her friend. She may, however, participate in her bar association's pro bono program by providing free legal services for the elderly, provided her participation in the program is otherwise proper. For example, 18 U.S.C. 205 would prohibit her from representing her pro bono client in a hearing before the Social Security Administration.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>An accountant named C.B. Debit who is offered a covered noncareer appointment must terminate his partnership in the accounting firm of Delight, Waterhose and Debit upon appointment. Because his deceased father, J.R. Debit, was the founding partner for whom the firm is named, the name Debit need not be deleted from the firm's name. However, the name C.B. Debit may not appear on the firm's letterhead after the individual enters on duty as a covered noncareer employee.</P> </EXAMPLE> <P>(b) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Profession</E> 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.</P> <P>(2) <E T="03">Profession which involves a fiduciary relationship</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>In view of the standards of the profession which require a licensed real estate broker to act in the best interests of his clients, the selling of real estate by a licensed broker involves the practice of a profession involving a fiduciary relationship.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>A covered noncareer employee may receive the customary fee for serving as the executor of his mother's estate, provided he does not violate the applicable limitation on the amount of outside earned income he may receive. Although the executor of an estate has fiduciary obligations, serving as an executor in these circumstances does not involve the practice of a profession and, therefore, is not prohibited. He could not, however, serve for compensation as attorney for the estate.</P> </EXAMPLE> <CITA>[56 FR 1723, Jan. 17, 1991, as amended at 58 FR 69176, Dec. 30, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 2636.306</SECTNO> <SUBJECT>Compensation restriction applicable to service as an officer or member of a board.</SUBJECT> <P>(a) <E T="03">Applicable restriction.</E> A covered noncareer employee shall not receive compensation for serving as an officer <PRTPAGE P="596"/>or member of the board of any association, corporation or other entity. Nothing in this section prohibits uncompensated service with any entity.</P> <P>(b) <E T="03">Definition.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1.</HD> <P>A covered noncareer employee of the Environmental Protection Agency may not serve with compensation on the board of directors of his sister's closely-held computer software corporation.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2.</HD> <P>A covered noncareer employee of the Department of the Navy may serve without compensation as an officer of a charitable organization that operates a hospice.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3.</HD> <P>A covered noncareer employee of the Coast Guard appointed to serve as a member of the board of education of the county in which she is a resident may not receive compensation for that service.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2636.307</SECTNO> <SUBJECT>Requirement for advance authorization to engage in teaching for compensation.</SUBJECT> <P>(a) <E T="03">Authorization requirement.</E> A covered noncareer employee may receive compensation for teaching only when specifically authorized in advance by the designated agency ethics official.</P> <P>(b) <E T="03">Definition.</E> 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.</P> <P>(c) <E T="03">Request for authorization.</E> 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.</P> <P>(d) <E T="03">Standard for authorization.</E> Compensated teaching may be approved by the designated agency ethics official only when:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(e) <E T="03">Determination and authorization.</E> 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).</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2637</EAR> <HD SOURCE="HED">PART 2637—REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2637.101</SECTNO> <SUBJECT>Purpose and policy.</SUBJECT> <SECTNO>2637.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Substantive Provisions</HD> <SECTNO>2637.201</SECTNO> <SUBJECT>Restrictions on any former Government employee's acting as representative as to a particular matter in which the employee personally and substantially participated.</SUBJECT> <SECTNO>2637.202</SECTNO> <SUBJECT>Two-year restriction on any former Government employee's acting as representative as to a particular matter for which the employee had official responsibility.</SUBJECT> <SECTNO>2637.203</SECTNO> <SUBJECT>Two-year restriction on a former senior employee's assisting in representing as to a matter in which the employee participated personally and substantially.<PRTPAGE P="597"/> </SUBJECT> <SECTNO>2637.204</SECTNO> <SUBJECT>One-year restriction on a former senior employee's transactions with former agency on a particular matter, regardless of prior involvement.</SUBJECT> <SECTNO>2637.205</SECTNO> <SUBJECT>Limitation of restrictions of 18 U.S.C. 207(c) to less than that whole of a department or agency.</SUBJECT> <SECTNO>2637.206</SECTNO> <SUBJECT>Exemption for scientific and technological information.</SUBJECT> <SECTNO>2637.207</SECTNO> <SUBJECT>Exemption for persons with special qualification in a technical discipline.</SUBJECT> <SECTNO>2637.208</SECTNO> <SUBJECT>Testimony and statements under oath or subject to penalty of perjury.</SUBJECT> <SECTNO>2637.209</SECTNO> <SUBJECT>Partners of present or former Government employees.</SUBJECT> <SECTNO>2637.210</SECTNO> <SUBJECT>Officials of a State; officials of corporations created by an Act of Congress and public international organizations.</SUBJECT> <SECTNO>2637.211</SECTNO> <SUBJECT>Standards and procedures for designating senior employee positions pursuant to 18 U.S.C. 207(d).</SUBJECT> <SECTNO>2637.212</SECTNO> <SUBJECT>Administrative enforcement proceedings.</SUBJECT> <SECTNO>2637.213</SECTNO> <SUBJECT>Effective date of restrictions.</SUBJECT> <SECTNO>2637.214</SECTNO> <SUBJECT>Separate statutory agencies: Designations.</SUBJECT> <SECTNO>2637.215</SECTNO> <SUBJECT>Separate components of agencies or bureaus: Designations.</SUBJECT> <SECTNO>2637.216</SECTNO> <SUBJECT>“Senior Employee” designations.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 207 (1988).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12, 1980, unless otherwise noted. Redesignated at 54 FR 50231, Dec. 5, 1989.</P> </SOURCE> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The post-employment conflict of interest restrictions of 18 U.S.C. 207 were substantially revised effective January 1, 1991, by the Ethics Reform Act of 1989, Pub. L. 101-194, 103 Stat. 1716, with technical amendments enacted by Pub. L. 101-280, 104 Stat. 149 (1990). The Office of Government Ethics has published substantive guidance for the executive branch concerning the amended version of 18 U.S.C. 207 in part 2641 of this subchapter. This part 2637 will continue to provide guidance concerning the previous version of section 207, which will continue to apply to individuals terminating Government service prior to January 1, 1991.</P> </NOTE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>The following index of paragraphs is provided for the convenience of the reader:</P> </EDNOTE> <EXTRACT> <HD SOURCE="HD6">Subpart A—General Provisions</HD> <FP> <E T="03">Sec.</E> </FP> <FP SOURCE="FP-2"> <E T="03">2637.101Purpose and policy.</E> </FP> <FP SOURCE="FP1-2">(a) Authority.</FP> <FP SOURCE="FP1-2">(b) Consultation with the Attorney General.</FP> <FP SOURCE="FP1-2">(c) Policy and limitations.</FP> <FP SOURCE="FP-2"> <E T="03">2637.102Definitions.</E> </FP> <FP SOURCE="FP1-2">(a) Statutory definitions.</FP> <FP SOURCE="FP1-2">(b) Interpretative definitions.</FP> <HD SOURCE="HD6">Subpart B—Substantive Provisions</HD> <FP SOURCE="FP-2"> <E T="03">2637.201Restrictions on any former government employee's acting as representative as to a particular matter in which the employee personally and substantially participated.</E> </FP> <FP SOURCE="FP1-2">(a) 18 U.S.C. 207(a).</FP> <FP SOURCE="FP1-2">(b) Representation.</FP> <FP SOURCE="FP1-2">(1) Attorneys and agents.</FP> <FP SOURCE="FP1-2">(2) Others.</FP> <FP SOURCE="FP1-2">(3) Appearances; communications made with intent to influence.</FP> <FP SOURCE="FP1-2">(4) Government visits to other premises.</FP> <FP SOURCE="FP1-2">(5) Elements of “influence” and potential controversy required.</FP> <FP SOURCE="FP1-2">(6) Assistance.</FP> <FP SOURCE="FP1-2">(7) Project responses not included.</FP> <FP SOURCE="FP1-2">(c) “Particular matter involving a specific party or parties”.</FP> <FP SOURCE="FP1-2">(1) Specific matters vs. policy matters.</FP> <FP SOURCE="FP1-2">(2) Technical matters.</FP> <FP SOURCE="FP1-2">(3) Relationship of personal participation to specificity.</FP> <FP SOURCE="FP1-2">(4) The same particular matter must be involved.</FP> <FP SOURCE="FP1-2">(5) United States must be a party or have an interest.</FP> <FP SOURCE="FP1-2">(d) “Participate personally and substantially”.</FP> <FP SOURCE="FP1-2">(1) Basic requirements.</FP> <FP SOURCE="FP1-2">(2) Participation on ancillary matters.</FP> <FP SOURCE="FP1-2">(3) Role of official responsibility in determining substantial participation.</FP> <FP SOURCE="FP1-2">(e) Agency responsibility in complex cases.</FP> <FP SOURCE="FP-2"> <E T="03">2637.202Two-year restriction on any former government employee's acting as representative as to a particular matter for which the employee had official responsibility.</E> </FP> <FP SOURCE="FP1-2">(a) 18 U.S.C. 207(b)(i).</FP> <FP SOURCE="FP1-2">(b) Official responsibility.</FP> <FP SOURCE="FP1-2">(1) Definition.</FP> <FP SOURCE="FP1-2">(2) Determining official responsibility.</FP> <FP SOURCE="FP1-2">(3) Ancillary matters and official responsibility.</FP> <FP SOURCE="FP1-2">(4) Knowledge of matter pending required.</FP> <FP SOURCE="FP1-2">(5) Self-disqualification.</FP> <FP SOURCE="FP1-2">(c) “Actually pending.”</FP> <FP SOURCE="FP1-2">(d) Other essential requirements.</FP> <FP SOURCE="FP1-2">(e) Measurement of two-year restriction period.</FP> <FP SOURCE="FP-2"> <E T="03">2637.203Two-year restriction on a former senior employee's assisting in representing as to a matter in which the employee participated personally and substantially.</E> </FP> <FP SOURCE="FP1-2">(a) 18 U.S.C. 207(b)(ii).</FP> <FP SOURCE="FP1-2">(b) Limitation to “representational” assistance by “personal presence” at an appearance.</FP> <FP SOURCE="FP1-2">(c) Managerial and other off-scene assistance.</FP> <FP SOURCE="FP1-2">(d) Representational assistance.</FP> <FP SOURCE="FP1-2">(e) Measurement of restriction period.</FP> <FP SOURCE="FP1-2">(f) Other essential requirements.</FP> <FP SOURCE="FP1-2">(g) General examples.</FP> <FP SOURCE="FP-2"> <E T="03">2637.204One-year restriction on a former senior employee's transactions with former agency on a particular matter, regardless of prior involvement.</E> <PRTPAGE P="598"/> </FP> <FP SOURCE="FP1-2">(a) 18 U.S.C. 207(c).</FP> <FP SOURCE="FP1-2">(b) Transactions exempted from 18 U.S.C. 207(c).</FP> <FP SOURCE="FP1-2">(c) No prior involvement required.</FP> <FP SOURCE="FP1-2">(d) Specific parties unnecessary.</FP> <FP SOURCE="FP1-2">(e) Element of controversy or influence required.</FP> <FP SOURCE="FP1-2">(f) Agency activity or interest in matter.</FP> <FP SOURCE="FP1-2">(g) Application or proposals for funding of research.</FP> <FP SOURCE="FP1-2">(h) Personal matters.</FP> <FP SOURCE="FP1-2">(i) Statements based on special knowledge.</FP> <FP SOURCE="FP1-2">(j) Measurement of one-year restriction period.</FP> <FP SOURCE="FP-2"> <E T="03">2637.205Limitation of restrictions of 18 U.S.C. 207(c) to less than the whole of a department or agency.</E> </FP> <FP SOURCE="FP1-2">(a) Authority.</FP> <FP SOURCE="FP1-2">(b) Distinctions between 18 U.S.C. 207(e) and 207(d)(1)(C).</FP> <FP SOURCE="FP1-2">(c) Separate Statutory Components.</FP> <FP SOURCE="FP1-2">(1) Procedure.</FP> <FP SOURCE="FP1-2">(2) Standards.</FP> <FP SOURCE="FP1-2">(3) Effect of designation.</FP> <FP SOURCE="FP1-2">(d) Separate nonstatutory components.</FP> <FP SOURCE="FP1-2">(1) Procedure.</FP> <FP SOURCE="FP1-2">(2) Standards.</FP> <FP SOURCE="FP1-2">(3) Effect of determination.</FP> <FP SOURCE="FP-2"> <E T="03">2637.206Exemption for scientific and technological information.</E> </FP> <FP SOURCE="FP1-2">(a) Exemption.</FP> <FP SOURCE="FP1-2">(b) Necessary information.</FP> <FP SOURCE="FP1-2">(c) Intent to influence.</FP> <FP SOURCE="FP1-2">(d) Expert testimony.</FP> <FP SOURCE="FP1-2">(e) Agency responsibility for procedures.</FP> <FP SOURCE="FP-2"> <E T="03">2637.207Exemption for persons with special qualifications in a technical discipline.</E> </FP> <FP SOURCE="FP1-2">(a) Applicability.</FP> <FP SOURCE="FP1-2">(b) When appropriate.</FP> <FP SOURCE="FP1-2">(c) Certification authority.</FP> <FP SOURCE="FP1-2">(d) Agency registry.</FP> <FP SOURCE="FP-2"> <E T="03">2637.208Testimony and statements under oath or subject to penalty of perjury.</E> </FP> <FP SOURCE="FP1-2">(a) Statutory basis.</FP> <FP SOURCE="FP1-2">(b) Applicability.</FP> <FP SOURCE="FP1-2">(c) Statements under penalty of perjury.</FP> <FP SOURCE="FP-2"> <E T="03">2637.209Partners of present or former government employees.</E> </FP> <FP SOURCE="FP1-2">(a) Scope.</FP> <FP SOURCE="FP1-2">(b) Imputation.</FP> <FP SOURCE="FP-2"> <E T="03">2637.210Officials of a state; officials of corporations created by an act of Congress and public international organizations.</E> </FP> <FP SOURCE="FP-2"> <E T="03">2637.211Senior employee designations.</E> </FP> <FP SOURCE="FP1-2">(a) Definitions.</FP> <FP SOURCE="FP1-2">(b) Designation procedures.</FP> <FP SOURCE="FP1-2">(1) Positions at GS-17 and 18 level, SES and pay grades 0-7 and 0-8.</FP> <FP SOURCE="FP1-2">(2) Standards for designation and exemption.</FP> <FP SOURCE="FP1-2">(3) Senior Executive Service.</FP> <FP SOURCE="FP1-2">(4) “Rate of pay”.</FP> <FP SOURCE="FP1-2">(c) Differential designation.</FP> <FP SOURCE="FP1-2">(d) Fair notice of designation.</FP> <FP SOURCE="FP1-2">(e) “Acting” or temporary positions.</FP> <FP SOURCE="FP1-2">(f) Special Government Employee.</FP> <FP SOURCE="FP1-2">(g) Publication.</FP> <FP SOURCE="FP1-2">(h) Computation of time.</FP> <FP SOURCE="FP1-2">(i) Position Shifting.</FP> <FP SOURCE="FP1-2">(j) Revocation of designations.</FP> <FP SOURCE="FP-2"> <E T="03">2637.212Administrative enforcement proceedings.</E> </FP> <FP SOURCE="FP1-2">(a) Basic Procedures.</FP> <FP SOURCE="FP1-2">(1) Delegation.</FP> <FP SOURCE="FP1-2">(2) Initiation of administative disciplinary hearing.</FP> <FP SOURCE="FP1-2">(3) Adequate notice.</FP> <FP SOURCE="FP1-2">(4) Presiding official.</FP> <FP SOURCE="FP1-2">(5) Time, date and place.</FP> <FP SOURCE="FP1-2">(6) Hearing rights.</FP> <FP SOURCE="FP1-2">(7) Burden of proof.</FP> <FP SOURCE="FP1-2">(8) Hearing decision.</FP> <FP SOURCE="FP1-2">(9) Administrative sanctions.</FP> <FP SOURCE="FP1-2">(10) Judicial review.</FP> <FP SOURCE="FP1-2">(11) Consultation and review.</FP> <FP SOURCE="FP-2"> <E T="03">2637.213Effective date of restrictions.</E> </FP> <FP SOURCE="FP1-2">(a) Persons affected.</FP> <FP SOURCE="FP1-2">(b) Fair notice of substantive changes.</FP> <FP SOURCE="FP-2"> <E T="03">2637.214Separate statutory agencies: Designations.</E> </FP> <FP SOURCE="FP-2"> <E T="03">2637.215Separate components of agencies or bureaus: Designations.</E> </FP> <FP SOURCE="FP-2"> <E T="03">2637.216“Senior Employee” designations.</E> </FP> </EXTRACT> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2637.101</SECTNO> <SUBJECT>Purpose and policy.</SUBJECT> <P>(a) <E T="03">Authority.</E> Section 401(a) of the Ethics in Government Act of 1978 (the “Act”), as amended by Public Law 100-598 (Nov. 3, 1988), established the Office of Government Ethics (“OGE”) as a separate agency in the executive branch, effective October 1, 1989. (OGE was formerly a part of the Office of Personnel Management (“OPM”)). Sections 402 (a) and (b) of the Act, as amended, provide that the Director of the Office of Goverment Ethics (“the Director”) shall provide, in consultation with OPM, overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency as defined in section 105 of title 5, United State Code, and shall propose, in consultation with the Attorney General and OPM, rules and regulations to be promulgated by the President or by OGE pertaining to conflicts of interest and ethics in the executive branch. The purpose of this part is to issue regulations prepared by the Director which give content to the restrictions on post employment activity established by title V of the Act (18 U.S.C. 207) for administrative enforcement with respect to former officers and employees of the executive branch; <PRTPAGE P="599"/>generally to guide agencies in exercising the administrative enforcement authority reflected in section 18 U.S.C. 207(j); to set forth the procedures to be employed in making certain determinations and designations pursuant to the Act; and to provide guidance to individuals who must conform to the law. Criminal enforcement of the provisions of 18 U.S.C. 207 remains the exclusive responsibility of the Attorney General.</P> <P>(b) <E T="03">Consultation with the Attorney General.</E> In proposing these regulations, the Director consulted with the Attorney General as to the content of regulations governing substantive prohibitions as well as other matters. The Attorney General has advised that such regulations are consistent with his opinion as to the interpretation of the Act.</P> <P>(c) <E T="03">Policy and limitations.</E> 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.</P> <P>(1) When a former Government employee who has been involved with a particular matter decides to act as the representative for another person on that matter, such “switching of sides” undermines confidence in the fairness of proceedings and creates the impression that personal influence, gained by Government affiliation, is decisive.</P> <P>(2) Similarly, when a former high-level employee assists in representing another by personal presence at an appearance before the Government regarding a matter which is in dispute, such assistance suggests an attempt to use personal influence and the possible unfair use of information unavailable to others. Different considerations are involved, however, with respect to assistance given as part of customary supervisory participation in a project funded by a Government contract or grant, since a former employee's knowledge may benefit the project and thus the Government, and regular communications with associates may properly be regarded as inherent in managerial responsibility. Such assistance, when not rendered by personal presence during an appearance, is not covered by the statute.</P> <P>(3) When a former Senior Employee returns to argue a particular matter to the employee's former agency in the period immediately following the termination of official employment, it appears that Government-based relationships are being used for private ends.</P> <P>(4) Former officers and employees may fairly be required to avoid such activities in the circumstances specified by statute and in these regulations.</P> <P>(5) The provisions of 18 U.S.C. 207 do not, however, bar any former Government employee, regardless of rank, from employment with any private or public employer after Government service. Nor do they effectively bar employment even on a particular matter in which the former Government employee had major official involvement except in certain circumstances involving persons engaged in professional advocacy. Former Government employees may be fully active in high-level supervisory positions whether or not the work is funded by the United States and includes matters in which the employee was involved while employed by the Government. The statutory provisions are not intended to discourage the movement of skilled professionals in Government, to and from positions in industry, research institutions, law and accounting firms, universities and other major sources of expertise. Such a flow of skills can promote efficiency and communication between the Government and private activities, and it is essential to the success of many Government programs. Instead, only certain acts which are detrimental to public confidence in the Government are prohibited.</P> <P>(6) Departments and agencies have primary responsibility for the administrative enforcement of the post employment restrictions found in the Act. The Department of Justice may initiate criminal enforcement in cases involving aggravated circumstances; agency heads are required to report substantiated allegations of violations of 18 U.S.C. 207 to the Department of Justice and the Director, OGE. It is essential that title V of the Act be enforced so as to advance its objectives, which include improvement in government efficiency, equal treatment for <PRTPAGE P="600"/>equal claims, greater public confidence in the integrity of their government, elimination of the use of public office for private gain, and securing the integrity of the government's policy-making processes. Departments and agencies should avoid enforcement actions that do not advance these objectives but instead frustrate the Government's ability to employ the skilled persons who are needed to make the programs of the Federal Government succeed. Special attention should be given to the need to preserve the free flow of expertise, especially in scientific, technological and other technical areas, from private activities to the government.</P> <P>(7) The examples contained in these regulations are intended to give guidance, but are illustrative, not comprehensive. Each agency may provide additional illustration and guidance in its own regulations, consistent with that contained herein, in order to address specific problems arising in the context of a particular agency's operations.</P> <P>(8) Agencies have the responsibility to provide assistance promptly to former Government employees who seek advice on specific problems. The Office of Government Ethics will provide advice, promptly, upon request, to designated agency ethics officials in such situations, but will first coordinate with the Department of Justice on unresolved or difficult issues.</P> <P>(9) These regulations do not supplant restrictions that may be contained in laws other than 18 U.S.C. 207 and do not incorporate restrictions contained in the code of conduct of a profession of which an employee may be a member.</P> <CITA>[45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12, 1980, as amended at 49 FR 33118, Aug. 21, 1984; 50 FR 1203, Jan. 10, 1985. Redesignated at 54 FR 50230, Dec. 5, 1989; 55 FR 27179, July 2, 1990; 55 FR 27933, July 6, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2637.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Statutory definitions.</E> The following are defined terms which largely repeat portions of the text of the statute. They are set out here to permit a simplified presentation of statutory requirements in the regulations which follow. Other definitions, which supplement the statutory language, are listed in paragraph (b) of this section and are set forth in detail in the substantive regulations.</P> <P>(1) <E T="03">United States</E> or <E T="03">Government</E> means any department, agency, court, court-martial, or any civil, military or naval commission of the United States, the District of Columbia, or any officer or employee thereof.</P> <P>(2) <E T="03">Agency</E> includes an Executive Department, a Government corporation and an independent establishment of the executive branch, which includes an independent commission. (See 18 U.S.C. 6.)</P> <P>(3) <E T="03">Government Employee</E> includes any officer or employee of the Executive Branch (as defined in 18 U.S.C. 202 and, e.g., 5 U.S.C. 2104 and 2105); those appointed or detailed under 5 U.S.C. 3374, and a Special Government Employee, but shall not include an individual performing services for the United States as an independent contractor under a personal service contract.</P> <P>(4) <E T="03">Former Government Employee</E> means one who was, and is no longer, a Government employee.</P> <P>(5) <E T="03">Special Government Employee</E> means an officer or employee of an agency who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed 130 days during any period of three hundred and sixty five consecutive days, temporary duties either on a full time or intermittent basis (18 U.S.C. 202).</P> <P>(6) <E T="03">Senior Employee</E> means an officer or employee named in, or designated by the Director pursuant to, section 207(d) of title 18 U.S.C. to whom 207(b)(ii) and (c) shall apply (See § 2637.211 of this part.)</P> <P>(7) <E T="03">Particular Government matter involving a specific party</E> means 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 in which the United States is a party or has a direct and substantial interest.</P> <P>(b) <E T="03">Interpretative definitions.</E> Other terms defined and interpreted in the substantive regulations are:</P> <P>(1) <E T="03">Acting as Agent or Attorney:</E> (See § 2637.201(b).)<PRTPAGE P="601"/> </P> <P>(2) <E T="03">Actually Pending:</E> (See § 2637.202(c).)</P> <P>(3) <E T="03">Communicating with Intent to Influence:</E> (See § 2637.201(b).)</P> <P>(4) <E T="03">Direct and Substantial Interest:</E> (See § 2637.204(f).)</P> <P>(5) <E T="03">Participate Personally and Substantially:</E> (See § 2637.201(d).)</P> <P>(6) <E T="03">Particular Matter Involving a Specific Party or Parties:</E> (See § 2637.201(c).)</P> <P>(7) <E T="03">Particular Matter (without parties):</E> (See § 2637.204(d).)</P> <P>(8) <E T="03">Official Responsibility:</E> (See § 2637.202(b).)</P> <P>(9) <E T="03">Rate of Pay:</E> (See § 2637.211(b)(4).)</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Substantive Provisions</HD> <SECTION> <SECTNO>§ 2637.201</SECTNO> <SUBJECT>Restrictions on any former Government employee's acting as representative as to a particular matter in which the employee personally and substantially participated.</SUBJECT> <P>(a) <E T="03">Basic prohibition of 18 U.S.C. 207(a).</E> No former Government employee, after terminating Government employment, shall knowingly act as agent or attorney for, or otherwise represent any other person in any formal or informal appearance before, or with the intent to influence, make any oral or written communication on behalf of any other person (1) to the United States, (2) in connection with any particular Government matter involving a specific party, (3) in which matter such employee participated personally and substantially as a Government employee.</P> <P>(b) <E T="03">Representation: Acting as agent or attorney, or other representative in an appearance, or communicating with intent to influence—</E>(1) <E T="03">Attorneys and agents.</E> The target of this provision is the former employee who participates in a particular matter while employed by the Government and later “switches sides” by representing another person on the same matter. </P> <NOTE> <HD SOURCE="HED">[Note:</HD> <P>The examples in these regulations do not incorporate the special statutory restrictions on Senior Employees, except where the terms “Senior Employee” or “Senior” are expressly used.]</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A lawyer in the Department of Justice personally works on an antitrust case involving Q Company. After leaving the Department, he is asked by Q Company to represent it in that case. He may not do so.</P> </EXAMPLE> <P>(2) <E T="03">Others.</E> The statutory prohibition covers any other former employee, including managerial and technical personnel, who represents another person in an appearance or, by other communication, attempts to influence the Government concerning a particular matter in which he or she was involved. For example, a former technical employee may not act as a manufacturer's promotional or contract representative to the Government on a particular matter in which he or she participated. Nor could such employee appear as an expert witness against the Government in connection with such a matter. (See § 2637.208 for specific rules relating to expert witnesses.)</P> <P>(3) <E T="03">Appearances; communications made with intent to influence.</E> An appearance occurs when an individual is physically present before the United States in either a formal or informal setting or conveys material to the United States in connection with a formal proceeding or application. A communication is broader than an appearance and includes for example, correspondence, or telephone calls. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An appearance occurs when a former employee meets with an agency employee personally to discuss a matter; or when he submits a brief in an agency administrative proceeding in his own name.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A former employee makes a telephone call to a present employee to discuss a particular matter that is not the subject of a formal proceeding. She has made a communication.</P> </EXAMPLE> <P>(4) <E T="03">Government visits to others premises.</E> Neither a prohibited appearance nor communication occurs when a former Government employee communicates with a Government employee who, at the instance of the United States, visits or is assigned to premises leased to, or owned or occupied by, a person other than the United States which are or may be used for performance under an actual or proposed contract or grant, when such communication concerns work performed or to be performed and occurs in the ordinary course of evaluation, administration, or performance of the actual or proposed contract or grant.</P> <P>(5) <E T="03">Elements of “influence” and potential controversy required.</E> Communications which do not include an “intent <PRTPAGE P="602"/>to influence” are not prohibited. Moreover, acting as agent or attorney in connection with a routine request not involving a potential controversy is not prohibited. For example, the following are not prohibited: a question by an attorney as to the status of a particular matter; a request for publicly available documents; or a communication by a former employee, not in connection with an adversary proceeding, imparting purely factual information. (See also § 2637.204(d) of this part.) </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee, who participated in writing the specifications of a contract awarded to Q Company for the design of certain education testing programs, joins Q Company and does work under the contract. She is asked to accompany a company vice-president to a meeting to state the results of a series of trial tests, and does so. No violation occurs when she provides the information to her former agency. During the meeting a dispute arises as to some terms of the contract, and she is called upon to support Q Company's position. She may not do so. If she had reason to believe that the contractual dispute would be a subject of the meeting, she should not have attended.</P> </EXAMPLE> <P>(6) <E T="03">Assistance.</E> A former employee is not prohibited from providing in-house assistance in connection with the representation of another person. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee administered a particular contract for agricultural research with Q Company. Upon termination of her Government employment, she is hired by Q Company. She works on the matter covered by the contract, but has no direct contact with the Government. At the request of a company vice-president, she prepares a paper describing the persons at her former agency who should be contacted and what should be said to them in an effort in increase the scope of funding of the contract and to resolve favorably a dispute over a contract clause. She may do so.</P> </EXAMPLE> <P>(7) <E T="03">Project responses not included.</E> In a context not involving a potential controversy involving the United States no finding of a “intent to influence” shall be based upon whatever influential effect inheres in an attempt to formulate a meritorious proposal or program. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The employee of Q Company in the previous example is asked to design an educational testing program, which she does and transmits it to the Government. This is not prohibited despite the fact that her well-designed program may be inherently influential on a question of additional funding under the contract. She may not argue for its acceptance.</P> </EXAMPLE> <P>(c) <E T="03">“Particular matter involving a specific party or parties”—</E>(1) <E T="03">Specific matters vs. policy matters.</E> The prohibitions of subsections (a) and (b) of 18 U.S.C. 207, are based on the former Government employee's prior participation in or responsibility for a “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” in which the United States is a party or has a direct and substantial interest. 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 identifiable parties. Rulemaking, legislation, the formulation of general policy, standards or objectives, or other action of general application is not such a matter. Therefore, a former Government employee may represent another person in connection with a particular matter involving a specific party even if rules or policies which he or she had a role in establishing are involved in the proceeding. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee formulated the policy objectives of an energy conservation program. He is not restricted from later representing a university which seeks a grant or contract for work emerging from such a program.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Government employee reviews and approves a specific city's application for Federal assistance for a renewal project. After leaving Government service, she may not represent the city in relation to that project.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee is regularly involved in the formulation of policy, procedures and regulations governing departmental procurement and acquisition functions. Participation in such activities does not restrict the employee after leaving the Government as to particular cases involving the application of such policies, procedures, or regulations.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An employee of the Office of Management and Budget participates substantially on the merits of a decision to reduce the funding level of a program, which has the effect of reducing the amount of money which certain cities receive to conduct youth work programs. After leaving the <PRTPAGE P="603"/>Government she may represent any of the cities in securing funds for its youth program, since her participation was in connection with a program, not a particular matter involving specific parties.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An agency attorney participates in drafting a standard form contract and certain “standard terms and clauses” for use in future contracts. He is not thereafter barred from representing a person in a dispute involving the application of such a “standard term or clause” in a particular contract in which he did not participate as a Government employee.</P> </EXAMPLE> <P>(2) <E T="03">Technical matters.</E> In connection with technical work, participation in projects generally involving one or more scientific or engineering concepts, in feasibility studies, or in proposed programs prior to the formulation of a contract will not restrict former Government employees with respect to a contract or specific programs entered into at a later date. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee participates significantly in formulating the “mission need” of a project pursuant to OMB Circular No. A-109, and the award of a contract to Z Company, the purpose of which is to propose alternative technical approaches. He is not barred, after leaving Government service, from representing Q Company which later seeks a contract to manufacture one of the systems suggested by the Z Company.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Government employee, who has worked for years on the design of a new satellite communications system, joins C Company. Later, the Government issues a “request for proposals” (“rfp”) to construct the new system, which is circulated generally to industry. The employee proposes to act as C Company's representative in connection with its anticipated proposals for the contract. He may do so. The satellite contract became a particular matter when the rfp was being formulated; it would ordinarily not become one involving a specific party or parties until initial proposals or indications of interest therein by contractors were first received. Moreover, if the employee's work for C Company were limited to the formulation and communication of a proposal in response to the rfp, it would not be prohibited to the extent it involved a communication for the purpose of furnishing scientific or technological information to the Government, exempt under 18 U.S.C. 207(f). See § 2637.206 below. (See paragraph (3) below as to a case where the employee's own participation may cause a different result.)</P> </EXAMPLE> <P>(3) <E T="03">Relationship of personal participation to specificity.</E> In certain cases, whether a matter should be treated as a “particular matter involving specific parties” may depend on the employee's own participation in events which give particularity and specificity to the matter in question. For example, if a Government employee (i) personally participated in that stage of the formulation of a proposed contract where significant requirements were discussed and one or more persons was identified to perform services thereunder and (ii) actively urged that such a contract be awarded, but the contract was actually awarded only after the employee left, the contract may nevertheless be a particular matter involving a specific party as to such former Government employee. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee advises her agency that it needs certain work done and meets with private firm X to discuss and develop requirements and operating procedures. Thereafter, the employee meets with agency officials and persuades them of the need for a project along the lines discussed with X. She leaves the Government and the project is awarded by other employees to firm X. The employee is asked by X to represent it on the contract. She may not do so.</P> </EXAMPLE> <P>(4) <E T="03">The same particular matter must be involved.</E> The requirement of a “particular matter involving a specific party” applies both at the time that the Government employee acts in an official capacity and at the time in question after Government service. The same particular matter may continue in another form or in part. In determining whether two particular matters are the same, the agency should consider the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Government employee was substantially involved in the award of a long-term contract to Z Company for the development of alternative energy sources. Six years after he terminates Government employment, the contract is still in effect, but much of the technology has changed as have many of the personnel. The Government proposes to award a “follow on” contract, involving the same objective, after competitive bidding. The employee may represent Q Company in its proposals for the follow-on contract, since Q Company's proposed contract is a different matter from the contract with Z Company. He may also represent Z <PRTPAGE P="604"/>Company in its efforts to continue as contractor, if the agency determines on the basis of facts referred to above, that the new contract is significantly different in its particulars from the old. The former employee should first consult his agency and request a written determination before undertaking any representation in the matter.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Government employee reviewed and approved certain wiretap applications. The prosecution of a person overheard during the wiretap, although not originally targeted, must be regarded as part of the same particular matter as the initial wiretap application. The reason is that the validity of the wiretap may be put in issue and many of the facts giving rise to the wiretap application would be involved. <E T="03">Other examples:</E> See § 2637.201(b)(1), Example 1, and (c), Example 2.</P> </EXAMPLE> <P>(5) <E T="03">United States must be a party or have an interest.</E> The particular matter must be one in which the United States is a party, such as in a judicial or administrative proceeding or a contract, or in which it has a direct and substantial interest. The importance of the Federal interest in a matter can play a role in determining whether two matters are the same particular matter. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An attorney participated in preparing the Government's antitrust action against Z Company. After leaving the Government, she may not represent Z Company in a private antitrust action brought against it by X Company on the same facts involved in the Government action. Nor may she represent X Company in that matter. The interest of the United States in preventing both inconsistent results and the appearance of impropriety in the same factual matter involving the same party, Z Company, is direct and substantial. However, if the Government's antitrust investigation or case is closed, the United States no longer has a direct and substantial interest in the case.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A member of a Government team providing technical assistance to a foreign country leaves and seeks to represent a private contractor in making arrangements with the Government to perform the same service. The proposed new contract may or may not be considered a separate matter, depending upon whether the United States has a national interest in maintaining the original contract. The agency involved must be consulted by the former employee before the representation can be undertaken.</P> </EXAMPLE> <P>(d) <E T="03">“Participate personally and substantially</E>”—(1) <E T="03">Basic requirements.</E> The restrictions of section 207(a) apply only to those matters in which a former Government employee had “personal and substantial participation,” exercised “through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise.” To participate “personally” means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. “Substantially,” means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. 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 on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. It is essential that the participation be related to a “particular matter involving a specific party.” (See paragraph (c) of this section.) (See also § 2637.203(f) of this part.) </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>If an officer personally approves the departmental budget, he does not participate substantially in the approval of all items contained in the budget. His participation is substantial only in those cases where a budget item is actually put in issue. Even then, the former Government employee is not disqualified with respect to an item if it is a general program rather than a particular matter involving a specific party. The former Government employee may, however, have official responsibility for such matters. (See § 2637.202(b).)</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Government lawyer is not in charge of, nor has official responsibility for a particular case, but is frequently consulted as to filings, discovery, and strategy. Such an individual has personally and substantially participated in the matter.</P> </EXAMPLE> <P>(2) <E T="03">Participation on ancillary matters.</E> An employee's participation on subjects not directly involving the substantive merits of a matter may not be “substantial,” even if it is time-consuming. An employee whose responsibility is the review of a matter solely for compliance with administrative control or budgetary considerations and who reviews a particular matter for such a purpose should not be regarded as having participated substantially in the matter, except when such <PRTPAGE P="605"/>considerations also are the subject of the employee's proposed representation. (See § 2637.202(b)(3) of this part.) Such an employee could theoretically cause a halt in a program for noncompliance with standards under his or her jurisdiction, but lacks authority to initiate a program or to disapprove it on the basis of its substance.</P> <P>(3) <E T="03">Role of official responsibility in determining substantial participation.</E> “Official responsibility” is defined in § 2637.202(b)(1). “Personal and substantial participation” is different from “official responsibility.” One's responsibility may, however, play a role in determining the “substantiality” of an employee's participation. For example, ordinarily an employee's forbearance on a matter is not substantial participation. If, however, an employee is charged with responsibility for review of a matter and action cannot be undertaken over his or her objection, the result may be different. If the employee reviews a matter and passes it on, his or her participation may be regarded as “substantial” even if he or she claims merely to have engaged in inaction.</P> <P>(e) <E T="03">Agency responsibility in complex cases.</E> In certain complex factual cases, the agency with which the former Government employee was associated is likely to be in the best position to make a determination as to certain issues, for example, the identity or existence of a particular matter. Designated agency ethics officials should provide advice promptly to former Government employees who make inquiry on any matter arising under these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 2637.202</SECTNO> <SUBJECT>Two-year restriction on any former Government employee's acting as representative as to a particular matter for which the employee had official responsibility.</SUBJECT> <P>(a) <E T="03">Basic prohibition of 18 U.S.C. 207(b)(i).</E> No former Government employee, within two years after terminating employment by the United States, shall knowingly act as agent or attorney for, or otherwise represent any other person in any formal or informal appearance before, or with the intent to influence, make any oral or written communication on behalf of any other person (1) to the United States, (2) in connection with any particular Government matter involving a specific party (3) if such matter was actually pending under the employee's responsibility as an officer or employee within period of one year prior to the termination of such responsibility.</P> <P>(b) <E T="03">“Official responsibility</E>”—(1) <E T="03">Definition.</E> “Official responsibility” is defined in 18 U.S.C. 202 as, “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 actions.”</P> <P>(2) <E T="03">Determining official responsibility.</E> Ordinarily, the scope of an employee's “official responsibility” is determined by those areas 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 having responsibility for an employee who actually participates in the matter within the scope of his or her duties.</P> <P>(3) <E T="03">Ancillary matters and official responsibility.</E> “Administrative” authority as used in the foregoing definition means authority for planning, organizing and controlling matters rather than authority to review or make decisions on ancillary aspects of a matter such as the regularity of budgeting procedures, public or community relations aspects, or equal employment opportunity considerations. Responsibility for such an ancillary consideration does not constitute responsibility for the particular matter, except when such a consideration is also the subject of the employee's proposed representation. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An agency's comptroller would not have official responsibility for all programs in the agency, even though she must review the budget, and all such programs are contained in the budget.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>Within two years after terminating employment, an agency's former comptroller is asked to represent Q Company in a dispute arising under a contract which was in effect during the comptroller's tenure. The dispute concerns an accounting formula, under the contract, a matter as to <PRTPAGE P="606"/>which a subordinate division of the comptroller's office was consulted. She may not represent Q Company on this matter.</P> </EXAMPLE> <P>(4) <E T="03">Knowledge of matter pending required.</E> In order for a former employee to be barred from representing another as to a particular matter, he or she need not have known, while employed by the Government, that the matter was pending under his or her official responsibility. However, the former employee is not subject to the restriction unless at the time of the proposed representation of another, he or she knows or learns that the matter had been under his or her responsibility. Ordinarily, a former employee who is asked to represent another on a matter will become aware of facts sufficient to suggest the relationship of the prior matter to his or her former agency. If so, he or she is under a duty to make further inquiry, including direct contact with an agency's designated ethics official where the matter is in doubt.</P> <P>(5) <E T="03">Self-disqualification.</E> A former employee cannot avoid the restrictions of this section on the ground by self-disqualification with respect to a matter for which he or she otherwise had official responsibility. However, self-disqualification is effective to eliminate the restriction of section 207(a).</P> <P>(c) <E T="03">“Actually pending.”</E> “Actually pending” means that the matter was in fact referred to or under consideration by persons within the employee's area of responsibility, not that it merely could have been. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A staff lawyer in a department's Office of General Counsel is consulted by procurement officers on the correct resolution of a contractual matter involving Q Company. The lawyer renders an opinion resolving the question. The same legal question arises later in several contracts with other companies, but none of the disputes with such companies is referred to the Office of the General Counsel. The General Counsel has official responsibility for the determination of the Q Company matter. The other matters were never “actually pending” under that responsibility, although as a theoretical matter, such responsibility extended to all legal matters within the department.</P> </EXAMPLE> <P>(d) <E T="03">Other essential requirements.</E> All other requirements of the statute must be met before the restriction on representation applies. The same considerations apply in determining the existence of a “particular matter involving a specific party,” a representation in an “appearance,” or “intent to influence,” and so forth as set forth under § 2637.201 of this part. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>During her tenure as head of an agency, an officer's subordinates undertook major changes in agency enforcement standards involving occupational safety. Eighteen months after terminating Government employment, she is asked to represent Z Company which believes it is being unfairly treated under the enforcement program. The Z Company matter first arose on a complaint filed after the agency head terminated her employment. She may represent Z Company because the matter pending under her official responsibility was not one involving “a specific party.” (Moreover, the time-period covered by 18 U.S.C. 207(c) has elapsed.)</P> </EXAMPLE> <P>(e) <E T="03">Measurement of two-year restriction period.</E> The statutory two-year period is measured from the date when the employee's responsibility in a particular area ends, not from the termination of Government service, unless the two occur simultaneously. The prohibition applies to all particular matters subject to such responsibility in the one-year period before termination of such responsibility. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Director, Import/Export Division of A Agency retires after 26 years of service and enters private industry as a consultant. He will be restricted for two years with respect to all matters which were actually pending under his official responsibility in the year before his retirement.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee transfers from a position in A Agency to a position in B Agency, and she leaves B Agency for private employment 9 months later. In 15 months she will be free of restriction insofar as matters which were pending under her responsibility in A Agency in the year before her transfer. She will be restricted for two years in respect of B Agency matters which were pending in the year before her departure for private employment.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2637.203</SECTNO> <SUBJECT>Two-year restriction on a former senior employee's assisting in representing as to a matter in which the employee participated personally and substantially.</SUBJECT> <P>(a) <E T="03">Basic prohibition of 18 U.S.C. 207(b)(ii).</E> No former Senior Employee (see § 2637.102(a)(6)), within two years after terminating employment by the United States, shall knowingly represent or aid, counsel, advise, consult, <PRTPAGE P="607"/>or assist in representing any other person by personal presence at any formal or informal appearance, (1) before the United States, (2) in connection with any particular Government matter involving a specific party, (3) in which matter he or she participated personally and substantially.</P> <P>(b) <E T="03">Limitation to “representational” assistance by “personal presence” at an appearance.</E> Section 207(b)(ii) is limited to assistance “in representing” another person by “personal presence” at an “appearance” before the United States. Different in scope from sections 207(a) and 207(b)(i), it does not apply to assistance in connection with an oral or written communication made with an intent to influence which does not involve an appearance. Nor does it bar assistance in preparation for either a formal or informal personal appearance or an appearance by written submission in a formal proceeding where the former employee is not personally present before the Government or a Government employee. The provision is designed to prevent the former Senior Employee from playing any auxiliary role during a negotiation proceeding or similar transaction with the Government so that he or she does not appear to be lending personal influence to the resolution of a matter and cannot do so in fact. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee makes suggestions as to the content of a letter to be sent to the Government on a matter in which he had participated. No violation occurs.</P> </EXAMPLE> <P>(c) <E T="03">Managerial and other off-scene assistance.</E> The statute does not prohibit a former Senior Employee's advice and assistance to his or her organization's representatives which does not involve his or her personal presence at an appearance before the Government. The former Senior Employee's preparation of documents to be presented in any formal or informal proceeding does not constitute personal presence at an appearance, even where submission of such a document might technically constitute an appearance. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee attends a hearing on a matter in which she had participated personally and substantially while in the Government. She speaks with the representative of a private party during the hearing. A violation occurs if the former Senior Employee lends assistance to the representative in that conversation.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Senior Justice Department lawyer personally works on an antitrust case against Z Company. After leaving the Department, she is asked to discuss legal strategy with lawyers representing Z Company on that same antitrust case, to write portions of a brief and to direct the research of the staff working on the case. Any such aid would not be prohibited by the statute, but would likely be prohibited by professional disciplinary rules.</P> </EXAMPLE> <P>(d) <E T="03">Representational assistance.</E> The statute seeks to prevent a former Senior Employee from making unfair use of his or her prior governmental position by prohibiting all forms of assistance in the representation of another when personally present at an appearance, including giving advice as to how the representation in an appearance should be conducted, supplying information, participating in drafting materials, or dealing with forensic or argumentative matters (such as testimony, methods of persuasion, or strategy of presentation).</P> <P>(e) <E T="03">Measurement of restriction period.</E> The statutory two-year period is measured from the date of termination of employment in the Senior Employee position held by the former employee when he or she participated personally and substantially in the matter involved. (cf. § 2637.202(e))</P> <P>(f) <E T="03">Other Essential Requirements.</E> All conditions of the statutory prohibition must be met. Specifically, the former employee, (1) must have been a “Senior Employee,” (2) who “participated personally and substantially” (See § 2637.201(d) of this part) in (3) a “particular matter involving a specific party.” (See subpart § 2637.201(c) of this part.)</P> <P>(g) <E T="03">General Examples:</E> </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Senior Federal Trade Commission Employee, an economist by profession, participates in an investigation involving X Company, and a proceeding is commenced against X Company based on the investigation. After leaving the Commission, he offers to serve as a consultant to the lawyers for X Company on certain economic matters involved in the proceeding. He attends the proceeding and at the close of each day, meets in the lawyers’ office to advise them. Such conduct violates the statute.</P> </EXAMPLE> <EXAMPLE> <PRTPAGE P="608"/> <HD SOURCE="HED">Example 2:</HD> <P>A Senior Employee of the Department of the Treasury participates in a number of projects with universities and financial research institutions funded by Government grants. After leaving the Government, she becomes dean of a graduate school of business which performs work under a number of such grants. She may, in the discharge of her duties, supervise research and advise as to how funds under such a contract should be allocated, whether or not these matters are, as is likely, communicated to her former Department by the graduate school's representatives. (See § 2637.204.)</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A Senior Defense Department official participated personally and substantially in a contract award to F Company for fighter planes. After leaving the Department, the former official goes to work for F Company. Subsequently, F Company desires to renegotiate prices and a pension provision on the fighter plane contract, matters in which dispute is anticipated. The former official could not attend a meeting with Government employees at which such matters will be discussed and give assistance to those representing F Company in the negotiations. He could generally render advice as long as he remained absent from the negotiations.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>A Senior Justice Department lawyer participated in an antitrust case against Q Company, which is represented by Y law firm. Immediately after leaving, the Department, she goes to work with Y law firm, and assists at a trial representing Q Company in a different antitrust case, not involving the allegations in the Government case. Such assistance would not be barred because it does not occur in connection with the same particular matter.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>A Senior Employee of the Department of Health and Human Services leaves to take a university position. The former official's new duties include various HHS contracts which the university holds. Some of the contracts were awarded by a division within HHS which was under her official responsibility. She is not barred from assistance in negotiations with respect to such contracts, because the restriction applies only to those matters in which she had participated personally and substantially, not to those matters for which she had official responsibility. Note, however, that any participation by her as a representative would be barred by 18 U.S.C. 207(b)(i) as described in § 2637.202 of this part. (But see § 2637.204.)</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>A Senior scientist with the Food and Drug Administration was personally and substantially involved in a licensing proceeding concerning a specific drug. After leaving the FDA, he is employed by the manufacturer of the drug. There he engages in research, indicating that the drug is safe and effective, which his employer later presents to FDA in connection with the proceeding. He assists during this presentation. Such assistance would normally be restricted but may be allowed to the extent that the former official is furnishing scientific information to the Government. (See 18 U.S.C. 207(f) and § 2637.206 of this part.)</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 7:</HD> <P>A former Senior Employee of the Federal Communications Commission leaves the agency to join a graduate school faculty. In one of his courses, which from time to time includes Government employees, he discusses, unfavorably to the Commission, a specific licensing case in which he was personally and substantially involved. The restriction does not apply because the conduct does not occur in connection with any representational activities.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2637.204</SECTNO> <SUBJECT>One-year restriction on a former senior employee's transactions with former agency on a particular matter, regardless of prior involvement.</SUBJECT> <P>(a) <E T="03">Basic prohibition of 18 U.S.C. 207(c).</E> For a period of one year after terminating employment by the United States, no former Senior Employee (other than a special Government employee who serves for fewer than sixty days in a calendar year) shall knowingly act as an agent or attorney for, or otherwise represent, anyone in any formal or informal appearance before, or with the intent to influence, make any written or oral communication on behalf of anyone to (1) his or her former department or agency, or any of its officers or employees, (2) in connection with any particular Government matter, whether or not involving a specific party, which is pending before such department or agency, or in which it has a direct and substantial interest.</P> <P>(b) <E T="03">Transactions exempted from the basic prohibition of 18 U.S.C. 207(c).</E> The prohibition set forth above shall not apply to an appearance, a communication, or representation by a former Senior Employee, who is:</P> <P>(1) An elected official of a State or local government, acting on behalf of such government, or</P> <P>(2) Whose principal occupation or employment is with (i) an agency or instrumentality of a State or local government, (ii) an accredited, degree-granting institution of higher education, as defined in section 1201(a) of the Higher Education Act of 1965, or (iii) a hospital or medical research organization, exempted and defined under <PRTPAGE P="609"/>section 501(c)(3) of the Internal Revenue Code of 1954, and the appearance, communication, or representation is on behalf of such government, institution, hospital or organization. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee of the Federal Highway Administration is appointed to the position of Secretary of Transportation for the State of Kansas. He would not be prohibited from transacting business with his former agency concerning new matters on behalf of the State. He would, however, be restricted as to 207(a) and 207(b) matters.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A former Senior Employee of the Department of Housing and Urban Development establishes a consulting firm and is engaged by the City of Los Angeles to aid it in procuring a particular grant. He may not represent Los Angeles before his former Department because his “principal occupation or employment” is not with such city.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A former Senior Employee of the Department of Education founds a vocational school for the training of legal paraprofessionals and associated staff. He desires to communicate with officials at his former Department for the purpose of establishing a program of assistance to such institutions. He may not do so, since the vocational school is not an “accredited, degree granting institution of higher education.”</P> </EXAMPLE> <P>(c) <E T="03">No prior involvement required.</E> The prohibition contained in this section applies without regard to whether the former Senior Employee had participated in, or had responsibility for, the particular matter and includes matters which first arise after the employee leaves Government service. The section aims at the possible use of personal influence based upon past Governmental affiliations to facilitate the transaction of business.</P> <P>(d) <E T="03">Specific parties unnecessary.</E> The particular matter in which the former Senior Employee proposes to act before his or her former agency need not be one “involving specific parties,” and thus is not limited to disputed proceedings or contracts in which a party has already been identified. However, the restriction does not encompass every kind of matter, but only a particular one similar to those cited in the statutory language, <E T="03">i.e.,</E> any judicial or other proceeding, application, request for a ruling or determination, contract, claim, controversy, investigation, charge, accusation, or arrest. Rulemaking is specifically included. Thus such matters as the proposed adoption of a regulation or interpretive ruling, or an agency's determination to undertake a particular project or to open such a project to competitive bidding are covered. Not included are broad technical areas and policy issues and conceptual work done before a program has become particularized into one or more specific projects. The particular matter must be pending before the agency or be one in which the agency has a “direct and substantial interest.” </P> <NOTE> <HD SOURCE="HED">(Note:</HD> <P>Each post employment activity in the examples in this section is assumed to take place within one year of termination of Government employment.)</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Senior Employee of the Department of Health and Human Services leaves Government employment for private practice, and shortly thereafter telephones a former associate urging that the Department (a) adopt a new procedure to put a ceiling on hospital costs; (b) not adopt a particular rule proposed for drug testing; and (c) oppose a bill pending in Congress relating to such drug testing. He is prohibited from attempting to influence his former co-worker on any of these matters. The first, not yet pending, is of interest to the Department; the second is pending in the Department; and the third is pending elsewhere, and is of interest to the Department. Note that the former Senior Employee may, however, communicate the same views to Congress, other agencies, the public or the press.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A recently retired Senior Employee of the Department of Defense believes that the Department's general emphasis on manned aircraft is not in the national interest. After his departure, he may continue to argue the point to the Department.</P> </EXAMPLE> <P>(e) <E T="03">Element of controversy or influence required.</E> The prohibition on acting as a representative or attempting to influence applies to situations in which there is an appreciable element of actual or potential dispute or an application or submission to obtain Government rulings, benefits or approvals, and not to a situation merely involving, for example: the transmission or filing of a document that does not involve an application for Government benefit, approval or ruling; a request for information; purely social or informational communications; or those required by law or regulations (in situations other than adversary proceedings). Each agency should, after <PRTPAGE P="610"/>consulting with the Director or the Attorney General, as appropriate, give guidance on the kinds of applications, filings and other matters which are not prohibited by section 207(c). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee of the Internal Revenue Service prepares and mails a client's tax return. This is not a prohibited act. Should any controversy arise in connection with the tax return, the former employee may not represent the client, but may be called upon to state how the return was prepared.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A former Senior Employee of the Securities and Exchange Commission prepared and transmitted for filing to the Commission a client's annual report on form 10-K. This is not a violation, because the 10-K is a disclosure report, not intended to obtain a Government benefit or ruling.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A former Senior Employee of the Securities and Exchange Commission becomes executive vice-president of a major industrial corporation, registered under the Securities Exchange Act of 1934. Pursuant to Commission regulations, the officers of the corporation are required to sign certain filings on behalf of the corporation, which are transmitted to the Commission. The employee may review, concur or request changes in, and sign any such filing required to be transmitted to the Commission.</P> </EXAMPLE> <P>(f) <E T="03">Agency activity or interest in matter.</E> The restriction applies to the former employee's contacts with his or her former agency in connection with a matter before or of “direct and substantial interest” to the agency. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee of the Securities and Exchange Commission is asked to represent Z Company in a new matter before the Commission, one in which the former employee had no prior involvement. He may not do so.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The matter in the foregoing example is referred to the Department of Justice for prosecution, and the former employee is asked for the first time to represent Z Company in the criminal proceeding. The matter is likely to be of direct and substantial interest to the Commission. If so, the former employee may not communicate with the Commission in the matter. However, the former Senior Employee may communicate with the Commission in order to determine whether it asserts a direct and substantial interest in the criminal proceeding. In the event of a negative answer to the question, the former Senior Employee may communicate with the Commission.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>In connection with an entirely new matter a former Senior Employee of the Securities and Exchange Commission undertakes the representation of Z Company in private litigation brought by Q Company, <E T="03">(e.g.,</E> a private action arising under the Securities Exchange Act of 1934). Before the suit was commenced, there was no actual expression of interest by the Commission in the matter. As the litigation develops, an important question of statutory interpretation is raised, and the Commission files a brief as <E T="03">amicus curiae</E> (friend of the court). The former Senior Employee may respond to the brief and need not withdraw from representation of Z Company, but he may not otherwise communicate with the Commission in the matter. If the Commission were to commence a proceeding or investigation again, Z Company on the basis of the same facts involved in the private litigation, the former employee could continue his representation in the private litigation, but could not represent Z Company in the Commission's proceeding until after the expiration of one year from the termination of his employment with the Commission.</P> </EXAMPLE> <NOTE> <HD SOURCE="HED">[Note:</HD> <P>Where an agency becomes a party to a proceeding subsequent to its commencement, the question whether a former Senior Employee may continue representation should ordinarily be decided by the court on a motion for disqualification in the particular circumstances.]</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>In connection with a new matter, a former Senior Employee of the Federal Food and Drug Administration, since retired to private law practice, is asked to consult and assist in the preparation of briefs to be filed with the Administration on a new particular matter. He may do so, but he should not sign briefs or other communications or take any other action that might constitute an appearance.</P> </EXAMPLE> <P>(g) <E T="03">Application or proposals for funding of research.</E> In connection with any application or proposal for Government funding of research, the restrictions of this section do not prevent a former Senior Employee from assuming responsibility for the direction or conduct of such research and from providing scientific or technological information to the Senior Employee's former agency regarding such research. The former Senior Employee may not, however, submit the application on behalf of the applicant or argue for its approval or funding by the agency. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee of the National Institute of Health (NIH), employed by a non-exempt research institute, prepares an application to NIH for a research contract. The application is submitted to NIH by the institute and lists the Senior Employee as principal investigator. The Senior Employee does not violate 18 U.S.C. 207(c) <PRTPAGE P="611"/>by preparing the application or by being listed as principal investigator, since these are not representational activities. He may also sign an assurance to NIH, as part of the application, that he will be responsible for the scientific and technical direction and conduct of the project if an award is made. He may also communicate with NIH to provide scientific or technical information on the application, including presentation to NIH personnel at the research site, so long as he does not argue for approval or funding of the application.</P> </EXAMPLE> <P>(h) <E T="03">Personal matters.</E> Unlike the provisions of subsections 207(a) and (b) the restrictions of this section apply when the former Senior Employee seeks to represent himself or herself. However, they do not apply to appearances or communications concerning matters of a personal and individual nature, such as personal income taxes, pension benefits, or the application of any provision of these regulations to an undertaking proposed by a Senior Employee. (See 18 U.S.C. 207(i).) A former Senior Employee may also appear <E T="03">pro se</E> (on his or her own behalf) in any litigation or administrative proceeding, involving the individual's former agency. The former employee may not contact his or her former agency in order to secure an item of business, except for (1) discussions in contemplation of being employed by the agency as a consultant or otherwise; or (2) a proposal to furnish scientific or technological information to the Government. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>Any former Government Employee may contact his or her former agency to seek information or determinations as to matters in question under these regulations or under 18 U.S.C. 207, such as whether a particular matter is considered to have been under the employee's official responsibility, whether a matter is one in which the agency asserts a direct and substantial interest, or whether a current matter is considered to be the same as that in which the employee had been involved.</P> </EXAMPLE> <P>(i) <E T="03">Statements based on special knowledge.</E> The restrictions of the section do not prevent a former Senior Employee from making or providing a statement, which is based on the former Senior Employee's own special knowledge in the particular area that is the subject matter of the statement, provided that no compensation is thereby received, other than that regularly provided by law or regulation for witnesses. (See 18 U.S.C. 207(i).) </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee may make any statement of his own views to his former agency on any subject matter in which he has no substantial pecuniary interests, acting on his own behalf.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A former Senior Employee is called by his successor at the agency for the purpose of eliciting some information on a matter in which he had been involved in an official capacity. His response is not prohibited.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A former Senior Employee may recommend an individual to her former agency for employment, based on her own personal knowledge of the individual's qualifications and character.</P> </EXAMPLE> <P>(j) <E T="03">Measurement of one-year restriction period.</E> The statutory one-year period is measured from the date when the individual's responsibility as a Senior Employee in a particular agency ends, not from the termination of Government service, unless the two occur simultaneously. (See § 2637.202(e).)</P> </SECTION> <SECTION> <SECTNO>§ 2637.205</SECTNO> <SUBJECT>Limitation of restrictions of 18 U.S.C. 207(c) to less than that whole of a department or agency.</SUBJECT> <P>(a) <E T="03">Authority.</E> There are two methods by which the application of the one-year “cooling-off” prohibition of 18 U.S.C. 207(c) may be limited to less than the entirety of a department or agency. First, 18 U.S.C. 207(e) provides that the Director may by rule designate as “separate” a statutory agency or bureau which exercises functions that are distinct and separate from the remaining functions of the parent department or agency of which it is part. (see § 2637.214) Second, under the provisions of 18 U.S.C. 207(d)(1)(C), the Director may restrict the application of the prohibition as to a former employee (other than one who served in an Executive Level position or at a uniformed service grade level of 0-9 and above) insofar as it affects his or her communications with persons in an unrelated agency or bureau within his former parent department or agency which has separate and distinct subject matter jurisdiction from the agency or bureau in which he or she served. (see § 2637.215)</P> <P>(b) <E T="03">Distinctions between the 18 U.S.C. 207(e) and 207(d)(1)(C) provisions.</E> (1) The authority granted by 18 U.S.C. 207(e) is <PRTPAGE P="612"/>applicable solely to a separate <E T="03">statutory</E> agency or bureau, that is, one created by statute or the functions of which are expressly referred to by statute in such a way that is appears that Congress intended that its functions were to be separable. A determination made under this 18 U.S.C. 207(e) does not, however, benefit former heads of the separate statutory agency or bureau. Such a determination does, however, work to the benefit of other employees at Executive Level or at uniformed service grade level of 0-9 or above.</P> <P>(2) The determination made pursuant to section 207(d)(1)(C) is intended to provide similar recognition of separability where the subordinate agency or bureau has been <E T="03">administratively</E> created. A determination of such separability does inure to the benefit of the head of the separate component if he is a Senior Employee designated by the Director. However, the determination is not beneficial to persons, including the head of a separate component, in positions at Executive Level or serving at uniformed service grade level of 0-9 above.</P> <P>(c) <E T="03">Separate Statutory Components—</E>(1) <E T="03">Procedure.</E> Each agency shall notify the Director, in writing, of any separate statutory agency or bureau which it desires to submit for such designation under 18 U.S.C. 207(e), providing:</P> <P>(i) A description of the functions of the agency or bureau, indicating the basis on which such functions are claimed to be distinct and separate from the parent organization;</P> <P>(ii) The separate statutory basis of the agency or bureau; and</P> <P>(iii) Identification of those positions in the parent agency with official responsibility for supervision of such separate statutory agency or bureau.</P> <P>(2) <E T="03">Standards.</E> A parent agency may propose as a “separate” statutory agency an agency or bureau (i) created specifically by statute, (ii) the functions of which are expressly referred to by statute in such a way as to indicate that a separate component was intended or (iii) which is the successor to either of the foregoing; but a decision as to the sufficiency of the statutory authority as well as the separability of functions shall be reserved to the Director, OGE.</P> <P>(3) <E T="03">Effect of designation.</E> If a subordinate part of an agency is designated as “separate” by the Director, then Senior Employees of such separate agency and those of the parent agency are not subject to the restrictions of section 207(c) as to each others’ agencies—except that the prohibition of section 207(c) remains applicable to the former head of a “separate” subordinate agency and to former Senior Employees of the parent agency whose official responsibility included supervision of the subordinate agency. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A former Senior Employee of the Product Agency in Executive Department leaves and joins a law firm which represents Q Corporation. Product Agency has been designated by the Director as separate from Executive Department. The former employee is not restricted from representing the Q Corporation on a new matter before the Executive Department.</P> </EXAMPLE> <P>(d) <E T="03">Separate Nonstatutory Components—</E>(1) <E T="03">Procedure.</E> Each agency may notify the Director, in writing, of a component agency, bureau or office having separate and distinct subject matter jurisdiction which it desires to submit for designation under 18 U.S.C. 207(d)(1)(C), providing:</P> <P>(i) A description of the subject matter jurisdiction of such component, indicating the basis on which such jurisdiction is claimed to be separate and distinct from certain other agencies, bureaus and offices of the parent agency;</P> <P>(ii) A description of the nature of the connections and interactions between such component and certain other agencies, bureaus or offices of the parent agency indicating the basis on which the component is claimed to be unrelated;</P> <P>(iii) A statement of the basis on which it is claimed that no potential exists for use by former Senior Employees of such component of undue influence or unfair advantage with respect to the named other agencies, bureaus or offices of the parent agency, based on past Government service; and</P> <P>(iv) Identification of those organizational units of the parent agency having administrative or operational authority over such component agency, bureau or office.<PRTPAGE P="613"/> </P> <P>(2) <E T="03">Standards.</E> (i) A parent agency may propose as “separate” from other parts of a department or agency any agency or bureau having subject matter jurisdiction separate and distinct from one or more other portions of the department or agency accompanied by a showing that there would be no potential for use of undue influence or unfair advantage based upon past Government service if a former employee of one such subordinate agency or bureau communicated with employees of such other portions of the department or agency.</P> <P>(ii) A determination under this section rests solely with the Director, OGE, and is available only for those subordinate components which would, but for the lack of a statutory basis, qualify for separate agency treatment under 18 U.S.C. 207(e).</P> <P>(iii) Where one component has supervisory authority over another, the two components may not be considered separate and distinct for purposes of this section.</P> <P>(iv) The requirement of “separate and distinct subject matter jurisdiction” may be met in at least two ways. First, the substantive areas of coverage may be distinct. For example, an office or bureau within the parent agency may handle only maritime matters. Second, the regional area of coverage may be different. For example, one regional office may, on appropriate facts, be considered separate and distinct from other regional offices and from the parent agency—except for the bureau or office in the parent agency which is responsible for its supervision.</P> <P>(v) It is necessary to specify the “unrelated agency or bureau within the same department or agency” as to which it is recommended that post employment communication be permitted. For example, one bureau may involve a subject matter distinct from some, but not all, parts of the parent department. Attempts to fractionalize a department could, however, become deeply complicated and involve difficult judgments and fact-finding. OGE will not usually act on such cases, and submissions should be confined to relatively clear cases.</P> <P>(3) <E T="03">Effect of determination.</E> If a component agency, bureau or office is determined to be separate by the Director, then Senior Employees of such component are not subject to the restrictions of 18 U.S.C. 207(c) and § 2637.204 as to the remaining agencies, bureaus or offices of the parent agency (except certain such agencies, bureaus or offices as specified in § 2637.215)—except that the prohibition of section 207(c) and § 2637.204 shall remain applicable (i) to those former Senior Employees of such component who served in positions designated by 18 U.S.C. 207(d)(1)(A) and (B) and (ii) to former Senior Employees of such component with respect to the parent agency (as defined in § 2637.205(e)). Such limited application of 18 U.S.C. 207(c) may be available for the head of a separate component, unlike the limitation of 18 U.S.C. 207(e), as determined by the Director. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>In the Department of Justice, while the Antitrust Division may be “separate” from other Divisions, it is not separate from the immediate office of the Attorney General.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2637.206</SECTNO> <SUBJECT>Exemption for scientific and technological information.</SUBJECT> <P>(a) <E T="03">Exemption.</E> The making of communications solely for the purpose of furnishing scientific or technological information pursuant to agency procedures is exempt from all prohibitions and restrictions set forth in §§ 2637.201—2637.204 of these regulations (subsections (a), (b), and (c) of 18 U.S.C. 207). This exemption allows the free exchange of such information regardless of a former Government employee's prior participation in or responsibility for the matter. The former Senior Employee should not argue for the acceptance of a proposal. The exemption is not limited to communications constituting the furnishing of information, but includes those “for the purpose of” doing so. No violation occurs when, for example, a former Government employee working on a project makes contact to determine the kind and form of information required, or the adequacy of information already supplied, so long as agency procedures are satisfied. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A project manager, regardless of prior involvement in a particular matter, may contact the Government to determine <PRTPAGE P="614"/>deficiencies in system design or performance, furnish scientific or technological information relating to a solution or approach to a problem, seek related information from the Government; advise and supervise others who are involved as to such matters; and meet with Government technical experts for such purpose; provided in each case that there is compliance with such agency regulations as have been issued.</P> </EXAMPLE> <P>(b) <E T="03">Necessary information.</E> Scientific and technological information includes feasibility, risk, cost, and speed of implementation, when necessary to appreciate fairly the practical significance of the information. The Government may and should be fully informed of the significance of scientific and technological alternatives.</P> <P>(c) <E T="03">Intent to influence.</E> The furnishing of meritorious or convincing scientific or technological proposals does not constitute an intent to influence. (See § 2637.201(b)(7) of this part.)</P> <P>(d) <E T="03">Expert testimony.</E> This exemption does not include testimony as an “expert” in adversary proceedings in a matter in which the United States is involved or has an interest. Such testimony is governed by regulations set forth in § 2637.208. As to assistance as an expert or consultant, see § 2637.203(g), Example 7.</P> <P>(e) <E T="03">Agency responsibility for procedures.</E> The primary responsibility for developing procedures to guide activity under this exemption lies with each agency, so that such procedures comport with the particular characteristics of agency programs and needs. Such procedures will be reviewed periodically by the Director. In promulgating procedures, an agency may take into consideration: Limiting communications to certain formats which are least conducive to the use of personal influence; segregating, to the extent possible, meetings and presentations involving matters of technical substance from those involving other aspects of the relationship; requiring that the designated agency ethics official be informed of instances where the exemption is used; or employing more restrictive practices in circumstances involving either immediate competition for contracts or applications for grants than in those involving an ongoing project.</P> </SECTION> <SECTION> <SECTNO>§ 2637.207</SECTNO> <SUBJECT>Exemption for persons with special qualification in a technical discipline.</SUBJECT> <P>(a) <E T="03">Applicability.</E> A former Government employee may be exempted from the restrictions on post employment practices if the head of the agency concerned with the particular matter, in consultation with the Director, executes a certification published in the <E T="04">Federal Register</E> that such former Government employee has outstanding qualifications in a scientific, technological, or other technical discipline; is acting with respect to a particular matter which requires such qualifications; and that the national interest would be served by such former Government employee's participation.</P> <P>(b) <E T="03">When appropriate.</E> This exemption should generally be utilized only where the former Government employee's involvement is needed on so continuous and comprehensive a basis that compliance with the procedures adopted for the communication of technical information (see § 2637.206), or other actions to isolate the former Government employee from other aspects of the matter, would be burdensome and impractical.</P> <P>(c) <E T="03">Certification authority.</E> Certification should take place at no lower level than the head of the agency, the deputy thereof, or in the absence of both, the acting agency head. Consultation with the Director shall precede any certification. The exemption takes place upon the execution of the certification, provided that it is transmitted to the <E T="04">Federal Register</E> for publication.</P> <P>(d) <E T="03">Agency registry.</E> An agency may establish a registry for current employees, wherein the nature of their qualifications in one or more technical fields is certified after review by a supervisor, as a basis for establishing such qualifications in connection with, and to expedite, a later request for certification, should the necessity for such request arise.</P> </SECTION> <SECTION> <SECTNO>§ 2637.208</SECTNO> <SUBJECT>Testimony and statements under oath or subject to penalty of perjury.</SUBJECT> <P>(a) <E T="03">Statutory basis.</E> Section 207(h) provides: </P> <EXTRACT> <PRTPAGE P="615"/> <P>“Nothing in this section shall prevent a former officer or employee from giving testimony under oath, or from making statements required to be made under penalty of perjury.”</P> </EXTRACT> <P>(b) <E T="03">Applicability.</E> A former Government employee may testify before any court, board, commission, or legislative body with respect to matters of fact within the personal knowledge of the former Government employee. This provision does not, however, allow a former Government employee, otherwise barred under 18 U.S.C. 207 (a), (b), or (c) to testify on behalf of another as an expert witness except: (1) To the extent that the former employee may testify from personal knowledge as to occurrences which are relevant to the issues in the proceeding, including those in which the former Government employee participated, utilizing his or her expertise, or (2) in any proceeding where it is determined that another expert in the field cannot practically be obtained; that it is impracticable for the facts or opinions on the same subject to be obtained by other means, and that the former Government employee's testimony is required in the interest of justice.</P> <P>(c) <E T="03">Statements under penalty of perjury.</E> A former Government employee may make any statement required to be made under penalty of perjury, such as those required in registration statements for securities, tax returns, or security clearances. The exception does not, however, permit a former employee to submit pleadings, applications, or other documents in a representational capacity on behalf of another merely because the attorney or other representative must sign the documents under oath or penalty of perjury.</P> </SECTION> <SECTION> <SECTNO>§ 2637.209</SECTNO> <SUBJECT>Partners of present or former Government employees.</SUBJECT> <P>(a) <E T="03">Scope.</E> Section 207(g) of 18 U.S.C. prohibits a partner of a current Government employee from acting as agent or attorney before the United States in a particular Government matter in which such Government employee participates, or did participate, personally and substantially. To the extent such section involves the activities of current Government employees and their partners, it is beyond the scope of these regulations.</P> <P>(b) <E T="03">Imputation.</E> Neither the Act nor these regulations impute the restrictions on former employees to partners or associates of such employees. Imputation of the restrictions of sections 207 (b)(ii) and (c) to partners of former employees would be inappropriate for the additional reason that section 207(b)(ii) itself restricts secondary-level activity, and section 207(c) is directed at the exercise of influence personal to the former Senior Employee.</P> </SECTION> <SECTION> <SECTNO>§ 2637.210</SECTNO> <SUBJECT>Officials of a State; officials of corporations created by an Act of Congress and public international organizations.</SUBJECT> <P>For purposes of sections 207 (a), (b) and (c) of title 18 U.S.C.:</P> <P>(a) An official whose powers are established by the constitution of any State of the United States does not act on behalf of “any other person” or “anyone” when acting in his or her official capacity, but rather constitutes the official authority of the State; and</P> <P>(b) A former employee does not engage in unlawful activity when he or she acts on behalf of (1) a corporation specifically created by an Act of Congress if any of its directors is currently appointed by the United States; or (2) any public international organization if he or she serves by nomination or request of the United States or on temporary assignment from any agency.</P> </SECTION> <SECTION> <SECTNO>§ 2637.211</SECTNO> <SUBJECT>Standards and procedures for designating senior employee positions pursuant to 18 U.S.C. 207(d).</SUBJECT> <P>(a) <E T="03">Definitions.</E> As used in these regulations, <E T="03">Senior Employee</E> refers to any person specified in or designated pursuant to 18 U.S.C. 207(d)(1); that is, employed by the United States:</P> <P>(1) At a rate of pay specified or fixed according to subchapter II of chapter 53 of title 5, U.S.C., generally known as “Executive Level;” or</P> <P>(2) On active duty as a commissioned officer of a uniformed service in a pay grade of 0-9 or above as described in 37 U.S.C. 201; or</P> <P>(3) In a position in any pay system for which the basic rate of pay is equal to or greater than that for GS-17 as prescribed by 5 U.S.C. 5332 or positions <PRTPAGE P="616"/>which are established within the Senior Executive Service (SES) pursuant to the Civil Service Reform Act of 1978, or positions of active duty commissioned officers of the uniformed services assigned to pay grade 0-7 and 0-8, as described in 37 U.S.C. 201, and who has significant decision-making or supervisory responsibilities, as designated by the Director, pursuant to paragraph (b) of this section.</P> <P>(b) <E T="03">Designation procedures.</E> The following procedures will be followed in designation of Senior Employee positions pursuant to 18 U.S.C. 207(d)(1)(C):</P> <P>(1) <E T="03">Positions at GS-17 and 18 level, Senior Executive Service, and pay grades 0-7 and 0-8 of the uniformed services.</E> The following are designated effective February 28, 1980, unless exempted as provided in paragraph (b)(2) of this section: All positions classified at GS-17 or above in the General Schedule; those in any other pay system, the rate of pay for which is at least that of grade GS-17; those in the Senior Executive Service; and those active duty uniformed service officers serving in pay grades 0-7 and 0-8. Each agency head shall submit to the Director, by May 15, 1979 and on every May 15 thereafter, a report consisting of: (i) a description of all positions as set forth in this paragraph; (ii) the agency's recommendation as to those positions that should not be designated, based on standards established in these regulations or any other reason; and (iii) the basis and reasons for each such recommendation. After making such additional inquiries as appear desirable, the Director will determine which positions should be exempt. Notwithstanding the foregoing, the effective date for Executive Level positions, whether or not included in the Senior Executive Service, is July 1, 1979.</P> <P>(2) <E T="03">Standards for designation and exemption.</E> Positions, or classes of positions, which do not have significant decision-making or supervisory responsibility will be exempted from designation. Initial exemptions will be retroactive. Classes of positions which may be considered for exemption are those in which decision-making responsibility does not regularly extend to major policy issues within the agency or in which supervisory responsibility extends to less than all of a directorate, bureau or department which has major policy or operational responsibility. The foregoing may include, without limitation, special assistants, technical and professional advisors to persons who make policy decisions, those involved primarily in research and technical work, and administrative law judges.</P> <P>(3) <E T="03">Senior Executive Service.</E> The establishment of positions within the Senior Executive Service pursuant to the Civil Service Reform Act of 1978 is the responsibility of the Office of Personnel Management. The choice of an individual to enter or not to enter the Senior Executive Service is not a relevant factor in the designation under these regulations of a position held by such person.</P> <P>(4) <E T="03">“Rate of pay.”</E> As used in the definition of Senior Employee, the “rate of pay” is that specified by or pursuant to law without regard to the ceiling limitations of section 5308 or section 5373 of title 5 U.S.C.; except that an individual in an executive level or GS-17 or 18 position is deemed to be employed at the rate of pay specified for that position. Increases in pay due to “steps” are not considered in determining pay grade or level.</P> <P>(c) <E T="03">Differential designation.</E> Where appropriate, the Director may designate positions for purposes of 18 U.S.C. 207(c) without designating the positions for purposes of 18 U.S.C. 207(b)(ii). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>It may be determined that a given position or class of positions will be restricted as to contact in the first post employment year, but not as to assisting in representation.</P> </EXAMPLE> <P>(d) <E T="03">Fair notice of designation.</E> No Senior Employee designation made pursuant to 18 U.S.C. 207(d)(1)(C) will be effective until the last day of the fifth full calendar month after the first publication of a notice by the Director of intention to designate; except as indicated in paragraph (i) of this section, and as to a person first occupying the position after such notice is published. The designation in paragraph (b)(1) of this section and the comparable designation in the interim regulations of April 3, 1979 (44 FR 19974) constitutes notice.<PRTPAGE P="617"/> </P> <P>(e) <E T="03">“Acting” or temporary positions.</E> An individual may serve in a position designated pursuant to 18 U.S.C. 207(d) for up to 60 days in an “acting” or temporary capacity without being subject to those restrictions which specially apply to such positions, unless such individual (1) was transferred or detailed from another designated position, or (2) without a significant break in continuity, is named permanently to such position.</P> <P>(f) <E T="03">Special Government Employee.</E> A Special Government Employee who serves on 60 days or less in a given calendar year may serve in a designated position without being subject to the restrictions which specially apply to such position. A Special Government Employee is deemed to serve only on those days actually engaged in work for the Government under his or her Special Government Employee arrangement.</P> <P>(g) <E T="03">Publication.</E> Positions designated by the Director pursuant to 18 U.S.C. 207(d)(1)(C) and not exempted will be published in the <E T="04">Federal Register.</E> </P> <P>(h) <E T="03">Computation of time.</E> An individual who transfers from a designated position to one that is not designated shall compute the commencement of the time periods contained in 18 U.S.C. 207 (b)(ii) and (c) from the time of such transfer, except as indicated in paragraph (i) of this section. (See § 2637.202(e).)</P> <P>(i) <E T="03">Position shifting.</E> In any case where a person transfers from a designated position to one that is not, the agency head shall within one month transmit to the Director a report reciting the functions of each position, the reason for the transfer, and the identities of the prior holder of the position assumed and the successor, if any, to the position departed. If the Director designates the newly assumed position pursuant to section 207(d)(1)(C) of title 18 U.S.C., such designation shall be effective retroactively to the date of transfer notwithstanding paragraph (d) of this section.</P> <P>(j) <E T="03">Revocation of Designations.</E> In the event the Director determines that a position previously designated should not have been, the designation will be revoked. Except for designations made under paragraph (i) of this section, the revocation may be made retroactive if the initial designation is determined to have been erroneous or if there is a change in standards for designation applicable to the position. Retroactive effect will not be given where the basis for revocation is a change in the functions or importance of a position.</P> </SECTION> <SECTION> <SECTNO>§ 2637.212</SECTNO> <SUBJECT>Administrative enforcement proceedings.</SUBJECT> <P>(a) <E T="03">Basic procedures.</E> The following basic guidelines for administrative enforcement of restrictions on post employment activities are designed to expedite consultation with the Director as required pursuant to section 207(j) of title 18 U.S.C.</P> <P>(1) <E T="03">Delegation.</E> The head of an agency may delegate his or her authority under this subpart.</P> <P>(2) <E T="03">Initiation of administrative disciplinary hearing.</E> (i) On receipt of information regarding a possible violation of 18 U.S.C. 207, and after determining that such information appears substantiated, the agency head shall expeditiously provide such information, along with any comments or agency regulations, to the Director and to the Criminal Division, Department of Justice. The agency should coordinate any investigation on administrative action with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice communicates to the Agency that it does not intend to initiate criminal prosecution.</P> <P>(ii) Whenever an agency has determined after appropriate review that there is reasonable cause to believe that a former Government employee has violated any of these regulations or 18 U.S.C. 207(a), (b), or (c), it may initiate an administrative disciplinary proceeding by providing the former Government employee with notice as defined in paragraph (a)(3) of this section. Agencies may establish procedures to protect the privacy of former employees as to allegations made prior to a determination of sufficient cause to initiate an administrative disciplinary hearing.<PRTPAGE P="618"/> </P> <P>(3) <E T="03">Adequate notice.</E> (i) An agency must provide a former Government employee with adequate notice of an intention to institute a proceeding and an opportunity for a hearing.</P> <P>(ii) Notice to the former Government employee must include:</P> <P>(A) A statement of allegations (and the basis thereof) sufficiently detailed to enable the former Government employee to prepare an adequate defense;</P> <P>(B) Notification of the right to a hearing; and</P> <P>(C) An explanation of the method by which a hearing may be requested.</P> <P>(4) <E T="03">Presiding official.</E> (i) The presiding official at proceedings under this subpart shall be the agency head or an individual to whom the agency head has delegated authority to make an initial decision (hereinafter referred to as “examiner”).</P> <P>(ii) Appropriate qualifications shall be established for examiners.</P> <P>(iii) An examiner shall be impartial. No individual who has participated in any manner in the decision to initiate the proceedings may serve as an examiner in those proceedings.</P> <P>(5) <E T="03">Time, date and place.</E> (i) The hearing shall be conducted at a reasonable time, date, and place.</P> <P>(ii) In setting a hearing date, the presiding official shall give due regard to the former Government employee's need for:</P> <P>(A) Adequate time to prepare a defense properly, and</P> <P>(B) An expeditious resolution of allegations that may be damaging to his or her reputation.</P> <P>(6) <E T="03">Hearing rights.</E> A hearing shall include, at a minimum, the following rights:</P> <P>(i) To represent oneself or to be represented by counsel,</P> <P>(ii) To introduce and examine witnesses and to submit physical evidence,</P> <P>(iii) To confront and cross-examine adverse witnesses,</P> <P>(iv) To present oral argument, and</P> <P>(v) To receive a transcript or recording of the proceedings, on request.</P> <P>(7) <E T="03">Burden of proof.</E> In any hearing under this subpart, the agency has the burden of proof and must establish substantial evidence of a violation.</P> <P>(8) <E T="03">Hearing decision.</E> (i) The presiding official shall make a determination exclusively on matters of record in the proceeding, and shall set forth in the decision all findings of fact and conclusions of law relevant to the matters at issue.</P> <P>(ii) Within a reasonable period of the date of an initial decision, as set by the agency, either party may appeal the decision to the agency head. The agency head shall base his or her decision on such appeal solely on the record of the proceedings or those portions thereof cited by the parties to limit the issues.</P> <P>(iii) If the agency head modifies or reverses the initial decision, he or she shall specify such findings of fact and conclusions of law as are different from those of the hearing examiner.</P> <P>(9) <E T="03">Administrative sanctions.</E> The agency head may take appropriate action in the case of any individual who was found in violation of 18 U.S.C. 207 (a), (b), or (c) of these regulations after a final administrative decision or who failed to request a hearing after receiving adequate notice, by:</P> <P>(i) Prohibiting the individual from making, on behalf of any other person except the United States, any formal or informal appearance before, or, with the intent to influence, any oral or written communication to, such department or agency on any matter of business for a period not to exceed five years, which may be accomplished by directing agency employees to refuse to participate in any such appearance or to accept any such communication; or</P> <P>(ii) Taking other appropriate disciplinary action.</P> <P>(10) <E T="03">Judicial review.</E> Any person found to have participated in a violation of 18 U.S.C. 207 (a), (b), or (c) of these regulations may seek judicial review of the administrative determination.</P> <P>(11) <E T="03">Consultation and review.</E> Each agency shall submit a copy of its procedures for administrative enforcement to the Director.</P> </SECTION> <SECTION> <SECTNO>§ 2637.213</SECTNO> <SUBJECT>Effective date of restrictions.</SUBJECT> <P>(a) <E T="03">Persons affected.</E> Any person who holds a Government position after June 30, 1979, becomes subject to any additional restrictions relating to the holder of that position contained in the <PRTPAGE P="619"/>amendments to 18 U.S.C. 207 as set forth in these regulations. Restrictions which depend on the designation of a position by the Director shall become applicable on the date such designation becomes effective.</P> <P>(b) <E T="03">Fair notice of substantive changes.</E> No change in the substance of these regulations shall become effective with respect to a Government employee who is adversely affected by such change until and unless such employee remains in a position to which such change is applicable for a period of five months following the first publication of a regulation in final form, reflecting or prescribing such change, or unless such employee accepts such a position after the publication.</P> </SECTION> <SECTION> <SECTNO>§ 2637.214</SECTNO> <SUBJECT>Separate statutory agencies: Designations.</SUBJECT> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Part 2637 provides guidance concerning the prior version of 18 U.S.C. 207 (1988) as it continues to apply to individuals who terminated Government service (or a “Senior” Government position) before January 1, 1991. However, since no former “Senior Employee” who terminated service before that date could any longer be subject to the one-year restriction of section 207(c) of 18 U.S.C. as it existed prior to its amendment by the Ethics Reform Act of 1989, the listing of separate statutory agencies that previously appeared in § 2637.214 has been deleted.</P> <FP>[57 FR 62468, Dec. 31, 1992]</FP> </NOTE> </SECTION> <SECTION> <SECTNO>§ 2637.215</SECTNO> <SUBJECT>Separate components of agencies or bureaus: Designations.</SUBJECT> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Part 2637 provides guidance concerning the prior version of 18 U.S.C. 207 (1988) as it continues to apply to individuals who terminated Government service (or a “Senior” Government position) before January 1, 1991. However, since no former “Senior Employee” who terminated service before that date could any longer be subject to the one-year restriction of section 207(c) of 18 U.S.C. as it existed prior to its amendment by the Ethics Reform Act of 1989, the listing of separate components that previously appeared in § 2637.215 has been deleted.</P> <FP>[57 FR 62468, Dec. 31, 1992]</FP> </NOTE> </SECTION> <SECTION> <SECTNO>§ 2637.216</SECTNO> <SUBJECT>“Senior Employee” designations.</SUBJECT> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Part 2637 provides guidance concerning the prior version of 18 U.S.C. 207 (1988) as it continues to apply to individuals who terminated Government service (or a “Senior” Government position) before January 1, 1991. However, since no former “Senior Employee” who terminated service before that date could any longer be subject to either the two-year restriction of section 207(b)(ii) or the one-year restriction of section 207(c) of 18 U.S.C. as they existed prior to their amendment by the Ethics Reform Act of 1989, the listing of “Senior Employee” positions that previously appeared in § 2637.216 has been deleted.</P> <FP>[57 FR 62468, Dec. 31, 1992]</FP> </NOTE> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2638</EAR> <HD SOURCE="HED">PART 2638—OFFICE OF GOVERNMENT ETHICS AND EXECUTIVE AGENCY ETHICS PROGRAM RESPONSIBILITIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2638.101</SECTNO> <SUBJECT>Authority and purpose.</SUBJECT> <SECTNO>2638.102</SECTNO> <SUBJECT>General policies.</SUBJECT> <SECTNO>2638.103</SECTNO> <SUBJECT>Agency regulations.</SUBJECT> <SECTNO>2638.104</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Designated Agency Ethics Official</HD> <SECTNO>2638.201</SECTNO> <SUBJECT>In general.</SUBJECT> <SECTNO>2638.202</SECTNO> <SUBJECT>Responsibility of agency head.</SUBJECT> <SECTNO>2638.203</SECTNO> <SUBJECT>Duties of designated agency ethics official.</SUBJECT> <SECTNO>2638.204</SECTNO> <SUBJECT>Deputy ethics official.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Formal Advisory Opinion Service</HD> <SECTNO>2638.301</SECTNO> <SUBJECT>In general.</SUBJECT> <SECTNO>2638.302</SECTNO> <SUBJECT>Who may request a formal advisory opinion.</SUBJECT> <SECTNO>2638.303</SECTNO> <SUBJECT>Subject matter of formal advisory opinions.</SUBJECT> <SECTNO>2638.304</SECTNO> <SUBJECT>Form of requests for formal advisory opinions.</SUBJECT> <SECTNO>2638.305</SECTNO> <SUBJECT>Acceptance of requests for formal advisory opinions.</SUBJECT> <SECTNO>2638.306</SECTNO> <SUBJECT>Notice of requests.</SUBJECT> <SECTNO>2638.307</SECTNO> <SUBJECT>Written comment on requests.</SUBJECT> <SECTNO>2638.308</SECTNO> <SUBJECT>Issuance.</SUBJECT> <SECTNO>2638.309</SECTNO> <SUBJECT>Reliance on formal advisory opinions.</SUBJECT> <SECTNO>2638.310</SECTNO> <SUBJECT>Public availability and publication of formal advisory opinions.</SUBJECT> <SECTNO>2638.311</SECTNO> <SUBJECT>Copies of published formal advisory opinions.</SUBJECT> <SECTNO>2638.312</SECTNO> <SUBJECT>Referral of requests.</SUBJECT> <SECTNO>2638.313</SECTNO> <SUBJECT>Agency opinions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Correction of Executive Branch Agency Ethics Programs</HD> <SECTNO>2638.401</SECTNO> <SUBJECT>In general.</SUBJECT> <SECTNO>2638.402</SECTNO> <SUBJECT>Corrective orders.</SUBJECT> <SECTNO>2638.403</SECTNO> <SUBJECT>Agency compliance.</SUBJECT> <SECTNO>2638.404</SECTNO> <SUBJECT>Report of noncompliance.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="620"/> <HD SOURCE="HED">Subpart E—Corrective and Remedial Action in Cases Involving Individual Executive Agency Employees</HD> <SECTNO>2638.501</SECTNO> <SUBJECT>In general.</SUBJECT> <SECTNO>2638.502</SECTNO> <SUBJECT>Recommendations and advice.</SUBJECT> <SECTNO>2638.503</SECTNO> <SUBJECT>Agency investigations.</SUBJECT> <SECTNO>2638.504</SECTNO> <SUBJECT>Director's finding.</SUBJECT> <SECTNO>2638.505</SECTNO> <SUBJECT>Director's decision and order.</SUBJECT> <SECTNO>2638.506</SECTNO> <SUBJECT>Director's recommendation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Executive Branch Agency Reports</HD> <SECTNO>2638.601</SECTNO> <SUBJECT>In general.</SUBJECT> <SECTNO>2638.602</SECTNO> <SUBJECT>Annual agency reports.</SUBJECT> <SECTNO>2638.603</SECTNO> <SUBJECT>Reports of referral for possible prosecution.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Executive Agency Ethics Training Programs</HD> <SECTNO>2638.701</SECTNO> <SUBJECT>Overview.</SUBJECT> <SECTNO>2638.702</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2638.703</SECTNO> <SUBJECT>Initial agency ethics orientation for all employees.</SUBJECT> <SECTNO>2638.704</SECTNO> <SUBJECT>Annual ethics training for public filers.</SUBJECT> <SECTNO>2638.705</SECTNO> <SUBJECT>Annual ethics training for other employees.</SUBJECT> <SECTNO>2638.706</SECTNO> <SUBJECT>Agency's written plan for annual ethics training.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 2583, Jan. 9, 1981, unless otherwise noted. Redesignated at 54 FR 50231, Dec. 5, 1989.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2638.101</SECTNO> <SUBJECT>Authority and purpose.</SUBJECT> <P>(a) <E T="03">Authority.</E> 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”).</P> <P>(b) <E T="03">Purpose.</E> These executive branch regulations supplement and implement titles I, IV and V of the Act, set forth more specifically certain procedures provided in those titles, and furnish examples, where appropriate.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, as amended at 65 FR 69657, Nov. 20, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.102</SECTNO> <SUBJECT>General policies.</SUBJECT> <P>(a) The Office of Government Ethics (“the Office”) provides overall direction and leadership concerning executive branch policies related to preventing conflicts of interest. The head of each agency has primary responsibility for the administration of the “ethics in government” program within his or her agency. The Office carries out its leadership role by:</P> <P>(1) Providing information on and promoting ethical standards in executive agencies;</P> <P>(2) Consulting with agencies regarding their agency ethics programs and assisting them in interpreting ethics rules and regulations;</P> <P>(3) Developing rules and regulations pertaining to conflicts of interests and standards of conduct;</P> <P>(4) Monitoring compliance with the public and confidential financial disclosure requirements;</P> <P>(5) Establishing a formal advisory opinion service; and</P> <P>(6) Evaluating the effectiveness of programs designed to prevent conflicts of interests.</P> </SECTION> <SECTION> <SECTNO>§ 2638.103</SECTNO> <SUBJECT>Agency regulations.</SUBJECT> <P>Each agency may, subject to the prior approval of the Office of Government Ethics, issue regulations not inconsistent with this part.</P> </SECTION> <SECTION> <SECTNO>§ 2638.104</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part:</P> <P> <E T="03">Act</E> means the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended).</P> <P> <E T="03">Agency</E> means any executive department, military department, Government corporation, independent establishment or agency, including the United States Postal Service and Postal Rate Commission.</P> <P> <E T="03">Designated agency ethics official</E> 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 § 2638.203 of this part.</P> <P> <E T="03">Director</E> means the Director of the Office of Government Ethics.</P> <P> <E T="03">Executive branch</E> 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. 109(8)-(11) of the Act as within the judicial or legislative branch.<PRTPAGE P="621"/> </P> <P> <E T="03">Person</E> includes an individual, partnership, corporation, association, government agency, or public or private organization.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, as amended at 65 FR 69657, Nov. 20, 2000]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Designated Agency Ethics Official</HD> <SECTION> <SECTNO>§ 2638.201</SECTNO> <SUBJECT>In general.</SUBJECT> <P>Each agency shall have a designated agency ethics official who is the officer or employee designated by the head of the agency to administer the provisions of title I of the Act within that agency, to coordinate and manage the agency's ethics program and to provide liaison to the Office of Government Ethics with regard to all aspects of such ethics program. The agency's ethics program shall be designed to implement titles I, IV and V of the Act and regulations promulgated thereunder, Executive Order 12674 as modified (relating to principles of ethical conduct for officers and employees within the executive branch) and regulations promulgated thereunder, and other statutes and regulations applicable to agency ethics matters.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, as amended at 65 FR 69657, Nov. 20, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.202</SECTNO> <SUBJECT>Responsibilities of agency head.</SUBJECT> <P>(a) <E T="03">In general.</E> The head of each agency is responsible for and shall exercise personal leadership in establishing, maintaining, and carrying out the agency's ethics program. He or she shall make available to the ethics program sufficient resources (including investigative, audit, legal, and administrative staff as necessary) to enable the agency to administer its program in a positive and effective manner.</P> <P>(b) <E T="03">Selection of a designated agency ethics official.</E> The head of each agency shall appoint an individual to serve as the designated agency ethics official and an individual to serve in an acting capacity in the absence of the primary designated agency ethics official (alternate agency ethics official). In selecting these two individuals the head of an agency should ensure that the experience of such appointees in administrative, legal, managerial, or analytical work demonstrates the ability to—</P> <P>(1) Review the financial disclosure reports submitted by officers or employees within the agency, assessing the application of conflict of interest laws and regulations to the information reported and counseling those officers or employees with regard to resolving actual or potential conflicts of interests, or appearances thereof;</P> <P>(2) Review the financial disclosure reports submitted by Presidential appointees for confirmation purposes and counsel those appointees with regard to resolving potential conflicts of interest, or appearances thereof, before the confirmation hearing;</P> <P>(3) Counsel agency personnel concerning ethics standards and programs;</P> <P>(4) Counsel departing and former agency officials on post-employment conflict of interest standards;</P> <P>(5) Assist managers and supervisors in understanding and implementing agency ethics programs;</P> <P>(6) Administer a system for periodic evaluation of the ethics program; and</P> <P>(7) Select deputy ethics officials if necessary and manage the ethics program through them.</P> <P>(c) <E T="03">Designation.</E> The head of each agency shall formally delegate functional authority to coordinate and manage the ethics program as set forth in § 2638.203 to the designated and alternate agency ethics officials. Within 30 days of any such delegation of authority the head of the agency shall submit to the Office of Government Ethics a formal written designation. The designation shall include:</P> <P>(1) The names of the individuals so designated;</P> <P>(2) The title of the position held by each designee; and</P> <P>(3) A copy of the delegation of authority.</P> </SECTION> <SECTION> <SECTNO>§ 2638.203</SECTNO> <SUBJECT>Duties of the designated agency ethics official.</SUBJECT> <P>(a) <E T="03">In general.</E> The designated agency ethics official shall coordinate and manage the agency's ethics program. The program consists generally of:</P> <P>(1) Liaison with the Office of Government Ethics;<PRTPAGE P="622"/> </P> <P>(2) Review of financial disclosure reports;</P> <P>(3) Initiation and maintenance of ethics education and training programs; and</P> <P>(4) Monitoring administrative actions and sanctions.</P> <P>(b) <E T="03">Program elements.</E> In carrying out this program on behalf of the head of the agency, the designated agency ethics official shall ensure that:</P> <P>(1) Close liaison with the Office of Government Ethics concerning the agency's ethics program is developed and maintained;</P> <P>(2) An effective system and procedure for the collection, filing, review, and, when applicable, public inspection of the financial disclosure reports as required by title II of the Act, Executive Order 11222, and other applicable statutes and regulations is developed and properly administered;</P> <P>(3) The financial disclosure reports of Presidential nominees to agency positions submitted prior to Senate confirmation hearings pursuant to § 2634.605(c) of part 2634 are certified personally by him or herself or alternate designated agency ethics official in his or her absence;</P> <P>(4) All financial disclosure reports submitted by employees and filed in bureaus and regional offices, as well as those submitted and filed at the agency's headquarters, are properly maintained and effectively and consistently reviewed for conformance with all applicable laws and statutes;</P> <P>(5) A list of those circumstances or situations which have resulted or may result in noncompliance with ethics laws and regulations is developed, maintained and published within the agency as required by § 206(b)(7) of the Act and made available for public inspection;</P> <P>(6) An education program for agency employees concerning all ethics and standards of conduct matters is developed and conducted in accordance with subpart G, Executive Agency Ethics Training Programs, of this part.</P> <P>(7) A counseling program for agency employees concerning all ethics and standards of conduct matters including post employment matters, is developed and conducted;</P> <P>(8) Records are kept, when appropriate, on advice rendered;</P> <P>(9) Prompt and effective action including administrative action is undertaken to remedy:</P> <P>(i) Violations or potential violations, or appearances thereof, of the agency's standards of conduct including post employment regulations;</P> <P>(ii) The failure to file a financial disclosure report or portions thereof;</P> <P>(iii) Potential or actual conflicts of interests, or appearances thereof, which were disclosed on a financial disclosure report; and</P> <P>(iv) Potential or actual violations of other laws governing the conduct or financial holdings of officers or employees of that agency, and</P> <FP>that a follow-up is made to ensure that actions ordered, including divestiture and disqualification, have been taken;</FP> <P>(10) The agency's standards of conduct regulations, financial disclosure systems, and post-employment enforcement systems are evaluated periodically to determine their adequacy and effectiveness in relation to current agency responsibilities;</P> <P>(11) Information developed by internal audit and review staff, the Office of the Inspector General, if any, or other audit groups is reviewed to determine whether such information discloses a need for revising agency standards of conduct or for taking prompt corrective action to remedy actual or potential conflict of interest situations;</P> <P>(12) The services of the agency's Office of the Inspector General, if any, are utilized when appropriate, including the referral of matters to and acceptance of matters from that Office;</P> <P>(13) A list of those persons to whom delegations of authority are made pursuant to § 2638.204(a) is maintained and made available to the Office of Government Ethics, upon request; and</P> <P>(14) Information required by the Act or requested by the Office of Government Ethics in the performance of its responsibilities is provided in a complete and timely manner.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 58 FR 69176, Dec. 30, 1993; 59 FR 12148, Mar. 16, 1994]</CITA> </SECTION> <SECTION> <PRTPAGE P="623"/> <SECTNO>§ 2638.204</SECTNO> <SUBJECT>Deputy ethics official.</SUBJECT> <P>(a) <E T="03">Functions.</E> A designated agency ethics official may, if necessary, delegate to one or more deputy ethics officials any of the duties referred to in § 2638.203, except for those functions set forth in § 2634.605(c)(2) of part 2634 and referred to in § 2638.203(b)(3) (certification of nominee statements). A deputy ethics official shall work under the supervision of the designated agency ethics official in carrying out such delegated functions.</P> <P>(b) <E T="03">Dual status.</E> A deputy ethics official may also be designated pursuant to § 2638.202 to serve as the alternate agency ethics official. During the absence of the designated agency ethics official a deputy ethics official who has also been designated as the alternate ethics official shall perform the functions set forth in § 2634.605(c)(2) of part 2634 and referred to in § 2638.203(b)(3).</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 58 FR 69176, Dec. 30, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Formal Advisory Opinion Service</HD> <SECTION> <SECTNO>§ 2638.301</SECTNO> <SUBJECT>In general.</SUBJECT> <P>(a) The Director of the Office of Government Ethics has the authority and responsibility to render formal advisory opinions pursuant to Section 402(b)(8) of the Act. This service is available to any person who has a question about a matter over which the Office of Government Ethics has jurisdiction. Formal advisory opinions will be issued when a two-pronged test is met. First, the person making the request must meet the requirements of § 2638.302 and, second, the subject matter of the request must meet the criteria set forth in § 2638.303.</P> <P>(b) Normally, formal advisory opinions will not be issued to individuals who wish to obtain general advice concerning their own specific present or proposed activities or financial transactions. Such questions should be directed to the designated ethics official of the agency in which the individual will serve, serves or served. If a designated agency ethics official receives a request which he or she believes should be answered by the Office of Government Ethics, a referral procedure is available.</P> <P>(c) The Office of Government Ethics will provide interested parties, to the extent practicable, with an opportunity to comment on any question which will be the subject of a formal advisory opinion issued by the Office. These opinions will be published in a form which will not identify specific individuals unless necessary to the understanding of the opinion. Copies will be sent to the designated ethics officials of each agency and be available at the Office of Government Ethics in that same form.</P> </SECTION> <SECTION> <SECTNO>§ 2638.302</SECTNO> <SUBJECT>Who may request a formal advisory opinion.</SUBJECT> <P>Any person (as defined in § 2638.104) may request an opinion with respect to a situation in which that person is directly involved. A designated agency ethics official, representative, or attorney may request an opinion on behalf of the person. Notwithstanding this direct involvement requirement, a designated agency ethics official may always request an opinion concerning a situation about which he or she has knowledge.</P> </SECTION> <SECTION> <SECTNO>§ 2638.303</SECTNO> <SUBJECT>Subject matter of formal advisory opinions.</SUBJECT> <P>Formal advisory opinions will be rendered on matters of general applicability or on important matters of first impression concerning the application of the Act, Executive Order 11222 and regulations promulgated pursuant to such Act and Executive Order, and the laws embodied in 18 U.S.C. 202-209. The Director will respond to those requests which in his or her discretion fall within this category taking into consideration:</P> <P>(a) The unique nature of the question and its precedential value,</P> <P>(b) The potential number of officers or employees throughout the Government affected by the question,</P> <P>(c) The frequency with which the question arises, and</P> <P>(d) The likelihood or presence of inconsistent interpretations on the same question by different agencies.</P> <FP>Except in unusual circumstances, opinions will not be rendered with respect <PRTPAGE P="624"/>to hypothetical situations posed in requests. Opinions may be rendered, however, on proposed activities or transactions.</FP> </SECTION> <SECTION> <SECTNO>§ 2638.304</SECTNO> <SUBJECT>Form of requests for formal advisory opinions.</SUBJECT> <P>(a) A request for a formal advisory opinion should be directed to the Director of the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917.</P> <P>(b)(1) A request should be in writing and signed by the individual making the request or by a representative of that person. A request shall state all material facts necessary for the Director to render a complete and correct opinion.</P> <P>(2) In addition, it should also include the following information:</P> <P>(i) the name, mailing address, and daytime telephone contact of the individual making the request, and</P> <P>(ii) a copy of the position, description of the position involved, if available.</P> <P>(c) If the request is submitted by a representative, he or she must show his or her representative status, list a mailing address and daytime telephone contact.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.305</SECTNO> <SUBJECT>Acceptance of requests for formal advisory opinions.</SUBJECT> <P>(a) Subject to the provisions of paragraph (d) of this section, the Director shall review each request for a formal advisory opinion and take one of the following actions:</P> <P>(1) If the Director determines that the person making the request meets the requirements of § 2638.302 and that the subject matter of the request qualifies under the criteria established in § 2638.303, he or she shall assign an identifying number to the request and notify the person that a formal advisory opinion will be rendered; or</P> <P>(2) If the Director determines that the person making the request is not a person who is eligible to receive a formal advisory opinion as provided in § 2638.302, or that the subject of the request is not a matter upon which the Office issues formal advisory opinions as outlined by § 2638.303, he or she shall so notify the person making the request.</P> <FP>When a formal advisory opinion will not be rendered, the Office of Government Ethics may provide other informational assistance to the person as appropriate. (See also § 2638.312.)</FP> <P>(b) If at any time after receipt of a request for a formal advisory opinion, the Director believes that additional relevant information is needed, he or she may seek such information directly from the person requesting the opinion or from other sources which may include the agency involved.</P> <P>(c) The person requesting the opinion may furnish the Office of Government Ethics with legal memoranda or other material relevant to the opinion requested.</P> <P>(d)(1) In the case of a request which involves an actual or apparent violation of any conflict of interest law embodied in 18 U.S.C. 202-209, the Director shall consult with the Criminal Division of the Department of Justice.</P> <P>(2) If after such consultation the Criminal Division determines that a criminal investigation will be undertaken, the Director shall take no further action with regard to that request pending a determination by the Criminal Division not to prosecute.</P> <P>(3) Upon receipt of a determination by the Criminal Division not to prosecute, the Director shall then follow the procedures for all other requests for formal advisory opinions set forth in this part.</P> </SECTION> <SECTION> <SECTNO>§ 2638.306</SECTNO> <SUBJECT>Notice of requests.</SUBJECT> <P>The Director shall provide notice to interested parties identified in a request which will be the subject of a formal advisory opinion that such an opinion will be rendered. Generally, the designated agency ethics official of the agency involved shall be notified of the request.</P> </SECTION> <SECTION> <SECTNO>§ 2638.307</SECTNO> <SUBJECT>Written comment on requests.</SUBJECT> <P>(a) To the extent practicable, the Director shall provide interested parties with an opportunity to submit written comment on a request for a formal advisory opinion. A time by which the <PRTPAGE P="625"/>comment should be received to be considered will be indicated with the notice that the request has been made.</P> <P>(b) Additional time in which to comment may be granted upon written request to or at the discretion of the Director. Such requests and all written comments shall be sent to the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.308</SECTNO> <SUBJECT>Issuance.</SUBJECT> <P>(a) A formal advisory opinion, </P> <P>(1) Which involves the application of any conflict of interest law embodied in 18 U.S.C. 202-209 to a transaction or activity which does not raise a question of an actual or apparent violation of this law but which raises an important matter of first impression, or</P> <P>(2) Which is issued following the procedure set forth in § 2638.305(d),</P> <FP>requires consultation by the Office of Government Ethics with the Office of Legal Counsel of the Department of Justice before it is issued.</FP> <P>(b) An advisory opinion shall be considered issued when it is dated, numbered, and signed by the Director. Unless released by the person who made the request, the opinion will not become publicly available until information which identifies individuals involved and which is unnecessary to the complete understanding of the opinion has been deleted from the opinion and this version of the opinion is placed in a public reading file at the Office of Government Ethics. (See § 2638.310)</P> </SECTION> <SECTION> <SECTNO>§ 2638.309</SECTNO> <SUBJECT>Reliance on formal advisory opinions.</SUBJECT> <P>(a) Any formal advisory opinion referred to in § 2638.308(a) or any provisions or finding of a formal advisory opinion involving the application of the Act, Executive Order 11222 and the regulations promulgated pursuant to the Act or Executive Order, may be relied upon by:</P> <P>(1) Any person directly involved in the specific transaction or activity with respect to which such advisory opinion has been rendered, and</P> <P>(2) 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 advisory opinion was rendered.</P> <P>(b) Any person who relies upon any provision or finding of any formal advisory opinion in accordance with paragraph (a) of this section and who acts in good faith in accordance with the provisions and findings of such opinion, shall not, as a result of such act, be subject to prosecution under 18 U.S.C. 202-209 or, in the case where the opinion is exculpatory, be subject to any administrative adverse action or civil action based upon legal authority cited in that opinion.</P> </SECTION> <SECTION> <SECTNO>§ 2638.310</SECTNO> <SUBJECT>Public availability and publication of formal advisory opinions.</SUBJECT> <P>(a) The Director shall make sufficient deletions in any formal advisory opinion so that unless necessary to the complete understanding of the opinion, the identity of any person involved is not disclosed. No deletion shall in any way affect the substance of the opinion.</P> <P>(b) A copy of this version of the opinion shall then be made available for public inspection within 10 working days after the issuance of the opinion at the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917.</P> <P>(c) The Director shall thereafter publish this version of the opinion.</P> <CITA>[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.311</SECTNO> <SUBJECT>Copies of published formal advisory opinions.</SUBJECT> <P>Each designated agency ethics official shall receive a copy of each published opinion. Copies will also be available to the public from the Office of Government Ethics upon request at no more than cost.</P> </SECTION> <SECTION> <SECTNO>§ 2638.312</SECTNO> <SUBJECT>Referral of requests.</SUBJECT> <P>(a) If a designated agency ethics official receives a request for advice from a person and determines that the request may come within the criteria set <PRTPAGE P="626"/>forth in § 2638.303, he or she shall contact the Office of Government Ethics concerning the request before referring the request to the Office. If after such consultation the Office of Government Ethics determines that the request should be the subject of a formal advisory opinion, the designated agency ethics official shall notify the person making the request of that determination and request the person's permission to refer the request to the Office of Government Ethics.</P> <P>(b) If the Director receives a request for an opinion which does not fulfill the criteria set forth in § 2638.303, he or she may:</P> <P>(1) Furnish informational assistance to the person as provided in § 2638.305(a), or</P> <P>(2) Refer the request to the appropriate designated agency ethics official.</P> <P>(c) In all instances covered by paragraphs (a) and (b) of this section, a referral will not be made in the case of questions regarding possible future employment plans of an individual making the request unless he or she is first notified and gives his or her consent or the request itself indicates that such a referral may be made.</P> </SECTION> <SECTION> <SECTNO>§ 2638.313</SECTNO> <SUBJECT>Agency opinions.</SUBJECT> <P>If the designated agency ethics official issues a written opinion concerning the application of 18 U.S.C. 202-209, he or she shall transmit a copy of that opinion to the Office of Government Ethics.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Correction of Executive Branch Agency Ethics Programs</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 1666, Jan. 18, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2638.401</SECTNO> <SUBJECT>In general.</SUBJECT> <P>The Director of the Office of Government Ethics has authority under subsections 402(b)(9) and 402(f)(1) of the Ethics in Government Act to order action to correct deficiencies in agency ethics programs. These procedures are intended to be used to correct deficiencies in agency ethics programs that are not being addressed adequately by the agency. They are not intended to be used to deal with cases involving individual employees or former employees. See subpart E of this part. For purposes of this section, an agency ethics program shall include those matters that are the responsibility of agency heads and designated agency ethics officials under subpart B of this part and shall include the requirements under part 2634 of this chapter and part 735 of this title to establish public and nonpublic financial disclosure systems. In implementing these procedures, the Director may use any authority contained in the Ethics Act.</P> </SECTION> <SECTION> <SECTNO>§ 2638.402</SECTNO> <SUBJECT>Corrective orders.</SUBJECT> <P>(a) <E T="03">Notice.</E> Where the Director has information indicating that an agency ethics program is not in full compliance with the requirements set forth in applicable statutes or regulations, the Director may issue a Notice of Deficiency to the designated agency ethics official and request an agency report under paragraph (b) of this section.</P> <P>(b) <E T="03">Agency report.</E> Within such time as may be set forth in the Notice of Deficiency, the designated agency ethics official shall provide a written report to the Director that shall include relevant information about the agency's ethics program. The ethics official's report may include:</P> <P>(1) Information establishing that there is no deficiency;</P> <P>(2) An explanation of how any deficiency is being corrected; or</P> <P>(3) A plan for correcting any deficiency within a reasonable period of time.</P> <P>(c) <E T="03">Director's determination.</E> The Director will make a determination based on the agency report.</P> <P>(1) If the Director determines that there is no deficiency, the designated agency ethics official will be so notified.</P> <P>(2) If the Director determines that appropriate steps are being taken or that the agency has presented an adequate plan for correcting the deficiency, the Director will so notify the designated agency ethics official and, in consultation with the designated <PRTPAGE P="627"/>agency ethics official, establish requirements for status reports, if necessary, and for notification when the deficiency has been corrected.</P> <P>(3) If the Director determines that a deficiency is not being corrected, the Director will issue an Order under paragraph (d) of this section.</P> <P>(d) <E T="03">Orders.</E> An order issued by the Director will be addressed to the head of the agency with a copy to the designated agency ethics official and shall specify:</P> <P>(1) The deficiency in the agency ethics program that requires correction;</P> <P>(2) The basis upon which the Director has determined that a deficiency exists;</P> <P>(3) The corrective action required to remedy the deficiency; and</P> <P>(4) Any reporting requirements necessary to establish that corrective action has been accomplished.</P> </SECTION> <SECTION> <SECTNO>§ 2638.403</SECTNO> <SUBJECT>Agency compliance.</SUBJECT> <P>Within such time as may be set forth in the order, the agency head shall file a report with the Director detailing the corrective action taken. If corrective action cannot be accomplished within that time, the agency head shall submit a plan of corrective action for approval by the Director providing for appropriate status reports and notification of compliance. In either case, if the agency report or plan is deemed satisfactory, the Director will so inform the agency head. If the agency report or plan is insufficient, but only in minor respects, the Director may inform the agency head of the adjustments needed to bring the report or plan into compliance and a timeframe therefor; otherwise, the procedures under § 2638.404 of this subpart will be invoked.</P> </SECTION> <SECTION> <SECTNO>§ 2638.404</SECTNO> <SUBJECT>Report of noncompliance.</SUBJECT> <P>If the agency fails to comply with an order issued under § 2638.402(d), the Director shall:</P> <P>(a) Notify the head of the agency of intent to furnish a report of noncompliance to the President and the Congress;</P> <P>(b) Provide the agency 14 calendar days within which to furnish written comments for submission with the report of noncompliance; and</P> <P>(c) Report the agency's noncompliance to the President and to the Congress.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Corrective and Remedial Action in Cases Involving Individual Executive Agency Employees</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 1667, Jan. 18, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2638.501</SECTNO> <SUBJECT>In general.</SUBJECT> <P>(a) <E T="03">Authority.</E> The Director of the Office of Government Ethics has authority under subsections 402(b)(9) and 402(f)(2) of the Act to order corrective and remedial action with respect to individual employees to bring about compliance with applicable ethics provisions. Nothing in this subpart relieves an agency of its primary responsibility to ensure compliance.</P> <P>(b) <E T="03">Definitions.</E> For the purpose of this subpart:</P> <P>(1) <E T="03">Ethics provision</E> includes any rule, regulation or executive order relating to conflicts of interest or standards of conduct in the executive branch. The term excludes any statute that is contained in title 18 of the United States Code or which imposes a criminal penalty as well as any statute made applicable to a specific agency that mandates or proscribes conduct not otherwise the subject of Governmentwide standards. It excludes any matter covered by sections 101 (k) and (m) of Executive Order 12674 that are within the cognizance of agency Inspectors General, the Office of Special Counsel or the Equal Employment Opportunity Commission.</P> <P>(2) <E T="03">Employee</E> means any officer or employee, including a special Government employee, covered by any of the provisions contained in part 735 of this title.</P> <P>(3) <E T="03">Head of an agency,</E> in the case of an agency that is headed by a board, committee or other group of individuals, refers to the employee's appointing authority.</P> <P>(4) <E T="03">Corrective action</E> means any action necessary to remedy a violation of an ethics provision including, but not limited to, recusal, divestiture, termination of an activity, restitution, or <PRTPAGE P="628"/>the creation of a qualified blind or diversified trust.</P> <P>(5) <E T="03">Disciplinary action</E> includes the full range of disciplinary actions provided for by Office of Personnel Management regulations and instructions implementing authorities contained in title 5 of the United States Code or provided for in comparable authorities applicable to employees not subject to title 5.</P> <P>(6) The terms <E T="03">he, his</E> and <E T="03">him</E> include “she,” “hers” and “her.”</P> <P>(c) <E T="03">Violations of criminal statutes.</E> Nothing contained in this part gives the Director or any agency official authority to make a finding that any criminal statute relating to conflicts of interest is being or has been violated. If facts elicited under these procedures indicate that a criminal violation of any such provision is occurring or has occurred, the suspected violation will be referred for possible prosecution in accordance with 28 U.S.C. 535 and the reporting requirements set forth in § 2638.603 of this chapter shall apply. Subsequent to referral, proceedings under this subpart may be initiated or continued at the discretion of the Director, after consultation with the appropriate investigatory or prosecutorial authorities.</P> <P>(d) <E T="03">National security.</E> Proceedings under this subpart shall be conducted in accordance with applicable national security requirements.</P> <CITA>[55 FR 1667, Jan. 18, 1990; as amended at 55 FR 21846, May 30, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.502</SECTNO> <SUBJECT>Recommendations and advice.</SUBJECT> <P>The Director may make recommendations and provide advice to agencies, designated agency ethics officials and employees for the purpose of ensuring an employee's compliance with applicable ethics provisions. This authority may be used where there is doubt or a dispute regarding the applicability of an ethics provision or where the Director has information indicating that an ethics provision is being improperly interpreted. Recommendations may be made or advice provided on the Director's own initiative or at the Director's discretion in response to a written or oral request. As determined by the Director, the recommendation may be made or the advice given either orally or in writing. In addition, the Director shall afford an employee the opportunity for personal consultation, if practicable, regarding action required to be taken by the employee to achieve compliance with applicable ethics provisions.</P> </SECTION> <SECTION> <SECTNO>§ 2638.503</SECTNO> <SUBJECT>Agency investigations.</SUBJECT> <P>(a) <E T="03">Recommendation of investigation.</E> If the Director has reason to believe that an employee is violating or has violated any ethics provision, the Director may recommend to the head of the agency that the agency conduct such investigation as is necessary to determine whether, in fact, a violation is occurring or has occurred and, where warranted, take appropriate disciplinary or corrective action. If the matter already has been investigated or if the facts are fully known to the agency and, in the opinion of the agency head, require no further investigation, the head of the agency shall notify the Director of that determination and shall promptly file the agency report required by paragraph (c) of this section.</P> <P>(1) If the employee involved is the head of an agency, the recommendation shall be made to the President and the procedures set forth in this section shall serve as guidance only.</P> <P>(2) Where there is reason to believe that an employee has given preferential treatment or failed to act impartially, this authority will not be used to initiate an investigation in the nature of a review or audit of the agency program in which the employee participated.</P> <P>(b) <E T="03">Initiation of investigation.</E> The head of the agency shall notify the Director when the agency has initiated an investigation. Where it is anticipated that the investigation will not be completed within 60 calendar days, the head of the agency will notify the Director of that fact and provide an explanation reasonably justifying additional time.</P> <P>(c) <E T="03">Agency report.</E> The head of the agency shall file a report with the Director detailing findings of fact and disciplinary and/or corrective actions taken, if any.</P> <P>(d) <E T="03">Director's determination.</E> The Director will make a determination based on the agency investigation and report.<PRTPAGE P="629"/> </P> <P>(1) If the Director determines that the agency has conducted an adequate investigation and has taken appropriate corrective and/or disciplinary action, the Director shall notify the agency that the matter is closed.</P> <P>(2) If the Director determines that the agency has conducted an adequate investigation and has recommended appropriate corrective and/or disciplinary action, the Director shall notify the agency that the matter will be closed upon notification that such action has been taken.</P> <P>(3) If the Director determines that the agency has not conducted an adequate investigation, the Director may recommend that the agency undertake further investigative effort.</P> <P>(4) If the Director determines that the agency has improperly interpreted an ethics provision or improperly applied an ethics provision to the facts of the case, the Director may, in accordance with § 2638.502, provide advice and recommendations necessary to ensure compliance.</P> <P>(5) If the Director determines that the agency has taken or recommended inappropriate corrective or disciplinary action, the Director may notify the head of the agency of intent to institute proceedings under § 2638.504 or § 2638.505.</P> <P>(e) <E T="03">Notice of noncompliance</E>. If the Director determines that the head of an agency has failed to conduct an adequate investigation within a reasonable period of time, the Director shall notify the President of that determination. A Notice of Noncompliance will not be based upon a determination that the agency has improperly interpreted or applied an ethics provision or that the agency has taken or recommended inappropriate corrective or disciplinary action.</P> </SECTION> <SECTION> <SECTNO>§ 2638.504</SECTNO> <SUBJECT>Director's finding.</SUBJECT> <P>(a) <E T="03">In general</E>. If the Director has reason to believe that an employee is violating or has violated an ethics provision, the Director may initiate proceedings under this section for the purpose of making a finding as to whether there is or has been such a violation. In the context of such proceedings, the Office of Government Ethics has the burden of proof to establish that the employee is violating or has violated an ethics provision. The procedures contained in this section do not apply to findings or orders for action made to obtain compliance with the financial disclosure requirements in title II of the Ethics Act. For those findings and orders, the procedures contained in section 206 of the Act shall apply.</P> <P>(b) <E T="03">Investigation</E>. The Director may initiate such investigation as is necessary to determine whether proceedings under this section are warranted. Ordinarily, a determination to proceed will be based upon an agency report of investigation filed under § 2638.503(c) and a determination by the Director under § 2638.503(d)(5) that the agency has taken or recommended inappropriate corrective or disciplinary action.</P> <P>(c) <E T="03">Notice</E>. The employee shall be served personally or by United States mail with written notice of commencement of proceedings under this section. A copy of the notice shall be provided to the head of the agency and to the designated agency ethics official. The notice shall be signed by the Director and shall include the following:</P> <P>(1) A brief statement setting forth the basis for a possible ethics violation;</P> <P>(2) A copy of this section; and</P> <P>(3) The date by which the employee's comments must be submitted.</P> <P>(d) <E T="03">Employee comments.</E> The respondent employee has the right to comment on the alleged violation of an ethics provision by submission of evidence or arguments. As determined by the Director, the submission may be made orally or in writing. In the absence of an extension granted by the Director for good cause shown, comments shall be submitted within the time set forth in the notice</P> <P>(e) <E T="03">Finding</E>. The Director will make a written finding as to whether a violation of any ethics provision has occured or is occurring. The finding will include a statement of the facts upon which the finding is based and a reference to the specific ethics provision in issue. A copy of the finding will be provided to the respondent employee, the head of the agency and the designated agency ethics official.</P> </SECTION> <SECTION> <PRTPAGE P="630"/> <SECTNO>§ 2638.505</SECTNO> <SUBJECT>Director's decision and order.</SUBJECT> <P>(a) <E T="03">In general</E>. Where the Director has reason to believe that an employee is violating an ethics provision, the Director may, subject to the procedures set forth in this section, issue an order that the employee take specific corrective action to remedy the violation. Ordinarily, a determination to proceed under this paragraph (a) will be based on the Director's finding under § 2638.504(e) that an ethics violation has occurred or is occurring and reason to believe that the violation is continuing. The procedures contained in this section do not apply to findings or orders for action made to obtain compliance with the financial disclosure requirements in title II of the Ethics Act. For those findings and orders, the procedures contained in section 206 of the Act shall apply.</P> <P>(b) <E T="03">Notice.</E> The employee will be served, personally or by United States mail, with notice of proceedings to determine whether a violation of an ethics provision is occurring and whether corrective action is necessary to end the violation. A copy of the notice shall be provided to the head of the employee's agency and the designated agency ethics official thereof. The notice shall specify the employee's right to present evidence or arguments either in writing or, at the employee's written request, at a hearing conducted on the record. The notice shall be signed by the Director and shall include:</P> <P>(1) A brief statement setting forth the basis for a possible ethics violation;</P> <P>(2) Where applicable, a copy of the Director's finding under § 2638.504(e);</P> <P>(3) A statement of the authority under which proceedings are to be conducted, together with a copy of this section; and</P> <P>(4) The date by which the employee must, by written notification to the Director, elect to present evidence and arguments either at a hearing or in writing.</P> <P>(c) <E T="03">Separation of functions.</E> Once the Director has issued a notice of proceedings and if the respondent employee has elected to have a hearing conducted on the record, the General Counsel of the Office of Government Ethics shall designate attorneys of the Office of Government Ethics to participate on behalf of the Office in the proceedings, including the investigation and presentation of the evidence at the hearing. During this time period, the General Counsel of the Office of Government Ethics shall serve as Advisor to the Director and will not supervise Office of Government Ethics attorneys who are charged with the investigation and presentation of the evidence in the pending matter. A Deputy General Counsel shall supervise the Office attorneys responsible for the investigation and presentation of the evidence during this time period. No officer, employee, or agent engaged in the performance of investigative or advocacy functions for the Office of Government Ethics shall, in that or a factually related case, participate or advise in the decision, recommended decision or Office review except as witness or counsel in the proceedings. The Deputy General Counsel may request the views or report of the designated agency ethics official of the employee's agency when necessary to develop the record.</P> <P>(d) <E T="03">Written submissions.</E> Where the respondent employee elects to submit evidence and arguments in writing, he will be given a period of 30 calendar days from the date of the notice within which to make a submission.</P> <P>(e) <E T="03">Hearings.</E> If the respondent employee demands a hearing conducted on the record, he will be given written notice of the time and place of the hearing. The hearing will be convened within a reasonable period of time and will be conducted on the record. An administrative law judge who has been appointed under 5 U.S.C. 3105 shall act as the presiding official at the hearing. Hearings will be as informal as may be reasonably appropriate under all the circumstances. Evidence and testimony, although not ordinarily admissible under rules of evidence, may be received subject to the discretion of the administrative law judge. Immaterial, irrelevant or unduly repetitious evidence may be excluded. The parties may stipulate as to any facts or testimony. The testimony of witnesses shall be under oath and witnesses shall be subject to cross-examination. The administrative law judge shall make such <PRTPAGE P="631"/>rulings with respect to the conduct of the hearings as circumstances may require to ensure the orderly and expeditious presentation of evidence in a manner fair to the parties and consistent with these regulations and requirements of due process of law. The following procedures will apply to the hearing:</P> <P>(1) <E T="03">Conference.</E> The respondent employee or the designated attorney for the Office of Government Ethics may request, and the administrative law judge, on his own initiative or in response to a request, may set a prehearing conference for such purposes as the administrative law judge deems necessary.</P> <P>(2) <E T="03">Public hearings.</E> Hearings shall generally be open to the public. However, the administrative law judge may order a hearing or any part thereof closed, on his own initiative or upon motion of a party or other affected person, where to do so would be in the best interests of national security, the respondent employee, a witness, the public or other affected persons. Unless specifically excluded by the administrative law judge, the designated agency ethics official of the employee's agency shall be permitted to attend a closed hearing. Any order closing the hearing or any part thereof shall set forth the reasons for the administrative law judge's decision. Any objections thereto shall be made a part of the record. If a party or affected person's request to close the hearing or any part thereof is denied by the administrative law judge, that request shall be immediately appealable to the Director and the hearing shall be held in abeyance pending resolution of the appeal. The notice of appeal shall be filed in writing, not to exceed 10 pages exclusive of attachments, with the Director within 3 working days of the administrative law judge's denial of the request. The Director shall provide an opportunity for an oral hearing on the appeal conducted on the record and shall decide the appeal within 3 working days following receipt of the notice of appeal.</P> <P>(3) <E T="03">Continuances and delays.</E> The authority to adjourn the hearing shall rest with the administrative law judge. Continuances will be allowed only for the most compelling reasons.</P> <P>(4) <E T="03">Hearing record.</E> Testimony and arguments shall be recorded verbatim and preserved for a reasonable period of time. When requested, transcripts of the testimony and arguments and copies of all documentary exhibits will be made available to the respondent employee upon the payment of the reasonable costs thereof.</P> <P>(5) <E T="03">Representation.</E> A party is entitled to appear in person or by or with counsel.</P> <P>(6) <E T="03">Witnesses.</E> The administrative law judge does not have the authority to subpoena witnesses. However, the respondent employee and the Office of Government Ethics may call witnesses whose testimony is relevant and necessary to the proceedings. Witnesses who are to testify or to produce documents in their official capacities will be assigned to do so by their agencies pursuant to 5 U.S.C. 6322 and will be paid travel expenses under 5 U.S.C. 5702. Witnesses who are not Federal employees may be issued invitational travel orders under 5 U.S.C. 5703 based on a determination by the administrative law judge that their testimony is essential to the proceedings.</P> <P>(7) <E T="03">Proof.</E> The Office of Government Ethics has the burden of proof to establish that the respondent employee is committing a violation of an ethics provision and that corrective action is necessary to end the violation.</P> <P>(8) <E T="03">Evidence.</E> A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct cross-examination. The respondent employee and the designated attorney for the Office of Government Ethics may offer evidence, arguments, testimony of witnesses, affidavits or sworn statements.</P> <P>(f) <E T="03">Recommended decision.</E> At the conclusion of the hearing, the administrative law judge may request that the parties submit proposed findings and conclusions within a reasonable period of time. After receipt of the proposed findings and conclusions, if any, the administrative law judge shall certify the entire record to the Director for decision. When so certifying the record, the administrative law judge shall <PRTPAGE P="632"/>make a recommended decision that includes his written findings of fact and conclusions of law with respect to material issues.</P> <P>(g) <E T="03">Decision and order.</E> The Director's decision shall include written findings and conclusions with respect to all material issues and shall be supported by substantial evidence of record. The order shall state the corrective action, if any, to be taken by the respondent employee in order to remedy a violation of an ethics provision and shall establish a reasonable period of time within which the respondent employee must commence and complete the corrective action. A copy of the decision and order shall be furnished to the respondent employee and to the head of the agency and the designated agency ethics official, or where the respondent employee is the head of an agency, to the President.</P> <P>(1) Preliminary to issuing a decision and order, the Director may request that comments on the recommended decision be provided by the designated agency ethics official of the employee's agency.</P> <P>(2) Where the respondent employee has elected to have a hearing conducted on the record, the Director shall issue a decision and order as soon as practicable following receipt of the certified record and the administrative law judge's recommended decision.</P> <P>(3) Where the respondent employee has elected to make a written submission under paragraph (d) of this section or has chosen to make no submission and has not requested a hearing, the Director will issue a decision and order as soon as practicable following receipt of all materials of record.</P> <P>(4) In addition to the decision and order and any finding issued under § 2638.504(e), the record will include, where applicable, all written submission under § 2638.504(d) and § 2638.505(d), a record of the hearing, all documentary evidence introduced at the hearing, any proposed findings and conclusions submitted by the parties and the administrative law judge's recommended decision.</P> <P>(h) <E T="03">Compliance with the order.</E> The respondent employee shall comply with the Director's order by commencing and completing the corrective action within the time specified in the order and by furnishing the Director with satisfactory evidence of compliance.</P> <P>(i) <E T="03">Notice of noncompliance.</E> Where the respondent employee fails to comply with the Director's order within the time specified in the order, the Director will provide the head of the respondent employee's agency with written notice of the respondent employee's failure to comply. Where the respondent employee is the head of the agency, the Director shall submit such notification to the President.</P> <CITA>[55 FR 1667, Jan. 18, 1990, as amended at 55 FR 21846, May 30, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2638.506</SECTNO> <SUBJECT>Director's recommendation.</SUBJECT> <P>(a) Where the Director has made a finding under § 2638.504(e) or has issued a decision and order under § 2638.505(g) that an ethics provision is being or has been violated, the Director may recommend to the head of the respondent employee's agency that appropriate disciplinary action be taken. If the respondent employee is the head of an agency, the Director shall make any such recommendation to the President and the procedures contained in this section will serve as guidance only.</P> <P>(b) <E T="03">Agency response.</E> Within the time specified by the Director in his recommendation, the head of the agency shall notify the Director in writing of the action taken. If the action cannot be accomplished within the time specified, the head of the agency shall notify the Director in writing of the time needed for the action to be taken, and, thereafter, will provide appropriate notice of the disciplinary action taken.</P> <P>(c) <E T="03">Notice of noncompliance</E>. If the Director determines that the head of an agency has not taken appropriate disciplinary action within a reasonable period of time after the Director has recommended such action, the Director may notify the President of that determination in writing.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Executive Branch Agency Reports</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 1670, Jan. 18, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="633"/> <SECTNO>§ 2638.601</SECTNO> <SUBJECT>In general.</SUBJECT> <P>Agencies are required by section 402(b)(10) of the Act to file such reports as the Director of the Office of Government Ethics deems necessary. Section 402(e) contains specific requirements for annual reports and for reporting cases referred for possible prosecution under 28 U.S.C. 535. Reporting requirements imposed under this subpart are in addition to any requirements for reports or opinions contained in part 735 of this title, parts 2633 through 2637 of this chapter, or otherwise under this chapter, and in other subparts of this part.</P> </SECTION> <SECTION> <SECTNO>§ 2638.602</SECTNO> <SUBJECT>Annual agency reports.</SUBJECT> <P>(a) On or before February 1 of each year, each agency shall file with the Office of Government Ethics a report containing information about the agency's ethics program. Detailed reporting requirements will be specified in instructions to be issued by the Director in advance of the first day of the period to be covered by the annual report. Annual agency reports will cover the prior calendar year and, as a minimum, will include the following:</P> <P>(1) The name, position, title and duties of each official who performs any or all of the duties of the designated agency ethics official or alternate;</P> <P>(2) Statistics regarding public and nonpublic (confidential) financial disclosure report filings;</P> <P>(3) A description and evaluation of the agency's program of ethics education, training and counseling, including the number of training courses given, the subject matters covered, training materials distributed and counseling services offered.</P> <P>(b) Failure to timely file the report required by paragraph (a) of this section may be cause to invoke the procedures at subpart D of this part for correction of agency programs.</P> </SECTION> <SECTION> <SECTNO>§ 2638.603</SECTNO> <SUBJECT>Reports of referral for possible prosecution.</SUBJECT> <P>(a) <E T="03">In general.</E> Section 535 of title 28 of the United States Code imposes upon every agency a duty to report to the Attorney General any information, allegations or complaints relating to violations of title 18 of the United States Code involving Government officers and employees, including possible violations of 18 U.S.C. 207 by former officers and employees. Guidelines issued by the Attorney General require reporting of such allegations or complaints to the local office of the appropriate investigative agency, the United States Attorney for the district in which the violation occurred or is occurring and the appropriate division of the Department of Justice.</P> <P>(b) <E T="03">Report of referral.</E> When any matter involving an alleged violation of Federal conflict of interest law is referred pursuant to 28 U.S.C. 535, the agency shall concurrently notify the Director of the Office of Government Ethics of the referral and provide a copy of the referral document, unless such notification or disclosure would otherwise be prohibited by law.</P> <P>(c) <E T="03">Disposition reports.</E> (1) Where there has been notice that the matter reported under paragraph (b) of this section will not be prosecuted, the agency shall promptly notify the Director of that fact, the date of the decision and any disciplinary or corrective action initiated, taken or to be taken by the agency.</P> <P>(2) When the agency is notified or learns from the Department of Justice that an indictment has been handed up and signed or an information has been filed, the agency shall promptly report that fact to the Director. Thereafter, the agency shall promptly notify the Director of the final disposition of the prosecution and of any disciplinary or corrective action initiated, taken or to be taken by the agency.</P> <P>(3) When disciplinary or corrective action is initiated or is to be taken, the agency will notify the Director of the final disposition of the matter.</P> <CITA>[55 FR 1670, Jan. 18, 1990, as amended at 55 FR 21847, May 30, 1990]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Executive Agency Ethics Training Programs</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 7279, Feb. 14, 2000, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2638.701</SECTNO> <SUBJECT>Overview.</SUBJECT> <P>Each agency must have an ethics training program to teach employees about ethics laws and rules and to tell <PRTPAGE P="634"/>them where to go for ethics advice. The training program must include, at least, an initial agency ethics orientation for all employees and annual ethics training for covered employees.</P> </SECTION> <SECTION> <SECTNO>§ 2638.702</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart:</P> <P> <E T="03">Agency supplemental standards</E> means those regulations published by an agency in concurrence with the Office of Government Ethics under 5 CFR 2635.105.</P> <P> <E T="03">Employee</E> includes officers of the uniformed services and special Government employees, as defined in 18 U.S.C. 202(a).</P> <P> <E T="03">Federal conflict of interest statutes</E> means 18 U.S.C. 202-203, 205, and 207-209.</P> <P> <E T="03">Principles</E> means the Principles of Ethical Conduct, Part I of Executive Order 12674, as modified by Executive Order 12731.</P> <P> <E T="03">Standards</E> means the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635.</P> </SECTION> <SECTION> <SECTNO>§ 2638.703</SECTNO> <SUBJECT>Initial agency ethics orientation for all employees.</SUBJECT> <P>Within 90 days from the time an employee begins work for an agency, the agency must do the following:</P> <P>(a) <E T="03">Ethics materials.</E> The agency must give the employee:</P> <P>(1) The Standards and any agency supplemental standards to keep or review; or</P> <P>(2) Summaries of the Standards, any agency supplemental standards, and the Principles to keep. </P> <NOTE> <HD SOURCE="HED">Note to paragraph (<E T="01">a</E>):</HD> <P>If the agency does not give the employee the Standards and any agency supplemental standards to keep, the complete text of both must be readily available in the employee's immediate office area.</P> </NOTE> <P>(b) <E T="03">Contact persons.</E> The agency must give the employee the names, titles, and office addresses and telephone numbers of the designated agency ethics official and other agency officials available to advise the employee on ethics issues.</P> <P>(c) <E T="03">One hour to review.</E> The agency must give the employee at least one hour of official duty time to review the items described above. This one-hour requirement may be reduced by any amount of time the employee receives verbal ethics training in the same 90-day period.</P> </SECTION> <SECTION> <SECTNO>§ 2638.704</SECTNO> <SUBJECT>Annual ethics training for public filers.</SUBJECT> <P>(a) <E T="03">Covered employees.</E> Each calendar year, agencies must give verbal ethics training to employees who are required by 5 CFR part 2634 to file public financial disclosure reports.</P> <P>(b) <E T="03">Content of training.</E> Agencies are encouraged to vary the content of verbal training from year to year but the training must include, at least, a review of:</P> <P>(1) The Principles;</P> <P>(2) The Standards;</P> <P>(3) Any agency supplemental standards;</P> <P>(4) The Federal conflict of interest statutes; and</P> <P>(5) The names, titles, and office addresses and telephone numbers of the designated agency ethics official and other agency ethics officials available to advise the employee on ethics issues.</P> <P>(c) <E T="03">Length and presentation of training.</E> Employees must be given at least one hour of official duty time for verbal training. The training must be:</P> <P>(1) Presented by a qualified instructor; or</P> <P>(2) Prepared by a qualified instructor and presented by telecommunications, computer, audiotape, or videotape.</P> <P>(d) <E T="03">Availability of qualified instructor.</E> A qualified instructor must be available during and immediately after the training. Qualified instructors are:</P> <P>(1) The designated agency ethics official;</P> <P>(2) The alternate agency ethics official;</P> <P>(3) A deputy agency ethics official;</P> <P>(4) Employees of the Office of Government Ethics (OGE) designated by OGE; and</P> <P>(5) Persons whom the designated agency ethics official (or his or her designee) determines are qualified to respond to ethics questions raised during the training. </P> <EXAMPLE> <HD SOURCE="HED">Example 1 to paragraph (d):</HD> <P>An agency provides annual ethics training for public filers in a regional office by establishing a video conference link between the regional office and a qualified instructor in the headquarters office. The video link provides for <PRTPAGE P="635"/>direct and immediate communication between the qualified instructor and the employees receiving the training. Even though the qualified instructor is not physically located in the room where the training occurs, the qualified instructor is available.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2 to paragraph (d):</HD> <P>The agency described in the preceding example provides videotaped training instead of training through a video conference link. The employees viewing the videotape are provided with a telephone at the training site and the telephone number of a qualified instructor who is standing by during and immediately after the training to answer any questions. Under these circumstances, a qualified instructor is available.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3 to paragraph (d):</HD> <P>In the preceding example, if no telephone had been provided at the training site or if a qualified instructor was not standing by to respond to any questions raised, there would not be a qualified instructor available. Merely providing the phone number of the qualified instructor would not satisfy the requirement that a qualified instructor be available.</P> </EXAMPLE> <P>(e) <E T="03">Exceptions.</E> Verbal training without a qualified instructor available or written training prepared by a qualified instructor will satisfy the verbal training requirement for a public filer (or group of public filers) if one hour of official duty time is provided for the training and:</P> <P>(1) The designated agency ethics official (or his or her designee) makes a written determination that it would be impractical to provide verbal training with a qualified instructor available; or</P> <P>(2) The employee is a special Government employee. </P> <EXAMPLE> <HD SOURCE="HED">Example to paragraph (e)(1):</HD> <P>The only public filer in the American Embassy in Ulan Bator, Mongolia is the Ambassador. Because of the difference in time zones and the uncertainty of the Ambassador's schedule, the designated agency ethics official for the State Department is justified in making a written determination that it would be impractical to provide the Ambassador with verbal training. In this case, the Ambassador may receive written training prepared by a qualified instructor.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2638.705</SECTNO> <SUBJECT>Annual ethics training for other employees.</SUBJECT> <P>(a) <E T="03">Covered employees.</E> Each calendar year, agencies must train the following employees:</P> <P>(1) Employees appointed by the President;</P> <P>(2) Employees of the Executive Office of the President;</P> <P>(3) Employees defined as confidential filers in 5 CFR 2634.904;</P> <P>(4) Employees designated by their agency under 5 CFR 2634.601(b) to file confidential financial disclosure reports;</P> <P>(5) Contracting officers, as defined in 41 U.S.C. 423(f)(5); and</P> <P>(6) Other employees designated by the head of the agency or his or her designee based on their official duties. </P> <NOTE> <HD SOURCE="HED">Note to paragraph (<E T="01">a</E>):</HD> <P>Employees described above who are also public filers must receive ethics training as provided in § 2638.704.</P> </NOTE> <P>(b) <E T="03">Content of training.</E> The requirements for the contents of annual training are the same as the requirements in § 2638.704(b).</P> <P>(c) <E T="03">Length and presentation of training.</E> The training for covered employees must consist of:</P> <P>(1) A minimum of one hour of official duty time for verbal training at least once every three years. The verbal training must be presented by a qualified instructor or prepared by a qualified instructor and presented by telecommunications, computer, audiotape, or videotape; and</P> <P>(2) An amount of official duty time the agency determines is sufficient for written training in the years in which the employee does not receive verbal training. The written training must be prepared by a qualified instructor. The employee's initial ethics orientation may satisfy the written training requirement for the same calendar year.</P> <P>(d) <E T="03">Exceptions.</E> Written ethics training prepared by a qualified instructor will satisfy the verbal training requirement for a covered employee (or group of covered employees) if sufficient official duty time is provided for the training and:</P> <P>(1) The designated agency ethics official (or his or her designee) makes a written determination that verbal training would be impractical;</P> <P>(2) The employee is a special Government employee expected to work 60 or fewer days in a calendar year;</P> <P>(3) The employee is an officer in the uniformed services serving on active duty for 30 or fewer consecutive days; or<PRTPAGE P="636"/> </P> <P>(4) The employee is designated under paragraph (a)(6) of this section to receive training.</P> </SECTION> <SECTION> <SECTNO>§ 2638.706</SECTNO> <SUBJECT>Agency's written plan for annual ethics training.</SUBJECT> <P>(a) The designated agency ethics official (or his or her designee) is responsible for directing the agency's ethics training program. The designated agency ethics official (or his or her designee) must develop a written plan each year for the agency's annual training program.</P> <P>(b) The written plan must be completed by the beginning of each calendar year.</P> <P>(c) The written plan must contain:</P> <P>(1) A brief description of the agency's annual training.</P> <P>(2) Estimates of the number of employees who will receive verbal training according to the following table:</P> <GPOTABLE CDEF="s25,10" COLS="2" OPTS="L2,tp0,i1"> <BOXHD> <CHED H="1">Employees who will receive verbal training</CHED> <CHED H="1">Number</CHED> </BOXHD> <ROW> <ENT I="01">(i) Public filers</ENT> </ROW> <ROW> <ENT I="01">(ii) Employees other than public filers</ENT> </ROW> </GPOTABLE> <P>(3) An estimate of the number of employees who will receive written training according to the following table:</P> <GPOTABLE CDEF="s25,10" COLS="2" OPTS="L2,tp0,i1"> <BOXHD> <CHED H="1">Employees who will receive written training</CHED> <CHED H="1">Number</CHED> </BOXHD> <ROW> <ENT I="01">Employees other than public filers who will receive training under § 2638.705(c)(2)</ENT> </ROW> </GPOTABLE> <P>(4) Estimates of the number of employees who will receive written training instead of verbal training according to the following table:</P> <GPOTABLE CDEF="s25,10" COLS="2" OPTS="L2,tp0,i1"> <BOXHD> <CHED H="1">Employees who will receive written training instead of verbal training</CHED> <CHED H="1">Number</CHED> </BOXHD> <ROW> <ENT I="01">(i) Public filers who qualify for the exception in § 2638.704(e)(1)</ENT> </ROW> <ROW> <ENT I="01">(ii) Public filers who qualify for the exception in § 2638.704(e)(2)</ENT> </ROW> <ROW> <ENT I="01">(iii) Employees other than public filers who qualify for the exception in § 2638.705(d)(1)</ENT> </ROW> <ROW> <ENT I="01">(iv) Employees other than public filers who qualify for the exception in § 2638.705(d)(2)</ENT> </ROW> <ROW> <ENT I="01">(v) Employees other than public filers who qualify for the exception in § 2638.705(d)(3)</ENT> </ROW> <ROW> <ENT I="01">(vi) Employees other than public filers who qualify for the exception in § 2638.705(d)(4)</ENT> </ROW> </GPOTABLE> <P>(d) The written plan may contain any other information that the designated agency ethics official believes will assist the Office of Government Ethics in reviewing the agency's training program.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2640</EAR> <HD SOURCE="HED">PART 2640—INTERPRETATION, EXEMPTIONS AND WAIVER GUIDANCE CONCERNING 18 U.S.C. 208 (ACTS AFFECTING A PERSONAL FINANCIAL INTEREST)</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2640.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2640.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2640.103</SECTNO> <SUBJECT>Prohibition.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Exemptions Pursuant to 18 U.S.C. 208(b)(2)</HD> <SECTNO>2640.201</SECTNO> <SUBJECT>Exemptions for interests in mutual funds, unit investment trusts, and employee benefit plans.</SUBJECT> <SECTNO>2640.202</SECTNO> <SUBJECT>Exemptions for interests in securities.</SUBJECT> <SECTNO>2640.203</SECTNO> <SUBJECT>Miscellaneous exemptions.</SUBJECT> <SECTNO>2640.204</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>2640.205</SECTNO> <SUBJECT>Employee responsibility.</SUBJECT> <SECTNO>2640.206</SECTNO> <SUBJECT>Existing agency exemptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Individual Waivers</HD> <SECTNO>2640.301</SECTNO> <SUBJECT>Waivers issued pursuant to 18 U.S.C. 208(b)(1).</SUBJECT> <SECTNO>2640.302</SECTNO> <SUBJECT>Waivers issued pursuant to 18 U.S.C. 208(b)(3).</SUBJECT> <SECTNO>2640.303</SECTNO> <SUBJECT>Consultation and notification regarding waivers.</SUBJECT> <SECTNO>2640.304</SECTNO> <SUBJECT>Public availability of agency waivers.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 208; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 66841, Dec. 18, 1996, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2640.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 <PRTPAGE P="637"/>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).</P> </SECTION> <SECTION> <SECTNO>§ 2640.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Diversified</E> 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.</P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(a): 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). 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.</P> </NOTE> <P>(b) <E T="03">Employee</E> 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, or an officer or employee of the District of Columbia. The term also includes a special Government employee as defined in 18 U.S.C. 202.</P> <P>(c) <E T="03">Employee benefit plan</E> 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.</P> <P>(d) <E T="03">He, his,</E> and <E T="03">him</E> include she, hers, and her.</P> <P>(e) <E T="03">Holdings</E> means portfolio of investments.</P> <P>(f) <E T="03">Independent trustee</E> means a trustee who is independent of the sponsor and the participants in a plan, or is a registered investment advisor.</P> <P>(g) <E T="03">Institution of higher education</E> means an educational institution as defined in 20 U.S.C. 1141(a).</P> <P>(h) <E T="03">Issuer</E> means a person who issues or proposes to issue any security, or has any outstanding security which it has issued.</P> <P>(i) <E T="03">Long-term Federal Government security</E> 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.</P> <P>(j) <E T="03">Municipal security</E> 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 <PRTPAGE P="638"/>Columbia, Puerto Rico, the Virgin Islands, or any other possession of the United States.</P> <P>(k) <E T="03">Mutual fund</E> 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 <E T="03">et seq.</E>). For purposes of this part, the term mutual fund includes open-end and closed-end mutual funds and registered money market funds.</P> <P>(l) <E T="03">Particular matter involving specific parties</E> 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.</P> <P>(m) <E T="03">Particular matter of general applicability</E> means a particular matter that is focused on the interests of a discrete and identifiable class of persons, but does not involve specific parties.</P> <P>(n) <E T="03">Pension plan</E> 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.</P> <P>(o) <E T="03">Person</E> means an individual, corporation, company, association, firm, partnership, society or any other organization or institution.</P> <P>(p) <E T="03">Publicly traded security</E> means a security as defined in paragraph (r) of this section and which is:</P> <P>(1) Registered with the Securities and Exchange Commission pursuant to section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78<E T="03">l</E>) and listed on a national or regional securities exchange or traded through NASDAQ;</P> <P>(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</P> <P>(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. 78<E T="03">l</E>) and issued by an entity whose stock is a publicly traded security.</P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(p): 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.</P> </NOTE> <P>(q) <E T="03">Sector mutual fund</E> means a mutual fund 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.</P> <P>(r) <E T="03">Security</E> means common stock, preferred stock, corporate bond, municipal security, mutual fund, long-term Federal Government security, and limited partnership interest.</P> <P>(s) <E T="03">Short-term Federal Government security</E> 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.</P> <P>(t) <E T="03">Special Government employee</E> 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.</P> <P>(u) <E T="03">Unit investment trust</E> 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.</P> <P>(v) <E T="03">United States Savings bond</E> means a savings bond issued by the United States Treasury pursuant to 31 U.S.C. 3105.</P> </SECTION> <SECTION> <SECTNO>§ 2640.103</SECTNO> <SUBJECT>Prohibition.</SUBJECT> <P>(a) <E T="03">Statutory prohibition.</E> 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.<PRTPAGE P="639"/> </P> <P>(1) <E T="03">Particular matter.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Overseas Private Investment Corporation decides to hire a contractor to conduct EEO training for its employees. The award of a contract for training services is a particular matter.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The spouse of a high level official of the Internal Revenue Service (IRS) requests a meeting on behalf of her client (a major U.S. corporation) with IRS officials to discuss a provision of IRS regulations governing depreciation of equipment. The spouse will be paid a fee by the corporation for arranging and attending the meeting. The consideration of the spouse's request and the decision to hold the meeting are particular matters in which the spouse has a financial interest.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A regulation published by the Department of Agriculture applicable only to companies that operate meat packing plants is a particular matter.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>A change by the Department of Labor to health and safety regulations applicable to all employers in the United States is not a particular matter. The change in the regulations is directed to the interests of a large and diverse group of persons.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>The allocation of additional resources to the investigation and prosecution of white collar crime by the Department of Justice is not a particular matter. Similarly, deliberations on the general merits of an omnibus bill such as the Tax Reform Act of 1986 are not sufficiently focused on the interests of specific persons, or a discrete and identifiable group of persons to constitute participation in a particular matter.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>The recommendations of the Council of Economic Advisors to the President about appropriate policies to maintain economic growth and stability are not particular matters. Discussions about economic growth policies are directed to the interests of a large and diverse group of persons.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 7:</HD> <P>The formulation and implementation of the response of the United States to the military invasion of a U.S. ally is not a particular matter. General deliberations, decisions and actions concerning a response are based on a consideration of the political, military, diplomatic and economic interests of every sector of society and are too diffuse to be focused on the interests of specific individuals or entities. However, at the time consideration is given to actions focused on specific individuals or entities, or a discrete and identifiable class of individuals or entities, the matters under consideration would be particular matters. These would include, for example, discussions whether to close a particular oil pumping station or pipeline in the area where hostilities are taking place, or a decision to seize a particular oil field or oil tanker.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 8:</HD> <P>A legislative proposal for broad health care reform is not a particular matter because it is not focused on the interests of specific persons, or a discrete and identifiable class of persons. It is intended to affect every person in the United States. However, consideration and implementation, through regulations, of a section of the health care bill limiting the amount that can be charged for prescription drugs is sufficiently focused on the interests of pharmaceutical companies that it would be a particular matter.</P> </EXAMPLE> <P>(2) <E T="03">Personal and substantial participation.</E> 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. </P> <EXAMPLE> <PRTPAGE P="640"/> <HD SOURCE="HED">Example 1:</HD> <P>An agency's Office of Enforcement is investigating the allegedly fraudulent marketing practices of a major corporation. One of the agency's personnel specialists is asked to provide information to the Office of Enforcement about the agency's personnel ceiling so that the Office can determine whether new employees can be hired to work on the investigation. The employee personnel specialist owns $10,000 worth of stock in the corporation that is the target of the investigation. She does not have a disqualifying financial interest in the matter (the investigation and possible subsequent enforcement proceedings) because her involvement is on a peripheral personnel issue and her participation cannot be considered “substantial” as defined in the statute.</P> </EXAMPLE> <P>(3) <E T="03">Direct and predictable effect.</E> (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.</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An attorney at the Department of Justice is working on a case in which several large companies are defendants. If the Department wins the case, the defendants may be required to reimburse the Federal Government for their failure to adequately perform work under several contracts with the Government. The attorney's spouse is a salaried employee of one of the companies, working in a division that has no involvement in any of the contracts. She does not participate in any bonus or benefit plans tied to the profitability of the company, nor does she own stock in the company. Because there is no evidence that the case will have a direct and predictable effect on whether the spouse will retain her job or maintain the level of her salary, or whether the company will undergo any reorganization that would affect her interests, the attorney would not have a disqualifying financial interest in the matter. However, the attorney must consider, under the requirements of § 2635.502 of this chapter, whether his impartiality would be questioned if he continues to work on the case.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A special Government employee (SGE) whose principal employment is as a researcher at a major university is appointed to serve on an advisory committee that will evaluate the safety and effectiveness of a new medical device to regulate arrhythmic heartbeats. The device is being developed by Alpha Medical Inc., a company which also has contracted with the SGE's university to assist in developing another medical device related to kidney dialysis. There is no evidence that the advisory committee's determinations concerning the medical device under review will affect Alpha Medical's contract with the university to develop the kidney dialysis device. The SGE may participate in the committee's deliberations because those deliberations will not have a direct and predictable effect on the financial interests of the researcher or his employer.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The SGE in the preceding example is instead asked to serve on an advisory committee that has been convened to conduct a preliminary evaluation of the new kidney dialysis device developed by Alpha Medical under contract with the employee's university. Alpha's contract with the university requires the university to undertake additional testing of the device to address issues raised by the committee during its review. The committee's actions will have a direct and predictable effect on the university's financial interest.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>An engineer at the Environmental Protection Agency (EPA) was formerly employed by Waste Management, Inc., a corporation subject to EPA's regulations concerning the disposal of hazardous waste materials. Waste Management is a large corporation, with less than 5% of its profits derived from handling hazardous waste materials. The engineer has a vested interest in a defined benefit pension plan sponsored by Waste Management which guarantees that he will receive payments of $500 per month beginning at age 62. As an employee of EPA, the engineer has been assigned to evaluate Waste Management's compliance with EPA hazardous waste regulations. There is no evidence that the engineer's monitoring activities will affect Waste Management's ability or willingness to pay his pension benefits when he is entitled to receive them at age 62. Therefore, the EPA's monitoring activities will not have a direct and predictable effect on the employee's financial interest in his Waste Management pension. However, the <PRTPAGE P="641"/>engineer should consider whether, under the standards set forth in 5 CFR 2635.502, a reasonable person would question his impartiality if he acts in a matter in which Waste Management is a party.</P> </EXAMPLE> <P>(b) <E T="03">Disqualifying financial interests</E>. 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of the Interior owns transportation bonds issued by the State of Minnesota. The proceeds of the bonds will be used to fund improvements to certain State highways. In her official position, the employee is evaluating an application from Minnesota for a grant to support a State wildlife refuge. The employee's ownership of the transportation bonds does not create a disqualifying financial interest in Minnesota's application for wildlife funds because approval or disapproval of the grant will not in any way affect the current value of the bonds or have a direct and predictable effect on the State's ability or willingness to honor its obligation to pay the bonds when they mature.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Bureau of Land Management owns undeveloped land adjacent to Federal lands in New Mexico. A portion of the Federal land will be leased by the Bureau to a mining company for exploration and development, resulting in an increase in the value of the surrounding privately owned land, including that owned by the employee. The employee has a financial interest in the lease of the Federal land to the mining company and, therefore, cannot participate in Bureau matters involving the lease unless he obtains an individual waiver pursuant to 18 U.S.C. 208(b)(1).</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>A special Government employee serving on an advisory committee studying the safety and effectiveness of a new arthritis drug is a practicing physician with a specialty in treating arthritis. The drug being studied by the committee would be a low cost alternative to current treatments for arthritis. If the drug is ultimately approved, the physician will be able to prescribe the less expensive drug. The physician does not own stock in, or hold any position, or have any business relationship with the company developing the drug. Moreover, there is no indication that the availability of a less expensive treatment for arthritis will increase the volume and profitability of the doctor's private practice. Accordingly, the physician has no disqualifying financial interest in the actions of the advisory committee.</P> </EXAMPLE> <P>(c) <E T="03">Interests of others.</E> The financial interests of the following persons will serve to disqualify an employee to the same extent as the employee's own interests:</P> <P>(1) The employee's spouse;</P> <P>(2) The employee's minor child;</P> <P>(3) The employee's general partner;</P> <P>(4) An organization or entity which the employee serves as officer, director, trustee, general partner, or employee; and</P> <P>(5) A person with whom the employee is negotiating for, or has an arrangement concerning, prospective employment. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Consumer Product Safety Commission (CPSC) has two minor children who have inherited shares of stock from their grandparents in a company that manufactures small appliances. Unless an exemption is applicable under § 2640.202 or he obtains a waiver under 18 U.S.C. 208(b)(1), the employee is disqualified from participating in a CPSC proceeding to require the manufacturer to remove a defective appliance from the market.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A newly appointed employee of the Department of Housing and Urban Development (HUD) is a general partner with three former business associates in a partnership that owns a travel agency. The employee knows that his three general partners are also partners in another partnership that owns a HUD-subsidized housing project. Unless he receives a waiver pursuant to 18 U.S.C. 208(b)(1) permitting him to act, the employee must disqualify himself from particular matters involving the HUD-subsidized project which his general partners own.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>The spouse of an employee of the Department of Health and Human Services (HHS) works for a consulting firm that provides support services to colleges and universities on research projects they are conducting under grants from HHS. The spouse is a salaried employee who has no direct ownership interest in the firm such as through stockholding, and the award of a grant to a particular university will have no direct and predictable effect on his continued employment or his salary. Because the award of a grant will not affect the spouse's financial interest, section 208 would not bar the HHS employee from participating in the award of a grant to a university to which the <PRTPAGE P="642"/>consulting firm will provide services. However, the employee should consider whether her participation in the award of the grant would be barred under the impartiality provision in the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR 2635.502.</P> </EXAMPLE> <P>(d) <E T="03">Disqualification.</E> 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.</P> <P>(1) <E T="03">Notification.</E> 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.</P> <P>(2) <E T="03">Documentation.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The supervisor of an employee of the Department of Education asks the employee to attend a meeting on his behalf on developing national standards for science education in secondary schools. When the employee arrives for the meeting, she realizes one of the participants is the president of Education Consulting Associates (ECA), a firm which has been awarded a contract to prepare a bulletin describing the Department's policies on science education standards. The employee's spouse has a subcontract with ECA to provide the graphics and charts that will be used in the bulletin. Because the employee realizes that the meeting will involve matters relating to the production of the bulletin, the employee properly decides that she must disqualify herself from participating in the discussions. After withdrawing from the meeting, the employee should notify her supervisor about the reason for her disqualification. She may elect to put her disqualification statement in writing, or to simply notify her supervisor orally. She may also elect to notify appropriate coworkers about her need to disqualify herself from this matter.</P> </EXAMPLE> <P>(e) <E T="03">Divestiture of a disqualifying financial interest.</E> 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.</P> <P>(1) <E T="03">Voluntary divestiture.</E> 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.</P> <P>(2) <E T="03">Directed divestiture.</E> 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.</P> <P>(3) <E T="03">Eligibility for special tax treatment.</E> 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.</P> <P>(f) <E T="03">Official duties that give rise to potential conflicts.</E> Where an employee's <PRTPAGE P="643"/>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Exemptions Pursuant to 18 U.S.C. 208(b)(2)</HD> <SECTION> <SECTNO>§ 2640.201</SECTNO> <SUBJECT>Exemptions for interests in mutual funds, unit investment trusts, and employee benefit plans.</SUBJECT> <P>(a) <E T="03">Diversified mutual funds and unit investment trusts.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee owns shares worth $100,000 in several mutual funds whose portfolios contain stock in a small computer company. Each mutual fund prospectus describes the fund as a “management company,” but does not characterize the fund as having a policy of concentrating its investments in any particular industry, business, single country (other than the U.S.) or bonds of a single State. The employee may participate in agency matters affecting the computer company.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A nonsupervisory employee of the Department of Energy owns shares in a mutual fund that expressly concentrates its holdings in the stock of utility companies. The employee may not rely on the exemption in paragraph (a) of this section to act in matters affecting a utility company whose stock is part of the mutual fund's portfolio because the fund is not a diversified fund as defined in § 2640.102(a). The employee may, however, seek an individual waiver under 18 U.S.C. 208(b)(1) permitting him to act. Moreover, depending upon the value of the employee's interest in the fund and the type of particular matter in which he would participate, one of the exemptions at § 2640.202(a) or (b) for interests arising from publicly traded securities may be applicable.</P> </EXAMPLE> <P>(b) <E T="03">Sector mutual funds.</E> An employee may participate in any particular matter affecting one or more holdings of a sector mutual fund where the affected holding is not invested in the sector in which the fund concentrates, and where the disqualifying financial interest in the matter arises because of ownership of an interest in the fund. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Federal Reserve owns shares in the mutual fund described in the preceding example. In addition to holdings in utility companies, the mutual fund contains stock in certain regional banks and bank holding companies whose financial interests would be affected by an investigation in which the Federal Reserve employee would participate. The employee is not disqualified from participating in the investigation because the banks that would be affected are not part of the sector in which the fund concentrates.</P> </EXAMPLE> <P>(c) <E T="03">Employee benefit plans.</E> An employee may participate in:</P> <P>(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:</P> <P>(i) The Thrift Savings Plan for Federal employees described in 5 U.S.C. 8437;</P> <P>(ii) A pension plan established or maintained by a State government or any political subdivision of a State government for its employees; or</P> <P>(iii) A diversified employee benefit plan, <E T="03">provided:</E> </P> <P>(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</P> <P>(B) The plan is not a profit-sharing or stock bonus plan.</P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(c)(1): 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.</P> </NOTE> <P>(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 <PRTPAGE P="644"/>matter arises because of participation in the plan. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An attorney terminates his position with a law firm to take a position with the Department of Justice. As a result of his employment with the firm, the employee has interests in a 401(k) plan, the assets of which are invested primarily in stocks chosen by an independent financial management firm. He also participates in a defined contribution pension plan maintained by the firm, the assets of which are stocks, bonds, and financial instruments. The plan is managed by an independent trustee. Assuming that the manager of the pension plan has a written policy of diversifying plan investments, the employee may act in matters affecting the plan's holdings. The employee may also participate in matters affecting the holdings of his 401(k) plan if the individual financial management firm that selects the plan's investments has a written policy of diversifying the plan's assets. Employee benefit plans that are tax deferred under 26 U.S.C. 401(k) are not considered profit-sharing or stock bonus plans for purposes of this part.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Agriculture who is a former New York State employee has a vested interest in a pension plan established by the State of New York for its employees. She may participate in an agency matter that would affect a company whose stock is in the pension plan's portfolio. She also may participate in a matter of general applicability affecting all States, including the State of New York, such as the drafting and promulgation of a rule requiring States to expend additional resources implementing the Food Stamp program. Unless she obtains an individual waiver under 18 U.S.C. 208(b)(1), she may not participate in a matter involving the State of New York as a party, such as an application by the State for additional Federal funding for administrative support services, if that matter would affect the State's ability or willingness to honor its obligation to pay her pension benefits.</P> </EXAMPLE> <CITA>[61 FR 66841, Dec. 18, 1996; 62 FR 1361, Jan. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2640.202</SECTNO> <SUBJECT>Exemptions for interests in securities.</SUBJECT> <P>(a) <E T="03">De minimis exemption for matters involving parties.</E> 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:</P> <P>(1) The securities are publicly traded, or are long-term Federal Government, or are municipal securities; and</P> <P>(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 $5,000. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee owns 100 shares of publicly traded stock valued at $3,000 in XYZ Corporation. As part of his official duties, the employee is evaluating bids for performing computer maintenance services at his agency and discovers that XYZ Corporation is one of the companies that has submitted a bid. The employee is not required to recuse himself from continuing to evaluate the bids.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>In the preceding example, the employee and his spouse each own 100 shares of stock in XYZ Corporation, resulting in ownership of $6,000 worth of stock by the employee and his spouse. The exemption in paragraph (a) of this section would not permit the employee to participate in the evaluation of bids because the aggregate market value of the holdings of the employee, spouse and minor children in XYZ Corporation exceeds $5,000. The employee could, however, seek an individual waiver under 18 U.S.C. 208(b)(1) in order to participate in the evaluation of bids.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee is assigned to monitor XYZ Corporation's performance of a contract to provide computer maintenance services at the employee's agency. At the time the employee is first assigned these duties, he owns publicly traded stock in XYZ Corporation valued at less than $5,000. During the time the contract is being performed, however, the value of the employee's stock increases to $7,500. When the employee knows that the value of his stock exceeds $5,000, he must disqualify himself from any further participation in matters affecting XYZ Corporation or seek an individual waiver under 18 U.S.C. 208(b)(1). Alternatively, the employee may divest the portion of his XYZ stock that exceeds $5,000. This can be accomplished through a standing order with his broker to sell when the value of the stock exceeds $5,000.</P> </EXAMPLE> <P>(b) <E T="03">De minimis exemption for matters of general applicability.</E> (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:<PRTPAGE P="645"/> </P> <P>(i) The securities are publicly traded, or are municipal securities, the market value of which does not exceed:</P> <P>(A) $25,000 in any one such entity; and</P> <P>(B) $50,000 in all affected entities; or</P> <P>(ii) The securities are long-term Federal Government securities, the market value of which does not exceed $50,000.</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Bureau of Export Administration at the Department of Commerce is in the process of formulating a regulation concerning exportation of portable computers. The regulation will affect all domestic companies that sell portable computers. An employee of the Department who is assisting in drafting the regulation owns $17,000 worth of stock in CompAmerica and $20,000 worth of stock in XYZ Computer Inc. Even though the employee owns $37,000 worth of stock in companies that will be affected by the regulation, she may participate in drafting the regulation because the value of the securities she owns does not exceed $25,000 in any one affected company and the total value of stock owned in all affected companies does not exceed $50,000.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A health scientist administrator employed in the Public Health Service at the Department of Health and Human Services is assigned to serve on a Department-wide task force that will recommend changes in how Medicare reimbursements will be made to health care providers. The employee owns $10,000 worth of shares in a sector mutual fund invested primarily in health-related companies such as pharmaceuticals, developers of medical instruments and devices, managed care health organizations, and acute care hospitals. Because the fund is not a “diversified mutual fund” as defined in § 2640.102(a), the exemption at § 2640.201(a) is not applicable. However, because the fund is a “publicly traded security” as defined in § 2640.102(p), the exemption for financial interests arising from ownership of a de minimis amount of securities at paragraph (b) of this section will permit the employee to participate on the task force.</P> </EXAMPLE> <P>(c) <E T="03">Exemption for certain Federal Government securities.</E> 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.</P> <P>(d) <E T="03">Exemption for interests of tax-exempt organizations.</E> 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:</P> <P>(1) The matter affects only the organization's investments, not the organization directly;</P> <P>(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</P> <P>(3) The organization's only relationship to the issuer, other than that which arises from routine commercial transactions, is that of investor. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Federal Reserve is a director of the National Association to Save Trees (NAST), an environmental organization that is tax-exempt under section 501(c)(3) of the Internal Revenue Code. The employee knows that NAST has an endowment fund that is partially invested in the publicly traded stock of Computer Inc. The employee's position at the Federal Reserve involves the procurement of computer software, including software marketed by Computer Inc. The employee may participate in the procurement of software from Computer Inc. provided that he is not involved in selecting NAST's investments, and that NAST has no relationship to Computer Inc. other than as an investor in the company and routine purchaser of Computer Inc. software.</P> </EXAMPLE> <P>(e) <E T="03">Exemption for certain interests of general partners.</E> An employee may participate in any particular matter in which the disqualifying financial interest arises from:</P> <P>(1) The ownership of publicly traded securities, long-term Federal Government securities, or municipal securities by the employee's general partner, <E T="03">provided:</E> </P> <P>(i) Ownership of the securities is not related to the partnership between the employee and his general partner, and</P> <P>(ii) The value of the securities does not exceed $200,000; or<PRTPAGE P="646"/> </P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Department of Transportation is a general partner in a partnership that owns commercial property. The employee knows that one of his partners owns stock in an aviation company valued at $100,000 because the stock has been pledged as collateral for the purchase of the commercial property by the partnership. In the absence of an individual waiver under 18 U.S.C. 208(b)(1), the employee may not act in a matter affecting the aviation company. Because the stock has been pledged as collateral, ownership of the securities is related to the partnership between the employee and his general partner.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Pension Benefit Guaranty Corporation (PBGC) has a limited partnership interest in Ambank Partners, a large partnership with more than 500 limited partners. The partnership assets are invested in the securities of various financial institutions. Ambank's general partner is Capital Investment Services, an investment firm whose pension plan for its own employees is being examined by the PBGC for possible unfunded liabilities. Even though the employee's general partner (Capital Investment Services) has a financial interest in PBGC's review of the pension plan, the employee may participate in the review because his relationship with his general partner is that of a limited partner in a partnership that has at least 100 limited partners.</P> </EXAMPLE> <CITA>[61 FR 66841, Dec. 18, 1996; 62 FR 1361, Jan. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 2640.203</SECTNO> <SUBJECT>Miscellaneous exemptions.</SUBJECT> <P>(a) <E T="03">Hiring decisions.</E> 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:</P> <P>(1) Ownership of publicly traded securities issued by the corporation; or</P> <P>(2) Participation in a pension plan sponsored by the corporation.</P> <P>(b) <E T="03">Employees on leave from institutions of higher education.</E> 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, <E T="03">provided</E> that the matter will not have a special or distinct effect on that institution other than as part of a class. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee at the Department of Defense (DOD) is on a leave of absence from his position as a tenured Professor of Engineering at the University of California (UC) at Berkeley. While at DOD, he is assigned to assist in developing a regulation which will contain new standards for the oversight of grants given by DOD. Even though the University of California at Berkeley is a DOD grantee, and will be affected by these new monitoring standards, the employee may participate in developing the standards because UC Berkeley will be affected only as part of the class of all DOD grantees. However, if the new standards would affect the employee's own financial interest, such as by affecting his tenure or his salary, the employee could not participate in the matter unless he first obtains an individual waiver under section 208(b)(1).</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee on leave from a university could not participate in the development of an agency program of grants specifically designed to facilitate research in jet propulsion systems where the employee's university is one of just two or three universities likely to receive a grant under the new program. Even though the grant announcement is open to all universities, the employee's university is among the very few known to have facilities and equipment adequate to conduct the research. The matter would have a distinct effect on the institution other than as part of a class.</P> </EXAMPLE> <P>(c) <E T="03">Multi-campus institutions of higher education.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A special Government employee (SGE) member of an advisory committee convened by the National Science Foundation is a full-time professor in the School of Engineering at one campus of a State university. The SGE may participate in formulating the committee's recommendation to award a grant to a researcher at another campus of the same State university system.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A member of the Board of Regents at a State university is asked to serve on an advisory committee established by the Department of Health and Human Services to consider applications for grants for human genome research projects. An application from another university that is part <PRTPAGE P="647"/>of the same State system will be reviewed by the committee. Unless he receives an individual waiver under section 208(b)(1) or (b)(3), the advisory committee member may not participate in matters affecting the second university that is part of the State system because as a member of the Board of Regents, he has duties and responsibilities that affect the entire State educational system.</P> </EXAMPLE> <P>(d) <E T="03">Exemptions for financial interests arising from Federal Government employment or from Social Security or veterans’ benefits.</E> 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:</P> <P>(1) Make determinations that individually or specially affect his own salary and benefits; or</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Office of Management and Budget may vigorously and energetically perform the duties of his position even though his outstanding performance would result in a performance bonus or other similar merit award.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A policy analyst at the Defense Intelligence Agency may request promotion to another grade or salary level. However, the analyst may not recommend or approve the promotion of her general partner to the next grade.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An engineer employed by the National Science Foundation may request that his agency pay the registration fees and appropriate travel expenses required for him to attend a conference sponsored by the Engineering Institute of America. However, the employee may not approve payment of his own travel expenses and registration fees unless he has been delegated, in advance, authority to make such approvals in accordance with agency policy.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>A GS-14 attorney at the Department of Justice may review and make comments about the legal sufficiency of a bill to raise the pay level of all Federal employees paid under the General Schedule even though her own pay level, and that of her spouse who works at the Department of Labor, would be raised if the bill were to become law.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>An employee of the Department of Veterans Affairs (VA) may assist in drafting a regulation that will provide expanded hospital benefits for veterans, even though he himself is a veteran who would be eligible for treatment in a hospital operated by the VA.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>An employee of the Office of Personnel Management may participate in discussions with various health insurance providers to formulate the package of benefits that will be available to Federal employees who participate in the Government's Federal Employees Health Benefits Program, even though the employee will obtain health insurance from one of these providers through the program.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 7:</HD> <P>An employee of the Federal Supply Service Division of the General Services Administration (GSA) may participate in GSA's evaluation of the feasibility of privatizing the entire Federal Supply Service, even though the employee's own position would be eliminated if the Service were privatized.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 8:</HD> <P>Absent an individual waiver under section 208(b)(1), the employee in the preceding example could not participate in the implementation of a GSA plan to create an employee-owned private corporation which would carry out Federal Supply Service functions under contract with GSA. Because implementing the plan would result not only in the elimination of the employee's Federal position, but also in the creation of a new position in the new corporation to which the employee would be transferred, the employee would have a disqualifying financial interest in the matter arising from other than Federal salary and benefits, or Social Security or veterans benefits.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 9:</HD> <P>A career member of the Senior Executive Service (SES) at the Internal Revenue Service (IRS) may serve on a performance review board that makes recommendations about the performance awards that will be awarded to other career SES employees at the IRS. The amount of the employee's own SES performance award would be affected by the board's recommendations because all SES awards are derived from the same limited pool of funds. However, the employee's activities on the board involve only recommendations, and not determinations that individually or specially affect his own award. Additionally, 5 U.S.C. 5384(c)(2) requires that a majority of the board's members be career SES employees.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 10:</HD> <P>In carrying out a reorganization of the Office of General Counsel (OGC) of the Federal Trade Commission, the Deputy General Counsel is asked to determine which of five Senior Executive Service (SES) positions in the OGC to abolish. Because her own position is one of the five SES positions being considered for elimination, the matter is one that would individually or specially affect her own salary and benefits and, therefore, the Deputy may not decide which position should be abolished.</P> </EXAMPLE> <NOTE> <PRTPAGE P="648"/> <HD SOURCE="HED">Note to paragraph</HD> <P>(d): 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.</P> </NOTE> <P>(e) <E T="03">Commercial discount and incentive programs.</E> 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, <E T="03">provided:</E> </P> <P>(1) The program is open to the general public; and</P> <P>(2) Participation in the program involves no other financial interest in the sponsor, such as stockholding. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An attorney at the Pension Benefit Guaranty Corporation who is a member of a frequent flier program sponsored by Alpha Airlines may assist in an action against Alpha for failing to make required payments to its employee pension fund, even though the agency action will cause Alpha to disband its frequent flier program.</P> </EXAMPLE> <P>(f) <E T="03">Mutual insurance companies.</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An administrative law judge at the Department of Labor receives dividends from a mutual insurance company which he takes in the form of reduced premiums on his life insurance policy. The amount of the dividend is based upon the company's overall profitability. Nevertheless, he may preside in a Department hearing involving a major corporation insured by the same company even though the insurance company will have to pay the corporation's penalties and other costs if the Department prevails in the hearing.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>An employee of the Department of Justice is assigned to prosecute a case involving the fraudulent practices of an issuer of junk bonds. While developing the facts pertinent to the case, the employee learns that the mutual life insurance company from which he holds a life insurance policy has invested heavily in these junk bonds. If the Government succeeds in its case, the bonds will be worthless and the corresponding decline in the insurance company's investments will impair the company's ability to pay claims under the policies it has issued. The employee may not continue assisting in the prosecution of the case unless he obtains an individual waiver pursuant to section 208(b)(1).</P> </EXAMPLE> <P>(g) <E T="03">Exemption for employment interests of special Government employees serving on advisory committees.</E> 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, <E T="03">provided</E> 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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A chemist employed by a major pharmaceutical company has been appointed to serve on an advisory committee established to develop recommendations for new standards for AIDS vaccine trials involving human subjects. Even though the chemist's employer is in the process of developing an experimental AIDS vaccine and therefore will be affected by the new standards, the chemist may participate in formulating the advisory committee's recommendations. The chemist's employer will be affected by the new standards only as part of the class of all pharmaceutical companies and other research entities that are attempting to develop an AIDS vaccine.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>The National Cancer Institute (NCI) has established an advisory committee to evaluate a university's performance of an NCI grant to study the efficacy of a newly developed breast cancer drug. An employee of the university may not participate in the evaluation of the university's performance because it is not a matter of general applicability.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An engineer whose principal employment is with a major Department of Defense (DOD) contractor is appointed to serve on an advisory committee established by DOD to develop concepts for the next generation of laser-guided missiles. The engineer's employer, as well as a number of other similar companies, has developed certain missile components for DOD in the past, and has the capability to work on aspects of the newer missile designs under consideration by the <PRTPAGE P="649"/>committee. The engineer owns $20,000 worth of stock in his employer. Because the exemption for the employment interests of special Government employees serving on advisory committees does not extend to financial interests arising from the ownership of stock, the engineer may not participate in committee matters affecting his employer unless he receives an individual waiver under section 208(b)(1) or (b)(3), or determines whether the exemption for interests in securities at § 2640.202(b) applies.</P> </EXAMPLE> <P>(h) <E T="03">Directors of Federal Reserve Banks.</E> 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:</P> <P>(1) Establishment of rates to be charged for all advances and discounts by Federal Reserve Banks;</P> <P>(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;</P> <P>(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</P> <P>(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, <E T="03">provided that</E> 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.</P> <P>(i) <E T="03">Medical products.</E> 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:</P> <P>(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</P> <P>(2) The use or prescription of medical products for patients.</P> <P>(j) <E T="03">Nonvoting members of standing technical advisory committees established by the Food and Drug Administration.</E> 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). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The FDA's Medical Devices Advisory Committee is established pursuant to 21 U.S.C. 360c(b), which requires that each panel of the Committee include one nonvoting industry representative and one nonvoting consumer representative. An industry representative on the Ophthalmic Devices Panel of this Committee has been appointed as a special Government employee, in accordance with the procedures described at 14 CFR 14.84. The special Government employee may participate in Panel discussions concerning the premarket approval application for a silicone posterior chamber intraocular lens manufactured by MedInc, even though she is employed by, and owns stock in, another company that manufactures a competing product. However, a consumer representative who serves as a special Government employee on the same Panel may not participate in Panel discussions if he owns $30,000 worth of stock in MedInc unless he first obtains an individual waiver under 18 U.S.C. 208 (b)(1) or (b)(3).</P> </EXAMPLE> <P>(k) <E T="03">Employees of the Tennessee Valley Authority.</E> 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).</P> <P>(l) <E T="03">Exemption for financial interests of non-Federal government employers in the decennial census.</E> An employee of the <PRTPAGE P="650"/>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:</P> <P>(1) Does not serve in a State, local, or tribal government position which is filled through public election;</P> <P>(2) Was hired for a temporary position under authority of 13 U.S.C. 23; and</P> <P>(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.</P> <CITA>[61 FR 66841, Dec. 18, 1996 as amended at 62 FR 23128, Apr. 29, 1997; 65 FR 16513, Mar. 29, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 2640.204</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>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). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>The Office of the Comptroller of the Currency (OCC), in a regulation that supplements part 2635 of this chapter, prohibits certain employees from owning stock in commercial banks. If an OCC employee purchases stock valued at $2,000 in contravention of the regulation, the exemption at § 2640.202(a) for interests arising from the ownership of no more than $5,000 worth of publicly traded stock will not apply to the employee's participation in matters affecting the bank.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 2640.205</SECTNO> <SUBJECT>Employee responsibility.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2640.206</SECTNO> <SUBJECT>Existing agency exemptions.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Individual Waivers</HD> <SECTION> <SECTNO>§ 2640.301</SECTNO> <SUBJECT>Waivers issued pursuant to 18 U.S.C. 208(b)(1).</SUBJECT> <P>(a) <E T="03">Requirements for issuing an individual waiver under 18 U.S.C. 208(b)(1).</E> 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:</P> <P>(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);</P> <P>(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);</P> <P>(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 <PRTPAGE P="651"/>on the employee's ability to act in such matters;</P> <P>(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;</P> <P>(5) The waiver must be issued prior to the employee taking any action in the matter or matters; and</P> <P>(6) The waiver may apply to both present and future financial interests, provided the interests are described with sufficient specificity.</P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(a): 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.</P> </NOTE> <P>(b) <E T="03">Agency determination concerning substantiality of the disqualifying financial interest.</E> 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:</P> <P>(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);</P> <P>(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;</P> <P>(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);</P> <P>(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</P> <P>(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.</P> <P>(6) Other factors which may be taken into consideration include:</P> <P>(i) The sensitivity of the matter;</P> <P>(ii) The need for the employee's services in the particular matter; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2640.302</SECTNO> <SUBJECT>Waivers issued pursuant to 18 U.S.C. 208(b)(3).</SUBJECT> <P>(a) <E T="03">Requirements for issuing an individual waiver under 18 U.S.C. 208(b)(3).</E> 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:</P> <P>(1) The advisory committee upon which the individual is serving, or will <PRTPAGE P="652"/>serve, is an advisory committee within the meaning of the Federal Advisory Committee Act, 5 U.S.C. app.;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(5) The waiver should describe any limitations on the individual's ability to act in the matter or matters;</P> <P>(6) The waiver must be issued prior to the individual taking any action in the matter or matters; and</P> <P>(7) The waiver may apply to both present and future financial interests of the individual, provided the interests are described with sufficient specificity.</P> <P>(b) <E T="03">Agency certification concerning need for individual's services.</E> 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:</P> <P>(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);</P> <P>(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;</P> <P>(3) The uniqueness of the individual's qualifications;</P> <P>(4) The difficulty of locating a similarly qualified individual without a disqualifying financial interest to serve on the committee;</P> <P>(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);</P> <P>(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</P> <P>(7) The extent to which the disqualifying financial interest will be affected individually or particularly by the actions of the advisory committee.</P> </SECTION> <SECTION> <SECTNO>§ 2640.303</SECTNO> <SUBJECT>Consultation and notification regarding waivers.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2640.304</SECTNO> <SUBJECT>Public availability of agency waivers.</SUBJECT> <P>(a) <E T="03">Availability.</E> 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.</P> <P>(b) <E T="03">Limitations on availability.</E> In making a waiver issued pursuant to 18 U.S.C. 208 (b)(1) or (b)(3) publicly available, an agency:</P> <P>(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<PRTPAGE P="653"/> </P> <P>(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 interest which 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 2641</EAR> <HD SOURCE="HED">PART 2641—POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>2641.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Substantive Provisions</HD> <SECTNO>2641.201</SECTNO> <SUBJECT>One-year restriction on a former senior employee's representations to employees of former agency concerning matter, regardless of prior involvement.</SUBJECT> <APP>Appendix A to Part 2641—Positions Exempted from 18 U.S.C. 207<E T="01">(c)</E> </APP> <APP>Appendix B to Part 2641—Agency Components for Purposes of 18 U.S.C. 207<E T="01">(c)</E> </APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 3963, Feb. 1, 1991, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 2641.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The following terms are defined for purposes of this part:</P> <P> <E T="03">Agency</E> includes any department, independent establishment, commission, administration, authority, board, or bureau of the United States, and includes a Government corporation. 18 U.S.C. 202(e)(1); 5 U.S.C. 105.</P> <P> <E T="03">Department</E> means one of the executive departments enumerated in 5 U.S.C. 101.</P> <P> <E T="03">Designated agency ethics official</E> means an officer or employee who is designated by the head of an agency to coordinate and manage an agency's ethics program in accordance with § 2638.203 of this subchapter. 5 CFR 2638.202.</P> <P> <E T="03">Employee</E> means any officer or employee of the executive branch as that term is defined in this section. Unless otherwise indicated, the term does not include the President or the Vice President. 18 U.S.C. 202(c). It does not include an individual performing services for the United States as an independent contractor under a personal services contract or an enlisted member of the armed forces as defined in 5 U.S.C. 2101(2). 18 U.S.C. 202(a). Unless otherwise indicated, the term encompasses senior employees, very senior employees, and special Government employees as defined in this section.</P> <P> <E T="03">Executive branch</E> includes each executive agency as defined in 5 U.S.C. 105, other than the General Accounting Office, and also includes any other entity or administrative unit in the executive branch. 18 U.S.C. 202(e)(1).</P> <P> <E T="03">Former employee, former senior employee,</E> or <E T="03">former very senior employee</E> means one who was, and is no longer, an employee, senior employee, or very senior employee.</P> <P> <E T="03">Senior employee</E> means an employee, other than a very senior employee, who is:</P> <P>(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);</P> <P>(2) Employed in a position for which the basic rate of pay, exclusive of any locality-based pay adjustment under 5 U.S.C. 5304 (or any comparable adjustment pursuant to interim authority of the President) is equal to or greater than the rate of basic pay payable for Level V of the Executive Schedule (including any such position in the Senior Executive Service or other SES-type systems, e.g., the Senior Foreign Service);</P> <P>(3) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(B);</P> <P>(4) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(B);</P> <P>(5) Employed in a position which is held by an active duty commissioned officer of the uniformed services who is serving in a grade or rank for which the pay grade (as specified in 37 U.S.C. 201) is pay grade O-7 or above; or</P> <P>(6) Detailed to any such position.</P> <P> <E T="03">Special Government employee</E> includes an officer or employee of an agency <PRTPAGE P="654"/>who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed 130 days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis. See 18 U.S.C. 202(a).</P> <P> <E T="03">Very senior employee</E> means an employee who is:</P> <P>(1) Serving in the position of Vice President of the United States;</P> <P>(2) Employed in a position at a rate of pay payable for Level I of the Executive Schedule;</P> <P>(3) Employed in a position in the Executive Office of the President at a rate of pay payable for Level II of the Executive Schedule;</P> <P>(4) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(A);</P> <P>(5) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(A); or</P> <P>(6) Detailed to any such position.</P> <CITA>[56 FR 3963, Feb. 1, 1991, as amended at 59 FR 34756, July 7, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Substantive Provisions</HD> <SECTION> <SECTNO>§ 2641.201</SECTNO> <SUBJECT>One-year restriction on a former senior employee's representations to employees of former agency concerning matter, regardless of prior involvement.</SUBJECT> <P>(a) <E T="03">Basic Prohibition of 18 U.S.C. 207(c)</E>. For one year after service in a “senior” position terminates, no former “senior” employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of a department or agency in which he served in any capacity during the one-year period prior to termination from “senior” service, if that communication or appearance is made on behalf of any other person (except the United States) in connection with any matter on which he seeks official action by any employee.</P> <P>(b) <E T="03">Applicability</E>. 18 U.S.C. 207(c) applies to all former “senior employees” as defined in § 2641.101 of this part. Certain individuals who served in “very senior” positions are subject to the one-year bar set forth in section 207(d) in lieu of that set forth in section 207(c). See definition of “very senior employee” in § 2641.101.</P> <P>(1) <E T="03">Special Government Employees</E>. 18 U.S.C. 207(c) does not apply to an individual as a result of service as a special Government employee unless the individual:</P> <P>(i) Served in a senior employee position while serving as a special Government employee; and</P> <P>(ii) Served 60 or more days as a special Government employee during the one-year period before terminating service as a senior employee.</P> <P>(2) <E T="03">Exemption from 18 U.S.C. 207(c)</E>. 18 U.S.C. 207(c) does not apply to an individual as a result of service in a senior position if that position has been exempted from section 207(c) pursuant to the waiver procedures set forth in § 2641.201(d) of this part.</P> <P>(c) <E T="03">Measurement of Restriction.</E> 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 be a senior employee, not from the termination of Government service, unless the two occur simultaneously.</P> <P>(d) <E T="03">Waiver of 18 U.S.C. 207(c).</E> Certain positions or categories of positions can be exempted from 18 U.S.C. 207(c) through the grant of a waiver by the Director of the Office of Government Ethics. 18 U.S.C. 207(c)(2)(C).</P> <P>(1) <E T="03">Effect of Exemption.</E> When an eligible position is exempted from 18 U.S.C. 207(c) by the Director of the Office of Government Ethics, the one-year restriction of section 207(c) will not be triggered upon any employee's termination from the position.</P> <P>(2) <E T="03">Eligible Senior Employee Positions.</E> Any senior employee position is eligible for exemption except the following:</P> <P>(i) Positions for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule);</P> <P>(ii) Positions whose occupants are appointed by the President pursuant to 3 U.S.C. 105(a)(2)(B); or</P> <P>(iii) Positions whose occupants are appointed by the Vice President pursuant to 3 U.S.C. 106(a)(1)(B).</P> <P>(3) <E T="03">Procedure.</E> An exemption shall be granted in accordance with the following procedure:</P> <P>(i) <E T="03">Initial Exemption.</E> An agency's designated agency ethics official shall forward to the Director of the Office of Government Ethics a written request <PRTPAGE P="655"/>that a certain senior employee position or category of positions be exempted from 18 U.S.C. 207(c). Any such request shall address the criteria set forth in paragraph (d)(5) of this section. A designated agency ethics official may also request that a current exemption be revoked.</P> <P>(ii) <E T="03">Agency Update.</E> Designated agency ethics officials shall by November 30 of each year forward to the Office of Government Ethics a letter stating whether positions or categories of positions currently exempted should remain exempt from the application of 18 U.S.C. 207(c) in light of the criteria set forth in paragraph (d)(5) of this section.</P> <P>(iii) <E T="03">Action by Office of Government Ethics.</E> The Director of the Office of Government Ethics shall promptly provide to the designated agency ethics official a written response to each initial request for exemption or revocation. The Director shall annually publish in appendix A to this part an updated compilation of all exempted positions or categories of positions. The Director shall publish notice in the <E T="04">Federal Register</E> when he determines to revoke an exemption based on his finding that the position or positions no longer qualify for exemption.</P> <P>(4) <E T="03">Effective Date of Exemption.</E> Exemptions issued under paragraph (d) of this section shall be effective as of the date of the Director's written response to the designated agency ethics official indicating that the request for exemption has been granted. An exemption shall inure to the benefit of the individual who holds the position when the exemption takes effect, as well as to his successors, but shall not benefit individuals who terminated senior service prior to the effective date of the exemption. Revocation of an exemption shall be effective 90 days after the date that the Director publishes notice of the revocation in the <E T="04">Federal Register</E>. Individuals who formerly served in an exempted position will not become subject to 18 U.S.C. 207(c) in the event the position's exempted status is revoked subsequent to the individual's termination from the position.</P> <P>(5) <E T="03">Criteria for Exemption.</E> Before exempting a position or positions from 18 U.S.C. 207(c), the Director of the Office of Government Ethics must find that with respect to the position or category of positions:</P> <P>(i) The granting of the exemption would not create the potential for use by former senior employees of undue influence or unfair advantage based on past Government service; and</P> <P>(ii) The imposition of the restrictions would create an undue hardship on the department or agency in obtaining qualified personnel to fill such position or positions as shown by relevant factors which may include, but are not limited to:</P> <P>(A) The payment of a special rate of pay to the incumbent of the position pursuant to specific statutory authority; or</P> <P>(B) The requirement that the incumbent of the position have outstanding qualifications in a scientific, technological, or other technical discipline.</P> <P>(e) <E T="03">Separate Departmental or Agency Components.</E> For purposes of 18 U.S.C. 207(c) only, the Director of the Office of Government Ethics is authorized by 18 U.S.C. 207(h) to designate departmental and agency “components” that are distinct and separate from the “parent” department or agency and from each other. Absent such designation, the representational bar of section 207(c) extends to the whole of the department or agency in which the former senior employee served.</P> <P>(1) <E T="03">Effect of Designation.</E> An eligible former senior employee who served in a “parent” department or agency is not barred by 18 U.S.C. 207(c) from making communications to or appearances before any employee of any designated component of that parent, but is barred as to employees of that parent or of other components that have not been designated. An eligible former senior employee who served in an designated component of a parent department or agency is barred from communicating to or making an appearance before any employee of that component, but is not barred as to any employee of the parent or of any other component.</P> <P>(2) <E T="03">Eligible Senior Employees.</E> All former senior employees are eligible to benefit from this procedure except those who were senior employees by virtue of having been:</P> <P>(i) Employed in a position for which the rate of pay is specified in or fixed <PRTPAGE P="656"/>according to 5 U.S.C. 5311-5318 (the Executive Schedule);</P> <P>(ii) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(B); or</P> <P>(iii) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(B).</P> <P>(3) <E T="03">Procedure.</E> Distinct and separate components shall be designated in accordance with the following procedure:</P> <P>(i) <E T="03">Initial Designation.</E> Initial designations of departmental and agency components are set forth in appendix B to this part and are effective as of January 1, 1991.</P> <P>(ii) <E T="03">Agency Update.</E> 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 addressing the criteria set forth in paragraph (e)(6) of this section. Designated agency ethics officials shall by November 30 of each year forward to the Office of Government Ethics a letter stating whether components currently designated should remain designated in light of the criteria set forth in paragraph (e)(6).</P> <P>(iii) <E T="03">Action of Office of Government Ethics.</E> 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 annually publish in appendix B to this part an updated compilation of all designated departmental or agency components.</P> <P>(4) <E T="03">Effective Date of Designation.</E> Initial component designations shall be effective as of January 1, 1991. Any subsequent designation shall be effective as of the effective date of the rule that creates the designation, but shall not be effective as to employees who terminated senior service prior to that date. Revocation of a component designation shall be effective 90 days after the effective date of the rule that revokes the designation, but shall not be effective as to individuals who terminated senior service prior to the expiration of such 90-days period.</P> <P>(5) <E T="03">Unauthorized Designations.</E> No. agency or bureau within the Executive Office of the President may be designated as a separate departmental or agency component.</P> <P>(6) <E T="03">Criteria for Designation.</E> Before designating an agency component as distinct and separate for purposes of 18 U.S.C. 207(c), the Director of the Office of Government Ethics must find that:</P> <P>(i) There exists no potential for use by former senior employees of undue influence or unfair advantage based on past Government service; and</P> <P>(ii) The component is an agency or bureau, within a department or agency, that exercises functions which are distinct and separate from the functions of the parent department or agency and from the functions of other components of that parent as shown by relevant factors which may include, but are not limited to:</P> <P>(A) The component's creation by statute or a statutory reference indicating that it exercises functions which are distinct and separate; or</P> <P>(B) The component's exercise of separate and distinct subject matter or geographical jurisdiction.</P> <P>(7) <E T="03">Supervisory Relationship.</E> Provided that a component has a separate statutory basis or exercises distinct and separate subject matter or geographical jurisdiction, the parent will generally be deemed by the Director of the Office of Government Ethics to be distinct and separate from that component notwithstanding that the parent may exercise general supervisory authority over the component. However, the degree of a parent's supervision over a component will be a factor in determining whether subject matter or geographical jurisdiction is in fact distinct and separate. The Director will not ordinarily consider two components as distinct and separate from one another where one component exercises supervisory authority over another.</P> </SECTION> <APPENDIX> <EAR>Pt. 2641, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 2641—Positions Exempted from 18 U.S.C. 207<E T="01">(c)</E> </HD> <P>Pursuant to the provisions of 18 U.S.C. 207(c)(2)(C), each of the following positions is exempt from the provisions of 18 U.S.C. 207(c). All exemptions are effective as of the date indicated.</P> <P>Agency: Department of Justice.</P> <P>Positions: United States Trustee (21) (effective June 2, 1994).</P> <P>Agency: Securities and Exchange Commission.</P> <P>Positions: Solicitor, Office of General Counsel (effective October 29, 1991); Chief <PRTPAGE P="657"/>Litigation Counsel, Division of Enforcement (effective October 29, 1991).</P> <CITA>[57 FR 3116, Jan. 28, 1992, as amended at 62 FR 31865, June 11, 1997]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2641, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 2641—Agency Components for Purposes of 18 U.S.C. 207<E T="01">(c)</E> </HD> <P>Pursuant to the provisions of 18 U.S.C. 207(h), each of the following departments or agencies is determined, for purposes of 18 U.S.C. 207(c), 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.</P> <HD SOURCE="HD2">Parent: Department of Commerce</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Bureau of the Census</FP> <FP SOURCE="FP1-2">Bureau of Export Administration (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Economic Development Administration</FP> <FP SOURCE="FP1-2">International Trade Administration</FP> <FP SOURCE="FP1-2">Minority Business Development Administration</FP> <FP SOURCE="FP1-2">National Oceanic and Atmospheric Administration</FP> <FP SOURCE="FP1-2">National Telecommunications and Information Administration</FP> <FP SOURCE="FP1-2">Patent and Trademark Office</FP> <FP SOURCE="FP1-2">Technology Administration (effective January 28, 1992)</FP> <HD SOURCE="HD2">Parent: Department of Defense</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Department of the Air Force</FP> <FP SOURCE="FP1-2">Department of the Army</FP> <FP SOURCE="FP1-2">Department of the Navy</FP> <FP SOURCE="FP1-2">Defense Information Systems Agency</FP> <FP SOURCE="FP1-2">Defense Intelligence Agency</FP> <FP SOURCE="FP1-2">Defense Logistics Agency</FP> <FP SOURCE="FP1-2">Defense Threat Reduction Agency (effective February 5, 1999)</FP> <FP SOURCE="FP1-2">National Imagery and Mapping Agency (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">National Security Agency</FP> <HD SOURCE="HD2">Parent: Department of Energy</HD> <FP SOURCE="FP-2">Component:</FP> <FP SOURCE="FP1-2">Federal Energy Regulatory Commission</FP> <HD SOURCE="HD2">Parent: Department of Health and Human Services</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Administration on Aging (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Administration for Children and Families (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Agency for Health Care Policy and Research (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Agency for Toxic Substances and Disease Registry (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Centers for Disease Control and Prevention (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Food and Drug Administration</FP> <FP SOURCE="FP1-2">Health Care Financing Administration</FP> <FP SOURCE="FP1-2">Health Resources and Services Administration (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Indian Health Service (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">National Institutes of Health (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">Substance Abuse and Mental Health Services Administration (effective May 16, 1997)</FP> <HD SOURCE="HD2">Parent: Department of the Interior</HD> <FP SOURCE="FP-2">Components: <SU>1</SU> <FTREF/> </FP> <FTNT> <P> <SU>1</SU> All designated components under the jurisdiction of a particular Assistant Secretary shall be considered a single component for purposes of determining the scope of 18 U.S.C. 207(c) as applied to senior employees serving on the immediate staff of that Assistant Secretary.</P> </FTNT> <FP SOURCE="FP1-2">Bureau of Indian Affairs (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Bureau of Land Management (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Bureau of Reclamation (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Minerals Management Service (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">National Park Service (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Office of Surface Mining Reclamation and Enforcement (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">U.S. Fish and Wildlife Service (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">U.S. Geological Survey (effective January 28, 1992)</FP> <HD SOURCE="HD2">Parent: Department of Justice</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Antitrust Division</FP> <FP SOURCE="FP1-2">Bureau of Prisons (including Federal Prison Industries, Inc.)</FP> <FP SOURCE="FP1-2">Civil Division</FP> <FP SOURCE="FP1-2">Civil Rights Division</FP> <FP SOURCE="FP1-2">Community Relations Service</FP> <FP SOURCE="FP1-2">Criminal Division</FP> <FP SOURCE="FP1-2">Drug Enforcement Administration</FP> <FP SOURCE="FP1-2">Environment and Natural Resources Division</FP> <FP SOURCE="FP1-2">Executive Office for United States Attorneys <SU>2</SU> <FTREF/> (effective January 28, 1992)</FP> <FTNT> <P> <SU>2</SU> The Executive Office for United States Attorneys shall not be considered separate from any Office of the United States Attorney for a judicial district, but only from other designated components of the Department of Justice.</P> </FTNT> <FP SOURCE="FP1-2">Executive Office for United States Trustees <SU>3</SU> <FTREF/> (effective January 28, 1992)</FP> <FTNT> <P> <SU>3</SU> The Executive Office for United States Trustees shall not be considered separate from any Office of the United States Trustee <PRTPAGE/>for a region, but only from other designated components of the Department of Justice. </P> </FTNT> <PRTPAGE P="658"/> <FP SOURCE="FP1-2">Federal Bureau of Investigation</FP> <FP SOURCE="FP1-2">Foreign Claims Settlement Commission</FP> <FP SOURCE="FP1-2">Immigration and Naturalization Service</FP> <FP SOURCE="FP1-2">Independent Counsel appointed by the Attorney General</FP> <FP SOURCE="FP1-2">Office of Justice Programs</FP> <FP SOURCE="FP1-2">Office of the Pardon Attorney (effective January 28, 1992)</FP> <FP SOURCE="FP1-2">Offices of the United States Attorney (94) <SU>4</SU> <FTREF/> </FP> <FTNT> <P> <SU>4</SU> Each Office of the United States Attorney for a judicial district shall be considered a separate component from each other such office.</P> </FTNT> <FP SOURCE="FP1-2">Offices of the United States Trustee (21) <SU>5</SU> <FTREF/> </FP> <FTNT> <P> <SU>5</SU> Each Office of the United States Trustee for a region shall be considered a separate component from each other such office.</P> </FTNT> <FP SOURCE="FP1-2">Tax Division</FP> <FP SOURCE="FP1-2">United States Marshals Service (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">United States Parole Commission</FP> <HD SOURCE="HD2">Parent: Department of Labor</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Bureau of Labor Statistics</FP> <FP SOURCE="FP1-2">Employment and Training Administration</FP> <FP SOURCE="FP1-2">Employment Standards Administration</FP> <FP SOURCE="FP1-2">Mine Safety and Health Administration</FP> <FP SOURCE="FP1-2">Occupational Safety and Health Administration</FP> <FP SOURCE="FP1-2">Pension and Welfare Benefits Administration (effective May 16, 1997)</FP> <HD SOURCE="HD2">Parent: Department of State</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Foreign Service Grievance Board</FP> <FP SOURCE="FP1-2">International Joint Commission, United States and Canada (American Section)</FP> <HD SOURCE="HD2">Parent: Department of Transportation</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Federal Aviation Administration</FP> <FP SOURCE="FP1-2">Federal Highway Administration</FP> <FP SOURCE="FP1-2">Federal Railroad Administration</FP> <FP SOURCE="FP1-2">Federal Transit Administration</FP> <FP SOURCE="FP1-2">Maritime Administration</FP> <FP SOURCE="FP1-2">National Highway Traffic Safety Administration</FP> <FP SOURCE="FP1-2">Saint Lawrence Seaway Development Corporation</FP> <FP SOURCE="FP1-2">Surface Transportation Board (effective May 16, 1997)</FP> <FP SOURCE="FP1-2">United States Coast Guard</FP> <HD SOURCE="HD2">Parent: Department of the Treasury</HD> <FP SOURCE="FP-2">Components:</FP> <FP SOURCE="FP1-2">Bureau of Alcohol, Tobacco and Firearms</FP> <FP SOURCE="FP1-2">Bureau of Engraving and Printing</FP> <FP SOURCE="FP1-2">Bureau of the Mint</FP> <FP SOURCE="FP1-2">Bureau of the Public Debt</FP> <FP SOURCE="FP1-2">Comptroller of the Currency</FP> <FP SOURCE="FP1-2">Federal Law Enforcement Training Center</FP> <FP SOURCE="FP1-2">Financial Management Service</FP> <FP SOURCE="FP1-2">Internal Revenue Service</FP> <FP SOURCE="FP1-2">Office of Thrift Supervision</FP> <FP SOURCE="FP1-2">United States Customs Service</FP> <FP SOURCE="FP1-2">United States Secret Service</FP> <CITA>[56 FR 3963, Feb. 1, 1991, as amended at 57 FR 3116, Jan. 28, 1992; 57 FR 11673, Apr. 7, 1992; 58 FR 33755, June 21, 1993; 62 FR 26917, May 16, 1997; 62 FR 31865, June 11, 1997; 64 FR 5710, Feb. 5, 1999]</CITA> </APPENDIX> </SUBPART> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXI (1-1-02 Edition)</LRH> <RRH>Department of the Treasury</RRH> <TOC> <TOCHD> <PRTPAGE P="659"/> <HD SOURCE="HED">CHAPTER XXI—DEPARTMENT OF THE TREASURY</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3101</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of the Treasury</SUBJECT> <PG>661</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="661"/> <EAR>Pt. 3101</EAR> <HD SOURCE="HED">PART 3101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF THE TREASURY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3101.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3101.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <SECTNO>3101.103</SECTNO> <SUBJECT>Prohibition on purchase of certain assets.</SUBJECT> <SECTNO>3101.104</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <SECTNO>3101.105</SECTNO> <SUBJECT>Additional rules for Bureau of Alcohol, Tobacco and Firearms employees.</SUBJECT> <SECTNO>3101.106</SECTNO> <SUBJECT>Additional rules for Internal Revenue Service employees.</SUBJECT> <SECTNO>3101.107</SECTNO> <SUBJECT>Additional rules for Legal Division employees.</SUBJECT> <SECTNO>3101.108</SECTNO> <SUBJECT>Additional rules for Office of the Comptroller of the Currency employees.</SUBJECT> <SECTNO>3101.109</SECTNO> <SUBJECT>Additional rules for Office of Thrift Supervision employees.</SUBJECT> <SECTNO>3101.110</SECTNO> <SUBJECT>Additional rules for United States Customs Service employees.</SUBJECT> <SECTNO>3101.111</SECTNO> <SUBJECT>Additional rules for United States Secret Service employees. [Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 212, 213; 26 U.S.C. 7214(b); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.803, 2635.807(a)(2)(ii).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 22251, May 5, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3101.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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. <E T="03">See</E> 31 CFR part 0, Department of the Treasury Employee Rules of Conduct.</P> <P>(b) <E T="03">Bureau instructions.</E> 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. <E T="03">See</E> 5 CFR 2635.105(c).</P> <P>(c) <E T="03">Definition of “agency designee”.</E> 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. <E T="03">See</E> 5 CFR 2635.102(b).</P> </SECTION> <SECTION> <SECTNO>§ 3101.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <P>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:</P> <P>(a) Bureau of Alcohol, Tobacco and Firearms (ATF);</P> <P>(b) Bureau of Engraving and Printing;</P> <P>(c) Bureau of the Public Debt;</P> <P>(d) Federal Law Enforcement Training Center;</P> <P>(e) Financial Management Service;</P> <P>(f) Internal Revenue Service (IRS);</P> <P>(g) Office of the Comptroller of the Currency (OCC);</P> <P>(h) Office of the Inspector General;</P> <P>(i) Office of Thrift Supervision (OTS);</P> <P>(j) United States Customs Service (USCS);</P> <P>(k) United States Mint; and</P> <P>(l) United States Secret Service.</P> <P>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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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, including the Financial Crimes Enforcement Network) 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.</P> </NOTE> </SECTION> <SECTION> <PRTPAGE P="662"/> <SECTNO>§ 3101.103</SECTNO> <SUBJECT>Prohibition on purchase of certain assets.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> Except as provided in paragraph (b) of this section, no employee of the Department of the Treasury shall purchase, directly or indirectly, property:</P> <P>(1) Owned by the Government and under the control of the employee's bureau (or a bureau over which the employee exercises supervision); or</P> <P>(2) Sold under the direction or incident to the functions of the employee's bureau.</P> <P>(b) <E T="03">Exceptions.</E> 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.</P> <P>(c) <E T="03">Waiver.</E> 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Employees of the OCC and OTS are subject to additional limitations on the purchase of assets that are set out in bureau-specific rules contained in §§ 3101.108 and 3101.109.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 3101.104</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) <E T="03">General requirement for prior approval.</E> 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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Employees of the ATF, IRS, Legal Division, OCC, USCS and United States Secret Service are subject to additional limitations on outside employment and activities that are set out in bureau-specific rules contained in this part.</P> </NOTE> <P>(b) <E T="03">Bureau responsibilities.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3101.105</SECTNO> <SUBJECT>Additional rules for Bureau of Alcohol, Tobacco and Firearms employees.</SUBJECT> <P>The following rules apply to the employees of the Bureau of Alcohol, Tobacco and Firearms and are in addition to §§ 3101.101 through 3101.104:</P> <P>(a) <E T="03">Prohibited financial interests.</E> Except as provided in this section, no employee of the 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 <PRTPAGE P="663"/>or explosives industries. The term financial interest is defined in § 2635.403(c) of this title.</P> <P>(b) <E T="03">Waiver.</E> 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 the ATF's programs are administered. A waiver under this paragraph may require appropriate conditions, such as execution of a written disqualification.</P> </SECTION> <SECTION> <SECTNO>§ 3101.106</SECTNO> <SUBJECT>Additional rules for Internal Revenue Service employees.</SUBJECT> <P>The following rules apply to the employees of the Internal Revenue Service and are in addition to §§ 3101.101 through 3101.104:</P> <P>(a) <E T="03">Prohibited recommendations.</E> Employees of the IRS 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.</P> <P>(b) <E T="03">Prohibited outside employment.</E> Involvement by an employee of the IRS 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:</P> <P>(1) Performance of legal services involving Federal, State or local tax matters;</P> <P>(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;</P> <P>(3) Engaging in accounting, or the use, analysis, and interpretation of financial records when such activity involves tax matters;</P> <P>(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</P> <P>(5) Engaging in the preparation of tax returns for compensation, gift, or favor.</P> <P>(c) <E T="03">Seasonal employees.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3101.107</SECTNO> <SUBJECT>Additional rules for Legal Division employees.</SUBJECT> <P>The following rules apply to the employees of the Legal Division and are in addition to §§ 3101.101 through 3101.104:</P> <P>(a) <E T="03">Application of rules of other bureaus.</E> 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).</P> <P>(b) <E T="03">Prohibited outside employment.</E> 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:</P> <P>(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</P> <P>(2) Interpret any statute, regulation or rule administered or issued by the Department.</P> </SECTION> <SECTION> <SECTNO>§ 3101.108</SECTNO> <SUBJECT>Additional rules for Office of the Comptroller of the Currency employees.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Prohibited financial interests</E>—(1) <E T="03">Prohibition.</E> 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, <PRTPAGE P="664"/>directly or indirectly, securities of any commercial bank (including both national and State-chartered banks) or commercial bank affiliate, including a bank holding company.</P> <P>(2) <E T="03">Definition of “securities”.</E> 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.</P> <P>(3) <E T="03">Exceptions.</E> Nothing in this section prohibits an OCC employee, or spouse or minor child of an OCC employee, from:</P> <P>(i) Investing 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 25 percent of its assets in securities of one or more commercial banks (including both national and State-chartered banks) and commercial bank affiliates (including bank holding companies) and the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the fund;</P> <P>(ii) Investing in the publicly traded securities of a holding company of a nonbank bank or of a retailing firm that owns or sponsors a credit card bank as defined by the Competitive Equality Banking Act of 1987, except that an employee who owns such an interest must be disqualified from participating in the regulation or supervision of the nonbank bank or the credit card bank;</P> <P>(iii) Using a commercial bank or commercial bank affiliate as custodian or trustee of accounts containing tax-deferred retirement funds; or</P> <P>(iv) Owning any security pursuant to a waiver granted under paragraph (g) of this section.</P> <P>(b) <E T="03">Prohibited borrowing</E>—(1) <E T="03">Prohibition on employee borrowing.</E> Except as provided in this section, no covered OCC employee shall seek or obtain any loan or extension of credit, including credit obtained through the use of a credit card, from any national bank or from an officer, director, employee, or subsidiary of any national bank.</P> <P>(2) <E T="03">Prohibition on borrowing by a spouse or minor child.</E> 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:</P> <P>(i) Is supported only by the income or independent means of the spouse or minor child;</P> <P>(ii) Is obtained on terms and conditions no more favorable than those offered to the general public; and</P> <P>(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.</P> <P>(3) <E T="03">Covered OCC employee.</E> For purposes of the prohibitions on borrowing contained in paragraphs (b)(1) and (b)(2) of this section, “covered OCC employee” means:</P> <P>(i) An OCC bank examiner; and</P> <P>(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.</P> <P>(4) <E T="03">Exceptions.</E> Nothing in this section prohibits a covered OCC employee, or the spouse or minor child of a covered OCC employee, from obtaining a loan or extension of credit described in paragraphs (b)(4)(i) through (b)(4)(iii) of this section from a national bank if the loan or extension of credit is obtained on terms and conditions no more favorable than those offered to the general public, the employee is not assigned to examine the bank at the time the loan or extension of credit is obtained, and the employee submits to the Chief <PRTPAGE P="665"/>Counsel or designee a written disqualification from examining or otherwise participating in the supervision of the bank. The exceptions provided by this paragraph are for loans or extensions of credit obtained:</P> <P>(i) Through use of a credit card issued by a national bank where:</P> <P>(A) The employee is assigned to a district office and the bank is not headquartered in the employee's district;</P> <P>(B) The employee is assigned to the Multinational Division and the bank is not supervised by that Division; or</P> <P>(C) The employee is assigned to the Washington office (other than the Multinational Division);</P> <P>(ii) Through use of a national bank credit card sponsored by a retailing firm (e.g., Nordstrom, Lord and Taylor, Amoco Oil Company); or</P> <P>(iii) Through assumption of a mortgage loan on the employee's residence which is liquidated in accordance with its original terms without renewal or renegotiation.</P> <P>(5) <E T="03">Pre-existing credit.</E> This section does not prohibit a covered OCC employee, or spouse or minor child of a covered OCC employee, from retaining a loan from a national bank on its original terms if the loan was incurred prior to employment by the OCC or as a result of the sale or transfer of a loan to a national bank or the conversion or merger of the lender into a national bank. 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 paragraphs (b)(1) and (b)(2) of this section.</P> <P>(c) <E T="03">Restrictions arising from third party relationships.</E> 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:</P> <P>(1) Partnership in which the employee, or spouse or minor child of the employee, is a general partner;</P> <P>(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;</P> <P>(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;</P> <P>(4) Trust in which the employee, or spouse or minor child of the employee, has a legal or beneficial interest;</P> <P>(5) Investment club or similar informal investment arrangement between the employee, or spouse or minor child of the employee, and others;</P> <P>(6) Qualified profit sharing, retirement or similar plan in which the employee, or spouse or minor child of the employee, has an interest; or</P> <P>(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.</P> <P>(d) <E T="03">Prohibited recommendations.</E> 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 or commercial bank affiliate, including a bank holding company.</P> <P>(e) <E T="03">Prohibited purchase of assets.</E> No employee of the OCC, or spouse or minor child of an OCC employee, shall purchase, directly or indirectly, an asset (e.g., real property, automobiles, furniture, or similar items) from a national bank or national bank affiliate, including a bank holding company, 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.</P> <P>(f) <E T="03">Outside employment</E>—(1) <E T="03">Prohibition on outside employment.</E> No covered OCC employee shall perform services for compensation for any bank, banking or <PRTPAGE P="666"/>loan association, or national bank affiliate, or for any officer, director or employee of, or for any person connected in any capacity with a bank, banking or loan association or national bank affiliate.</P> <P>(2) <E T="03">Covered OCC employee.</E> For purposes of the prohibitions on outside employment contained in paragraph (f)(1) of this section, “covered OCC employee” means:</P> <P>(i) An OCC bank examiner; and</P> <P>(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.</P> <P>(g) <E T="03">Waivers.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3101.109</SECTNO> <SUBJECT>Additional rules for Office of Thrift Supervision employees.</SUBJECT> <P>The following rules apply to the employees of the Office of Thrift Supervision and are in addition to §§ 3101.101 through 3101.104:</P> <P>(a) <E T="03">Covered OTS employee.</E> For purposes of this section, the term “covered OTS employee” means:</P> <P>(1) An OTS examiner;</P> <P>(2) An employee in a position at OTS grade 17 or above; and</P> <P>(3) Any other OTS employee specified in an OTS instruction or manual issuance whose duties and responsibilities, as determined by the Director of the OTS or his or her designee, require application of the prohibitions contained in this section to ensure public confidence that the OTS's programs are conducted impartially and objectively.</P> <P>(b) <E T="03">Prohibited financial interests</E>—(1) <E T="03">Prohibition.</E> Except as provided in paragraphs (b)(3) and (g) of this section, no covered OTS employee, or spouse or minor child of a covered OTS employee, shall own, directly or indirectly, securities of any OTS-regulated savings association or savings association holding company.</P> <P>(2) <E T="03">Definition of “securities”.</E> For purposes of paragraphs (b)(1) and (b)(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.</P> <P>(3) <E T="03">Exceptions.</E> Nothing in this section prohibits a covered OTS employee, or spouse or minor child of a covered OTS employee, from:</P> <P>(i) Investing 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 25 percent of its assets in securities of one or more OTS-regulated savings associations or savings association holding companies and the employee neither exercises control over nor has the ability to exercise control over the financial interests held in the fund;</P> <P>(ii) Investing in certain non-financial holding companies whose principal business is unrelated to the financial services industry and which are identified as such on a list maintained by the Chief Counsel of the OTS;<PRTPAGE P="667"/> </P> <P>(iii) Using a savings association as custodian or trustee of accounts containing tax-deferred retirement funds; or</P> <P>(iv) Owning any security pursuant to a waiver granted under paragraph (g) of this section.</P> <P>(c) <E T="03">Prohibited borrowing</E>—(1) <E T="03">Prohibition on employee borrowing.</E> Except as provided in this section, no covered OTS employee shall seek or obtain any loan or extension of credit from any OTS-regulated savings association or from an officer, director, employee, or subsidiary of any such association.</P> <P>(2) <E T="03">Prohibition on borrowing by a spouse or minor child.</E> The prohibition in paragraph (c)(1) of this section shall apply to the spouse or minor child of a covered OTS employee unless the loan or extension of credit:</P> <P>(i) Is supported only by the income or independent means of the spouse or minor child;</P> <P>(ii) Is obtained on terms and conditions no more favorable than those offered to the general public; and</P> <P>(iii) The covered OTS employee does not participate in the negotiation for the loan or serve as co-maker, endorser, or guarantor of the loan.</P> <P>(3) <E T="03">Exceptions</E>—(i) <E T="03">Covered employees other than examiners.</E> Except for examiners, a covered OTS employee, or the spouse or minor child of a covered OTS employee, may obtain a credit card from an OTS-regulated savings association or its subsidiary if the credit card is issued and held on terms and conditions no more favorable than those offered the general public.</P> <P>(ii) <E T="03">Examiners.</E> An examiner, or the spouse or minor child of an examiner, may obtain or hold a credit card issued by an OTS-regulated savings association or its subsidiary, if:</P> <P>(A) The savings association is not headquartered in the examiner's region;</P> <P>(B) The examiner is not assigned to examine the savings association;</P> <P>(C) The terms and conditions are no more favorable than those offered to the general public; and</P> <P>(D) The examiner submits a written disqualification from examining that savings association. The examiner nonetheless may participate in other supervisory or regulatory matters involving the savings association.</P> <P>(4) <E T="03">Pre-existing credit.</E> This section does not prohibit a covered OTS employee, or spouse or minor child of a covered OTS employee, from retaining a loan from an OTS-regulated savings association on its original terms if the loan was incurred prior to April 30, 1991, or employment by the OTS, whichever date is later, or as a result of the sale or transfer of the loan to a savings association or the conversion or merger of the lender into an OTS-regulated savings association. Any renewal or renegotiation of a pre-existing loan or extension of credit is covered by paragraphs (c)(1) and (c)(2) of this section.</P> <P>(d) <E T="03">Restrictions arising from third party relationships.</E> If any of the entities listed in paragraphs (d)(1) through (d)(7) of this section have securities that a covered OTS employee would be prohibited from having by paragraph (b) of this section, or loans or extensions of credit that a covered OTS employee would be prohibited from obtaining under paragraph (c) 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 (d) applies to any:</P> <P>(1) Partnership in which the employee, or spouse or minor child of the employee, is a general partner;</P> <P>(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;</P> <P>(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;</P> <P>(4) Trust in which the employee, or spouse or minor child of the employee, has a legal or beneficial interest;<PRTPAGE P="668"/> </P> <P>(5) Investment club or similar informal investment arrangement between the employee, or spouse or minor child of the employee, and others;</P> <P>(6) Qualified profit sharing, retirement or similar plan in which the employee, or spouse or minor child of the employee, has an interest; or</P> <P>(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.</P> <P>(e) <E T="03">Prohibited recommendations.</E> Employees of the OTS shall not make recommendations or suggestions, directly or indirectly, concerning the acquisition or sale, or other divestiture of securities of any OTS-regulated savings association or savings association holding company.</P> <P>(f) <E T="03">Prohibited purchase of assets.</E> No covered OTS employee, or spouse or minor child of a covered OTS employee, shall purchase, directly or indirectly, an asset (e.g., real property, automobiles, furniture, or similar items) from a savings association or savings association affiliate, including a savings association holding company, 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.</P> <P>(g) <E T="03">Waivers.</E> 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.</P> <CITA>[60 FR 22251, May 5, 1995, as amended at 66 FR 8506, Feb. 1, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3101.110</SECTNO> <SUBJECT>Additional rules for United States Customs Service employees.</SUBJECT> <P>The following rules apply to the employees of the United States Customs Service and are in addition to §§ 3101.101 through 3101.104:</P> <P>(a) <E T="03">Prohibition on outside employment.</E> No employee of the USCS shall work for a customs broker, international carrier, bonded warehouse, foreign trade zone, cartman, law firm engaged in the practice of customs law or importation department of a business, nor be employed in any private capacity related to the importation or exportation of merchandise.</P> <P>(b) <E T="03">Restrictions arising from employment of relatives.</E> If the spouse of a USCS employee, or other relative who is dependent on or resides with a USCS employee, is employed in a position that the employee would be prohibited from occupying by paragraph (a) of this section, the employee shall file a report of family member employment with his or her supervisor. Supervisors shall forward such reports to the appropriate Regional Counsel for transmittal to the Chief Counsel. The employee shall be disqualified from participation in any matter involving the relative or the relative's employer unless an agency designee, with the advice and legal clearance of the DAEO or Office of the Chief Counsel, authorizes the employee to participate in the matter using the standard in § 2635.502(d) of this title.</P> </SECTION> <SECTION> <SECTNO>§ 3101.111</SECTNO> <RESERVED>Additional rules for United States Secret Service employees. [Reserved]</RESERVED> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXII (1-1-02 Edition)</LRH> <RRH>Federal Deposit Insurance Corp.</RRH> <TOC> <TOCHD> <PRTPAGE P="669"/> <HD SOURCE="HED">CHAPTER XXII—FEDERAL DEPOSIT INSURANCE CORPORATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3201</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Deposit Insurance Corporation</SUBJECT> <PG>671</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="671"/> <EAR>Pt. 3201</EAR> <HD SOURCE="HED">PART 3201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL DEPOSIT INSURANCE CORPORATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3201.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3201.102</SECTNO> <SUBJECT>Extensions of credit from FDIC-insured depository institutions.</SUBJECT> <SECTNO>3201.103</SECTNO> <SUBJECT>Prohibitions on ownership of securities of FDIC-insured depository institutions.</SUBJECT> <SECTNO>3201.104</SECTNO> <SUBJECT>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.</SUBJECT> <SECTNO>3201.105</SECTNO> <SUBJECT>Prohibition on dealings with former employers, associates, and clients.</SUBJECT> <SECTNO>3201.106</SECTNO> <SUBJECT>Employment of family members outside the Corporation.</SUBJECT> <SECTNO>3201.107</SECTNO> <SUBJECT>Outside employment and other activities.</SUBJECT> <SECTNO>3201.108</SECTNO> <SUBJECT>Related statutory and regulatory authorities.</SUBJECT> <SECTNO>3201.109</SECTNO> <SUBJECT>Provisions of 5 CFR part 2635 not applicable to Corporation employees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 12 U.S.C. 1819(a), 1822; 26 U.S.C. 1043; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403, 2635.502, and 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 20174, Apr. 25, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3201.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Corporation ethics officials.</E> 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 Assistant Executive Secretary (Ethics) shall act as the Corporation's Alternate Ethics Counselor and as the Alternate Agency Ethics Official.</P> <P>(1) The Ethics Counselor or Alternate Ethics Counselor may delegate authority to one or more employees to serve as Deputy Ethics Counselors.</P> <P>(2) The delegation to a Deputy Ethics Counselor shall be in writing and cannot be redelegated.</P> <P>(c) <E T="03">Agency designees.</E> 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.</P> <P>(d) <E T="03">Definitions.</E> For purposes of this part:</P> <P>(1) <E T="03">Affiliate,</E> 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.</P> <P>(2) <E T="03">Appropriate director</E> 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.</P> <P>(3)(i) <E T="03">Assisted entity</E> means:</P> <P>(A) Any FDIC-insured depository institution which has received financial assistance from the FDIC to prevent its failure;</P> <P>(B) Any FDIC-insured depository institution resulting from a merger or consolidation with any institution described in paragraph (d)(3)(i) of this section; and</P> <P>(C) Any holding company of an FDIC-insured depository institution described in paragraphs (d)(3)(i) or (d)(3)(ii) of this section.</P> <P>(ii) An assisted entity retains its status as an assisted entity for such time as there is an ongoing financial relationship with the FDIC including, but not limited to, a loan repayment obligation, the servicing of assets on behalf of the FDIC, or the retention by the FDIC of stock or stock warrants in the assisted entity.</P> <P>(4)(i) <E T="03">Assuming entity</E> means:<PRTPAGE P="672"/> </P> <P>(A) Any FDIC-insured depository institution or FDIC-insured depository institution holding company which has entered into a transaction with the FDIC to purchase some or all of the assets and assume some or all of the liabilities of a failed FDIC-insured depository institution;</P> <P>(B) Any FDIC-insured depository institution resulting from the transaction described in paragraph (d)(4)(i) of this section and its wholly owned subsidiaries; and</P> <P>(C) Any branches and the wholly owned subsidiaries of the institutions described in paragraph (d)(4)(i) of this section.</P> <P>(ii) An assuming entity retains its status as an assuming entity for a period of one year after the failure of the FDIC-insured depository institution.</P> <P>(5) <E T="03">Covered employee</E> means an employee of the Corporation required to file a public or confidential financial disclosure report under 5 CFR part 2634 or 5 CFR part 3202.</P> <P>(6) <E T="03">Employee</E> 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), and a liquidation graded employee. For purposes of 5 CFR part 2635 and §§ 3201.103 and 3201.104, <E T="03">employee</E> 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.</P> <P>(7) <E T="03">Security</E> 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 <E T="03">security</E> does not include a deposit account.</P> <P>(8) <E T="03">State nonmember bank</E> means any State bank as defined in 12 U.S.C. 1813(e) which is not a member of the Federal Reserve System.</P> <P>(9) <E T="03">Subsidiary,</E> as defined in 12 U.S.C. 1813(w), means any company which is owned or controlled directly or indirectly by another company.</P> </SECTION> <SECTION> <SECTNO>§ 3201.102</SECTNO> <SUBJECT>Extensions of credit from FDIC-insured depository institutions.</SUBJECT> <P>(a) <E T="03">Credit subject to this section.</E> 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.</P> <P>(b) <E T="03">Prohibition on acceptance of credit from FDIC-insured State nonmember banks applicable to certain high-level officials.</E> (1) An employee described in paragraph (b)(2) of this section shall not, directly or indirectly, accept or become obligated on an extension of credit from an FDIC-insured State nonmember bank or its subsidiary, except credit extended through the use of a credit card under the same terms and conditions as are offered to the general public.</P> <P>(2) The prohibition in paragraph (b)(1) of this section applies to:</P> <P>(i) An employee who is a member of the Board of Directors, an assistant or deputy to the Board of Directors or to an appointed Board member, and a covered employee who is an assistant to such person; and</P> <P>(ii) The director of a Washington office or of a division, other than the Division of Supervision and the Division of Compliance and Consumer Affairs, and a covered employee who holds a position immediately subordinate to such director.</P> <P>(c) <E T="03">Prohibition on acceptance of credit from FDIC-insured State nonmember banks for employees assigned to the Division of Supervision and employees assigned to the Division of Compliance and Consumer Affairs.</E> (1) An employee described in paragraph (c)(2) of this section shall not, directly or indirectly, accept or become obligated on an extension of credit from an FDIC-insured <PRTPAGE P="673"/>State nonmember bank or from an officer, director, employee, or subsidiary of such bank, except:</P> <P>(i) For an employee assigned to the Washington office, credit extended through the use of a credit card on the same terms and conditions as are offered to the general public;</P> <P>(ii) For an employee assigned to a regional office, credit extended by an FDIC-insured State nonmember bank headquartered outside the employee's region of official assignment through the use of a credit card on the same terms and conditions as are offered to the general public; and</P> <P>(iii) For an employee assigned to a field office, credit extended by an FDIC-insured State nonmember bank headquartered outside the employee's field office of official assignment through the use of a credit card on the same terms and conditions as are offered to the general public.</P> <P>(2) The prohibition in paragraph (c)(1) of this section applies to the Director of the Division of Supervision, the Director of the Division of Compliance and Consumer Affairs, a covered employee immediately subordinate to the Director of the Division of Supervision, or the Director of the Division of Compliance and Consumer Affairs, and the following employees assigned to the Division of Supervision and the Division of Compliance and Consumer Affairs: an Assistant Director, Regional Director, Deputy Regional Director, Assistant Regional Director, examiner, assistant examiner, review examiner, compliance examiner, assistant compliance examiner, and a covered employee.</P> <P>(3) Upon accepting credit extended by a credit card in accordance with paragraph (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this section, the employee shall be disqualified in accordance with paragraph (f)(1) of this section, and, within 30 days of accepting such credit, shall file with the appropriate director a Statement of Credit Card Obligation in Insured State Nonmember Bank and Acknowledgement of Conditions for Retention—Notice of Disqualification.</P> <P>(d) <E T="03">Two-year prohibition on acceptance of credit from FDIC-insured depository institutions.</E> (1) An employee described in paragraph (d)(2) of this section shall not, directly or indirectly, accept or become obligated on an 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, 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 under the same terms and conditions as are offered to the general public.</P> <P>(2) The prohibition in paragraph (d)(1) of this section applies to an employee in the Division of Finance, Division of Resolutions and Receiverships, Division of Insurance, Legal Division, or who is a member of a standing committee of the Board of Directors whose official duties include:</P> <P>(i) Audit of insured depository institutions for deposit insurance assessment purposes;</P> <P>(ii) Resolution or liquidation of failed or failing insured depository institutions;</P> <P>(iii) Participation in the supervision of insured depository institutions or enforcement proceedings under the Federal Deposit Insurance Act; or</P> <P>(iv) Internal agency deliberations affecting a particular insured depository institution, its predecessor or successor, or a subsidiary of such institution.</P> <P>(e) <E T="03">Prohibition on acceptance of credit from an assisted or assuming entity for employees of the Division of Depositor and Asset Services.</E> (1) An employee described in paragraph (e)(2) of this section shall not, directly or indirectly, accept or become obligated on any extension of credit from an assisted or assuming entity located in the employee's region of official assignment. This prohibition does not apply to credit obtained through the use of a credit card under the same terms and conditions as are offered to the general public.</P> <P>(2) The prohibition in paragraph (e)(1) of this section applies to a regional director, deputy regional director, and any other covered employee in the Division of Depositor and Asset Services <PRTPAGE P="674"/>assigned to a service center or other field office.</P> <P>(f) <E T="03">Employee disqualification.</E> (1) An employee described in paragraph (c)(2) of this section 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 employee has an outstanding extension of credit.</P> <P>(2) A covered employee, other than an employee who is described in paragraph (c)(2) of this section, shall not participate in any particular matter involving an FDIC-insured depository institution or other person with whom the employee has an outstanding extension of credit.</P> <P>(3) Disqualification is not required under paragraph (f)(2) of this section:</P> <P>(i) 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; or</P> <P>(ii) When the agency designee, with the concurrence of the appropriate director, has authorized the employee to participate in the matter using the standard set forth in 5 CFR 2635.502(d).</P> <P>(4) The Comptroller of the Currency and the Director of the Office of Thrift Supervision shall be disqualified from matters pending before the Board of Directors to the same extent as a covered employee subject to paragraph (f)(2) of this section.</P> <P>(g) <E T="03">Retention and renegotiation of pre-existing extensions of credit.</E> (1) Nothing in this section prohibits the retention of a pre-existing extension of credit that an employee would be prohibited from accepting by § 3201.102(b) or (c) if the extension of credit was permitted to be retained under 12 CFR part 336 prior to the adoption of this regulation or if the employee's acceptance of the extension of credit was proper at the time the obligation was incurred, as in the case of an extension of credit incurred prior to commencement of employment or reassignment to another division or location. Subsequent action affecting the status of the creditor, such as merger, acquisition, or transaction under 12 U.S.C. 1823, does not change the character of an extension of credit that was proper when incurred. An employee who retains a pre-existing extension that he or she would be prohibited from accepting by § 3201.102(b) or (c) shall report the pre-existing extension of credit to the appropriate director or agency designee within 30 days from the following event, as appropriate:</P> <P>(i) Adoption of this part;</P> <P>(ii) Commencement of employment;</P> <P>(iii) Assignment to another division or location; or</P> <P>(iv) Action affecting the status of the creditor.</P> <P>(2) Any renegotiation of a pre-existing extension of credit shall be treated as a new extension of credit that is subject to the prohibitions contained in § 3201.102(b) through (d). An employee may request that an exception be made to the prohibitions to permit renegotiation of a pre-existing extension of credit. Any such request shall be made in writing to the appropriate director and agency designee, or in the case of an employee described in paragraph (b)(2)(i) and (ii) of this section, to the Ethics Counselor, stating:</P> <P>(i) The purpose of the renegotiation;</P> <P>(ii) The terms and conditions of the original extension of credit;</P> <P>(iii) The terms and conditions now available to the general public;</P> <P>(iv) The terms and conditions now offered to the employee;</P> <P>(v) The action the employee has taken to move the loan to an institution from which an employee would not be prohibited from accepting an extension of credit; and</P> <P>(vi) The financial hardship, if any, denial of the request will cause.</P> <P>(3) After submission of the request, the appropriate director and agency designee, or the Ethics Counselor, may grant the employee's request based upon a written determination that the request 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 misuse of position or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered.</P> <CITA>[60 FR 20174, Apr. 25, 1995, as amended at 62 FR 3772, Jan. 27, 1997]</CITA> </SECTION> <SECTION> <PRTPAGE P="675"/> <SECTNO>§ 3201.103</SECTNO> <SUBJECT>Prohibitions on ownership of securities of FDIC-insured depository institutions.</SUBJECT> <P>(a) <E T="03">Prohibition on ownership.</E> Except as permitted by this section, an employee or the spouse or minor child of an employee, shall not acquire, own, or control, directly or indirectly, a security of an FDIC-insured depository institution, or an affiliate of an FDIC-insured depository institution.</P> <P>(b) <E T="03">Exception to prohibition for certain interests.</E> Nothing in this section prohibits an employee, or the spouse or minor child of an employee, from:</P> <P>(1) Acquiring, owning or controlling the securities of certain publicly traded bank holding companies or their nonbank subsidiaries where the bank holding company is not primarily engaged in banking and either the bank holding company or the bank it holds is exempt under the provisions of the Bank Holding Company Act of 1956 and which are identified as such by the Board of Governors of the Federal Reserve System (a list of exempt institutions can be obtained from the Corporation's Ethics Section);</P> <P>(2) Acquiring, owning, or controlling the securities of certain nonfinancial savings association holding companies whose principal business is unrelated to the financial services industry and which are identified as such by the Office of Thrift Supervision pursuant to 5 CFR 3101.109(b)(3)(ii) (a list of such institutions can be obtained from the Corporation's Ethics Section);</P> <P>(3) Retaining a security of an FDIC-insured depository institution or an affiliate of an FDIC-insured depository institution if the security was permitted to be retained by the employee under 12 CFR part 336 prior to the adoption of this regulation, was obtained prior to commencement of employment with the Corporation, or was acquired by a spouse prior to marriage to the employee;</P> <P>(4) Acquiring, owning, or controlling a security of an FDIC-insured depository institution or the affiliate of an FDIC-insured depository institution where 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. This provision permits the retention of any such interest only where:</P> <P>(i) The employee makes full, written disclosure on FDIC form 2410/07 to the Ethics Counselor within 30 days of commencing employment or acquiring the interest; and</P> <P>(ii) 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;</P> <P>(5) 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 indicate in its prospectus the intent to invest, more than 30 percent of its assets in the securities of one or more FDIC-insured depository institutions or FDIC-insured depository institution holding companies and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund; or</P> <P>(6) Using 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.</P> <P>(c) <E T="03">Divestiture.</E> 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 retain under paragraph (b) of this section.</P> <CITA>[60 FR 20174, Apr. 25, 1995, as amended at 61 FR 35915, July 9, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3201.104</SECTNO> <SUBJECT>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.</SUBJECT> <P>(a) <E T="03">Prohibition on purchase of property.</E> An employee, and an employee's spouse <PRTPAGE P="676"/>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.</P> <P>(b) <E T="03">Disqualification.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3201.105</SECTNO> <SUBJECT>Prohibition on dealings with former employers, associates, and clients.</SUBJECT> <P>(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.</P> <P>(b) For purposes of this section, the term <E T="03">employer</E> means a person with whom the employee served as officer, director, trustee, general partner, agent, attorney, accountant, consultant, contractor, or employee.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3201.106</SECTNO> <SUBJECT>Employment of family members outside the Corporation.</SUBJECT> <P>(a) <E T="03">Disqualification of employees.</E> 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).</P> <P>(b) <E T="03">Reporting certain relationships.</E> 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:</P> <P>(1) An FDIC-insured depository institution or its affiliate;</P> <P>(2) A firm or business with which, to the employee's knowledge, the Corporation has a contractual or other business or financial relationship; or</P> <P>(3) A firm or business which, to the employee's knowledge, is seeking a business or contractual relationship with the Corporation.</P> </SECTION> <SECTION> <SECTNO>§ 3201.107</SECTNO> <SUBJECT>Outside employment and other activities.</SUBJECT> <P>(a) <E T="03">Prohibition on employment with FDIC-insured depository institutions.</E> 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.</P> <P>(b) <E T="03">Use of professional licenses.</E> 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 <PRTPAGE P="677"/>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.</P> <P>(c) <E T="03">Responsibility to consult with agency designee.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3201.108</SECTNO> <SUBJECT>Related statutory and regulatory authorities.</SUBJECT> <P>(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.</P> <P>(b) 18 U.S.C. 1906, which prohibits disclosure of information from a bank examination report except as authorized by law.</P> <P>(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.</P> <P>(d) 18 U.S.C. 1909, which prohibits examiners from providing any service for compensation for any bank or person connected therewith.</P> </SECTION> <SECTION> <SECTNO>§ 3201.109</SECTNO> <SUBJECT>Provisions of 5 CFR part 2635 not applicable to Corporation employees.</SUBJECT> <P>The following provisions of 5 CFR part 2635 are not applicable to employees of the Corporation:</P> <P>(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 or Division of Compliance and Consumer Affairs 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.</P> <P>(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:</P> <P>(1) 5 CFR 2635.202(c)(4)(iii);</P> <P>(2) The note following 5 CFR 2635.203(b)(7);</P> <P>(3) Example 5 following 5 CFR 2635.204(a);</P> <P>(4) Examples 2 and 3 following 5 CFR 2635.703(b)(3);</P> <P>(5) 5 CFR 2635.902(f), (h), (l), and (bb);</P> <P>(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).</P> <P>(d) Provisions of 41 CFR Chapter 101 (Federal Property Management Regulations) referred to in 5 CFR 2635.205(a)(4).</P> <P>(e) Provisions of 41 CFR Chapter 201 (Federal Information Resources Management Regulation) referred to in Example 1 following 5 CFR 2635.704(b)(2).</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXIII (1-1-02 Edition)</LRH> <RRH>Department of Energy</RRH> <TOC> <TOCHD> <PRTPAGE P="679"/> <HD SOURCE="HED">CHAPTER XXIII—DEPARTMENT OF ENERGY</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3301</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Energy</SUBJECT> <PG>681</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="681"/> <EAR>Pt. 3301</EAR> <HD SOURCE="HED">PART 3301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF ENERGY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3301.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3301.102</SECTNO> <SUBJECT>Procedure for accomplishing disqualification.</SUBJECT> <SECTNO>3301.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in Government Act); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.402(c), 2635.502(e), 2635.604, 2635.802, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 35087, July 5, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3301.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Definitions.</E> 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:</P> <P> <E T="03">Agency designee,</E> 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.</P> <P> <E T="03">Counselor</E> means the DOE's designated agency ethics official or his delegates.</P> </SECTION> <SECTION> <SECTNO>§ 3301.102</SECTNO> <SUBJECT>Procedure for accomplishing disqualification.</SUBJECT> <P>(a) <E T="03">Disqualifying financial interests.</E> 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.</P> <P>(b) <E T="03">Disqualification to ensure impartiality.</E> 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.</P> <P>(c) <E T="03">Disqualification from matter effecting prospective employers.</E> 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.</P> <P>(d) <E T="03">Withdrawal of notification.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3301.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Standard for approval.</E> 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.<PRTPAGE P="682"/> </P> <P>(c) <E T="03">Definition of employment.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXIV (1-1-02 Edition)</LRH> <RRH>Federal Energy Regulatory Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="683"/> <HD SOURCE="HED">CHAPTER XXIV—FEDERAL ENERGY REGULATORY COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3401</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Energy Regulatory Commission</SUBJECT> <PG>685</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="685"/> <EAR>Pt. 3401</EAR> <HD SOURCE="HED">PART 3401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL ENERGY REGULATORY COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3401.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>3401.103</SECTNO> <SUBJECT>Procedures for accomplishing disqualification.</SUBJECT> <SECTNO>3401.104</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 42 U.S.C. 7171, 7172; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.402(c), 2635.403, 2635.502(e), 2635.604, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 43414, Aug. 23, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3401.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> Except as provided in paragraphs (b) and (c) of this section, an employee, or the spouse or minor child of an employee, shall not acquire or hold any securities of:</P> <P>(1) A natural gas company;</P> <P>(2) An interstate oil pipeline;</P> <P>(3) A hydroelectric licensee or exemptee;</P> <P>(4) A public utility;</P> <P>(5) Any electric utility 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; or</P> <P>(6) The parent company of an entity identified in paragraphs (a)(1) through (a)(5) of this section.</P> <P>(b) <E T="03">Waiver.</E> 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 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 Commission programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.</P> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) The term <E T="03">securities</E> 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 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. It does not include an interest 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's prospectus does not indicate the objective or practice of concentrating its investments in entities identified in paragraphs (a)(1) through (a)(6) of this section, and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund.</P> <P>(2) The term <E T="03">parent</E> 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)(5) of this section.</P> </SECTION> <SECTION> <PRTPAGE P="686"/> <SECTNO>§ 3401.103</SECTNO> <SUBJECT>Procedures for accomplishing disqualification.</SUBJECT> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3401.104</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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).</P> <P>(b) <E T="03">Approval of requests.</E> 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.</P> <P>(c) <E T="03">Definitions.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXV (1-1-02 Edition)</LRH> <RRH>Department of the Interior</RRH> <TOC> <TOCHD> <PRTPAGE P="687"/> <HD SOURCE="HED">CHAPTER XXV—DEPARTMENT OF THE INTERIOR</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3501</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of the Interior</SUBJECT> <PG>689</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="689"/> <EAR>Pt. 3501</EAR> <HD SOURCE="HED">PART 3501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3501.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3501.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <SECTNO>3501.103</SECTNO> <SUBJECT>Prohibited interests in Federal lands.</SUBJECT> <SECTNO>3501.104</SECTNO> <SUBJECT>Prohibited interests in mining.</SUBJECT> <SECTNO>3501.105</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 30 U.S.C. 1211; 43 U.S.C. 11, 31(a); E.O. 12674, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 53718, Oct. 16, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3501.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Definitions</E>. As used in this part:</P> <P>(1) <E T="03">Department</E> means the U.S. Department of the Interior and any of its components.</P> <P>(2) <E T="03">Bureau</E> 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.</P> <P>(3) <E T="03">Ethics Counselor</E> 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.</P> <P>(4) <E T="03">Deputy Ethics Counselor</E> 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.</P> <P>(c) <E T="03">Bureau instructions.</E> 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.</P> <CITA>[62 FR 53718, Oct. 16, 1997, as amended at 63 FR 34259, June 24, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 3501.102</SECTNO> <SUBJECT> Designation of separate agency components.</SUBJECT> <P>(a) Each of the following ten components of the Department 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, for purposes of the regulations in subpart B of 5 CFR 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 ten 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:</P> <P>(1) Bureau of Indian Affairs, including the Office of Indian Education Programs;</P> <P>(2) Bureau of Land Management;</P> <P>(3) Bureau of Reclamation;</P> <P>(4) Minerals Management Service;</P> <P>(5) National Indian Gaming Commission;</P> <P>(6) National Park Service;</P> <P>(7) Office of Surface Mining Reclamation and Enforcement;</P> <P>(8) Office of the Special Trustee for American Indians;</P> <P>(9) U.S. Fish and Wildlife Service; and</P> <P>(10) U.S. Geological Survey.</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A company that conducts activities regulated by the Bureau of Land <PRTPAGE P="690"/>Management would not be a prohibited source of gifts for an employee of the National Park Service (NPS), unless that company seeks official action by the NPS; does business or seeks to do business with the NPS; conducts activities that are regulated by the NPS; or has interests that may be substantially affected by the performance or nonperformance of that employee's official duties.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A paralegal who works part-time in the Office of the Solicitor wants to take an additional part-time job with a private company that does business with the U.S. Geological Survey. The company is a prohibited source for the paralegal, since the company does business with a component of the Department from which his component has not been listed as separate in § 3501.102(a). The paralegal must obtain prior approval for the outside employment, because § 3501.105 requires employees to obtain such approval before engaging in outside employment with a prohibited source.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 3501.103</SECTNO> <SUBJECT> Prohibited interests in Federal lands.</SUBJECT> <P>(a) <E T="03">Cross-references to statutory prohibitions</E>—(1) <E T="03">Prohibited purchases of public land by Bureau of Land Management employees.</E> 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.</P> <P>(2) <E T="03">Prohibited interests in the lands or mineral wealth of the region under survey for U.S. Geological Survey employees.</E> 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.</P> <P>(b) <E T="03">Prohibited financial interests in Federal lands for Minerals Management Service employees 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.</E> (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:</P> <P>(i) All employees of the Minerals Management Service; and</P> <P>(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.</P> <P>(2) <E T="03">Exceptions.</E> The prohibition in paragraph (b)(1) of this section does not apply to:</P> <P>(i) An individual employed on an intermittent or seasonal basis for a period not exceeding 180 working days in each calendar year; or</P> <P>(ii) A special Government employee engaged in field work relating to land, range, forest, and mineral conservation and management activities.</P> <P>(c) <E T="03">Prohibition as to Department-granted rights in Federal lands.</E> (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.</P> <P>(2) <E T="03">Exceptions.</E> (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.</P> <P>(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 <PRTPAGE P="691"/>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.</P> <P>(d) <E T="03">Divestiture.</E> 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.</P> <P>(e) <E T="03">Waivers.</E> 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.</P> <P>(f) <E T="03">Pre-existing interests.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3501.104</SECTNO> <SUBJECT>Prohibited interests in mining.</SUBJECT> <P>(a) <E T="03">Cross-reference to statutory prohibition.</E> 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.</P> <P>(b) <E T="03">Prohibited interests in private mining activities in the United States for U.S. Geological Survey employees, their spouses, and minor children.</E> (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.</P> <P>(2) <E T="03">Definitions.</E> For purposes of applying the prohibition in paragraph (b)(1) of this section:</P> <P>(i) <E T="03">Financial interest</E> has the meaning set forth in 5 CFR 2635.403(c), and includes an employee's legal or beneficial interest in a trust.</P> <P>(ii) <E T="03">Private mining activities</E> 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.</P> <P>(3) <E T="03">Exceptions.</E> The prohibition set forth in paragraph (b)(1) of this section does not apply to:</P> <P>(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</P> <P>(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;</P> <P>(ii) Mineral royalties and overriding royalty interests of $600 per year or less;</P> <P>(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;</P> <P>(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 <PRTPAGE P="692"/>employee neither exercise control nor has the ability to exercise control over the financial interests held in the plan; or</P> <P>(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:</P> <P>(A) A gift from someone other than the employee or a member of the employee's household;</P> <P>(B) Inheritance;</P> <P>(C) Acquisition prior to the employee's becoming a USGS employee;</P> <P>(D) Acquisition prior to marriage to a USGS employee; or</P> <P>(E) A compensation package in connection with the employment of the spouse or minor child.</P> <P>(4) <E T="03">Divestiture.</E> 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.</P> <P>(5) <E T="03">Waivers.</E> 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.</P> <P>(6) <E T="03">Pre-existing interests.</E> 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.</P> <CITA>[62 FR 53718, Oct. 16, 1997; 63 FR 18501, Apr. 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 3501.105</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> <P>(a) <E T="03">Prohibited outside employment and activities.</E> (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.</P> <P>(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.</P> <P>(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. </P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(a)(3): 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.</P> </NOTE> <P>(b) <E T="03">Prior approval of outside employment</E>—(1) <E T="03">Prior approval requirement.</E> (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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="693"/>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.</P> <P>(2) <E T="03">Form of request for approval.</E> </P> <P>(i) A request for prior approval of outside employment shall include, at a minimum, the following:</P> <P>(A) The employee's name, occupational title, office address, and office telephone number;</P> <P>(B) A brief description of the employee's official duties;</P> <P>(C) The nature of the outside employment, including a full description of the specific duties or services to be performed;</P> <P>(D) The name and address of the prospective outside employer; and</P> <P>(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.</P> <P>(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.</P> <P>(3) <E T="03">Standard for approval.</E> 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.</P> <P>(4) <E T="03">Definitions.</E> As used in this section:</P> <P>(i) <E T="03">Employment</E> 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.</P> <P>(ii) <E T="03">Prohibited source</E> has the meaning in 5 CFR 2635.203(d), as supplemented by § 3501.102, and includes any person who:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(D) Has interests that may be substantially affected by the performance or nonperformance of the employee's official duties; or</P> <P>(E) Is an organization a majority of whose members are described in paragraphs (b)(4)(ii) (A) through (D) of this section.</P> <CITA>[62 FR 53718, Oct. 16, 1997, as amended at 63 FR 34259, June 24, 1998]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXVI (1-1-02 Edition)</LRH> <RRH>Department of Defense</RRH> <TOC> <TOCHD> <PRTPAGE P="695"/> <HD SOURCE="HED">CHAPTER XXVI—DEPARTMENT OF DEFENSE</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3601</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Defense</SUBJECT> <PG>697</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="697"/> <EAR>Pt. 3601</EAR> <HD SOURCE="HED">PART 3601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF DEFENSE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3601.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>3601.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <SECTNO>3601.103</SECTNO> <SUBJECT>Additional exceptions for gifts from outside sources.</SUBJECT> <SECTNO>3601.104</SECTNO> <SUBJECT>Additional limitations on gifts between DoD employees.</SUBJECT> <SECTNO>3601.105</SECTNO> <SUBJECT>Standards for accomplishing disqualification.</SUBJECT> <SECTNO>3601.106</SECTNO> <SUBJECT>Limitation on solicited sales.</SUBJECT> <SECTNO>3601.107</SECTNO> <SUBJECT>Prior approval for outside employment and business activities.</SUBJECT> <SECTNO>3601.108</SECTNO> <SUBJECT>Disclaimer for speeches and writing devoted to agency matters.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.204(k), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 47622, Sept. 10, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3601.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3601.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <P>(a) Pursuant to 5 CFR 2635.203(a), each of the following components of DoD 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:</P> <P>(1) Department of the Army;</P> <P>(2) Department of the Navy;</P> <P>(3) Department of the Air Force;</P> <P>(4) Defense Commissary Agency;</P> <P>(5) Defense Contract Audit Agency;</P> <P>(6) Defense Finance and Accounting Service;</P> <P>(7) Defense Information Systems Agency;</P> <P>(8) Defense Intelligence Agency;</P> <P>(9) Defense Investigative Service;</P> <P>(10) Defense Logistics Agency;</P> <P>(11) Defense Mapping Agency;</P> <P>(12) Defense Nuclear Agency;</P> <P>(13) National Security Agency;</P> <P>(14) Office of the Inspector General; and</P> <P>(15) Uniformed Services University of the Health Sciences.</P> <P>(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 DoD 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 DoD employee's agency under 5 CFR 2635.807 governing teaching, speaking and writing.</P> </SECTION> <SECTION> <SECTNO>§ 3601.103</SECTNO> <SUBJECT>Additional exceptions for gifts from outside sources.</SUBJECT> <P>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, a DoD employee may accept gifts from outside sources otherwise prohibited by 5 CFR 2635.202(a) as follows:</P> <P>(a) <E T="03">Events sponsored by States, local governments or civic organizations.</E> A DoD employee may accept a sponsor's unsolicited gift of free attendance for himself and an accompanying spouse at an 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:</P> <P>(1) The agency designee has determined that the community relations interests of the agency will be served by the DoD employee's attendance;</P> <P>(2) The cost of the DoD employee's and the spouse's attendance is provided by the sponsor in accordance with 5 CFR 2635.204(g)(5); and</P> <P>(3) The gift of free attendance meets the definition in 5 CFR 2635.204(g)(4).</P> <P>(b) <E T="03">Scholarships and grants.</E> A DoD employee, or the dependent of a DoD employee, may accept an educational scholarship or grant from an entity that does not have interests that may <PRTPAGE P="698"/>be substantially affected by the performance or non-performance of the involved DoD 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 or designee determines that:</P> <P>(1) The scholarship or grant is made as part of an established program of grants or awards that is funded, wholly or in part, to ensure its continuation on a regular basis and under which recipients are selected pursuant to written standards; or</P> <P>(2) The scholarship or grant is established for the benefit of DoD employees, or the dependents of DoD employees, and recipients are selected pursuant to written standards approved by the Secretary of Defense or, where the scholarship or grant is available only to military members or their dependents, by the Secretary of the military department concerned.</P> </SECTION> <SECTION> <SECTNO>§ 3601.104</SECTNO> <SUBJECT>Additional limitations on gifts between DoD employees.</SUBJECT> <P>The following limitations shall apply to gifts from groups of DoD employees that include a subordinate and to voluntary contributions to gifts for superiors permitted under 5 CFR 2635.304(c)(1):</P> <P>(a) <E T="03">Gifts from a group that includes a subordinate.</E> Regardless of the number of DoD employees contributing to a gift on a special, infrequent occasion as permitted by 5 CFR 2635.304(c)(1), a DoD employee may not accept a gift or gifts from a donating group if the market value exceeds an aggregate of $300 and if the DoD employee knows or has reason to know that any member of the donating group is his subordinate.</P> <P>(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 the DoD employee and his personal guests 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 $300 aggregate limit.</P> <P>(2) The value of a gift or gifts from two or more donating groups shall be aggregated and shall be considered to be from a single donating group if the DoD employee offered the gift knows or has reason to know that an individual who is his subordinate is a member of more than one of the donating groups.</P> <P>(b) <E T="03">Voluntary contribution.</E> For purposes of 5 CFR 2635.304(c)(1), the nominal amount of a voluntary contribution that a DoD employee may solicit from another DoD employee for a group gift to the contributing DoD employee's superior for any special, infrequent occasion shall not exceed $10. A voluntary contribution of a nominal amount for food, refreshments and entertainment for the superior, the personal guests of the superior and other attendees 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.</P> </SECTION> <SECTION> <SECTNO>§ 3601.105</SECTNO> <SUBJECT>Standards for accomplishing disqualification.</SUBJECT> <P>(a) <E T="03">Disqualifying financial interests.</E> A DoD 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 2635.4029(c) (1) and (2), provide written notice of disqualification to his supervisor upon determining that he will not participate in the matter.</P> <P>(b) <E T="03">Disqualification to ensure impartiality.</E> A DoD 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 upon determining that he will not participate in the matter.</P> <P>(c) <E T="03">Disqualification from matter effecting prospective employees.</E> A DoD 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 upon determining that he will not participate in the matter.<PRTPAGE P="699"/> </P> <P>(d) <E T="03">Withdrawal of notification.</E> A DoD 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.</P> </SECTION> <SECTION> <SECTNO>§ 3601.106</SECTNO> <SUBJECT>Limitation on solicited sales.</SUBJECT> <P>A DoD employee shall not knowingly solicit or make solicited sales to DoD personnel who are junior in rank, grade or position, or to the family members of such personnel, on or off duty. In the absence of coercion or intimidation, this does not prohibit the sale or lease of a DoD employee's noncommercial personal or real property or commercial sales solicited and made in a retail establishment during off-duty employment. The posting of an advertisement in accordance with Federal building management policies does not constitute solicitation for purposes of this section.</P> </SECTION> <SECTION> <SECTNO>§ 3601.107</SECTNO> <SUBJECT>Prior approval for outside employment and business activities.</SUBJECT> <P>(a) A DoD employee, other than a special Government employee, who is required to file a financial disclosure report (SF 450 or SF 278) shall obtain written 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. For purposes of this section, the following definitions apply:</P> <P>(1) <E T="03">Business activity.</E> 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;</P> <P>(2) <E T="03">Employment.</E> 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; and</P> <P>(3) <E T="03">Prohibited source.</E> See 5 CFR 2635.203(d) (modified by the separate DoD component agency designations in § 3601.102 of this part).</P> <P>(b) The DoD component designated agency ethics official or designee may, by a written notice, exempt categories of business activities or employment from the requirement of paragraph (a) of this section, for prior approval 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.</P> </SECTION> <SECTION> <SECTNO>§ 3601.108</SECTNO> <SUBJECT>Disclaimer for speeches and writings devoted to agency matters.</SUBJECT> <P>A DoD employee who uses or permits the use of his military rank or who includes or permits the inclusion of his title or position as one of several biographical details given to identify himself in connection with teaching, speaking or writing, in accordance with 5 CFR 2635.807(b), shall 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 DoD employee's agency, as defined in § 3601.102, and the DoD employee has not been authorized by appropriate agency authority to present that material as the agency's position. The disclaimer shall be made as follows:</P> <P>(a) The required disclaimer shall 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.</P> <P>(b) Where 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.</P> <P>(c) Where 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXVIII (1-1-02 Edition)</LRH> <RRH>Department of Justice</RRH> <TOC> <TOCHD> <PRTPAGE P="701"/> <HD SOURCE="HED">CHAPTER XXVIII—DEPARTMENT OF JUSTICE</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3801</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Justice</SUBJECT> <PG>703</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="703"/> <EAR>Pt. 3801</EAR> <HD SOURCE="HED">PART 3801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF JUSTICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3801.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3801.102</SECTNO> <SUBJECT>Detailed or assigned special agents of certain Departmental components.</SUBJECT> <SECTNO>3801.103</SECTNO> <SUBJECT>Designation of separate Departmental components.</SUBJECT> <SECTNO>3801.104</SECTNO> <SUBJECT>Purchase or use of certain forfeited and other property.</SUBJECT> <SECTNO>3801.105</SECTNO> <SUBJECT>Personal use of Government property.</SUBJECT> <SECTNO>3801.106</SECTNO> <SUBJECT>Outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; E.O. 12988, 61 FR 4739; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.701-2635.705, 2635.803, 2635.807(a)(2)(ii); and DOJ Order 1735.1.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 23942, May 2, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3801.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3801.102</SECTNO> <SUBJECT>Detailed or assigned special agents of certain Departmental components.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3801.103</SECTNO> <SUBJECT>Designation of separate Departmental components.</SUBJECT> <P>(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: </P> <EXTRACT> <FP>Antitrust Division</FP> <FP>Bureau of Prisons</FP> <FP SOURCE="FP-1">(including Federal Prison Industries, Inc.)</FP> <FP>Civil Division</FP> <FP>Civil Rights Division</FP> <FP>Community Relations Service</FP> <FP>Criminal Division</FP> <FP>Drug Enforcement Administration</FP> <FP>Environment and Natural Resources Division</FP> <FP>Executive Office for Immigration Review</FP> <FP>Executive Office for United States Attorneys</FP> <FP SOURCE="FP-1">(The Executive Office for United States Attorneys shall not be considered separate from any Office of the United States Attorney for a judicial district, but only from other designated components of the Department of Justice.)</FP> <FP>Executive Office for United States Trustees</FP> <FP SOURCE="FP-1">(The Executive Office for United States Trustees shall not be considered separate from any Office of the United States Trustee for a region, but only from other designated components of the Department of Justice.)</FP> <FP>Federal Bureau of Investigation</FP> <FP>Foreign Claims Settlement Commission</FP> <FP>Immigration and Naturalization Service</FP> <FP>Independent Counsel appointed by the Attorney General</FP> <FP>INTERPOL</FP> <FP>National Drug Intelligence Center</FP> <FP>Justice Management Division</FP> <FP>Office of Information and Privacy</FP> <FP>Office of Intelligence Policy and Review</FP> <FP>Office of Community Oriented Policing Services</FP> <FP>Office of Justice Programs</FP> <FP>Office of the Pardon Attorney</FP> <FP>Office of Policy Development</FP> <FP>Offices of the United States Attorney (94)</FP> <FP SOURCE="FP-1">(Each Office of the United States Attorney for a judicial district shall be considered a separate component from each other such office.)</FP> <FP>Offices of the United States Trustee (21)</FP> <FP SOURCE="FP-1">(Each Office of the United States Trustee for a region shall be considered a separate component from each other such office.)</FP> <FP>Tax Division</FP> <FP>United States Marshals Service</FP> <FP>United States Parole Commission</FP> </EXTRACT> <P>(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 <PRTPAGE P="704"/>part 2635 of this title and the application of the teaching, speaking and writing provisions found in § 2635.807 of this title.</P> </SECTION> <SECTION> <SECTNO>§ 3801.104</SECTNO> <SUBJECT>Purchase or use of certain forfeited and other property.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3801.105</SECTNO> <SUBJECT>Personal use of Government property.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3801.106</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) <E T="03">Definition.</E> For purposes of this section, <E T="03">outside employment</E> 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.</P> <P>(b) <E T="03">Prohibitied outside employment.</E> (1) No employee may engage in outside employment that involves:</P> <P>(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;</P> <P>(ii) Any criminal or habeas corpus matter, be it Federal, State, or local; or</P> <P>(iii) Litigation, investigations, grants or other matters in which the Department of Justice is or represents a party, witness, litigant, investigator or grant-maker.</P> <P>(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.</P> <P>(c) <E T="03">Prior approval for outside employment.</E> (1) An employee must obtain <PRTPAGE P="705"/>written approval before engaging in outside employment, not otherwise prohibited by paragraph (b) of this section that involves:</P> <P>(i) The practice of law; or</P> <P>(ii) A subject matter, policy,or program that is in his component's area of responsibility.</P> <P>(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.</P> <P>(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.</P> <CITA>[62 FR 23942, May 2, 1997; 62 FR 31865, June 11, 1997]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXIX (1-1-02 Edition)</LRH> <RRH>Federal Communications Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="707"/> <HD SOURCE="HED">CHAPTER XXIX—FEDERAL COMMUNICATIONS COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>3901</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Communications Commission</SUBJECT> <PG>709</PG> <PT>3902</PT> <SUBJECT>Supplemental financial disclosure requirements for employees of the Federal Communications Commission</SUBJECT> <PG>709</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="709"/> <EAR>Pt. 3901</EAR> <HD SOURCE="HED">PART 3901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3901.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3901.102</SECTNO> <SUBJECT>Prior approval for practice of a profession.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 47 U.S.C. 303(r); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 56111, Oct. 31, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3901.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3901.102</SECTNO> <SUBJECT>Prior approval for practice of a profession.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Procedures for requesting approval.</E> (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:</P> <P>(i) For Heads of Bureaus and Offices, through the Chairman;</P> <P>(ii) For employees in the immediate Office of a Commissioner, through the Commissioner; or</P> <P>(iii) For all other employees, through the Head of the Bureau or Office to which the employee is assigned.</P> <P>(2) A request for approval shall include, at a minimum:</P> <P>(i) A full description of the services to be performed in practicing the profession;</P> <P>(ii) The name and address of the person or organization for which services are to be provided; and</P> <P>(iii) The estimated total time that will be devoted to practicing the profession.</P> <P>(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.</P> <P>(c) <E T="03">Standard for approval.</E> 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.</P> </SECTION> </PART> <PART> <EAR>Pt. 3902</EAR> <HD SOURCE="HED">PART 3902—SUPPLEMENTAL FINANCIAL DISCLOSURE REQUIREMENTS FOR EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3902.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3902.102</SECTNO> <SUBJECT>Employees required to submit FCC Form A54A, “Confidential Supplemental Statement of Employment and Financial Interests.”</SUBJECT> <SECTNO>3902.103</SECTNO> <SUBJECT>Submission and review of employees’ statements.</SUBJECT> <SECTNO>3902.104</SECTNO> <SUBJECT>Confidentiality of employees’ statements.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 47 U.S.C. 154(b), (j), (i) and 303(r); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2634.103, 2634.601(b), 2634.901(b).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 56111, Oct. 31, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="710"/> <SECTNO>§ 3902.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3902.102</SECTNO> <SUBJECT>Employees required to submit FCC Form A54A, “Confidential Supplemental Statement of Employment and Financial Interests.”</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 3902.103</SECTNO> <SUBJECT>Submission and review of employees’ statements.</SUBJECT> <P>(a) An employee required to submit a statement of employment and financial interests will be notified individually of his or her obligation to file.</P> <P>(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.</P> <P>(c) Financial statements submitted under this subpart shall be reviewed by the Designated Agency Ethics Official.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3902.104</SECTNO> <SUBJECT>Confidentiality of employees’ statements.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXX (1-1-02 Edition)</LRH> <RRH>Farm Credit System Insurance Corp.</RRH> <TOC> <TOCHD> <PRTPAGE P="711"/> <HD SOURCE="HED">CHAPTER XXX—FARM CREDIT SYSTEM INSURANCE CORPORATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>4001</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Farm Credit System Insurance Corporation</SUBJECT> <PG>713</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="713"/> <EAR>Pt. 4001</EAR> <HD SOURCE="HED">PART 4001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FARM CREDIT SYSTEM INSURANCE CORPORATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>4001.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>4001.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4001.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>4001.104</SECTNO> <SUBJECT>Prohibited borrowing.</SUBJECT> <SECTNO>4001.105</SECTNO> <SUBJECT>Purchase of System institution assets.</SUBJECT> <SECTNO>4001.106</SECTNO> <SUBJECT>Restrictions arising from the employment of relatives.</SUBJECT> <SECTNO>4001.107</SECTNO> <SUBJECT>Involvement in System institution board member elections.</SUBJECT> <SECTNO>4001.108</SECTNO> <SUBJECT>Outside employment and business activity.</SUBJECT> <SECTNO>4001.109</SECTNO> <SUBJECT>Waivers.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 12 U.S.C. 2277a-7, 2277a-8; E.O. 12674, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.502, 2635.702, 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 30776, June 12, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4001.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Covered employee</E> means:</P> <P>(1) All examiners who perform work for the Corporation; and</P> <P>(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.</P> <P>(b) <E T="03">Related entity</E> means:</P> <P>(1) Affiliates defined in section 8.5(e) of the Farm Credit Act of 1971, as amended (Act), 12 U.S.C. 2001 <E T="03">et seq.</E>, 12 U.S.C. 2279aa-5;</P> <P>(2) Affiliates defined in section 8.11(e) of the Act, 12 U.S.C. 2279aa-11;</P> <P>(3) Service organizations authorized by section 4.25 of the Act, 12 U.S.C. 2211; and</P> <P>(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).</P> <P>(c) <E T="03">System institution</E> refers to:</P> <P>(1) All institutions chartered and regulated by the FCA as described in section 1.2 of the Act, 12 U.S.C. 2002;</P> <P>(2) The Federal Farm Credit Banks Funding Corporation, established pursuant to section 4.9 of the Act, 12 U.S.C. 2160; and</P> <P>(3) The Federal Agricultural Mortgage Corporation, established pursuant to section 8.1 of the Act, 12 U.S.C. 2279aa-1.</P> </SECTION> <SECTION> <SECTNO>§ 4001.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">Definition of securities.</E> 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.</P> <P>(c) <E T="03">Exceptions.</E> Nothing in this section prohibits a covered employee, or spouse <PRTPAGE P="714"/>or minor child of a covered employee, from:</P> <P>(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;</P> <P>(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;</P> <P>(3) Owning securities of System institutions held as a result of pre-existing credit, as specified in § 4001.104(b); or</P> <P>(4) Owning any security pursuant to a waiver granted under § 4001.109.</P> </SECTION> <SECTION> <SECTNO>§ 4001.104</SECTNO> <SUBJECT>Prohibited borrowing.</SUBJECT> <P>(a) <E T="03">Prohibition on employee borrowing.</E> 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.</P> <P>(b) <E T="03">Exception.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.105</SECTNO> <SUBJECT>Purchase of System institution assets.</SUBJECT> <P>(a) <E T="03">Prohibition on purchasing assets owned by a System institution.</E> 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.</P> <P>(b) <E T="03">Assets held or managed by the Corporation or a receiver or conservator</E>—(1) <E T="03">Prohibition on purchase.</E> 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.</P> <P>(2) <E T="03">Disqualification.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.106</SECTNO> <SUBJECT>Restrictions arising from the employment of relatives.</SUBJECT> <P>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 <PRTPAGE P="715"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.107</SECTNO> <SUBJECT>Involvement in System institution board member elections.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.108</SECTNO> <SUBJECT>Outside employment and business activity.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">General requirement for prior approval.</E> 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.</P> <P>(c) <E T="03">Definition.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4001.109</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXXI (1-1-02 Edition)</LRH> <RRH>Farm Credit Administration</RRH> <TOC> <TOCHD> <PRTPAGE P="717"/> <HD SOURCE="HED">CHAPTER XXXI—FARM CREDIT ADMINISTRATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>4101</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Farm Credit Administration</SUBJECT> <PG>719</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="719"/> <HD SOURCE="HED">PART 4101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FARM CREDIT ADMINISTRATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>4101.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>4101.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4101.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>4101.104</SECTNO> <SUBJECT>Prohibited borrowing.</SUBJECT> <SECTNO>4101.105</SECTNO> <SUBJECT>Purchase of System institution assets.</SUBJECT> <SECTNO>4101.106</SECTNO> <SUBJECT>Restrictions arising from the employment of relatives.</SUBJECT> <SECTNO>4101.107</SECTNO> <SUBJECT>Involvement in System institution board member elections.</SUBJECT> <SECTNO>4101.108</SECTNO> <SUBJECT>Outside employment and business activity.</SUBJECT> <SECTNO>4101.109</SECTNO> <SUBJECT>Waivers.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 12 U.S.C. 2245(c)(2)(C), 2252; E.O. 12674, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.502, 2635.702, 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 30781, June 12, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4101.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4101.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Covered employee</E> means:</P> <P>(1) Examiners; and</P> <P>(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.</P> <P>(b) <E T="03">Related entity</E> means:</P> <P>(1) Affiliates defined in section 8.5(e) of the Farm Credit Act of 1971, as amended (Act), 12 U.S.C. 2001 <E T="03">et seq.,</E> 12 U.S.C. 2279aa-5;</P> <P>(2) Affiliates defined in section 8.11(e) of the Act, 12 U.S.C. 2279aa-11;</P> <P>(3) Service organizations authorized by section 4.25 of the Act, 12 U.S.C. 2211; and</P> <P>(4) Any other entity owned or controlled by one or more Farm Credit System (System) institution that is not chartered by the FCA.</P> <P>(c) <E T="03">System institution</E> refers to:</P> <P>(1) All institutions chartered and regulated by the FCA as described in section 1.2 of the Act, 12 U.S.C. 2002;</P> <P>(2) The Federal Farm Credit Banks Funding Corporation, established pursuant to section 4.9 of the Act, 12 U.S.C. 2160; and</P> <P>(3) The Federal Agricultural Mortgage Corporation, established pursuant to section 8.1 of the Act, 12 U.S.C. 2279aa-1.</P> </SECTION> <SECTION> <SECTNO>§ 4101.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">Definition of securities.</E> 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.</P> <P>(c) <E T="03">Exceptions.</E> Nothing in this section prohibits a covered employee, or spouse or minor child of a covered employee, from:<PRTPAGE P="720"/> </P> <P>(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;</P> <P>(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;</P> <P>(3) Owning securities of System institutions held as a result of pre-existing credit, as specified in § 4101.104(b); or</P> <P>(4) Owning any security pursuant to a waiver granted under § 4101.109.</P> </SECTION> <SECTION> <SECTNO>§ 4101.104</SECTNO> <SUBJECT>Prohibited borrowing.</SUBJECT> <P>(a) <E T="03">Prohibition on employee borrowing.</E> 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.</P> <P>(b) <E T="03">Exception.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4101.105</SECTNO> <SUBJECT>Purchase of System institution assets.</SUBJECT> <P>(a) <E T="03">Prohibition on purchasing assets owned by a System institution.</E> 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.</P> <P>(b) <E T="03">Assets held or managed by the Farm Credit System Insurance Corporation or a receiver or conservator—</E>(1) <E T="03">Prohibition on purchase.</E> 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.</P> <P>(2) <E T="03">Disqualification.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="721"/> <SECTNO>§ 4101.106</SECTNO> <SUBJECT>Restrictions arising from the employment of relatives.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4101.107</SECTNO> <SUBJECT>Involvement in System institution board member elections.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4101.108</SECTNO> <SUBJECT>Outside employment and business activity.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">General requirement for prior approval.</E> 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.</P> <P>(c) <E T="03">Definition.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4101.109</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXXIII (1-1-02 Edition)</LRH> <RRH>Overseas Private Investment Corp.</RRH> <TOC> <TOCHD> <PRTPAGE P="723"/> <HD SOURCE="HED">CHAPTER XXXIII—OVERSEAS PRIVATE INVESTMENT CORPORATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>4301</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Overseas Private Investment Corporation</SUBJECT> <PG>725</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="725"/> <EAR>Pt. 4301</EAR> <HD SOURCE="HED">PART 4301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OVERSEAS PRIVATE INVESTMENT CORPORATION</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SECTION> <SECTNO>§ 4301.101</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>Any employee of the Overseas Private Investment Corporation 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.</P> <CITA>[58 FR 33320, June 17, 1993]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XXXV (1-1-02 Edition)</LRH> <RRH>Office of Personnel Management</RRH> <TOC> <TOCHD> <PRTPAGE P="727"/> <HD SOURCE="HED">CHAPTER XXXV—OFFICE OF PERSONNEL MANAGEMENT</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>4501</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Office of Personnel Management</SUBJECT> <PG>729</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="729"/> <EAR>Pt. 4501</EAR> <HD SOURCE="HED">PART 4501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OFFICE OF PERSONNEL MANAGEMENT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>4501.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>4501.102</SECTNO> <SUBJECT>Examination information.</SUBJECT> <SECTNO>4501.103</SECTNO> <SUBJECT>Prior approval for certain outside activities.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978), E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.702, 2635.703, 2635.802, 2635.803, 2635.805.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 36996, July 16, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4501.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4501.102</SECTNO> <SUBJECT>Examination information.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4501.103</SECTNO> <SUBJECT>Prior approval for certain outside activities.</SUBJECT> <P>(a) <E T="03">Prior approval requirement</E>. An employee, other than a special Government employee, shall obtain written approval before engaging—with or without compensation—in the following outside activities:</P> <P>(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;</P> <P>(2) Teaching, speaking, or writing that relates to the employee's official duties;</P> <P>(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</P> <P>(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:</P> <P>(A) In which the United States is a party;<PRTPAGE P="730"/> </P> <P>(B) In which the United States has a direct and substantial interest; or</P> <P>(C) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.</P> <P>(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.</P> <P>(b) <E T="03">Submission of requests for approval.</E> (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:</P> <P>(i) The employee's name and position title;</P> <P>(ii) The name and address of the person or organization for whom the outside activity is to be performed;</P> <P>(iii) A description of the proposed outside activity, including the duties and services to be performed while engaged in the activity; and</P> <P>(iv) The proposed hours that the employee will engage in the outside activity, and the approximate dates of the activity.</P> <P>(2) Together with his request for approval, the employee shall provide a certification that:</P> <P>(i) The outside activity will not depend in any way on nonpublic information;</P> <P>(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</P> <P>(iii) The employee has read subpart H (“Outside Activities”) of 5 CFR part 2635.</P> <P>(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.</P> <P>(c) <E T="03">Approval of requests.</E> 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.</P> <P>(d) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Active participant</E> has the meaning set forth in 5 CFR 2635.502(b)(1)(v).</P> <P>(2) <E T="03">Nonpublic information</E> has the meaning set forth in 5 CFR 2635.703(b).</P> <P>(3) <E T="03">Professional services</E> 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).</P> <P>(4) <E T="03">Prohibited source</E> has the meaning set forth in 5 CFR 2635.203(d).</P> <P>(5) <E T="03">Relates to the employee's official duties</E> has the meaning set forth in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E).</P> <CITA>[61 FR 36996, July 16, 1996; 62 FR 32859, June 17, 1997]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XL (1-1-02 Edition)</LRH> <RRH>Interstate Commerce Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="731"/> <HD SOURCE="HED">CHAPTER XL—INTERSTATE COMMERCE COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5001</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Interstate Commerce Commission</SUBJECT> <PG>733</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="733"/> <EAR>Pt. 5001</EAR> <HD SOURCE="HED">PART 5001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5001.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5001.102</SECTNO> <SUBJECT>Prohibited financial interests in for-hire transportation companies.</SUBJECT> <SECTNO>5001.103</SECTNO> <SUBJECT>Impartiality determinations for members of the Interstate Commerce Commission.</SUBJECT> <SECTNO>5001.104</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 49 U.S.C. 10301, 10306, 10321; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp. at 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., at 306; 5 CFR 2635.105, 2635.403, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 41990, Aug. 6, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5001.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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 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.</P> </SECTION> <SECTION> <SECTNO>§ 5001.102</SECTNO> <SUBJECT>Prohibited financial interests in for-hire transportation companies.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> Except as provided in paragraph (c) of this section, no member or other employee of the Interstate Commerce Commission shall, directly or indirectly:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Indirect relationships and interests.</E> (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:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Exceptions.</E> (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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5001.103</SECTNO> <SUBJECT>Impartiality determinations for members of the Interstate Commerce Commission.</SUBJECT> <P>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 <PRTPAGE P="734"/>with the Designated Agency Ethics Official.</P> </SECTION> <SECTION> <SECTNO>§ 5001.104</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(5) The written approval of the employee's immediate supervisor.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLI (1-1-02 Edition)</LRH> <RRH>Commodity Futures Trading Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="735"/> <HD SOURCE="HED">CHAPTER XLI—COMMODITY FUTURES TRADING COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5101</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Commodity Futures Trading Commission</SUBJECT> <PG>737</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="737"/> <EAR>Pt. 5101</EAR> <HD SOURCE="HED">PART 5101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE COMMODITY FUTURES TRADING COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5101.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5101.102</SECTNO> <SUBJECT>Prohibited financial interests and transactions.</SUBJECT> <SECTNO>5101.103</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 7 U.S.C. 4a(f) and (j); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 52638, Oct. 12, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5101.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5101.102</SECTNO> <SUBJECT>Prohibited financial interests and transactions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5101.103</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Prohibitions.</E> A Commission member or other employee shall not engage in non-Federal employment or any other outside activity that:</P> <P>(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</P> <P>(i) Has participated personally and substantially as an employee or special Government employee in the same matter; or</P> <P>(ii) Has served with the Commission 60 days or more during the immediately preceding period of 365 consecutive days.</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Prior approval for outside employment.</E> (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.</P> <P>(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.</P> <P>(3) Approval shall be granted only upon a determination that the outside <PRTPAGE P="738"/>employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLII (1-1-02 Edition)</LRH> <RRH>Department of Labor</RRH> <TOC> <TOCHD> <PRTPAGE P="739"/> <HD SOURCE="HED">CHAPTER XLII—DEPARTMENT OF LABOR</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5201</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Labor</SUBJECT> <PG>741</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="741"/> <EAR>Pt. 5201</EAR> <HD SOURCE="HED">PART 5201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF LABOR</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5201.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5201.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <SECTNO>5201.103</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> <SECTNO>5201.104</SECTNO> <SUBJECT>Additional rules for Office of the Inspector General employees.</SUBJECT> <SECTNO>5201.105</SECTNO> <SUBJECT>Additional rules for Mine Safety and Health Administration employees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in Government Act); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 57284, Nov. 6, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5201.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5201.102</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <P>(a) <E T="03">Separate agency components of the Department of Labor.</E> 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:</P> <P>(1) Benefits Review Board;</P> <P>(2) Employees Compensation Appeals Board;</P> <P>(3) Mine Safety and Health Administration (MSHA);</P> <P>(4) Veterans' Employment and Training Service;</P> <P>(5) Occupational Safety and Health Administration (OSHA);</P> <P>(6) Pension and Welfare Benefits Administration (PWBA);</P> <P>(7) Bureau of International Labor Affairs;</P> <P>(8) Bureau of Labor Statistics;</P> <P>(9) Employment and Training Administration (ETA); and</P> <P>(10) Employment Standards Administration (ESA).</P> <P>(b) <E T="03">Separate agency subcomponents of ESA.</E> 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:</P> <P>(1) Wage and Hour Division;</P> <P>(2) Office of Federal Contract Compliance Programs;</P> <P>(3) Office of Workers Compensation Programs; and</P> <P>(4) Office of Labor-Management Standards.</P> <P>(c) <E T="03">Definitions.</E> (1) <E T="03">Remainder of the Department</E> 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.</P> <P>(2) <E T="03">Remainder of ESA</E> 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.</P> <P>(d) <E T="03">Applicability of separate agency designations.</E> The designations in paragraphs (a) and (b) of this section identify an employee's “agency” for purposes of:</P> <P>(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;</P> <P>(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<PRTPAGE P="742"/> </P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>An employee of the Mine Safety and Health Administration attends a Saturday football game together with an employee of the Office of the Solicitor. By coincidence, they are seated next to a contract consultant to the Employment and Training Administration. They talk about the game and describe their jobs and personal interests to their new seat-mate. The consultant states that he and his wife will not be able to attend next week's game and would like to give their very expensive tickets to people who will really enjoy them. The MSHA employee may accept the ticket. MSHA is designated as a separate agency under § 5201.102, and the ETA contractor is not a prohibited source of gifts for MSHA employees. The contractor is not regulated by and has no business dealings with MSHA. The Solicitor's Office employee may not accept the gift. The ETA contractor is a prohibited source for Solicitor's Office employees because the Solicitor's Office is a part of the “Remainder of the Department of Labor.” Any source which is prohibited for any component of the Department of Labor is a prohibited source for employees in the “Remainder.”</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 5201.103</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> <P>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:</P> <P>(a) The Wage and Hour Division;</P> <P>(b) The Office of Federal Contract Compliance Programs;</P> <P>(c) The Remainder of the Employment Standards Administration, as defined in § 5201.102(c);</P> <P>(d) Occupational Safety and Health Administration;</P> <P>(e) Pension and Welfare Benefits Administration;</P> <P>(f) Veterans' Employment and Training Service; and</P> <P>(g) The Remainder of the Department of Labor, as defined in § 5201.102(c). </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A training official in the Mine Safety and Health Administration is president of the local branch of her college alumni association. The association is seeking used computers from local businesses to upgrade the college's language lab. The employee may not seek a contribution from the vice president of a mining company which is regulated by MSHA. Even though the mining company is not currently under investigation, it is a prohibited source for the employment because it is subject to MSHA regulation and MSHA is not one of the agency components designated as separate for the purpose of fundraising in a personal capacity.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A typist in the Pension and Welfare Benefits Administration raises money for a local homeless shelter during his off-duty hours. He may seek a contribution from a firm that is regulated by PWBA under the Employee Retirement Income Security Act but may not seek contributions from one that he knows is currently under investigation for a violation of the Act. While firms regulated by an agency would ordinarily be prohibited sources for purposes of an employee's fundraising in a personal capacity, § 5201.103 provides that employees of PWBA and the other separate agency components listed in that section may seek charitable contributions from an entity that is a prohibited source only because its activities are subject to regulation by that separate agency component. On the other hand, the employee may not engage in fundraising from a person who he knows is a prohibited source for any other reason, such as an ongoing enforcement action.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>An employee of the Employment and Training Administration may seek charitable contributions from a firm currently under investigation by the Occupational Safety and Health Administration (OSHA). ETA does not regulate this firm and has had no dealings or business with it of any kind. Since ETA has been designated as a separate agency under § 5201.102, ETA employees need only consider their own official duties and activities and those of ETA in determining whether a person is a prohibited source for purposes of their fundraising in a personal capacity. The fact that a person may be a prohibited source of direct and indirect gifts for OSHA employees is not relevant in this instance.</P> </EXAMPLE> </SECTION> <SECTION> <SECTNO>§ 5201.104</SECTNO> <SUBJECT>Additional rules for Office of the Inspector General employees.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Prior approval for outside employment.</E> (1) Before engaging in any outside employment, an OIG employee <PRTPAGE P="743"/>must obtain the written approval of the Inspector General or the Inspector General's designee.</P> <P>(2) <E T="03">Submission of requests for approval.</E> (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:</P> <P>(A) The employee's name and position title;</P> <P>(B) The name and address of the person, group, or organization for whom the employee proposes to engage in outside employment; and</P> <P>(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.</P> <P>(ii) Together with the employee's request for approval, the employee shall provide a certification that:</P> <P>(A) The outside employment will not depend in any way on nonpublic information, as defined at 5 CFR 2635.703(b);</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(3) <E T="03">Standard for approval.</E> 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.</P> <P>(4) <E T="03">Definitions.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5201.105</SECTNO> <SUBJECT>Additional rules for Mine Safety and Health Administration employees.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Prohibited financial interests.</E> 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 <E T="03">et seq.</E> 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.</P> <P>(b) <E T="03">Exceptions.</E> (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.</P> <P>(2) Nothing in this section prohibits an employee or the spouse or minor <PRTPAGE P="744"/>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. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>A mine inspector who was a former employee of mining company X could continue to participate in mine company X's pension plan without violating this section. However, he would have to disclose the interest on his financial disclosure report. Additionally, the inspector should not inspect or otherwise take official action on a matter affecting mine company X without checking with his ethics advisor to ensure that performance of his official duties would not violate the conflict of interest statute (18 U.S.C. 208) or any other ethics provisions.</P> </EXAMPLE> <P>(c) <E T="03">Waiver.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Pre-existing interests.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLIII (1-1-02 Edition)</LRH> <RRH>National Science Foundation</RRH> <TOC> <TOCHD> <PRTPAGE P="745"/> <HD SOURCE="HED">CHAPTER XLIII—NATIONAL SCIENCE FOUNDATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5301</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the National Science Foundation</SUBJECT> <PG>747</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="747"/> <EAR>Pt. 5301</EAR> <HD SOURCE="HED">PART 5301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL SCIENCE FOUNDATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5301.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5301.102</SECTNO> <SUBJECT>Participation in proposals and awards.</SUBJECT> <SECTNO>5301.103</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> <SECTNO>5301.104</SECTNO> <SUBJECT>Participation in NSF-supported conferences.</SUBJECT> <SECTNO>5301.105</SECTNO> <SUBJECT>Restrictions applicable to Members of the National Science Board.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 42 U.S.C. 1870(a); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR 1990 Comp., p. 306; 5 CFR 2635.105, 2635.502, 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 59818, Nov. 25, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5301.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this part, unless a provision plainly indicates otherwise:</P> <P>(1) <E T="03">Award</E> means any grant, contract, cooperative agreement, loan, or other arrangement made by the Government.</P> <P>(2) <E T="03">Employee</E> 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.</P> <P>(3) <E T="03">Institution</E> 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.</P> <P>(4) <E T="03">Proposal</E> means an application for an award and includes a bid.</P> </SECTION> <SECTION> <SECTNO>§ 5301.102</SECTNO> <SUBJECT>Participation in proposals and awards.</SUBJECT> <P>(a) <E T="03">Participation in proposals and awards.</E> (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).</P> <P>(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.</P> <P>(3) An employee has a covered relationship, within the meaning of 5 CFR 2635.502(b)(1), with:</P> <P>(i) An institution with which the employee is affiliated through:</P> <P>(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;</P> <P>(B) Current enrollment of the employee or a member of the employee's household as a student;</P> <P>(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</P> <P>(ii) A person who is an investigator or project director on or who otherwise <PRTPAGE P="748"/>is identified in a proposal as a party to the proposal or award and with whom the employee has:</P> <P>(A) A family relationship as sibling, parent, spouse, or child. Any such relationship is automatically disqualifying;</P> <P>(B) Associated, in the past or currently, as thesis advisor or thesis student;</P> <P>(C) Collaborated on a project, book, article, report, or paper within the last 48 months; or</P> <P>(D) Co-edited a journal, compendium, or conference proceedings within the last 24 months.</P> <P>(b) <E T="03">Reporting involvement of prospective, current, or recent employees.</E> (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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5301.103</SECTNO> <SUBJECT>Outside employment and activities.</SUBJECT> <P>(a) <E T="03">Prohibited outside employment and activities.</E> (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.</P> <P>(2) An NSF employee may not serve as principal investigator or project director under an NSF award.</P> <P>(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.</P> <P>(b) <E T="03">Prior approval of outside employment and activities.</E> (1) An employee shall obtain written approval from an agency designee before:</P> <P>(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</P> <P>(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.</P> <P>(2) In addition to any prior approval required in paragraph (b)(1) of this section, an employee shall obtain prior written approval:</P> <P>(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</P> <P>(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 <PRTPAGE P="749"/>event supported by NSF funds, or before presenting a paper at such an event.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5301.104</SECTNO> <SUBJECT>Participation in NSF-supported conferences.</SUBJECT> <P>An NSF employee may participate in conferences, workshops, and similar events supported by NSF funds provided that:</P> <P>(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.</P> <P>(b) Where the employee's participation is undertaken as part of his official duties as an NSF employee:</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5301.105</SECTNO> <SUBJECT>Restrictions applicable to Members of the National Science Board.</SUBJECT> <P>(a) <E T="03">Participation in proposals and awards.</E> (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).</P> <P>(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.</P> <P>(3) A Member of the National Science Board has a covered relationship, within the meaning of 5 CFR 2635.502(b)(1), with:</P> <P>(i) An institution or other person with which the Member is affiliated through:</P> <P>(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</P> <P>(B) Current enrollment of the Member or a member of his household as a student; and</P> <P>(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.</P> <P>(b) <E T="03">Outside employment and activities.</E> (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 <PRTPAGE P="750"/>particular matter, as defined in 5 CFR 2635.402(b)(3).</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLV (1-1-02 Edition)</LRH> <RRH>Department of Health and Human Services</RRH> <TOC> <TOCHD> <PRTPAGE P="751"/> <HD SOURCE="HED">CHAPTER XLV—DEPARTMENT OF HEALTH AND HUMAN SERVICES</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5501</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Health and Human Services</SUBJECT> <PG>753</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="753"/> <EAR>Pt. 5501</EAR> <HD SOURCE="HED">PART 5501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5501.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5501.102</SECTNO> <SUBJECT>Designation of HHS components as separate agencies.</SUBJECT> <SECTNO>5501.103</SECTNO> <SUBJECT>Gifts from federally recognized Indian tribes or Alaska Native villages or regional or village corporations.</SUBJECT> <SECTNO>5501.104</SECTNO> <SUBJECT>Prohibited financial interests applicable to employees of the Food and Drug Administration and the Office of the Chief Counsel.</SUBJECT> <SECTNO>5501.105</SECTNO> <SUBJECT>Exemption for otherwise disqualifying financial interests derived from Indian or Alaska Native birthrights.</SUBJECT> <SECTNO>5501.106</SECTNO> <SUBJECT>Outside employment and other outside activities.</SUBJECT> <SECTNO>5501.107</SECTNO> <SUBJECT>Teaching, speaking and writing by special Government employees in the Public Health Service.</SUBJECT> <SECTNO>5501.108</SECTNO> <SUBJECT>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.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 25 U.S.C. 450i(f); 42 U.S.C. 216; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203, 2635.403, 2635.802, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 39763, July 30, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5501.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Applicability.</E> 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.</P> <P>(c) <E T="03">Definitions.</E> Unless a term is otherwise defined in this part, the definitions set forth in 5 CFR part 2635 apply to terms in this part. In addition, for purposes of this part:</P> <P>(1) <E T="03">Federally recognized Indian tribe or Alaska Native village or regional or village corporation</E> 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 <E T="03">et seq.,</E> which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.</P> <P>(2) <E T="03">Significantly regulated organization</E> 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 solely in fields regulated by FDA.</P> </SECTION> <SECTION> <SECTNO>§ 5501.102</SECTNO> <SUBJECT>Designation of HHS components as separate agencies.</SUBJECT> <P>(a) <E T="03">Separate agency components of HHS.</E> Pursuant to 5 CFR 2635.203(a), each of the thirteen components of HHS listed below is designated as an agency separate from each of the other twelve 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:</P> <P>(1) Administration on Aging;<PRTPAGE P="754"/> </P> <P>(2) Administration for Children and Families:</P> <P>(3) Agency for Health Care Policy and Research;</P> <P>(4) Agency for Toxic Substances and Disease Registry;</P> <P>(5) Centers for Disease Control and Prevention;</P> <P>(6) Food and Drug Administration;</P> <P>(7) Health Care Financing Administration;</P> <P>(8) Health Resources and Services Administration;</P> <P>(9) Indian Health Service;</P> <P>(10) National Institutes of Health;</P> <P>(11) Office of Consumer Affairs;</P> <P>(12) Program Support Center; and</P> <P>(13) Substance Abuse and Mental Health Services Administration.</P> <P>(b) <E T="03">Definition</E>—(1) <E T="03">Employee of a component</E> includes, in addition to employees actually within a component, an employee in a division or region of the Office of the General Counsel that principally advises or represents that component.</P> <P>(2) <E T="03">Remainder of HHS</E> 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 13 components designated as separate agencies in paragraph (a) of this section.</P> <P>(c) <E T="03">Applicability of separate agency designations.</E> The designations in paragraph (a) of this section identify an employee's “agency” for purposes of:</P> <P>(1) Determining when a person is a prohibited source within the meaning of 5 CFR 2635.203(d) for purposes of applying:</P> <P>(i) The regulations at subpart B of 5 CFR part 2635 governing gifts from outside sources; and</P> <P>(ii) The regulations at § 5501.106 requiring prior approval of outside employment and other outside activities; and</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 5501.103</SECTNO> <SUBJECT>Gifts from federally recognized Indian tribes or Alaska Native villages or regional or village corporations.</SUBJECT> <P>(a) <E T="03">Tribal or Alaska Native gifts.</E> 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 or crafts 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.</P> <P>(b) <E T="03">Limitations on use of exception.</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 5501.104</SECTNO> <SUBJECT>Prohibited financial interests applicable to employees of the Food and Drug Administration and the Office of the Chief Counsel.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> 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 or of the Office of the Chief Counsel shall have a financial interest in a significantly regulated organization.</P> <P>(b) <E T="03">Exceptions.</E> Notwithstanding the prohibition in paragraph (a) of this section:</P> <P>(1) An employee or spouse or minor child of an employee may hold a pension arising from employment with a significantly regulated organization.</P> <P>(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:</P> <P>(i) The total cost or value, measured at the time of acquisition, of the combined interests of the employee and the <PRTPAGE P="755"/>employee's spouse and minor children in the regulated organization was $5,000 or less;</P> <P>(ii) The holding, if it represents an equity interest, constitutes less than 1 percent of the total outstanding equity of the organization; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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. 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.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 5501.105</SECTNO> <SUBJECT>Exemption for otherwise disqualifying financial interests derived from Indian or Alaska Native birthrights.</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(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</P> <P>(3) In an Indian claims fund held in trust or administered by the United States.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5501.106</SECTNO> <SUBJECT>Outside employment and other outside activities.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section does not apply to special Government employees.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Compensation</E> has the meaning set forth in 5 CFR 2635.807(a)(2)(iii).</P> <P>(2) <E T="03">Consultative services</E> 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.<PRTPAGE P="756"/> </P> <P>(3) <E T="03">Professional services</E> 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).</P> <P>(c) <E T="03">Prohibited outside employment and activities—</E>(1) <E T="03">Prohibited assistance in the preparation of grant applications or contract proposals.</E> 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.</P> <P>(2) <E T="03">Prohibited employment in HHS-funded activities.</E> 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.</P> <P>(3) <E T="03">Prohibited outside activities applicable to employees of the Food and Drug Administration and the Office of the Chief Counsel.</E> An employee of the Food and Drug Administration or the Office of the Chief Counsel who is required to file a public or confidential financial disclosure report pursuant to 5 CFR part 2634 shall not:</P> <P>(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</P> <P>(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:</P> <P>(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</P> <P>(B) The employment is limited to clerical or similar services (such as cashier or janitorial services) in retail stores, such as supermarkets, drug stores, or department stores.</P> <P>(4) <E T="03">Prohibited outside practice of law applicable to attorneys in the Office of the General Counsel.</E> </P> <P>(i) An employee who serves as an attorney in or under the supervision of the Office of the General Counsel shall not engage in any outside practice of law that might require the attorney to:</P> <P>(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</P> <P>(B) Interpret any statute, regulation or rule administered or issued by the Department.</P> <P>(ii) <E T="03">Exceptions.</E> Nothing in this section prevents an employee from:</P> <P>(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</P> <P>(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</P> <P>(C) Giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.</P> <P>(iii) <E T="03">Specific approval procedures.</E> </P> <P>(A) The exceptions to 18 U.S.C. 203 and 205 described in paragraph (c)(4)(ii)(A) of this section do not apply <PRTPAGE P="757"/>unless the employee obtained the approval of the Government official responsible for the appointment of the employee to a Federal position.</P> <P>(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.</P> <P>(d) <E T="03">Prior approval for outside employment and other outside activities</E>—(1) <E T="03">General approval requirement.</E> Except to the extent that an employment or other activity has been exempted under paragraph (d)(5) of this section, an employee shall obtain written approval prior to engaging, with or without compensation, in the following outside employment or activities:</P> <P>(i) Providing consultative or professional services, including service as an expert witness.</P> <P>(ii) Engaging in teaching, speaking, writing, or editing that:</P> <P>(A) Relates to the employee's official duties within the meaning of 5 CFR 2635.807(a)(2)(i)(B) through (E); or</P> <P>(B) Would be undertaken as a result of an invitation to engage in the activity that was extended to the employee by a person who is a prohibited source within the meaning of 5 CFR 2635.203(d), as modified by § 5501.102.</P> <P>(iii) Providing 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, unless the service is provided without compensation other than reimbursement of expenses to a political, religious, social, fraternal, or recreational organization and the position held does not require the provision of professional services within the meaning of paragraph (b)(3) of this section.</P> <P>(2) <E T="03">Additional approval requirement for employees of the Food and Drug Administration and the Office of the Chief Counsel.</E> </P> <P>(i) 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 Office of the Chief Counsel shall obtain written approval prior to engaging in any outside employment, as defined in 5 CFR 2635.603(a), whether or not for compensation, or any self-employed business activity.</P> <P>(ii) The requirement of paragraph (d)(2)(i) of this section does not apply to participation in the activities of a political, religious, social, fraternal, or recreational organization, unless the position held requires the provision of professional services or is performed for compensation other than the reimbursement of expenses.</P> <P>(iii) The requirement of paragraph (d)(2)(i) of this section shall not apply to the extent that an employment activity has been exempted, pursuant to paragraph (d)(5) of this section.</P> <P>(3) <E T="03">Submission of requests for approval.</E> 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 should be directed to the employee's supervisor who will forward it to the official authorized to approve outside employment and activities requests for the employee's component. All requests for prior approval shall include the following information:</P> <P>(i) The employee's name, organizational location, occupational title, grade, and salary;</P> <P>(ii) The nature of the proposed outside employment or other outside activity, including a full description of the specific duties or services to be performed;</P> <P>(iii) A description of the employee's official duties that relate in any way to the proposed activity;</P> <P>(iv) The name and address of the person or organization for whom or with which the work or activity will be done, including the location where the services will be performed;</P> <P>(v) 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 <PRTPAGE P="758"/>statement of the anticipated beginning and ending date;</P> <P>(vi) 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 that will be required;</P> <P>(vii) The method of basis of any compensation (e.g., fee, per diem, honorarium, royalties, stock options, travel and expenses, or other);</P> <P>(viii) A statement as to whether the compensation is derived from an HHS grant, contract, cooperative agreement, or other source of HHS funding;</P> <P>(ix) 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; and</P> <P>(x) For activities involving teaching, speaking, writing or editing, 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)(5) of this section.</P> <P>(4) <E T="03">Standard for approval.</E> Approval shall be granted unless it is determined that the outside employment or other outside activity is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The granting of 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.</P> </NOTE> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A clerical employee with a degree in library science volunteers to work on the acquisitions committee at a local public library. Serving on a panel that renders advice to a non-Federal entity is subject to prior approval. Because recommending books for the library collection normally would not pose a conflict with the typing duties assigned the employee, the request would be approved.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>While serving on the library acquisitions committee, the clerical employee in the preceding example is asked to help the library business office locate a missing book order. Shipment of the order is delayed because the publisher has declared bankruptcy and its assets, including inventory in the warehouse, have been frozen to satisfy the claims of the Internal Revenue Service and other creditors. The employee may not contact the Federal bankruptcy trustee to seek, on behalf of the public library, the release of the books. Even though the employee's service on the acquisitions committee had been approved, a criminal statute, 18 U.S.C. 205, would preclude any representation by a Federal employee of an outside entity before a Federal court or agency with respect to a matter in which the United States is a party or has a direct and substantial interest.</P> </EXAMPLE> <P>(5) <E T="03">Responsibilities of the designated agency ethics official and component agencies.</E> (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.</P> <P>(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.</P> <P>(iii) The officials within the respective HHS components who are responsible for the administrative aspects of these regulations and the maintenance <PRTPAGE P="759"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 5501.107</SECTNO> <SUBJECT>Teaching, speaking and writing by special Government employees in the Public Health Service.</SUBJECT> <P>(a) <E T="03">Applicability.</E> 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.</P> <P>(b) <E T="03">Permissible compensation.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5501.108</SECTNO> <SUBJECT>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.</SUBJECT> <P>(a) <E T="03">18 U.S.C. 205.</E> 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.</P> <P>(b) <E T="03">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.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLVI (1-1-02 Edition)</LRH> <RRH>Postal Rate Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="761"/> <HD SOURCE="HED">CHAPTER XLVI—POSTAL RATE COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5601</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Postal Rate Commission</SUBJECT> <PG>763</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="763"/> <EAR>Pt. 5601</EAR> <HD SOURCE="HED">PART 5601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE POSTAL RATE COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5601.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5601.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>5601.103</SECTNO> <SUBJECT>Notice of disqualification when seeking employment.</SUBJECT> <SECTNO>5601.104</SECTNO> <SUBJECT>Outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 39 U.S.C. 3603; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 42840, Aug. 12, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5601.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> In accordance with 5 CFR 2635.105, the regulations in this part apply to employees, including Commissioners, of the Postal Rate Commission and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.</P> <P>(b) <E T="03">Definition of affected persons</E>. For purposes of this part, a person whose interests are significantly affected by rates of postage, fees for postal services, the classification of mail or the operations of the United States Postal Service (Postal Service):</P> <P>(1) Includes a company or other person:</P> <P>(i) Who is or, in the past 4 years, has been a party to a proceeding before the Postal Rate Commission;</P> <P>(ii) Whose primary business involves entering publications as second-class mail;</P> <P>(iii) Who is in the business of selling merchandise, and a substantial portion of whose orders are solicited, received, or delivered through the mails;</P> <P>(iv) Who is primarily engaged in the business of advertising through the mails;</P> <P>(v) Who is primarily engaged in the business of delivering merchandise or written communications, i.e., a person whose primary business is in competition with the Postal Service; or</P> <P>(vi) Who provides services or products to the Postal Service that can be expected to produce income that exceeds $100,000 and equals or exceeds 5 percent of its gross income for the current fiscal year; and</P> <P>(2) Does not include a company or other person whose use of the mails is merely an incidental or a minor factor in the general conduct of its business.</P> </SECTION> <SECTION> <SECTNO>§ 5601.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>Any employee shall not, directly or indirectly, have any financial interest in a person whose interests are significantly affected by rates of postage, fees for postal services, the classification of mail, or the operations of the Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 5601.103</SECTNO> <SUBJECT>Notice of disqualification when seeking employment.</SUBJECT> <P>An employee who has been assigned to a particular matter which affects the financial interests of a prospective employer and who is required, in accordance with 5 CFR 2635.604(a), to disqualify himself from participation in that matter shall, notwithstanding the guidance in 5 CFR 2635.604 (b) and (c), provide notice of disqualification to his supervisor upon determining that he will not participate in the matter.</P> </SECTION> <SECTION> <SECTNO>§ 5601.104</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) <E T="03">Prohibited outside employment.</E> An employee shall not engage in outside employment, either on a paid or unpaid basis, with or for a company or other person whose interests are significantly affected by rates of postage, fees for postal services, the classification of mail, or the operations of the Postal Service.</P> <P>(b) <E T="03">Prior approval for outside employment.</E> An employee who wishes to engage in outside employment, either on a paid or unpaid basis, shall obtain the prior written approval of the designated agency ethics official. A request for such approval shall be submitted in writing with sufficient description of the employment to enable the designated agency ethics official to give approval based on a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including paragraph (a) of this section and 5 CFR part 2635.<PRTPAGE P="764"/> </P> <P>(c) <E T="03">Definition of employment.</E> 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 or trustee. Employment does not include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service or civic organizations unless such activities involve the practice of a profession within the meaning of 5 CFR 2636.305(b)(1), including the giving of professional advice, or are for compensation other than reimbursement of expenses.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLVII (1-1-02 Edition)</LRH> <RRH>Federal Trade Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="765"/> <HD SOURCE="HED">CHAPTER XLVII—FEDERAL TRADE COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5701</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Trade Commission</SUBJECT> <PG>767</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="767"/> <EAR>Pt. 5701</EAR> <HD SOURCE="HED">PART 5701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL TRADE COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5701.101</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <SECTNO>5701.102</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 15 U.S.C. 46(g); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803, 2635.808(c).</P> </AUTH> <SECTION> <SECTNO>§ 5701.101</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(5) The written approval of the employee's immediate supervisor.</P> <P>(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.</P> <P>(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.</P> <CITA>[58 FR 30695, May 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 5701.102</SECTNO> <SUBJECT>Fundraising activities.</SUBJECT> <P>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) (<E T="03">i.e.,</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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Federal Trade Commission employee is president of the local branch of her college alumni association. The association is seeking contributions from local businesses. The employee may, during her off-duty hours, seek a contribution from a company that is regulated by the Commission, but not from one that she knows is currently under Commission investigation or is seeking official action by the Commission, does business or seeks to do business with the Commission, or has interests that may be substantially affected by the employee's job. While the Standards of Conduct provide that companies under the agency's enforcement <PRTPAGE P="768"/>authority generally are prohibited sources of an employee's fundraising in a personal capacity, § 5701.102 provides that employees of the FTC may seek charitable contributions from an entity that is a prohibited source only because its activities are subject to agency regulation.</P> </EXAMPLE> <CITA>[63 FR 43070, Aug. 12, 1998]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. XLVIII (1-1-02 Edition)</LRH> <RRH>Nuclear Regulatory Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="769"/> <HD SOURCE="HED">CHAPTER XLVIII—NUCLEAR REGULATORY COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>5801</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Nuclear Regulatory Commission</SUBJECT> <PG>771</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="771"/> <EAR>Pt. 5801</EAR> <HD SOURCE="HED">PART 5801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NUCLEAR REGULATORY COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5801.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5801.102</SECTNO> <SUBJECT>Prohibited securities.</SUBJECT> <SECTNO>5801.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 42 U.S.C. 2201, 5841; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306, 5 CFR 2635.105, 2635.403, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 17459, Apr. 13, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5801.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5801.102</SECTNO> <SUBJECT>Prohibited securities.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> 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.</P> <P>(b) <E T="03">Prohibited securities list.</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(3) Entities manufacturing or selling nuclear power or test reactors;</P> <P>(4) Architectural-engineering companies providing services relating to a nuclear power reactor;</P> <P>(5) Applicants for, or holders of, a certified standard design;</P> <P>(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;</P> <P>(7) The parent corporation of any subsidiary described in paragraphs (b)(1)-(b)(6) of this section; and</P> <P>(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.</P> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) A covered employee means:</P> <P>(i) A member of the Commission;</P> <P>(ii) The Inspector General of the NRC;</P> <P>(iii) A member of the Senior Executive Service (SES);</P> <P>(iv) An employee who holds a non-SES position above GG-15; and</P> <P>(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</P> <P>(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 <PRTPAGE P="772"/>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.</P> <P>(d) <E T="03">Divestiture and reporting of prohibited securities</E>—(1) <E T="03">Newly covered employees.</E> Upon promotion or other appointment to a position subject to the securities prohibition of this section, a covered employee shall sign a certification:</P> <P>(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</P> <P>(ii) Stating that the employee, or the spouse or minor child of the employee, does not own any prohibited securities.</P> <FP>Except as provided in paragraph (d)(4) of this section, the newly covered employee, or the spouse or minor child of the employee, shall divest prohibited securities within 90 days after appointment to the covered position.</FP> <P>(2) <E T="03">Newly prohibited securities.</E> 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.</P> <P>(3) <E T="03">Securities acquired without specific intent.</E> 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.</P> <P>(4) <E T="03">Extension of period to divest.</E> 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.</P> <P>(5) <E T="03">Disqualification pending divestiture.</E> 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.</P> <P>(6) <E T="03">Tax treatment of gain on divested securities.</E> 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.</P> <P>(e) <E T="03">Waivers.</E> (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:</P> <P>(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;</P> <P>(ii) Legal constraints prevent divestiture; or</P> <P>(iii) For a special Government employee, divestiture would result in substantial financial hardship.</P> <P>(2) Where a waiver has been granted under paragraph (e)(1) of this section, the covered employee must disqualify <PRTPAGE P="773"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 5801.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) An employee, other than a special Government employee, shall obtain written authorization before engaging in compensated outside employment with:</P> <P>(1) A Commission licensee;</P> <P>(2) An applicant for a Commission license;</P> <P>(3) An organization directly engaged in activities in the commercial nuclear field;</P> <P>(4) A Commission contractor;</P> <P>(5) A Commission supplier;</P> <P>(6) An applicant for or holder of a license issued by a State pursuant to an agreement between the Commission and the State;</P> <P>(7) A trade association which represents clients concerning nuclear matters; or</P> <P>(8) A law firm or other organization which is participating in an NRC proceeding or which regularly represents itself or clients before the NRC.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. L (1-1-02 Edition)</LRH> <RRH>Department of Transportation</RRH> <TOC> <TOCHD> <PRTPAGE P="775"/> <HD SOURCE="HED">CHAPTER L—DEPARTMENT OF TRANSPORTATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6001</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Transportation</SUBJECT> <PG>777</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="777"/> <EAR>Pt. 6001</EAR> <HD SOURCE="HED">PART 6001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION</HD> <CONTENTS> <SECTNO>6001.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>6001.102</SECTNO> <SUBJECT>Agency designees.</SUBJECT> <SECTNO>6001.103</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <SECTNO>6001.104</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); 49 U.S.C. 322; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.807.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 39903, July 31, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6001.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6001.102</SECTNO> <SUBJECT>Agency designees.</SUBJECT> <P>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):</P> <P>(a) The Designated Agency Ethics Official;</P> <P>(b) The Alternate Agency Ethics Official;</P> <P>(c) The Deputy Ethics Officials; and</P> <P>(d) As designated by Deputy Ethics Officials, legal counsel in regional and other offices.</P> </SECTION> <SECTION> <SECTNO>§ 6001.103</SECTNO> <SUBJECT>Designation of separate agency components.</SUBJECT> <P>(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:</P> <P>(1) Federal Aviation Administration;</P> <P>(2) Federal Highway Administration;</P> <P>(3) Federal Railroad Administration;</P> <P>(4) Federal Transit Administration;</P> <P>(5) Maritime Administration;</P> <P>(6) National Highway Traffic Safety Administration;</P> <P>(7) Saint Lawrence Seaway Development Corporation; and</P> <P>(8) United States Coast Guard.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6001.104</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Federal Railroad Administration (FRA).</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Federal Aviation Administration (FAA).</E> 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.</P> <P>(c) <E T="03">Exception.</E> 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 <PRTPAGE P="778"/>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.</P> <P>(d) <E T="03">Waiver.</E> 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.</P> <P>(e) <E T="03">Period to divest.</E> 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.</P> <CITA>[61 FR 39903, July 31, 1996, as amended at 66 FR 60140, Dec. 3, 2001]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LII (1-1-02 Edition)</LRH> <RRH>Export-Import Bank of U.S.</RRH> <TOC> <TOCHD> <PRTPAGE P="779"/> <HD SOURCE="HED">CHAPTER LII—EXPORT-IMPORT BANK OF THE UNITED STATES</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6201</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Export-Import Bank of the United States</SUBJECT> <PG>781</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="781"/> <EAR>Pt. 6201</EAR> <HD SOURCE="HED">PART 6201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXPORT-IMPORT BANK OF THE UNITED STATES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6201.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>6201.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>6201.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 17626, Apr. 7, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6201.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6201.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> Except as provided in paragraph (f) of this section, no covered employee or covered family member shall own securities issued by an exporter or lending institution appearing on the List of Designated Entities under paragraph (b) of this section.</P> <P>(b) <E T="03">List of Designated Entities—</E>(1) <E T="03">Compilation of list of designated entities.</E> Once each fiscal year, the designated agency ethics official (DAEO) shall compile a List of Designated Entities based upon the following criteria:</P> <P>(i) All exporters that, during the preceding two fiscal years, exported an aggregate dollar volume of goods and services supported by the Bank in excess of four hundred million dollars ($400,000,000);</P> <P>(ii) All exporters that, during the preceding two fiscal years, had seven (7) or more aggregate export transactions supported by the Bank;</P> <P>(iii) All lending institutions that, during the preceding two fiscal years, financed an aggregate dollar volume of export transactions supported by the Bank in excess of one hundred fifty million dollars ($150,000,000); and</P> <P>(iv) All lending institutions that, during the preceding two fiscal years, financed twenty (20) or more aggregate export transactions supported by the Bank.</P> <P>(2) <E T="03">Distribution of list of designated entities.</E> The DAEO shall distribute the List of Designated Entities to all covered employees promptly after it is compiled, and shall ensure that each new covered employee receives a copy of the current List of Designated Entities promptly after becoming a covered employee.</P> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Covered employee</E> means an employee of the Bank, other than a special Government employee, who is required to file a public or a confidential financial disclosure report (Form SF 278 or SF 450) under 5 CFR part 2634.</P> <P>(2) <E T="03">Covered family member</E> means the spouse or minor child of a covered employee.</P> <P>(3) <E T="03">Securities</E> means all financial interests evidenced by debt or equity instruments. The term includes, without limitation, bonds, debentures, notes, securitized assets and commercial paper, as well as all types of preferred and common stock. The term encompasses both present 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. It does not include:</P> <P>(i) An 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 ten percent (10%) of the value of its portfolio in securities of <PRTPAGE P="782"/>any one entity on the List of Designated Entities and the covered employee or covered family member neither exercises control over nor has the ability to exercise control over the financial interests held in the fund; or</P> <P>(ii) Certificates of deposit, checking accounts, savings accounts and other deposit accounts.</P> <P>(4) <E T="03">Support by the Bank</E> means:</P> <P>(i) Direct loans made by the Bank;</P> <P>(ii) Guarantees by the Bank of loans from lending institutions; or</P> <P>(iii) Insurance policies issued by the Bank under any of its insurance programs.</P> <P>(d) <E T="03">Restrictions arising from third party relationships.</E> If a covered employee has knowledge that any of the entities described in paragraphs (d)(1) through (d)(6) of this section own any security that a covered employee or covered family member would be prohibited from owning by paragraph (a) of this section, the covered employee shall promptly report such interests to the DAEO. The DAEO may require the covered 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 of this part, including an appearance of misuse of position or loss of impartiality. This paragraph applies to any:</P> <P>(1) Partnership in which the covered employee or covered family member is a general partner;</P> <P>(2) Partnership in which the covered employee and/or covered family member(s) in the aggregate holds more than a ten percent limited partnership interest;</P> <P>(3) Closely held corporation in which the covered employee and/or covered family member(s) in the aggregate holds more than a ten percent (10%) equity interest;</P> <P>(4) Trust in which the covered employee or covered family member has a legal or beneficial interest;</P> <P>(5) Investment club or similar informal investment arrangement between the covered employee or covered family member and others; or</P> <P>(6) Other entity if the covered employee and/or covered family member(s) in the aggregate holds more than a ten percent (10%) equity interest.</P> <P>(e) <E T="03">Period to Divest.</E> Unless a waiver is granted pursuant to paragraph (f) of this section, a covered employee or covered family member who owns securities of a designated entity as of the date that the initial List of Designated Entities is circulated to covered employees, the date that a revised List of Designated Entities is circulated to covered employees, or the first day that an individual becomes a covered employee, shall divest the securities within six (6) months of such date. The DAEO may, in certain cases of unusual hardship, grant a written extension of up to an additional six (6) months within which a covered employee or covered family member must divest securities of a designated entity. Notwithstanding the grant of an extension, a covered employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502. A covered employee or covered family member who must divest securities pursuant to this section should refer to section 1043 of the Internal Revenue Code and to the regulations of subpart J of 5 CFR part 2634 under which the covered employee or covered family member may be eligible to defer the recognition of taxable gain on the sale or other divestiture.</P> <P>(f) <E T="03">Waivers.</E> The DAEO may grant a written waiver from the securities 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 Bank 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, a covered employee remains subject to the disqualification requirements of 5 CFR 2635.402 and 2635.502.<PRTPAGE P="783"/> </P> <P>(g) <E T="03">Agency determinations of substantial conflict.</E> Nothing in this section prevents the Bank from prohibiting or restricting an individual Bank employee from acquiring or holding a financial interest or a class of financial interests based upon the Bank's determination of substantial conflict pursuant to 5 CFR 2635.403(b).</P> </SECTION> <SECTION> <SECTNO>§ 6201.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Standard for approval.</E> 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.</P> <P>(c) <E T="03">Definition of employment.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LIII (1-1-02 Edition)</LRH> <RRH>Department of Education</RRH> <TOC> <TOCHD> <PRTPAGE P="785"/> <HD SOURCE="HED">CHAPTER LIII—DEPARTMENT OF EDUCATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6301</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Education</SUBJECT> <PG>787</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="787"/> <EAR>Pt. 6301</EAR> <HD SOURCE="HED">PART 6301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF EDUCATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6301.101</SECTNO> <SUBJECT> General.</SUBJECT> <SECTNO>6301.102</SECTNO> <SUBJECT> Prior approval for certain outside activities.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SECTION> <SECTNO>§ 6301.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> <CITA>[60 FR 5817, Jan. 30, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 6301.102</SECTNO> <SUBJECT>Prior approval for certain outside activities.</SUBJECT> <P>(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:</P> <P>(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:</P> <P>(i) In which the United States is a party;</P> <P>(ii) In which the United States has a direct and substantial interest; or</P> <P>(iii) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.</P> <P>(2) Except as provided in paragraph (b)(2) of this section:</P> <P>(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</P> <P>(ii) Engaging in teaching, speaking, consulting, or writing that relates to the employee's official duties.</P> <P>(b) Unless the services are to be provided for compensation, including reimbursement for transportation, lodging and meals:</P> <P>(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</P> <P>(2) Prior approval is not required by paragraph (a)(2) of this section:</P> <P>(i) To participate in the activities of a:</P> <P>(A) Social, fraternal, civic, or political entity;</P> <P>(B) Religious entity that is not a prohibited source; or</P> <P>(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</P> <P>(ii) To provide direct instructional, social, or medical services to students or other individuals.</P> <P>(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.</P> <P>(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.</P> <P>(e) For the purposes of this section:</P> <P>(1) “Active participant” has the meaning set forth in 5 CFR 2635.502(b)(1)(v).</P> <P>(2) “Prohibited source” has the meaning set forth in 5 CFR 2635.203(d).</P> <P>(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:</P> <P>(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;</P> <P>(ii) A situation in which an employee has been asked to participate in an activity by a person or organization that <PRTPAGE P="788"/>has interests that may be substantially affected by the performance or nonperformance of the employee's official duties;</P> <P>(iii) Activities that convey information derived from nonpublic information gained during the course of Government employment; and</P> <P>(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. </P> <EXAMPLE> <HD SOURCE="HED">Example 1:</HD> <P>A Department employee witnessed an automobile accident involving two privately owned cars on her way to work. Some time later she is served with a subpoena at home to appear in Federal court as a fact witness on behalf of the plaintiff, who was injured in the car accident, in a civil case alleging negligence. The Department employee is not required to obtain prior approval to comply with the subpoena because this civil case is not a matter in which the United States is a party or has a direct and substantial interest.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 2:</HD> <P>A Department employee would like to prepare Federal tax returns for clients on his own time. He is required to obtain prior approval to participate in this outside activity because it involves the provision of personal services in the preparation of materials for submission to the Internal Revenue Service, an executive branch agency.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 3:</HD> <P>Arlene, a Department employee, has been asked by a Department colleague to represent him, without compensation, in an equal employment opportunity complaint he filed alleging that his supervisor failed to promote him because he is over 40 years old. Arlene is not required to obtain prior approval under this regulation before providing such representation because it involves services for another Department of Education employee in connection with a personnel administration proceeding. However, under 18 U.S.C. section 205, she may only provide such representation if it is not inconsistent with faithful performance of her duties.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 4:</HD> <P>A local school board offers a Department employee a paid position as a referee of high school football games. The employee must seek prior approval to accept this outside employment because the local school board is a prohibited source. If, on the other hand, the employee volunteered to coach soccer, without pay, in a sports program sponsored by the local school board, no prior approval is required because she would be engaging in direct instructional services to students.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 5:</HD> <P>A Department program specialist in the Office of Elementary and Secondary Education actively pursues an interest in painting. The community art league, where he has taken evening art classes, asks him if he would be interested in teaching an evening course on painting with acrylics. The employee is not required to obtain approval prior to accepting this employment. The community art league is not a prohibited source, and the subject matter of the course is not related to his duties.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 6:</HD> <P>A Department employee helps organize local tennis tournaments. A national tennis magazine calls and asks her to write a monthly column about recreational tennis in her area. The magazine offers to pay the employee $500 for each column. The subject matter is not related to her duties, and the employee is not required to seek prior approval to write this column. However, the employee is still subject to all of the Standards of Conduct and other laws that may apply, including the limitation on outside earned income for certain noncareer employees, as well as the prohibition on using Government resources to pursue outside activities and employment.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example 7:</HD> <P>An employee's elderly parent is retired and receiving Social Security benefits. The employee would like to represent his parent in an administrative hearing before the Social Security Administration concerning a dispute over benefits. The employee must obtain prior approval to undertake the activity of representing his parent because he is providing services to his parent in a particular matter in which the United States is a party. Moreover, the services will involve representation before a Federal agency.</P> </EXAMPLE> <CITA>[60 FR 5817, Jan. 30, 1995]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LIV (1-1-02 Edition)</LRH> <RRH>Environmental Protection Agency</RRH> <TOC> <TOCHD> <PRTPAGE P="789"/> <HD SOURCE="HED">CHAPTER LIV—ENVIRONMENTAL PROTECTION AGENCY</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6401</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Environmental Protection Agency</SUBJECT> <PG>791</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="791"/> <EAR>Pt. 6401</EAR> <HD SOURCE="HED">PART 6401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6401.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>6401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>6401.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 42 U.S.C. 203(c)(1); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 40502, Aug. 2, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6401.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) The following employees are prohibited from holding the types of financial interests described in this section:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) <E T="03">Direct financial interest</E> 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.</P> <P>(B) <E T="03">Indirect financial interest</E> 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="792"/>more than 20% in any particular economic or geographic sector.</P> <P>(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.</P> <P>(i) The statutory prohibitions in this section are enforceable by an action for a court order to restrain violations.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6401.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Requirement for approval</E>. An employee shall obtain approval from his or her Deputy Ethics Official before engaging in outside employment, with or without compensation, that involves:</P> <P>(1) Consulting services;</P> <P>(2) The practice of a profession as defined in 5 CFR 2636.305(b)(1);</P> <P>(3) Holding State or local public office;</P> <P>(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</P> <P>(5) The provision of services to or for:</P> <P>(i) An EPA contractor or subcontractor;</P> <P>(ii) The holder of an EPA assistance agreement or subagreement; or</P> <P>(iii) A firm regulated by the EPA office or Region in which the employee serves.</P> <P>(b) <E T="03">Form and content of request.</E> 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:</P> <P>(1) Employee's name, title and grade;</P> <P>(2) Nature of the outside activity, including a full description of the services to be performed and the amount of compensation expected;</P> <P>(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);</P> <P>(4) The estimated time to be devoted to the activity;</P> <P>(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);</P> <P>(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 <PRTPAGE P="793"/>in connection with the outside employment;</P> <P>(7) The basis for compensation (e.g., fee, per diem, per annum, etc.);</P> <P>(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</P> <P>(9) An identification of any EPA assistance agreements or contracts held by a person to or for whom services would be provided.</P> <P>(c) <E T="03">Standard for approval.</E> 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.</P> <P>(d) <E T="03">Keeping the record up-to-date.</E> 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.</P> <P>(e) <E T="03">Definition of employment.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LVII (1-1-02 Edition)</LRH> <RRH>General Services Administration</RRH> <TOC> <TOCHD> <PRTPAGE P="795"/> <HD SOURCE="HED">CHAPTER LVII—GENERAL SERVICES ADMINISTRATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6701</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the General Services Administration</SUBJECT> <PG>797</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="797"/> <EAR>Pt. 6701</EAR> <HD SOURCE="HED">PART 6701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE GENERAL SERVICES ADMINISTRATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6701.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>6701.102</SECTNO> <SUBJECT>Prohibition on solicited sales to subordinates.</SUBJECT> <SECTNO>6701.103</SECTNO> <SUBJECT>Prohibited purchases of property sold by GSA.</SUBJECT> <SECTNO>6701.104</SECTNO> <SUBJECT>Prohibited purchases of real estate by certain GSA employees involved in the acquisition or disposal of real estate.</SUBJECT> <SECTNO>6701.105</SECTNO> <SUBJECT>Taking or disposing of Government property.</SUBJECT> <SECTNO>6701.106</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <SECTNO>6701.107</SECTNO> <SUBJECT>Reporting waste, fraud, abuse and corruption.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.702, 2635.703, 2635.802, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 56401, Nov. 1, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6701.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6701.102</SECTNO> <SUBJECT>Prohibition on solicited sales to subordinates.</SUBJECT> <P>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:</P> <P>(a) The one-time sale of the employee's personal property or privately owned dwelling; or</P> <P>(b) Sales made in the course of outside employment of GSA employees in retail stores and under other circumstances not involving solicitation.</P> </SECTION> <SECTION> <SECTNO>§ 6701.103</SECTNO> <SUBJECT>Prohibited purchases of property sold by GSA.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> 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.</P> <P>(b) <E T="03">Exception.</E> 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.</P> <P>(c) <E T="03">Waiver.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 6701.104</SECTNO> <SUBJECT>Prohibited purchases of real estate by certain GSA employees involved in the acquisition or disposal of real estate.</SUBJECT> <P>(a) <E T="03">General prohibition.</E> 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.</P> <P>(b) <E T="03">Exception.</E> 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.<PRTPAGE P="798"/> </P> <P>(c) <E T="03">Waiver.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 6701.105</SECTNO> <SUBJECT>Taking or disposing of Government property.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6701.106</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Approval requirement.</E> 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.</P> <P>(b) <E T="03">Form of request for approval.</E> A request for approval of outside employment shall include, at a minimum, the following:</P> <P>(1) The employee's name, location and occupational title;</P> <P>(2) A brief description of the employee's official duties;</P> <P>(3) The nature of the outside employment, including a full description of the specific duties or services to be performed;</P> <P>(4) The name and address of the prospective outside employer for which work will be done; and</P> <P>(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.</P> <P>(c) <E T="03">Standard for approval.</E> 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.</P> <P>(d) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Employment</E> 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.</P> <P>(2) <E T="03">Prohibited source</E> has the meaning in 5 CFR 2635.203(d), and includes any person who:</P> <P>(i) Is seeking official action by GSA;</P> <P>(ii) Does business or seeks to do business with GSA;</P> <P>(iii) Conducts activities regulated by GSA;</P> <P>(iv) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties; or</P> <P>(v) Is an organization a majority of whose members are described in paragraphs (d)(2)(i) through (iv) of this section.</P> <NOTE> <HD SOURCE="HED">Note to</HD> <P>§ 6701.106: An employee may obtain advice from an agency ethics official as to whether a potential employer is a prohibited source.</P> </NOTE> </SECTION> <SECTION> <PRTPAGE P="799"/> <SECTNO>§ 6701.107</SECTNO> <SUBJECT>Reporting waste, fraud, abuse and corruption.</SUBJECT> <P>GSA employees shall disclose immediately any waste, fraud, abuse, and corruption to appropriate authorities, such as the Office of Inspector General.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LVIII (1-1-02 Edition)</LRH> <RRH>Board of Governors of the Federal Reserve System</RRH> <TOC> <TOCHD> <PRTPAGE P="801"/> <HD SOURCE="HED">CHAPTER LVIII—BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6801</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Board of Governors of the Federal Reserve System</SUBJECT> <PG>803</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="803"/> <EAR>Pt. 6801</EAR> <HD SOURCE="HED">PART 6801—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6801.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>6801.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>6801.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>6801.104</SECTNO> <SUBJECT>Speculative dealings. [Reserved]</SUBJECT> <SECTNO>6801.105</SECTNO> <SUBJECT>Prohibition on preferential terms from regulated institutions.</SUBJECT> <SECTNO>6801.106</SECTNO> <SUBJECT>Prohibition on supervisory employees’ seeking credit from institutions involved in work assignments.</SUBJECT> <SECTNO>6801.107</SECTNO> <SUBJECT>Disqualification of supervisory employees from matters involving lenders.</SUBJECT> <SECTNO>6801.108</SECTNO> <SUBJECT>Restrictions resulting from employment of family members.</SUBJECT> <SECTNO>6801.109</SECTNO> <SUBJECT>Prior approval for compensated outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 12 U.S.C. 244, 248; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p.215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p.306; 5 CFR 2635.105, 2635.403(a), 2635.502, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 53828, Oct. 16, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6801.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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”).</P> </SECTION> <SECTION> <SECTNO>§ 6801.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Affiliate</E> means any company that controls, is controlled by, or is under common corporate control with another company.</P> <P>(b) (1) <E T="03">Debt or equity interest</E> 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.</P> <P>(2) <E T="03">Debt or equity interest</E> 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.</P> <P>(c) <E T="03">Dependent child</E> means an employee's son, daughter, stepson, or stepdaughter if:</P> <P>(1) Unmarried, under the age of 21, and living in the employee's household; or</P> <P>(2) Claimed as a “dependent” on the employee's income tax return.</P> <P>(d) <E T="03">Depository institution</E> means a bank, trust company, thrift institution, or any institution that accepts deposits, including a bank chartered under the laws of a foreign country.</P> <P>(e) <E T="03">Employee</E> means an officer or employee of the Board, including a Board member. It does not include a special Government employee.</P> <P>(f) <E T="03">Primary government securities dealer</E> means a firm with which the Federal Reserve conducts its open market operations.</P> <P>(g) <E T="03">Supervisory employee</E> means an employee who is a member of the professional staff at the Board with responsibilities in the area of banking supervision and regulation.</P> </SECTION> <SECTION> <SECTNO>§ 6801.103</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Prohibited interests.</E> 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:</P> <P>(1) A depository institution or any of its affiliates; or</P> <P>(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.</P> <P>(b) <E T="03">Exceptions.</E> 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:</P> <P>(1) <E T="03">Nonbanking holding companies.</E> A publicly traded holding company that:</P> <P>(i) Owns a bank and either the holding company or the bank is exempt <PRTPAGE P="804"/>under the Bank Holding Company Act of 1956, 12 U.S.C. 1841 <E T="03">et seq.,</E> (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;</P> <P>(ii) Owns a thrift and its predominant activity is not the ownership or operation of banks and thrifts; or</P> <P>(iii) Owns a primary government securities dealer and its predominant activity is not the ownership or operation of banks, thrifts or securities firms.</P> <P>(2) <E T="03">Mutual funds.</E> A publicly traded or publicly available mutual fund or other collective investment fund if:</P> <P>(i) The fund does not have a stated policy of concentration in the financial services industry; and</P> <P>(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.</P> <P>(3) <E T="03">Pension plans.</E> A widely held, diversified pension or other retirement fund that is administered by an independent trustee.</P> <P>(c) <E T="03">Waivers.</E> 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:</P> <P>(1) Extenuating circumstances exist, such as that ownership or control was acquired:</P> <P>(i) Prior to Federal Reserve employment;</P> <P>(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</P> <P>(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;</P> <P>(2) The employee makes a prompt and complete written disclosure of the interest;</P> <P>(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</P> <P>(4) Granting the waiver would be consistent with Division policy.</P> <P>(d) <E T="03">Disqualification.</E> 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.</P> <CITA>[61 FR 53828, Oct. 16, 1996, as amended at 64 FR 68616, Dec. 8, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 6801.104</SECTNO> <RESERVED>Speculative dealings. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 6801.105</SECTNO> <SUBJECT>Prohibition on preferential terms from regulated institutions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6801.106</SECTNO> <SUBJECT>Prohibition on supervisory employees’ seeking credit from institutions involved in work assignments.</SUBJECT> <P>(a) <E T="03">Prohibition on supervisory employee's seeking credit.</E> (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:</P> <P>(i) The supervisory employee is assigned to the matter; or</P> <P>(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.<PRTPAGE P="805"/> </P> <P>(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.</P> <P>(b) <E T="03">Credit sought by spouse and other related persons.</E> 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:</P> <P>(1) The employee's spouse or dependent child;</P> <P>(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</P> <P>(3) A partnership if the employee, or the employee's spouse or dependent child is a general partner.</P> <P>(c) <E T="03">Exception.</E> 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.</P> <P>(d) <E T="03">Waivers.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 6801.107</SECTNO> <SUBJECT>Disqualification of supervisory employees from matters involving lenders.</SUBJECT> <P>(a) <E T="03">Disqualification required.</E> 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:</P> <P>(1) The employee;</P> <P>(2) The spouse or dependent child of the employee;</P> <P>(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</P> <P>(4) A partnership if the employee or the employee's spouse or dependent child is a general partner.</P> <P>(b) <E T="03">Exceptions</E>—(1) <E T="03">Consumer credit on nonpreferential terms.</E> 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:</P> <P>(i) Credit extended through the use of a credit card;</P> <P>(ii) Credit extended through use of an overdraft protection line;</P> <P>(iii) Amortizing consumer credit (e.g., home mortgage loans, automobile loans); and</P> <P>(iv) Credit extended under home equity lines of credit.</P> <P>(2) <E T="03">Indebtedness of a spouse or dependent child.</E> 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:</P> <P>(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</P> <P>(ii) The employee has no knowledge of the identity of the lender.<PRTPAGE P="806"/> </P> <P>(c) <E T="03">Waivers.</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 6801.108</SECTNO> <SUBJECT>Restrictions resulting from employment of family members.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 6801.109</SECTNO> <SUBJECT>Prior approval for compensated outside employment.</SUBJECT> <P>(a) <E T="03">Approval requirement.</E> 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.</P> <P>(b) <E T="03">Standard for approval.</E> 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.</P> <P>(c) <E T="03">Definition of employment.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LIX (1-1-02 Edition)</LRH> <RRH>National Aeronautics and Space Administration</RRH> <TOC> <TOCHD> <PRTPAGE P="807"/> <HD SOURCE="HED">CHAPTER LIX—NATIONAL AERONAUTICS AND SPACE ADMINISTRATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>6901</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the National Aeronautics and Space Administration</SUBJECT> <PG>809</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="809"/> <EAR>Pt. 6901</EAR> <HD SOURCE="HED">PART 6901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>6901.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>6901.102</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>6901.103</SECTNO> <SUBJECT>Outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 42 U.S.C. 2473(c)(1); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 49336, Sept. 28, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 6901.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6901.102</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 6901.103</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Key official</E> means an officer or employee, other than a special Government employee, who is required, in accordance with 5 CFR part 2634, to file a public financial disclosure report or who holds a position as astronaut, astronaut candidate, procurement officer, or chief counsel.</P> <P>(2) <E T="03">Outside employment</E> 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.</P> <P>(3) <E T="03">Profession</E> has the meaning set forth in 5 CFR 2636.305(b)(1).</P> <P>(4) <E T="03">Prohibited source</E> has the meaning set forth in 5 CFR 2635.203(d).</P> <P>(c) <E T="03">Prohibited outside employment.</E> A NASA employee, other than a special Government employee, shall not engage in outside employment with the following:</P> <P>(1) A NASA contractor, subcontractor, or grantee in connection with work performed by that entity for NASA; or</P> <P>(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.</P> <P>(d) <E T="03">Prior approval for outside employment.</E> A NASA employee, other than a special Government employee, shall request and obtain administrative approval before engaging in the following outside employment activities:</P> <P>(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 nonwork related professional pursuit;</P> <P>(2) The practice of a profession or the rendering of professional consulting services;</P> <P>(3) The management or conduct of a business in which the employee or the employee's spouse has an ownership interest;<PRTPAGE P="810"/> </P> <P>(4) Holding a State or local public office, whether by election or appointment;</P> <P>(5) Employment with a NASA contractor, subcontractor, or grantee;</P> <P>(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;</P> <P>(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</P> <P>(8) Employment which involves the practice of a NASA-owned invention.</P> <P>(e) <E T="03">Prior approval requested by employee.</E> Even when not required by paragraph (d) of this section, a NASA employee who is in doubt as to the propriety of outside employment or another outside activity may request prior approval using the procedures set forth in this section.</P> <P>(f) <E T="03">Form of request for approval.</E> (1) A request for administrative approval of outside employment shall be in writing and shall include the following:</P> <P>(i) The employee's name and occupational title;</P> <P>(ii) The nature of the employment, including a full description of the specific duties or services to be performed;</P> <P>(iii) The name and address of the person or organization for which work will be done;</P> <P>(iv) 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;</P> <P>(v) 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;</P> <P>(vi) The amount of compensation, if any, to be received; and</P> <P>(vii) 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.</P> <P>(2) Locally prepared forms providing for collection of the information required by paragraph (f)(1) of this section may be used for submission of the request and subsequent approval or disapproval.</P> <P>(g) <E T="03">Approval of requests</E>—(1) <E T="03">Key Officials.</E> The Headquarters Associate Administrator for Human Resources and Education has authority to approve requests for approval of outside employment submitted by NASA Key Officials. Prior to approval or disapproval, Key Official requests shall be submitted to the appropriate Official-in-charge of the Headquarters Office or to the Director of the appropriate Field or Component Installation, who shall add a recommendation and forward the request through the General Counsel to the Associate Administrator.</P> <P>(2) <E T="03">Employees other than Key Officials.</E> The appropriate Official-in-Charge of a Headquarters Office, or the Director of a Field or Component Installation, or a person designated to act for the Director, has authority to approve requests for approval of outside employment submitted by employees other than NASA Key Officials. Prior to approval or disapproval:</P> <P>(i) Requests by NASA Headquarters personnel shall be submitted to and reviewed by the employee's supervisor and by the Office of the Associate General Counsel (General); and</P> <P>(ii) Requests by Field or Component Installation personnel shall be submitted to and reviewed by the employee's supervisor and by a Deputy Ethics Official or designee.</P> <P>(3) <E T="03">Standard for approval.</E> 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.</P> <P>(4) <E T="03">Scope of approval.</E> Approval will be for a period not to exceed 3 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.</P> <P>(5) <E T="03">Notification of approval or disapproval.</E> Employees will be notified in writing of the action taken on their requests.<PRTPAGE P="811"/> </P> <P>(6) <E T="03">Records of requests.</E> All requests for approval will be maintained in the local Human Resources/Personnel Office for the duration of the requester's NASA employment.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LX (1-1-02 Edition)</LRH> <RRH>United States Postal Service</RRH> <TOC> <TOCHD> <PRTPAGE P="813"/> <HD SOURCE="HED">CHAPTER LX—UNITED STATES POSTAL SERVICE</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7001</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the United States Postal Service</SUBJECT> <PG>815</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="815"/> <EAR>Pt. 7001</EAR> <HD SOURCE="HED">PART 7001—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE UNITED STATES POSTAL SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7001.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7001.102</SECTNO> <SUBJECT>Restrictions on outside employment and business activities.</SUBJECT> <SECTNO>7001.103</SECTNO> <SUBJECT>Statutory prohibition against interests in contracts to carry mail and acting as agent for contractors.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 39 U.S.C. 401; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.802, and 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 47240, Sept. 11, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7001.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7001.102</SECTNO> <SUBJECT>Restrictions on outside employment and business activities.</SUBJECT> <P>(a) <E T="03">Prohibited outside employment and business activities</E>. No Postal Service employee shall:</P> <P>(1) Engage in outside employment or business activities with or for a person, including oneself, engaged in:</P> <P>(i) The manufacture of any uniform or other product required by the Postal Service for use by its employees or customers;</P> <P>(ii) The transportation of mail under Postal Service contract to or from the postal facility at which the employee works, or to or from a postal facility within the delivery area of a post office in which the employee works;</P> <P>(iii) 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; or</P> <P>(iv) The operation of a commercial mail receiving agency registered with the Postal Service, or the delivery outside the mails of any type of mailable matter, except daily newspapers; or</P> <P>(2) Engage in any sales activity, including the solicitation of business or the receipt of orders, for oneself or any other person, while on duty or in uniform, or at any postal facility.</P> <P>(b) <E T="03">Prior approval for outside employment and business activities</E>—(1) <E T="03">Requirement for approval</E>. A Postal Service employee shall obtain approval, in accordance with paragraph (b)(2) of this section, prior to:</P> <P>(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; or</P> <P>(ii) Engaging in outside employment or business activities, with or for a person, including oneself, whose interests are:</P> <P>(A) Substantially dependent upon, or potentially affected to a significant degree by, postal rates, fees, or classifications; or</P> <P>(B) Substantially dependent upon providing goods or services to, or for use in connection with, the Postal Service.</P> <P>(2) <E T="03">Submission and contents of request for approval</E>. An employee who wishes to engage in outside employment or business activities for which prior approval is required by paragraph (b)(1) of this section shall submit a written request for approval to the Postal Service Ethical Conduct Officer or appropriate delegate. 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:<PRTPAGE P="816"/> </P> <P>(i) A brief description of the employee's official duties;</P> <P>(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;</P> <P>(iii) The type of employment or business activities in which the outside employer, if any, is engaged;</P> <P>(iv) The type of services to be performed by the employee in connection with the outside employment or business activities;</P> <P>(v) A description of the employee's official dealings, if any, with the outside employer on behalf of the Postal Service; and</P> <P>(vi) Any additional information requested by the Ethical Conduct Officer or delegate that is needed to determine whether approval should be granted.</P> <P>(3) <E T="03">Standard for approval</E>. The approval required by paragraph (b)(1) of this section shall be granted only upon a determination that the outside employment or business activity 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.</P> <P>(c) <E T="03">Definitions</E>. For purposes of this section:</P> <P>(1) <E T="03">Outside employment or business activity</E> 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.</P> <P>(2) <E T="03">A person having interests substantially dependent upon, or potentially affected to a significant degree by, postal rates, fees, or classifications</E> includes a person:</P> <P>(i) Primarily engaged in the business of publishing or distributing a publication mailed at second-class rates of postage;</P> <P>(ii) Primarily engaged in the business of sending advertising, promotional, or other material on behalf of other persons through the mails;</P> <P>(iii) Engaged in a business that depends substantially upon the mails for the solicitation or receipt of orders for, or the delivery of, goods or services; or</P> <P>(iv) Who is, or within the past 4 years has been, a party to a proceeding before the Postal Rate Commission.</P> <P>(3) <E T="03">A person having interests substantially dependent upon providing goods or services to or for use in connection with the Postal Service</E> includes a person:</P> <P>(i) Providing goods or services under contract with the Postal Service that can be expected to provide revenue exceeding $100,000 over the term of the contract and that provides five percent or more of the person's gross income for the person's current fiscal year; or</P> <P>(ii) Substantially engaged in the business of preparing items for others for mailing through the Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 7001.103</SECTNO> <SUBJECT>Statutory prohibition against interests in contracts to carry mail and acting as agent for contractors.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXI (1-1-02 Edition)</LRH> <RRH>National Labor Relations Board</RRH> <TOC> <TOCHD> <PRTPAGE P="817"/> <HD SOURCE="HED">CHAPTER LXI—NATIONAL LABOR RELATIONS BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7101</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the National Labor Relations Board</SUBJECT> <PG>819</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="819"/> <EAR>Pt. 7101</EAR> <HD SOURCE="HED">PART 7101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL LABOR RELATIONS BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7101.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7101.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <SECTNO>7101.103</SECTNO> <SUBJECT>Standard for accomplishing disqualification, disqualifying financial interests.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 29 U.S.C. 141, 156; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42457, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.402(c), 2635.803, and 2638.202(b).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 6447, Feb. 12, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7101.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Ethics program responsibilities—</E>(1) <E T="03">Designated Agency Ethics Official.</E> The Director, Division of Administration, is designated under 5 CFR 2638.202(b) as the NLRB's Designated Agency Ethics Official with responsibilities that include:</P> <P>(i) Acting as liaison with the Office of Government Ethics with regard to all aspects of the NLRB's ethics program;</P> <P>(ii) Coordinating the NLRB's counseling and advisory service under 5 CFR 2635.107;</P> <P>(iii) Collecting, reviewing, evaluating and, where applicable, making publicly available the public financial disclosure reports filed by NLRB officers and employees;</P> <P>(iv) Upon request, advising NLRB officials responsible for reviewing the Confidential Financial Disclosure Reports filed by designated NLRB employees; and</P> <P>(v) Coordinating and maintaining the NLRB's ethics education program.</P> <P>(2) <E T="03">Alternate Designated Agency Ethics Official.</E> The Deputy Director of Administration is designated under 5 CFR 2638.202(b) as the NLRB's Alternate Designated Agency Ethics Official.</P> <P>(c) <E T="03">Agency designees.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 7101.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">General Requirement</E>. Before engaging in compensated or uncompensated outside employment, an employee must obtain written approval:</P> <P>(1) From the Board of General Counsel to engage in the private practice of law; or</P> <P>(2) From the employee's Chief Counsel, Regional Director, Branch Chief, or the equivalent for outside employment not involving the practice of law.</P> <P>(b) <E T="03">Procedure for requesting approval</E> (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.</P> <P>(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:</P> <P>(i) The name of the employer;</P> <P>(ii) The nature of the legal activity or other work to be performed;</P> <P>(iii) The estimated duration; and</P> <P>(iv) The amount of compensation to be received.</P> <P>(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.</P> <P>(c) <E T="03">Standard for approval</E>. (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.<PRTPAGE P="820"/> </P> <P>(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.</P> <P>(d) <E T="03">Definition of employment</E>. 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.</P> </SECTION> <SECTION> <SECTNO>§ 7101.103</SECTNO> <SUBJECT>Standard for accomplishing disqualification; disqualifying financial interest.</SUBJECT> <P>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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXII (1-1-02 Edition)</LRH> <RRH>Equal Employment Opportunity Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="821"/> <HD SOURCE="HED">CHAPTER LXII—EQUAL EMPLOYMENT OPPORTUNITY COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7201</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Equal Employment Opportunity Commission</SUBJECT> <PG>823</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="823"/> <EAR>Pt. 7201</EAR> <HD SOURCE="HED">PART 7201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7201.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7201.102</SECTNO> <SUBJECT>Prohibited outside employment.</SUBJECT> <SECTNO>7201.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802 and 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 7066, Feb. 26, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7201.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7201.102</SECTNO> <SUBJECT>Prohibited outside employment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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, provide 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.</P> </SECTION> <SECTION> <SECTNO>§ 7201.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Compensated outside employment;</P> <P>(2) The uncompensated practice of law; or</P> <P>(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.</P> <P>(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.</P> <P>(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:<PRTPAGE P="824"/> </P> <P>(1) The employee's participation involves the provision of professional services or advice;</P> <P>(2) The employee will receive compensation other than reimbursement of expenses; or</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXIII (1-1-02 Edition)</LRH> <RRH>Inter-American Foundation</RRH> <TOC> <TOCHD> <PRTPAGE P="825"/> <HD SOURCE="HED">CHAPTER LXIII—INTER-AMERICAN FOUNDATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7301</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Inter-American Foundation</SUBJECT> <PG>827</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="827"/> <EAR>Pt. 7301</EAR> <HD SOURCE="HED">PART 7301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INTER-AMERICAN FOUNDATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7301.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7301.102</SECTNO> <SUBJECT>Prior approval for outside teaching, speaking and writing.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp. p. 306; 5 CFR 2635.105, 2635.803; 5 CFR 2638.202(b).</P> </AUTH> <SECTION> <SECTNO>§ 7301.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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.</P> <P>(b) <E T="03">Designated agency ethics official.</E> 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.</P> <CITA>[59 FR 3772, Jan. 27, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 7301.102</SECTNO> <SUBJECT>Prior approval for outside teaching, speaking and writing.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[59 FR 3772, Jan. 27, 1994]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXV (1-1-02 Edition)</LRH> <RRH>Department of Housing and Urban Development</RRH> <TOC> <TOCHD> <PRTPAGE P="829"/> <HD SOURCE="HED">CHAPTER LXV—DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7501</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Department of Housing and Urban Development</SUBJECT> <PG>831</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="831"/> <EAR>Pt. 7501</EAR> <HD SOURCE="HED">PART 7501—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7501.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>7501.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>7501.103</SECTNO> <SUBJECT>Waivers.</SUBJECT> <SECTNO>7501.104</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>7501.105</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <SECTNO>7501.106</SECTNO> <SUBJECT>Additional rules for certain Department employees involved in the regulation or oversight of Government sponsored enterprises.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.803, 2635.807.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 36248, July 9, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7501.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7501.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part, and otherwise as indicated, the following definitions shall apply:</P> <P> <E T="03">Affiliate</E> means any entity that controls, is controlled by, or is under common control with another entity.</P> <P> <E T="03">Agency designee,</E> as used also in 5 CFR part 2635, means the Associate General Counsel for Human Resources Law, the Assistant General Counsel, Ethics Law Division, and the HUD Field Office Assistant General Counsels; the Inspector General, for employees assigned to the Office of the Inspector General; and the General Counsel, Office of Federal Housing Enterprise Oversight, for employees assigned to the Office of Federal Housing Enterprise Oversight.</P> <P> <E T="03">Agency ethics official,</E> as used also in 5 CFR part 2635, means the agency designees as specified above.</P> <P> <E T="03">Assistance</E> means any contract, grant, loan, subsidy, guarantee, cooperative agreement or other financial assistance under a program administered by the HUD Secretary, and includes “assistance” awarded by the Department that is competitively redistributed to a second tier of applicants or awardees. The term does not include single family mortgage insurance provided under a program administered by the Secretary.</P> <P> <E T="03">Designated Agency Ethics Official</E> (DAEO) means the General Counsel of HUD or the Deputy General Counsel (Operations) in the absence of the General Counsel.</P> <P> <E T="03">Employment</E> means any compensated or uncompensated form of non-Federal employment or business relationship, including self employment, 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.</P> <P> <E T="03">Security</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="832"/> <SECTNO>§ 7501.103</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>The Designated Agency Ethics Official 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 Department's programs 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, such as requiring the employee's execution of a written disqualification statement.</P> </SECTION> <SECTION> <SECTNO>§ 7501.104</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">General requirement.</E> This section applies to all HUD employees except special Government employees who are not “covered employees” as defined in § 7501.106(b)(1) of this part. Except as provided in paragraph (b) of this section, an employee, or an employee's spouse or minor child, shall not directly or indirectly receive, acquire or own:</P> <P>(1) Securities issued by the Federal National Mortgage Association (FNMA) or securities collateralized by FNMA securities;</P> <P>(2) Securities issued by the Federal Home Loan Mortgage Corporation (FHLMC) or securities collateralized by FHLMC securities;</P> <P>(3) Federal Housing Administration debentures or certificates of claim;</P> <P>(4) Stock or another financial interest in a multifamily project or single family dwelling, cooperative unit, or condominium unit, which is owned or subsidized by the Department, or which is subject to a note or mortgage or other security interest insured by the Department, except to the extent that the stock or other interest represents the employee's principal residence. Employees who wish to purchase a Department-held property as a principal residence must adhere to the procedures established by the Assistant Secretary for Housing for the administration of the property disposition program set forth in HUD Handbook 4310.5;</P> <P>(5) 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. However, an employee may receive such a subsidy when:</P> <P>(i) The employee acquires without specific intent, as through gift or inheritance, a property which at the time of acquisition has a tenant receiving such a subsidy, but only as long as that tenant continues to reside in the property;</P> <P>(ii) An incumbent tenant who has not previously received such a subsidy becomes the beneficiary thereof, but only if there is no increase in that tenant's rent upon the commencement of subsidy payments other than normal annual adjustments; or</P> <P>(iii) The tenant is the parent, child, grandchild, or sibling of the employee, but only if there is no increase in that tenant's rent upon the commencement of subsidy payments other than normal annual adjustments; or</P> <P>(6) Any direct creditor interest in a mortgage insured by the Department.</P> <P>(b) <E T="03">Exception to prohibition for certain interests.</E> Nothing in this section prohibits an employee, or the spouse or minor child of an employee, from acquiring, owning, or controlling:</P> <P>(1) An interest 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 resi dential mortgages or securities backed by residential mortgages, except those of the Government National Mortgage Association (GNMA), and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund;</P> <P>(2) A limited partnership interest in a partnership which has at least 5,000 partnership interests, and no more than 25% of the gross value of the partnership interest constitutes projects subject to HUD held or insured mortgages or projects currently receiving the benefit of HUD subsidies; or</P> <P>(3) 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.</P> <P>(c) <E T="03">Reporting and divestiture.</E> An employee must report, in writing, to the <PRTPAGE P="833"/>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 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.</P> </SECTION> <SECTION> <SECTNO>§ 7501.105</SECTNO> <SUBJECT>Outside employment.</SUBJECT> <P>(a) <E T="03">Prohibited outside employment.</E> Subject to the exceptions set forth in paragraph (b) of this section, HUD employees, except special Government employees, shall not engage in:</P> <P>(1) Employment involving active participation in a business dealing with or 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, construction, construction financing, land planning, or real estate development;</P> <P>(2) Employment with a person, other than a State or local government, who engages in lobbying activities concerning Department programs or who is required to report expenditures for lobbying activities or register as a lobbyist under 42 U.S.C. 3537b or similar statutes which require the registration of persons who attempt to influence the decisions of officers or employees of the Department;</P> <P>(3) Employment as an officer or director of a person who is a Department-approved mortgagee, a lending institution or an organization which services securities for the Department; or</P> <P>(4) Employment with the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Home Loan Bank System or any affiliate thereof.</P> <P>(b) <E T="03">Exceptions to employment prohibitions.</E> The prohibitions set forth in paragraph (a) of this section do not apply to serving as an officer or a member of the Board of Directors of:</P> <P>(1) A Federal Credit Union;</P> <P>(2) A cooperative or condominium association for a housing project which is not subject to regulation by the Department or, if so regulated, in which the employee personally resides; or</P> <P>(3) An entity designated in writing by the Designated Agency Ethics Official.</P> <P>(c) <E T="03">Prior approval requirement.</E> (1) Employees, except special Government employees, shall obtain the prior written approval of an Agency Ethics Official before accepting compensated or uncompensated employment:</P> <P>(i) As an officer, director, trustee, or general partner of, or in any other position of authority with, either a for-profit or non profit organization which directly or indirectly receives assistance from the Department.</P> <P>(ii) With a State or local government; or</P> <P>(iii) In the same professional field as that of the employee's official position.</P> <P>(2) Approval shall be granted unless the conduct is inconsisent with 5 CFR part 2635 or this part.</P> <P>(d) <E T="03">Voluntary services.</E> Subject to the restrictions and requirements contained in the conflict of interest laws, 5 CFR part 2635, and this part, employees are encouraged to volunteer their personal time to nonprofit organizations.</P> <NOTE> <HD SOURCE="HED">Note to</HD> <P>§ 75.105: An employee assigned 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 assigned to serve as the Department's liaison representative only as authorized by law, and as approved by the Department under applicable procedures.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 7501.106</SECTNO> <SUBJECT>Additional rules for certain Department employees involved in the regulation or oversight of Government sponsored enterprises.</SUBJECT> <P>(a) The following rules apply to certain Department employees whose duties involve the regulation or oversight of Government Sponsored Enterprises, specifically the Federal National Mortgage Association (FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC). This section is in addition to §§ 7501.101 to 7501.105.</P> <P>(b) <E T="03">Definitions.</E> For purposes of this section, the following definitions are applicable:<PRTPAGE P="834"/> </P> <P>(1) Except as provided in paragraph (b)(2) of this section, “covered employee” means all employees in the Office of Federal Housing Enterprise Oversight and employees required to file a public or confidential financial disclosure report under 5 CFR part 2634 in:</P> <P>(i) The Office of the HUD Secretary, with the exception of the Office of Lead-Based Paint Abatement and Poisoning Prevention;</P> <P>(ii) The Office of the Assistant Secretary for Housing—Federal Housing Commissioner;</P> <P>(iii) The Office of Financial Institutions Regulation in the Office of the Assistant Secretary for Policy Development and Research;</P> <P>(iv) The Offices of Investigation, Program Standards and Evaluation, and Regulatory Initiatives and Federal Coordination within the Office of the Assistant Secretary for Fair Housing and Equal Opportunity;</P> <P>(v) The Office of General Counsel's Offices of Insured Housing, Government Sponsored Enterprises/Real Estate Settlement and Procedures Act Division in Finance and Regulatory Enforcement, Legislation and Regulations, and the Fair Housing Enforcement Division;</P> <P>(vi) The Office of Inspector General;</P> <P>(vii) The official superiors of the employees listed in paragraphs (b)(1)(iii), (b)(1)(iv) and (b)(1)(v) of this section;</P> <P>(viii) Any other employee who is designated in writing by the Secretary, the Designated Agency Ethics Official, or the appropriate individual of Assistant Secretary rank, or his or her designee, to ensure compliance with the principles set forth in 5 CFR 2635.403 and who receives notice of such designation.</P> <P>(2) The DAEO, upon recommendation of the appropriate individual of Assistant Secretary rank, may exclude in writing an employee otherwise designated as a “covered employee” under § 7501.106(b)(1)(i)-(vii) of this part if the employee's official duties do not substantially involve the regulation or oversight of Government sponsored enterprises and ownership of interests prohibited by § 7501.106(c) would not cause a reasonable person to question the impartiality and objectivity with which the Department's programs are administered.</P> <P>(3) <E T="03">Mortgage institution</E> means mortgage bankers, mortgage brokers, banks, savings and loans, and other institutions or entities that originate, insure, or service mortgages that are owned or guaranteed by the Federal National Mortgage Association (FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC).</P> <P>(c) <E T="03">Prohibited financial interests.</E> (1) Except as provided in paragraph (c)(2) of this section, a covered employee, or a spouse or minor child of a covered employee, shall not receive, acquire, or own securities of:</P> <P>(i) A mortgage institution if more than 20 percent of the institution's assets consist of mortgages;</P> <P>(ii) A mortgage institution in which 20 percent or less of the institution's assets consist of mortgages and more than 40 percent of the mortgages originated by the institution are issued, collateralized, sold or guaranteed by FNMA and/or FHLMC; or</P> <P>(iii) A mortgage institution which services or insures mortgages if more than 20 percent of the gross income of such institution is derived from either or both of these activities.</P> <P>(2) The prohibitions in paragraph (c)(1) of this section do not apply to ownership of securities held in a publicly traded or publicly available investment fund, or profit-sharing, retirement, or similar plan which in its prospectus or governing documents does not indicate the objective or practice of concentrating its investments in the financial services sector, and the employee neither exercises control nor has the ability to exercise control over the financial interests held in the fund.</P> <P>(3) The mortgage institution's most recent annual financial statement shall be used in determining the applicability of the prohibitions in paragraph (c)(1) of this section.</P> <P>(d) <E T="03">Restrictions arising from third party relationships.</E> If any of the entities listed below has securities that a covered employee would be prohibited from owning by paragraph (c) of this section, the employee shall report such interest to the appropriate Agency Ethics Official. The Agency Ethics Official may require the employee to terminate the <PRTPAGE P="835"/>third party relationship, undertake an appropriate disqualification, or take other appropriate action determined to be necessary consistent with 5 CFR part 2635 and this part. This paragraph applies to a:</P> <P>(1) Partnership in which the covered employee, or a spouse or minor child of the employee is a general partner;</P> <P>(2) Partnership in which the covered employee, or spouse or minor child of the employee, individually or jointly holds more than a 10 percent limited partnership interest;</P> <P>(3) Closely held corporation in which the covered employee, or spouse or minor child of the employee, individually or jointly holds more than a 10 percent equity interest;</P> <P>(4) Trust in which the covered employee, or spouse or minor child of the employee, has a legal or beneficial interest;</P> <P>(5) Investment club or similar informal investment arrangement between the covered employee, or spouse or minor child of the employee, and others; or</P> <P>(6) Other entity in which the covered employee, or spouse or minor child of the employee, individually or jointly holds more than a 10 percent equity interest.</P> <P>(e) <E T="03">Prohibited outside employment.</E> Covered employees shall not engage in employment with or on behalf of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, a mortgage institution, or any of their affiliates.</P> <P>(f) <E T="03">Prohibited recommendations.</E> Covered employees shall not make any recommendation or suggestion, directly or indirectly, concerning the acquisition, sale, or divestiture of securities of FHLMC or FNMA.</P> <P>(g) <E T="03">Prohibited purchase of assets.</E> Covered employees, their spouses or minor children shall not purchase, directly or indirectly, any real or personal property from FHLMC or FNMA, 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.</P> <P>(h) <E T="03">Pre-existing interests.</E> Covered employees must report, in writing, to the appropriate Agency Ethics Official, any interest prohibited under paragraph (c) of this section acquired prior to either the commencement of employment as a covered employee or the effective date of this part, or acquired without specific intent, as through gift, inheritance, or marriage, within 30 days from the start of covered employment or acquisition of such interest. Such interest must be divested within 90 days from the date it is reported unless waived by the Designated Agency Ethics Official in accordance with § 7501.103.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="837"/> <HD SOURCE="HED">CHAPTER LXVI—NATIONAL ARCHIVES AND RECORDS ADMINISTRATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7601</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the National Archives and Records Administration</SUBJECT> <PG>839</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="839"/> <EAR>Pt. 7601</EAR> <HD SOURCE="HED">PART 7601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7601.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7601.102</SECTNO> <SUBJECT>Prior approval of outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by, E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 40505, Aug. 5, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7601.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7601.102</SECTNO> <SUBJECT>Prior approval of outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Standard of approval.</E> 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.</P> <P>(c) <E T="03">Scope of approval.</E> 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.</P> <P>(d) <E T="03">Definition of employment.</E> 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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXIX (1-1-02 Edition)</LRH> <RRH>Tennessee Valley Authority</RRH> <TOC> <TOCHD> <PRTPAGE P="841"/> <HD SOURCE="HED">CHAPTER LXIX—TENNESSEE VALLEY AUTHORITY</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>7901</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Tennessee Valley Authority</SUBJECT> <PG>843</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="843"/> <EAR>Pt. 7901</EAR> <HD SOURCE="HED">PART 7901—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE TENNESSEE VALLEY AUTHORITY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7901.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7901.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. App. (Ethics in Government Act of 1978); 16 U.S.C. 831-831dd; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 20118, May 6, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7901.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7901.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXXI (1-1-02 Edition)</LRH> <RRH>Consumer Product Safety Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="845"/> <HD SOURCE="HED">CHAPTER LXXI—CONSUMER PRODUCT SAFETY COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>8101</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Consumer Product Safety Commission</SUBJECT> <PG>847</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="847"/> <EAR>Pt. 8101</EAR> <HD SOURCE="HED">PART 8101—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE CONSUMER PRODUCT SAFETY COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8101.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>8101.102</SECTNO> <SUBJECT>Prohibitions applicable to Commissioners.</SUBJECT> <SECTNO>8101.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 15 U.S.C. 2053(c); E.O. 12674, 54 FR 15139, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 65458, Dec. 13, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 8101.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8101.102</SECTNO> <SUBJECT>Prohibitions applicable to Commissioners.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8101.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Standard of approval.</E> 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.</P> <P>(c) <E T="03">Notification of action.</E> 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.</P> <P>(d) <E T="03">Duration and scope of approval.</E> 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.</P> <P>(e) <E T="03">Definition of employment.</E> 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).</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXXIII (1-1-02 Edition</LRH> <RRH>Department of Agriculture</RRH> <TOC> <TOCHD> <PRTPAGE P="849"/> <HD SOURCE="HED">CHAPTER LXXIII—DEPARTMENT OF AGRICULTURE</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>8301</PT> <SUBJECT>Supplemental standards for ethical conduct for employees of the Department of Agriculture</SUBJECT> <PG>851</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="851"/> <EAR>Pt. 8301</EAR> <HD SOURCE="HED">PART 8301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8301.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>8301.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <SECTNO>8301.103</SECTNO> <SUBJECT>Additional rules for employees of the Farm Service Agency.</SUBJECT> <SECTNO>8301.104</SECTNO> <SUBJECT>Additional rules for employees of the Food Safety and Inspection Service.</SUBJECT> <SECTNO>8301.105</SECTNO> <SUBJECT>Additional rules for employees of the Office of the General Counsel.</SUBJECT> <SECTNO>8301.106</SECTNO> <SUBJECT>Additional rules for employees of the Office of Inspector General.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 58638, Oct. 2, 2000, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 8301.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 8301.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> 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.</P> <P>(b) <E T="03">Definition of employment.</E> 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.</P> <P>(1) Providing personal services as a consultant or professional, including service as an expert witness or as an attorney; and</P> <P>(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.</P> <P>(c) <E T="03">Submission of requests for approval.</E> 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:</P> <P>(1) The employee's name, organizational location, occupational title, grade, and salary;<PRTPAGE P="852"/> </P> <P>(2) The nature of the proposed outside employment, including a full description of the specific duties or services to be performed;</P> <P>(3) A description of the employee's official duties that relate in any way to the proposed employment;</P> <P>(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;</P> <P>(5) The method or basis of any compensation (<E T="03">e.g.</E>, fee, per diem, honorarium, royalties, stock options, travel and expenses, or other);</P> <P>(6) A statement as to whether the compensation is derived from a USDA grant, contract, cooperative agreement, or other source of USDA funding;</P> <P>(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</P> <P>(8) For employment involving teaching, speaking, writing or editing, the proposed text of any disclaimer required by 5 CFR 2635.807(b).</P> <P>(d) <E T="03">Standard for approval.</E> 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.</P> <P>(e) <E T="03">Responsibilities of the component agencies.</E> (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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 8301.103</SECTNO> <SUBJECT>Additional rules for employees of the Farm Service Agency.</SUBJECT> <P>(a) <E T="03">Application.</E> 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.</P> <P>(b) <E T="03">Definition of FSA program participant.</E> 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.</P> <P>(c) <E T="03">Prohibited borrowing.</E> (1) No FSA employee, or spouse or minor child of an FSA employee, may directly or indirectly seek or obtain a “direct loan” under paragraph (a)(9) of section 343 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1991(a)(9).<PRTPAGE P="853"/> </P> <P>(2) Nothing in this section bars an FSA employee, or spouse or minor child of an FSA employee, from retaining a direct loan secured prior to March 24, 2000, or, if subsequent to March 24, 2000, such direct loan is secured prior to the FSA employee being appointed to, or nominated for, appointment to an FSA position. Any FSA employee who either personally has such a pre-existing loan, or whose spouse or minor child has such a pre-existing loan, must submit a written disqualification from taking any official action on any such loan. Other than through the application of normal FSA loan servicing options set forth under FSA regulations, the terms of any such pre-existing loans shall remain fixed and shall not be subject to renegotiation or renewal unless pursuant to policy decision(s) made by the USDA Secretary or the FSA Administrator.</P> <P>(3) <E T="03">Waiver for FSA State Committee members.</E> A request for an exception to the general prohibition of paragraph (c)(1) of this section may be submitted by an FSA State Committee member (whether on his or her own behalf, or on behalf of the FSA State Committee member's spouse or minor child), to the FSA Deputy Administrator for Farm Loans. The Deputy Administrator for Farm Loans may grant a written waiver from this prohibition based on a determination made with the concurrence of the DAEO and the FSA headquarters ethics adviser that:</P> <P>(i) The applicant is a current FSA State Committee member or the spouse or minor child of a current FSA State Committee member;</P> <P>(ii) The applicant meets the statutory qualification requirements for obtaining direct loan; and</P> <P>(iii) A 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, including the appearance of misuse of non public information, or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered.</P> <P>(d) <E T="03">Prohibited real estate purchases.</E> (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.</P> <P>(2) <E T="03">Waiver.</E> A request for an exception to the prohibition found in paragraph (d)(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.</P> <P>(e) <E T="03">Prohibited transactions with FSA program participants.</E> (1) Except as provided in paragraph (e)(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.</P> <P>(2) <E T="03">Exceptions.</E> Paragraph (e)(1) of this section does not apply to:</P> <P>(i) A sale, lease, or purchase of personal property, if it involves:</P> <P>(A) Goods available to the general public at posted prices that are customary and usual within the community; or</P> <P>(B) Property obtained pursuant to public auction; or<PRTPAGE P="854"/> </P> <P>(ii) Transactions listed in (e)(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.</P> <P>(f) <E T="03">Additional prior approval requirements for outside employment.</E> 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:</P> <P>(1) Whom the FSA employee knows, or reasonably should know, is an FSA program participant; and</P> <P>(2) Who is directly affected by decisions made by the particular FSA office in which the FSA employee serves.</P> </SECTION> <SECTION> <SECTNO>§ 8301.104</SECTNO> <SUBJECT>Additional rules for employees of the Food Safety and Inspection Service.</SUBJECT> <P>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</P> </SECTION> <SECTION> <SECTNO>§ 8301.105</SECTNO> <SUBJECT>Additional rules for employees of the Office of the General Counsel.</SUBJECT> <P>Any attorney serving within the Office of the General Counsel, 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 the outside practice of law, whether compensated or not.</P> </SECTION> <SECTION> <SECTNO>§ 8301.106</SECTNO> <SUBJECT>Additional rules for employees of the Office of Inspector General.</SUBJECT> <P>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:</P> <P>(a) Law enforcement, investigation, security, firearms training, defensive tactics training, and protective services;</P> <P>(b) Auditing, accounting, bookkeeping, tax preparation, and other services involving the analysis, use, or interpretation of financial records;</P> <P>(c) The practice of law, whether compensated or not; or</P> <P>(d) Employment involving personnel, procurement, budget, computer, or equal employment opportunity services.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXXIV (1-1-02 Edition)</LRH> <RRH>Federal Mine Safety and Health Review Commission</RRH> <TOC> <TOCHD> <PRTPAGE P="855"/> <HD SOURCE="HED">CHAPTER LXXIV—FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>8401</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Mine Safety and Health Review Commission</SUBJECT> <PG>857</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="857"/> <EAR>Pt. 8401</EAR> <HD SOURCE="HED">PART 8401—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8401.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>8401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <SECTNO>8401.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp. p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 39871, July 31, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 8401.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8401.102</SECTNO> <SUBJECT>Prohibited financial interests.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> 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.</P> <P>(b) <E T="03">Exceptions.</E> (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:</P> <P>(i) Exercises control over the financial interests held in the fund; nor</P> <P>(ii) Has the ability to exercise control over the financial interests held in the fund.</P> <P>(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:</P> <P>(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: (<E T="03">1</E>) 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</P> <P>(<E T="03">2</E>) 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="858"/>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.</P> <P>(c) <E T="03">Divestiture.</E> 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.</P> <P>(d) <E T="03">Waivers.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 8401.103</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(a) <E T="03">Prior approval requirement.</E> (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.</P> <P>(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.</P> <P>(b) <E T="03">Standard for approval.</E> 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.</P> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Employment</E> 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.</P> <P>(2) <E T="03">Professional services</E> 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).</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXXVI (1-1-02 Edition)</LRH> <RRH>Federal Retirement Thrift Investment Board</RRH> <TOC> <TOCHD> <PRTPAGE P="859"/> <HD SOURCE="HED">CHAPTER LXXVI—FEDERAL RETIREMENT THRIFT INVESTMENT BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>8601</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Federal Retirement Thrift Investment Board</SUBJECT> <PG>861</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="861"/> <EAR>Pt. 8601</EAR> <HD SOURCE="HED">PART 8601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8601.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>8601.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SECTION> <SECTNO>§ 8601.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> <CITA>[59 FR 50817, Oct. 6, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 8601.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[59 FR 50817, Oct. 6, 1994]</CITA> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. LXXVII (1-1-02 Edition)</LRH> <RRH>Office of Management and Budget</RRH> <TOC> <TOCHD> <PRTPAGE P="863"/> <HD SOURCE="HED">CHAPTER LXXVII—OFFICE OF MANAGEMENT AND BUDGET</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>8701</PT> <SUBJECT>Supplemental standards of ethical conduct for employees of the Office of Management and Budget</SUBJECT> <PG>865</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="865"/> <EAR>Pt. 8701</EAR> <HD SOURCE="HED">PART 8701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE OFFICE OF MANAGEMENT AND BUDGET</HD> <CONTENTS> <SECTNO>8701.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>8701.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp. p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.</P> </AUTH> <SECTION> <SECTNO>§ 8701.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> <CITA>[60 FR 12397, Mar. 7, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 8701.102</SECTNO> <SUBJECT>Prior approval for outside employment.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 12397, Mar. 7, 1995]</CITA> </SECTION> </PART> </CHAPTER> <CFRTITLE> <TITLEHD> <PRTPAGE P="867"/> <HD SOURCE="HED">Title 6—Economic Stabilization [Reserved]</HD> </TITLEHD> <CFRTOC> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>The Office of the Federal Register received a letter on December 24, 1981 from the Office of the General Counsel, Department of the Treasury which recommended that 6 CFR part 602 not be republished. The letter explained that part 602 was originally issued by Treasury to carry out the functions assigned to it by Executive Order 11788—Providing for the Orderly Termination of Economic Stabilization Activities. The letter further explained those functions “have been completed and that no Treasury personnel are asssigned any active Economic Stabilization functions.” Thus, the Treasury Department concluded that 6 CFR part 602 was unnecessary and ought to be removed from the Code of Federal Regulations.</P> <P>The Council on Wage and Price Stability was established by authority of Pub. L. 93-387, as amended (12 U.S.C. 1904 note). Regulations establishing Chapter VII were published at 40 FR 7233, February 19, 1975.</P> <P>The wage and price regulatory program was terminated on February 2, 1981, by Executive Order 12288 of January 29, 1981 (46 FR 10135) and the Council on Wage and Price Stability was terminated as provided by Pub. L. 97-12 (95 Stat. 74) (46 FR 11229, Feb. 6, 1981).</P> <P>Since the Council on Wage and Price Stability has been terminated and the functions of the Department of the Treasury pursuant to E.O. 11788 have been completed, the Director of the Office of the Federal Register, pursuant to 1 CFR 8.2 hereby removes from the Code of Federal Regulations Title 6, Chapter VI, Assistant Secretary for Administration, Department of the Treasury, consisting of part 602, and Chapter VII, Council on Wage and Price Stability, consisting of parts 701 through 704 inclusive.</P> <P>Title 6, Code of Federal Regulations is hereby vacated.</P> </EDNOTE> <PTHD/> </CFRTOC> </CFRTITLE> FINDING AIDS

A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.

Table of CFR Titles and Chapters

Alphabetical List of Agencies Appearing in the CFR

Redesignation Tables

List of CFR Sections Affected

 Chap. Table of CFR Titles and Chapters (Revised as of January 1, 2002) Title 1—General Provisions I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500) Title 2—[Reserved] Title 3—The President I Executive Office of the President (Parts 100—199) Title 4—Accounts I General Accounting Office (Parts 1—99) Title 5—Administrative Personnel I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VII Advisory Commission on Intergovernmental Relations (Parts 1700—1799) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701) Title 6—[Reserved] Title 7—Agriculture Subtitle A—Office of the Secretary of Agriculture (Parts 0—26) Subtitle B—Regulations of the Department of Agriculture I Agricultural Marketing Service (Standards, Inspections, Marketing Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Agriculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agriculture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700—799) VIII Grain Inspection, Packers and Stockyards Administration (Federal Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Orders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Orders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Orders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIII Northeast Dairy Compact Commission (Parts 1300—1399) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600—1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700—1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Department of Agriculture (Parts 1800—2099) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800—2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500—3599) XXXVI National Agricultural Statistics Service, Department of Agriculture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299) Title 8—Aliens and Nationality I Immigration and Naturalization Service, Department of Justice (Parts 1—599) Title 9—Animals and Animal Products I Animal and Plant Health Inspection Service, Department of Agriculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agriculture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599) Title 10—Energy I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800) Title 11—Federal Elections I Federal Election Commission (Parts 1—9099) Title 12—Banks and Banking I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Department of the Treasury (Parts 1800—1899) Title 13—Business Credit and Assistance I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Commerce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599) Title 14—Aeronautics and Space I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Administration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200—1299) VI Office of Management and Budget (Parts 1300—1399) Title 15—Commerce and Foreign Trade Subtitle A—Office of the Secretary of Commerce (Parts 0—29) Subtitle B—Regulations Relating to Commerce and Foreign Trade I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Export Administration, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) Subtitle C—Regulations Relating to Foreign Trade Agreements XX Office of the United States Trade Representative (Parts 2000—2099) Subtitle D—Regulations Relating to Telecommunications and Information XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399) Title 16—Commercial Practices I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799) Title 17—Commodity and Securities Exchanges I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499) Title 18—Conservation of Power and Water Resources I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399) Title 19—Customs Duties I United States Customs Service, Department of the Treasury (Parts 1—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) Title 20—Employees' Benefits I Office of Workers' Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees' Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans' Employment and Training, Department of Labor (Parts 1000—1099) Title 21—Food and Drugs I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499) Title 22—Foreign Relations I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board Regulations (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799) Title 23—Highways I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399) Title 24—Housing and Urban Development Subtitle A—Office of the Secretary, Department of Housing and Urban Development (Parts 0—99) Subtitle B—Regulations Relating to Housing and Urban Development I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Commissioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Development (Parts 400—499) V Office of Assistant Secretary for Community Planning and Development, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and Development, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Development (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (Section 8 Housing Assistance Programs, Section 202 Direct Loan Program, Section 202 Supportive Housing for the Elderly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, Department of Housing and Urban Development (Parts 900—999) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199) Title 25—Indians I Bureau of Indian Affairs, Department of the Interior (Parts 1—299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Interior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200) Title 26—Internal Revenue I Internal Revenue Service, Department of the Treasury (Parts 1—899) Title 27—Alcohol, Tobacco Products and Firearms I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299) Title 28—Judicial Administration I Department of Justice (Parts 0—199) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100—1199) Title 29—Labor Subtitle A—Office of the Secretary of Labor (Parts 0—99) Subtitle B—Regulations Relating to Labor I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Pension and Welfare Benefits Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999) Title 30—Mineral Resources I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VI Bureau of Mines, Department of the Interior (Parts 600—699) VII Office of Surface Mining Reclamation and Enforcement, Department of the Interior (Parts 700—999) Title 31—Money and Finance: Treasury Subtitle A—Office of the Secretary of the Treasury (Parts 0—50) Subtitle B—Regulations Relating to Money and Finance I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treasury—Department of Justice) (Parts 900—999) Title 32—National Defense Subtitle A—Department of Defense I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) Subtitle B—Other Regulations Relating to National Defense XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800—2899) Title 33—Navigation and Navigable Waters I Coast Guard, Department of Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499) Title 34—Education Subtitle A—Office of the Secretary, Department of Education (Parts 1—99) Subtitle B—Regulations of the Offices of the Department of Education I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Department of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Education (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100—1199) Subtitle C—Regulations Relating to Education XII National Council on Disability (Parts 1200—1299) Title 35—Panama Canal I Panama Canal Regulations (Parts 1—299) Title 36—Parks, Forests, and Public Property I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501) XVI Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (Parts 1600—1699) Title 37—Patents, Trademarks, and Copyrights I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Commerce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599) Title 38—Pensions, Bonuses, and Veterans' Relief I Department of Veterans Affairs (Parts 0—99) Title 39—Postal Service I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099) Title 40—Protection of Environment I Environmental Protection Agency (Parts 1—799) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600—1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799) Title 41—Public Contracts and Property Management Subtitle B—Other Provisions Relating to Public Contracts 50 Public Contracts, Department of Labor (Parts 50-1—50-999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51-1—51-99) 60 Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Parts 60-1—60-999) 61 Office of the Assistant Secretary for Veterans' Employment and Training Service, Department of Labor (Parts 61-1—61-999) Subtitle C—Federal Property Management Regulations System 101 Federal Property Management Regulations (Parts 101-1—101-99) 102 Federal Management Regulation (Parts 102-1—102-299) 105 General Services Administration (Parts 105-1—105-999) 109 Department of Energy Property Management Regulations (Parts 109-1—109-99) 114 Department of the Interior (Parts 114-1—114-99) 115 Environmental Protection Agency (Parts 115-1—115-99) 128 Department of Justice (Parts 128-1—128-99) Subtitle D—Other Provisions Relating to Property Management [Reserved] Subtitle E—Federal Information Resources Management Regulations System 201 Federal Information Resources Management Regulation (Parts 201-1—201-99) [Reserved] Subtitle F—Federal Travel Regulation System 300 General (Parts 300-1—300-99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301-1—301-99) 302 Relocation Allowances (Parts 302-1—302-99) 303 Payment of Expenses Connected with the Death of Certain Employees (Part 303-70) 304 Payment from a Non-Federal Source for Travel Expenses (Parts 304-1—304-99) Title 42—Public Health I Public Health Service, Department of Health and Human Services (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999) Title 43—Public Lands: Interior Subtitle A—Office of the Secretary of the Interior (Parts 1—199) Subtitle B—Regulations Relating to Public Lands I Bureau of Reclamation, Department of the Interior (Parts 200—499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005) Title 44—Emergency Management and Assistance I Federal Emergency Management Agency (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499) Title 45—Public Welfare Subtitle A—Department of Health and Human Services (Parts 1—199) Subtitle B—Regulations Relating to Public Welfare II Office of Family Assistance (Assistance Programs), Administration for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforcement Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200—1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400—2499) XXV Corporation for National and Community Service (Parts 2500—2599) Title 46—Shipping I Coast Guard, Department of Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transportation (Parts 400—499) IV Federal Maritime Commission (Parts 500—599) Title 47—Telecommunication I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399) Title 48—Federal Acquisition Regulations System 1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800—1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400—2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 34 Department of Education Acquisition Regulation (Parts 3400—3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100—5199) 52 Department of the Navy Acquisition Regulations (Parts 5200—5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procurement Policy, Office of Management and Budget (Parts 9900—9999) Title 49—Transportation Subtitle A—Office of the Secretary of Transportation (Parts 1—99) Subtitle B—Other Regulations Relating to Transportation I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Transportation (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Bureau of Transportation Statistics, Department of Transportation (Parts 1400—1499) XII Transportation Security Administration, Department of Transportation (Parts 1500—1599) Title 50—Wildlife and Fisheries I United States Fish and Wildlife Service, Department of the Interior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 200—299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699) CFR Index and Finding Aids Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR Alphabetical List of Agencies Appearing in the CFR (Revised as of January 1, 2002) Agency CFR Title, Subtitle or Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Commission on Intergovernmental Relations 5, VII Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 5, LXXIII Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension Service 7, XXXIV Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI Arctic Research Commission 45, XXIII Armed Forces Retirement Home 5, XI Army Department 32, V Engineers, Corps of 33, II; 36, III Federal Acquisition Regulation 48, 51 Benefits Review Board 20, VII Bilingual Education and Minority Languages Affairs, Office of 34, V Blind or Severely Disabled, Committee for Purchase From People Who Are 41, 51 Broadcasting Board of Governors 22, V Federal Acquisition Regulation 48, 19 Census Bureau 15, I Central Intelligence Agency 32, XIX Chief Financial Officer, Office of 7, XXX Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X Civil Rights, Commission on 45, VII Civil Rights, Office for 34, I Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Commerce Department 44, IV Census Bureau 15, I Economic Affairs, Under Secretary 37, V Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Emergency Management and Assistance 44, IV Export Administration, Bureau of 15, VII Federal Acquisition Regulation 48, 13 Fishery Conservation and Management 50, VI Foreign-Trade Zones Board 15, IV International Trade Administration 15, III; 19, III National Institute of Standards and Technology 15, II National Marine Fisheries Service 50, II, IV, VI National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Telecommunications and Information Administration 15, XXIII; 47, III National Weather Service 15, IX Patent and Trademark Office, United States 37, I Productivity, Technology and Innovation, Assistant Secretary for 37, IV Secretary of Commerce, Office of 15, Subtitle A Technology, Under Secretary for 37, V Technology Administration 15, XI Technology Policy, Assistant Secretary for 37, IV Commercial Space Transportation 14, III Commodity Credit Corporation 7, XIV Commodity Futures Trading Commission 5, XLI; 17, I Community Planning and Development, Office of Assistant Secretary for 24, V, VI Community Services, Office of 45, X Comptroller of the Currency 12, I Construction Industry Collective Bargaining Commission 29, IX Consumer Product Safety Commission 5, LXXI; 16, II Cooperative State Research, Education, and Extension Service 7, XXXIV Copyright Office 37, II Corporation for National and Community Service 45, XII, XXV Cost Accounting Standards Board 48, 99 Council on Environmental Quality 40, V Court Services and Offender Supervision Agency for the District of Columbia 28, VIII Customs Service, United States 19, I Defense Contract Audit Agency 32, I Defense Department 5, XXVI; 32, Subtitle A; 40, VII Advanced Research Projects Agency 32, I Air Force Department 32, VII Army Department 32, V; 33, II; 36, III, 48, 51 Defense Intelligence Agency 32, I Defense Logistics Agency 32, I, XII; 48, 54 Engineers, Corps of 33, II; 36, III Federal Acquisition Regulation 48, 2 National Imagery and Mapping Agency 32, I Navy Department 32, VI; 48, 52 Secretary of Defense, Office of 32, I Defense Contract Audit Agency 32, I Defense Intelligence Agency 32, I Defense Logistics Agency 32, XII; 48, 54 Defense Nuclear Facilities Safety Board 10, XVII Delaware River Basin Commission 18, III District of Columbia, Court Services and Offender Supervision Agency for the 28, VIII Drug Enforcement Administration 21, II East-West Foreign Trade Board 15, XIII Economic Affairs, Under Secretary 37, V Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Economic Research Service 7, XXXVII Education, Department of 5, LIII Bilingual Education and Minority Languages Affairs, Office of 34, V Civil Rights, Office for 34, I Educational Research and Improvement, Office of 34, VII Elementary and Secondary Education, Office of 34, II Federal Acquisition Regulation 48, 34 Postsecondary Education, Office of 34, VI Secretary of Education, Office of 34, Subtitle A Special Education and Rehabilitative Services, Office of 34, III Vocational and Adult Education, Office of 34, IV Educational Research and Improvement, Office of 34, VII Elementary and Secondary Education, Office of 34, II Emergency Oil and Gas Guaranteed Loan Board 13, V Emergency Steel Guarantee Loan Board 13, IV Employees' Compensation Appeals Board 20, IV Employees Loyalty Board 5, V Employment and Training Administration 20, V Employment Standards Administration 20, VI Endangered Species Committee 50, IV Energy, Department of 5, XXIII; 10, II, III, X Federal Acquisition Regulation 48, 9 Federal Energy Regulatory Commission 5, XXIV; 18, I Property Management Regulations 41, 109 Energy, Office of 7, XXIX Engineers, Corps of 33, II; 36, III Engraving and Printing, Bureau of 31, VI Environmental Protection Agency 5, LIV; 40, I, IV, VII Federal Acquisition Regulation 48, 15 Property Management Regulations 41, 115 Environmental Quality, Office of 7, XXXI Equal Employment Opportunity Commission 5, LXII; 29, XIV Equal Opportunity, Office of Assistant Secretary for 24, I Executive Office of the President 3, I Administration, Office of 5, XV Environmental Quality, Council on 40, V Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 National Drug Control Policy, Office of 21, III National Security Council 32, XXI; 47, 2 Presidential Documents 3 Science and Technology Policy, Office of 32, XXIV; 47, II Trade Representative, Office of the United States 15, XX Export Administration, Bureau of 15, VII Export-Import Bank of the United States 5, LII; 12, IV Family Assistance, Office of 45, II Farm Credit Administration 5, XXXI; 12, VI Farm Credit System Insurance Corporation 5, XXX; 12, XIV Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 1 Federal Aviation Administration 14, I Commercial Space Transportation 14, III Federal Claims Collection Standards 31, IX Federal Communications Commission 5, XXIX; 47, I Federal Contract Compliance Programs, Office of 41, 60 Federal Crop Insurance Corporation 7, IV Federal Deposit Insurance Corporation 5, XXII; 12, III Federal Election Commission 11, I Federal Emergency Management Agency 44, I Federal Acquisition Regulation 48, 44 Federal Employees Group Life Insurance Federal Acquisition Regulation 48, 21 Federal Employees Health Benefits Acquisition Regulation 48, 16 Federal Energy Regulatory Commission 5, XXIV; 18, I Federal Financial Institutions Examination Council 12, XI Federal Financing Bank 12, VIII Federal Highway Administration 23, I, II Federal Home Loan Mortgage Corporation 1, IV Federal Housing Enterprise Oversight Office 12, XVII Federal Housing Finance Board 12, IX Federal Labor Relations Authority, and General Counsel of the Federal Labor Relations Authority 5, XIV; 22, XIV Federal Law Enforcement Training Center 31, VII Federal Management Regulation 41, 102 Federal Maritime Commission 46, IV Federal Mediation and Conciliation Service 29, XII Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII Federal Motor Carrier Safety Administration 49, III Federal Prison Industries, Inc. 28, III Federal Procurement Policy Office 48, 99 Federal Property Management Regulations 41, 101 Federal Railroad Administration 49, II Federal Register, Administrative Committee of 1, I Federal Register, Office of 1, II Federal Reserve System 12, II Board of Governors 5, LVIII Federal Retirement Thrift Investment Board 5, VI, LXXVI Federal Service Impasses Panel 5, XIV Federal Trade Commission 5, XLVII; 16, I Federal Transit Administration 49, VI Federal Travel Regulation System 41, Subtitle F Fine Arts, Commission on 45, XXI Fiscal Service 31, II Fish and Wildlife Service, United States 50, I, IV Fishery Conservation and Management 50, VI Food and Drug Administration 21, I Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Foreign Assets Control, Office of 31, V Foreign Claims Settlement Commission of the United States 45, V Foreign Service Grievance Board 22, IX Foreign Service Impasse Disputes Panel 22, XIV Foreign Service Labor Relations Board 22, XIV Foreign-Trade Zones Board 15, IV Forest Service 36, II General Accounting Office 4, I General Services Administration 5, LVII; 41, 105 Contract Appeals, Board of 48, 61 Federal Acquisition Regulation 48, 5 Federal Management Regulation 41, 102 Federal Property Management Regulation 41, 101 Federal Travel Regulation System 41, Subtitle F General 41, 300 Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain Employees 41, 303 Relocation Allowances 41, 302 Temporary Duty (TDY) Travel Allowances 41, 301 Geological Survey 30, IV Government Ethics, Office of 5, XVI Government National Mortgage Association 24, III Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Harry S. Truman Scholarship Foundation 45, XVIII Health and Human Services, Department of 5, XLV; 45, Subtitle A Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X Community Services, Office of 45, X Family Assistance, Office of 45, II Federal Acquisition Regulation 48, 3 Food and Drug Administration 21, I Centers for Medicare & Medicaid Services 42, IV Human Development Services, Office of 45, XIII Indian Health Service 25, V Inspector General (Health Care), Office of 42, V Public Health Service 42, I Refugee Resettlement, Office of 45, IV Centers for Medicare & Medicaid Services 42, IV Housing and Urban Development, Department of 5, LXV; 24, Subtitle B Community Planning and Development, Office of Assistant Secretary for 24, V, VI Equal Opportunity, Office of Assistant Secretary for 24, I Federal Acquisition Regulation 48, 24 Federal Housing Enterprise Oversight, Office of 12, XVII Government National Mortgage Association 24, III Housing—Federal Housing Commissioner, Office of Assistant Secretary for 24, II, VIII, X, XX Housing, Office of, and Multifamily Housing Assistance Restructuring, Office of 24, IV Inspector General, Office of 24, XII Public and Indian Housing, Office of Assistant Secretary for 24, IX Secretary, Office of 24, Subtitle A, VII Housing—Federal Housing Commissioner, Office of Assistant Secretary for 24, II, VIII, X, XX Housing, Office of, and Multifamily Housing Assistance Restructuring, Office of 24, IV Human Development Services, Office of 45, XIII Immigration and Naturalization Service 8, I Independent Counsel, Office of 28, VII Indian Affairs, Bureau of 25, I, V Indian Affairs, Office of the Assistant Secretary 25, VI Indian Arts and Crafts Board 25, II Indian Health Service 25, V Information Resources Management, Office of 7, XXVII Information Security Oversight Office, National Archives and Records Administration 32, XX Inspector General Agriculture Department 7, XXVI Health and Human Services Department 42, V Housing and Urban Development Department 24, XII Institute of Peace, United States 22, XVII Inter-American Foundation 5, LXIII; 22, X Intergovernmental Relations, Advisory Commission on 5, VII Interior Department American Indians, Office of the Special Trustee 25, VII Endangered Species Committee 50, IV Federal Acquisition Regulation 48, 14 Federal Property Management Regulations System 41, 114 Fish and Wildlife Service, United States 50, I, IV Geological Survey 30, IV Indian Affairs, Bureau of 25, I, V Indian Affairs, Office of the Assistant Secretary 25, VI Indian Arts and Crafts Board 25, II Land Management, Bureau of 43, II Minerals Management Service 30, II Mines, Bureau of 30, VI National Indian Gaming Commission 25, III National Park Service 36, I Reclamation, Bureau of 43, I Secretary of the Interior, Office of 43, Subtitle A Surface Mining and Reclamation Appeals, Board of 30, III Surface Mining Reclamation and Enforcement, Office of 30, VII Internal Revenue Service 26, I International Boundary and Water Commission, United States and Mexico, United States Section 22, XI International Development, United States Agency for 22, II Federal Acquisition Regulation 48, 7 International Development Cooperation Agency, United States 22, XII International Fishing and Related Activities 50, III International Investment, Office of 31, VIII International Joint Commission, United States and Canada 22, IV International Organizations Employees Loyalty Board 5, V International Trade Administration 15, III; 19, III International Trade Commission, United States 19, II Interstate Commerce Commission 5, XL James Madison Memorial Fellowship Foundation 45, XXIV Japan-United States Friendship Commission 22, XVI Joint Board for the Enrollment of Actuaries 20, VIII Justice Department 5, XXVIII; 28, I, XI; 40, IV Drug Enforcement Administration 21, II Federal Acquisition Regulation 48, 28 Federal Claims Collection Standards 31, IX Federal Prison Industries, Inc. 28, III Foreign Claims Settlement Commission of the United States 45, V Immigration and Naturalization Service 8, I Offices of Independent Counsel 28, VI Prisons, Bureau of 28, V Property Management Regulations 41, 128 Labor Department 5, XLII Benefits Review Board 20, VII Employees' Compensation Appeals Board 20, IV Employment and Training Administration 20, V Employment Standards Administration 20, VI Federal Acquisition Regulation 48, 29 Federal Contract Compliance Programs, Office of 41, 60 Federal Procurement Regulations System 41, 50 Labor-Management Standards, Office of 29, II, IV Mine Safety and Health Administration 30, I Occupational Safety and Health Administration 29, XVII Pension and Welfare Benefits Administration 29, XXV Public Contracts 41, 50 Secretary of Labor, Office of 29, Subtitle A Veterans' Employment and Training Service, Office of the Assistant Secretary for 41, 61; 20, IX Wage and Hour Division 29, V Workers' Compensation Programs, Office of 20, I Labor-Management Standards, Office of 29, II, IV Land Management, Bureau of 43, II Legal Services Corporation 45, XVI Library of Congress 36, VII Copyright Office 37, II Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 Marine Mammal Commission 50, V Maritime Administration 46, II Merit Systems Protection Board 5, II Micronesian Status Negotiations, Office for 32, XXVII Mine Safety and Health Administration 30, I Minerals Management Service 30, II Mines, Bureau of 30, VI Minority Business Development Agency 15, XIV Miscellaneous Agencies 1, IV Monetary Offices 31, I Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation 36, XVI National Aeronautics and Space Administration 5, LIX; 14, V Federal Acquisition Regulation 48, 18 National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National and Community Service, Corporation for 45, XII, XXV National Archives and Records Administration 5, LXVI; 36, XII Information Security Oversight Office 32, XX National Bureau of Standards 15, II National Capital Planning Commission 1, IV National Commission for Employment Policy 1, IV National Commission on Libraries and Information Science 45, XVII National Council on Disability 34, XII National Counterintelligence Center 32, XVIII National Credit Union Administration 12, VII National Crime Prevention and Privacy Compact Council 28, IX National Drug Control Policy, Office of 21, III National Foundation on the Arts and the Humanities 45, XI National Highway Traffic Safety Administration 23, II, III; 49, V National Imagery and Mapping Agency 32, I National Indian Gaming Commission 25, III National Institute for Literacy 34, XI National Institute of Standards and Technology 15, II National Labor Relations Board 5, LXI; 29, I National Marine Fisheries Service 50, II, IV, VI National Mediation Board 29, X National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Park Service 36, I National Railroad Adjustment Board 29, III National Railroad Passenger Corporation (AMTRAK) 49, VII National Science Foundation 5, XLIII; 45, VI Federal Acquisition Regulation 48, 25 National Security Council 32, XXI National Security Council and Office of Science and Technology Policy 47, II National Telecommunications and Information Administration 15, XXIII; 47, III National Transportation Safety Board 49, VIII National Weather Service 15, IX Natural Resources Conservation Service 7, VI Navajo and Hopi Indian Relocation, Office of 25, IV Navy Department 32, VI Federal Acquisition Regulation 48, 52 Neighborhood Reinvestment Corporation 24, XXV Northeast Dairy Compact Commission 7, XIII Northeast Interstate Low-Level Radioactive Waste Commission 10, XVIII Nuclear Regulatory Commission 5, XLVIII; 10, I Federal Acquisition Regulation 48, 20 Occupational Safety and Health Administration 29, XVII Occupational Safety and Health Review Commission 29, XX Offices of Independent Counsel 28, VI Oklahoma City National Memorial Trust 36, XV Operations Office 7, XXVIII Overseas Private Investment Corporation 5, XXXIII; 22, VII Panama Canal Commission 48, 35 Panama Canal Regulations 35, I Patent and Trademark Office, United States 37, I Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain Employees 41, 303 Peace Corps 22, III Pennsylvania Avenue Development Corporation 36, IX Pension and Welfare Benefits Administration 29, XXV Pension Benefit Guaranty Corporation 29, XL Personnel Management, Office of 5, I, XXXV; 45, VIII Federal Acquisition Regulation 48, 17 Federal Employees Group Life Insurance Federal Acquisition Regulation 48, 21 Federal Employees Health Benefits Acquisition Regulation 48, 16 Postal Rate Commission 5, XLVI; 39, III Postal Service, United States 5, LX; 39, I Postsecondary Education, Office of 34, VI President's Commission on White House Fellowships 1, IV Presidential Documents 3 Presidio Trust 36, X Prisons, Bureau of 28, V Procurement and Property Management, Office of 7, XXXII Productivity, Technology and Innovation, Assistant Secretary 37, IV Public Contracts, Department of Labor 41, 50 Public and Indian Housing, Office of Assistant Secretary for 24, IX Public Health Service 42, I Railroad Retirement Board 20, II Reclamation, Bureau of 43, I Refugee Resettlement, Office of 45, IV Regional Action Planning Commissions 13, V Relocation Allowances 41, 302 Research and Special Programs Administration 49, I Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Saint Lawrence Seaway Development Corporation 33, IV Science and Technology Policy, Office of 32, XXIV Science and Technology Policy, Office of, and National Security Council 47, II Secret Service 31, IV Securities and Exchange Commission 17, II Selective Service System 32, XVI Small Business Administration 13, I Smithsonian Institution 36, V Social Security Administration 20, III; 48, 23 Soldiers' and Airmen's Home, United States 5, XI Special Counsel, Office of 5, VIII Special Education and Rehabilitative Services, Office of 34, III State Department 22, I; 28, XI Federal Acquisition Regulation 48, 6 Surface Mining and Reclamation Appeals, Board of 30, III Surface Mining Reclamation and Enforcement, Office of 30, VII Surface Transportation Board 49, X Susquehanna River Basin Commission 18, VIII Technology Administration 15, XI Technology Policy, Assistant Secretary for 37, IV Technology, Under Secretary for 37, V Tennessee Valley Authority 5, LXIX; 18, XIII Thrift Supervision Office, Department of the Treasury 12, V Trade Representative, United States, Office of 15, XX Transportation, Department of 5, L Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Commercial Space Transportation 14, III Contract Appeals, Board of 48, 63 Emergency Management and Assistance 44, IV Federal Acquisition Regulation 48, 12 Federal Aviation Administration 14, I Federal Highway Administration 23, I, II Federal Motor Carrier Safety Administration 49, III Federal Railroad Administration 49, II Federal Transit Administration 49, VI Maritime Administration 46, II National Highway Traffic Safety Administration 23, II, III; 49, V Research and Special Programs Administration 49, I Saint Lawrence Seaway Development Corporation 33, IV Secretary of Transportation, Office of 14, II; 49, Subtitle A Surface Transportation Board 49, X Transportation Security Administration 49, XII Transportation Statistics Bureau 49, XI Transportation, Office of 7, XXXIII Transportation Security Administration 49, XII Transportation Statistics Brureau 49, XI Travel Allowances, Temporary Duty (TDY) 41, 301 Treasury Department 5, XXI; 12, XV; 17, IV; 31, IX Alcohol, Tobacco and Firearms, Bureau of 27, I Community Development Financial Institutions Fund 12, XVIII Comptroller of the Currency 12, I Customs Service, United States 19, I Engraving and Printing, Bureau of 31, VI Federal Acquisition Regulation 48, 10 Federal Law Enforcement Training Center 31, VII Fiscal Service 31, II Foreign Assets Control, Office of 31, V Internal Revenue Service 26, I International Investment, Office of 31, VIII Monetary Offices 31, I Secret Service 31, IV Secretary of the Treasury, Office of 31, Subtitle A Thrift Supervision, Office of 12, V Truman, Harry S. Scholarship Foundation 45, XVIII United States and Canada, International Joint Commission 22, IV United States and Mexico, International Boundary and Water Commission, United States Section 22, XI Utah Reclamation Mitigation and Conservation Commission 43, III Veterans Affairs Department 38, I Federal Acquisition Regulation 48, 8 Veterans' Employment and Training Service, Office of the Assistant Secretary for 41, 61; 20, IX Vice President of the United States, Office of 32, XXVIII Vocational and Adult Education, Office of 34, IV Wage and Hour Division 29, V Water Resources Council 18, VI Workers' Compensation Programs, Office of 20, I World Agricultural Outlook Board 7, XXXVIII 5 CFR (1-1-02 Edition) Redesignation Table I Redesignation Table I

Chapter VII was amended at 51 FR 24800, July 9, 1986, by redesignating part 1701 as part 1720 of the Code of Federal Regulations. For the convenience of the user the following table shows the relationship of the redesignated sections.

Old Section New Section 1701.101 Purpose 1720.101 1701.102 Application 1720.102 1701.103 Definition 1720.103 1701.104-1701.109 Reserved 1720.104-1720.109 1701.110 Self-Evaluation 1720.110 1701.111 Notice 1720.111 1701.112-1701.129 Reserved 1720.112-1720.129 1701.130 General prohibition against discrimination 1720.130 1701.131-1701.139 [Reserved] 1720.131-1720.139 1701.140 Employment 1720.140 1701.141-1701.148 [Reserved] 1720.141-1720.148 1701.149 Program accessibility: Discrimination Prohibited 1720.149 1701.150 Program accessibility: Existing Facilities 1720.150 1701.151 Program accessibility: New Construction and Alteration 1720.151 1701.152-1701.159 [Reserved] 1720.152-1720.159 1701.160 Communications 1720.160 1701.161-1701.169 [Reserved] 1720.161-1720.169 1701.170 Compliance Procedures 1720.170 1701.171-1701.999 [Reserved] 1720.171-1720.999 5 CFR (1-1-02 Edition) Redesignation Table II Redesignation Table II

Title 5 of the Code of Federal Regulations was amended at 54 FR 50230, Dec. 5, 1989, by transferring and redesignating certain regulations from 5 CFR chapter I to 5 CFR chapter XVI as set forth in the following redesignation table which shows the relationship of each former CFR part, subpart and section number under 5 CFR chapter I and the new part, subpart and section number under 5 CFR chapter XVI. For the convenience of the user the following table shows the relationship of the transferred and redesignated sections.

5 CFR chapter I, subchapter B, old section numbers 5 CFR chapter XVI, subchapter B, new section numbers Part 734 Part 2634 Subpart A Subpart A 734.101 2634.101 734.102 2634.102 734.103 2634.103 734.104 2634.104 734.105 2634.105 Subpart B Subpart B 734.201 2634.201 734.202 2634.202 734.203 2634.203 734.204 2634.204 734.205 2634.205 Subpart C Subpart C 734.301 2634.301 734.302 2634.302 734.303 2634.303 734.304 2634.304 Subpart D Subpart D 734.401 2634.401 734.402 2634.402 734.403 2634.403 734.404 2634.404 734.405 2634.405 734.406 2634.406 734.407 2634.407 734.408 2634.408 Subpart E Subpart E 734.501 2634.501 734.502 2634.502 Subpart F Subpart F 734.601 2634.601 734.602 2634.602 734.603 2634.603 734.604 2634.604 734.605 2634.605 Subpart G Subpart G 734.701 2634.701 734.702 2634.702 734.703 2634.703 Subpart H Subpart H 734.801 2634.801 734.802 2634.802 734.803 2634.803 734.804 2634.804 734.805 2634.805 Subpart I Subpart I 734.901 2634.901 734.902 2634.902 734.903 2634.903 Appendix A to Part 734 Appendix A to Part 2634 Appendix B to Part 734 Appendix B to Part 2634 Part 737 Part 2637 Subpart A Subpart A 737.1 2637.101 737.3 2637.102 Subpart B Subpart B 737.5 2637.201 737.7 2637.202 737.9 2637.203 737.11 2637.204 737.13 2637.205 737.15 2637.206 737.17 2637.207 737.19 2637.208 737.21 2637.209 737.23 2637.210 737.25 2637.211 737.27 2637.212 737.29 2637.213 737.31 2637.214 737.32 2637.215 737.33 2637.216 Part 738 Part 2638 Subpart A Subpart A 738.101 2638.101 738.102 2638.102 738.103 2638.103 738.104 2638.104 Subpart B Subpart B 738.201 2638.201 738.202 2638.202 738.203 2638.203 738.204 2638.204 Subpart C Subpart C 738.301 2638.301 738.302 2638.302 738.303 2638.303 738.304 2638.304 738.305 2638.305 738.306 2638.306 738.307 2638.307 738.308 2638.308 738.309 2638.309 738.310 2638.310 738.311 2638.311 738.312 2638.312 738.313 2638.313 5 CFR (1-1-02 Edition) Redesignation Table III Redesignation Table III

A number of revisions were made to the interim Privacy Act regulations at 55 FR 18852, May 7, 1990. For the convenience of the user, the following Redesignation Table is provided in an effort to aid the reader in following the revisions.

Interim regulation section Final regulation section Action 1630.1 1630.1 No change. 1630.2 1630.2 Revised. 1630.3(a) New. 1630.3 1630.3(b) Same. 1630.4 and 1630.5 1630.4 Merged and expanded. 1630.6 1630.5 Same, renumbered. 1630.7 1630.6 Renumbered and expanded. 1630.8 1630.7 Renumbered and expanded. 1630.9 1630.8 Renumbered and expanded. 1630.10 1630.9 Renumbered. 1630.11 1630.10 Renumbered. 1630.11(a)(3) Deleted. 1630.12 1630.11 Renumbered and expanded. 1630.13 1630.12 Renumbered. 1630.14 1630.13 Renumbered. 1630.15 1630.14 Renumbered. 1630.16 1630.15 Renumbered. 1630.17 1630.16 Renumbered and revised. 1630.17 New. 1630.18 1630.18 Same. 5 CFR (1-1-02 Edition) Redesignation Table IV Redesignation Table IV

Part 1650 was amended at 56 FR 614, Jan. 7, 1991, by redesignating subparts C—J to take into account the addition of new §§ 1650.9 and 1650.23. For the convenience of the user the following table shows the relationship of the redesignated sections.

5 CFR chapter VI, part 1650, old section numbers 5 CFR chapter VI, part 1650, new section numbers Subpart C Subpart D 1650.9 1650.10 Subpart D Subpart E 1650.10 1650.11 Subpart E Subpart F 1650.11-1650.14 1650.12-1650.15 Subpart F Subpart G 1650.15-1650.21 1650.16-1650.22 Subpart G Subpart H 1650.22-1650.24 1650.24-1650.26 Subpart H Subpart I 1650.25-1650.41 1650.27-1650.43 Subpart I Subpart J 1650.42-1650.45 1650.44-1650.47 Subpart J Subpart K 1650.50-1650.52 1650.50-1650.52 5 CFR (1-1-02 Edition) List of CFR Sections Affected List of CFR Sections Affected

All changes in this volume of the Code of Federal Regulations which were made by documents published in the Federal Register since January 1, 1986, are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to Federal Register pages. The user should consult the entries for chapters and parts as well as sections for revisions.

For the period before January 1, 1986, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, and 1973-1985,” published in seven separate volumes.

1986 5 CFR 51 FR Page Chapter II 1200Revised 3321 1201Revised 25147 1201.27(a) corrected 28321 1201.56(c)(3) corrected 28321 1201.121(b) corrected 28321 1201.126(e)(3) corrected 28321 1201.157Corrected 28321 1201.165(b) and (c)(2) corrected 28321 1201.173(f)(3) corrected 28321 1201.181—1201.183 (Subpart E)Revised; interim 6729 Technical correction 7913 1201.183Correctly designated; (c) corrected 28321 1201.212Corrected 28321 1201.213Heading corrected 28321 1201.214Introductory text corrected 28321 Chapter IV 1411Added 4573, 4579 1411.103Corrected 7543 1411.150(c) corrected 7543 1411.170(c) revised 4573 Chapter VII 1701Added 4574, 4579 Redesignated as Part 1720; new Part 1701 added 24800 1701.103Corrected 7543 1701.150(c) corrected 7543 1701.170(c) revised 4574 1702Added 24802 1703Added 24804 1720Redesignated from Part 1701 24800 Chapter XIV 2400Removed 33837 2412.3Revised 33837 2412.4(a)(2), (b) and (d) amended 33837 2412.5(b) amended 33837 2412.6(a) and (c) amended 33837 2412.7(b) amended 33837 2412.8(a)(2) and (c) amended 33837 2412.9(a) amended 33837 2412.11(a) amended 33837 2412.12Amended 33837 2412.13(b)(2) and (3) amended 33837 2422.2(e)(4) added 45751 2423.6(c) added 45751 2423.14Heading revised; (a) and (b) redesignated as (b) and (c); new (a) added 45753 2424.4(a)(2) revised; (c) added 45753 2424.6(a)(2) revised 45753 2425.2(e) added 45755 2429.8Removed 45755 2429.21Revised 45751 2429.23(a) revised 45752 2429.24(a) and (e) revised 45752 2430Authority citation revised 33837 2430.1Revised 33837 2430.2(a) and (b)(1) revised 33837 Chapter XIVAppendix A amended 4131, 9173, 12595, 19161, 32623, 40121 1987 5 CFR 52 FR Page Chapter II 1201.21(c) and (d) revised; (e) removed 47547 1201.24(a) (8) and (9), (c), and (d) revised; (a)(10) removed 47547 1201.25(a)(5) removed; (a) (6) and (7) redesignated as (a) (5) and (6) and revised 47548 1201.200—1201.222 (Subpart H)Removed 47548 1201Appendix II revised 10875 Appendix III amended 17919 1204Revised; interim 28123 Revision confirmed 45597 1260.1Revised 42421 1260.4Revised 42421 1260.5Revised 42423 1261.2(a) revised 42423 Chapter III 1303Authority citation revised 49152 1303.20(c)(7) revised; eff. 1-29-88 49152 1303.30Revised; eff. 1-29-88 49153 1303.40Added; eff. 1-29-88 49153 1303.50Added; eff. 1-29-88 49154 1303.60Added; eff. 1-29-88 49154 1303.70Added; eff. 1-29-88 49155 Chapter VI Chapter VIChapter established 6127 1600Added 6127 Revised; interim 45802 1600.2(d) revised; interim 20591 1603Added; interim 29835 1605Added; interim 17920 Revised 46318 1605.3(b)(5) corrected 19018 1605.9Added; interim 27527 1605.10Added; interim 27528 1620Added; interim 26293 1630Added; interim 8053 1631Added; interim 17923 1640Added; interim 20371 1650Added; interim 32281 Effective date note corrected 32868 1650.16Correctly revised 38042 1650.18(a) Corrected 38042 1660Added; interim 38221 1690Added; interim 43315 Chapter XIV 2411.6(b) (3) and (4) revised 26128 2411.10Revised 26128 Chapter XIVAppendix A corrected 1313 Appendix A amended 45443 1988 5 CFR 53 FR Page Chapter II 1200Revised 22465, 46843 1200.10(g) corrected 23850 1201Appendix II amended 40015, 47927, 48505 Appendix II corrected 49824 1205.16Revised 49649 1205.31Revised 49649 1205.32Revised 49649 1207Added 25881, 25885 1207.170(c) revised 25881 1253.1Revised 41149 1260.3Revised 41149 1262Added 25881, 25885 1262.170(c) revised 25881 Chapter III 1320Revised 16623 Chapter VI 1600.3(d) revised 23379 1600.10(d) revised 23379 1600.13(d) revised 23379 1605.8(b)(2) revised 31629 1620Authority citation added 10038 1620.1 (Subpart A)Heading added; interim 1620.10—1620.19 (Subpart B)Added; interim 10038 1620.30—1620.40 (Subpart C)Added; interim 10039 1620.34Amended; interim 17685 1620.50—1620.57 (Subpart D)Added; interim 10041 1630.4(a) revised 31629 1630.12(a) revised 31629 1630.14(a) revised 31629 1630.17(c) revised 31629 1631.3(b) revised 31629 1631.4(a) revised 31630 1631.6(a) revised 31630 1631.10(a) revised 31630 1632Added 36777 1633Added; interim 11815 Added; final 51223 1645Added; interim 15621 1650.26(c) revised 31630 1650.27(e) revised 31630 1650.50—1650.52 (Subpart J)Added; interim 8421 Chapter XIV 2416Added 25881, 25885 2416.170(c) revised 25881 Chapter XIVAppendix A amended 25129 1989 5 CFR 54 FR Page Chapter II 1201Revised; interim 28633 Revised 53504 1201.118(b) revised 2083 1202Revised 28658 1203Revised 23632; 28658 1203.1(a) revised 28658 1203.2(f) revised 28658 1203.5Revised 28658 1204Authority citation revised 8725, 28658 Authority citation corrected 18198 1204.14Added 8725 1205Revised 28662 1206Revised 20367 1206.7(a)(2) corrected 28664 1208Added 21397 1209Added; interim 28654 1210Added 50603 1250—1262 (Subchapter B)Heading removed; interim 47345 1250Removed; interim 47345 1251Removed; interim 47345 1252Removed; interim 47345 1253Removed; interim 47345 1254Removed; interim 47345 1255Removed; interim 47345 1260Removed; interim 47345 1261Removed; interim 47345 1262Redesignated as Part 1850 and heading amended; interim 47345 Chapter VI 1620Authority citation revised 32786 1620.70—1620.76 (Subpart E)Added; interim 32786 1620.80—1620.86 (Subpart F)Added; interim 32787 Chapter VIII Chapter VIIIChapter established; interim 47341 1800Added; interim 47341 1810Added; interim 47342 Authority citation correctly added 50479 1820Added; interim 47342 1830Added; interim 47344 1840Added; interim 47345 1850Redesignated from Part 1262 and heading amended; interim 47345 1850.170(c) amended; interim 47345 Chapter XVI Chapter XVIChapter established 50230 2600—2612 (Subchapter A)Heading added 50230 2600Heading added 50230 2602Heading added 50230 2604Heading added 50230 2608Heading added 50230 2610Heading added 50230 2612Heading added 50230 2633—2638 (Subchapter B)Heading added 50230 2633Heading added 50230 2634Redesignated from Part 734 and authority citation revised; amended 50230 2635Heading added 50230 Added 53311 2637Redesignated from Part 737 and authority citation revised; amended 50231 2638Redesignated from Part 738 and heading and authority citation revised; amended 50231 1990 5 CFR 55 FR Page Chapter II 1200Revised 21171 1201.26(c) corrected 548 1201Appendix I corrected 548 Appendix II corrected 548 Appendix II amended 29557 1204.21Revised 39911 1205.31(a) revised 39911 1205.32Revised 39911 1209Revised 28592 Chapter III 1301Removed 28745 1312Authority citation revised 28745 1312.1Amended 28745 1312.5(a), (b), and (c) revised 28745 1312.32Revised 28745 Chapter VI 1601Added; interim 11881 1630Revised 18852 1631Revised 41052 1650.20Revised; interim 51099 1650.21Revised; interim 51099 1650.26(d) amended; interim 52820 1650.27Revised; interim 52821 1650.28Revised; interim 52821 1650.29Revised; interim 52821 1650.30Added; interim 52822 1655Added 979 Chapter VIII Chapter VIIIRegulation at 54 FR 47341 confirmed 47839 1800Regulation at 54 FR 47341 47839 1800.21(b) introductory text and (1) revised 47839 1800.2(b) introductory text and (1) revised 47839 1810Regulation at 54 FR 47342 and 50749 confirmed 47839 1820Regulation at 54 FR 47342 confirmed 47839 1820.1(a) revised 47839 1830Regulation at 54 FR 47344 confirmed 47840 1840Regulation at 54 FR 47345 confirmed 47840 1850Regulation at 54 FR 47345 confirmed 50811 Chapter XIV 2429Authority citation revised 2509 2429.18Added 2509 Chapter XIVAppendix A revised 52831 Chapter XVI 2600Added 39589 2634Authority citation revised 14407 2634.303(h) added; interim 14407 2634.1001—2634.1004 (Subpart J)Added; interim 14408 2637.101(a) amended 27179 (a) corrected 27933 2637.214Revised 4309 Introductory text republished; amended 24856 2637.215Revised 4309 Introductory text republished; amended 24856 2637.216Revised 4310 Introductory text republished; amended 24856 Corrected 27330 2638Authority citation revised 21846 2638.304(a) revised 27180 2638.307(b) revised 27180 2638.310(b) revised 27180 2638.401—2638.404 (Subpart D)Added; interim 1666 Regulation at 55 FR 1666 confirmed; heading revised 21846 2638.501—2638.506 (Subpart E)Added; interim 1667 Regulation at 55 FR 1667 confirmed; heading revised 21846 2638.501(d) added 21846 2638.505(b) introductory text revised; (c) and (e)(2) amended; (g)(1) through (3) redesignated as (g)(2) through (4); new (g)(1) added 21846 2638.601—2638.603 (Subpart F)Added; interim 1670 Regulation at 55 FR 1670 confirmed; heading revised 21846 2638.603(b) and (c)(1) revised 21847 1991 5 CFR 56 FR Page Chapter II 1200Revised 41747 1201.3(a)(18) and (19) amended; (a)(20) revised 41748 1201.56(a)(1)(i) amended 41748 1201Appendix II amended 41748 Appendix II revised 52187 Appendix I amended 55599 1203.12(c) removed 41749 Chapter VI 1601Revised; interim 594 1603.1Amended; interim 600 1606Added; interim 606 1620Authority citation revised 26723 1620.90—1620.99 (Subpart G)Added 26723 1650Authority citation revised 614 1650.2Amended; interim 614 1650.4Amended; interim 614 1650.5Introductory text amended; interim 614 Introductory text, (a) and (b) amended; interim 615 1650.7Amended; interim 615 1650.8(a) amended; interim 615 1650.9 (Subpart C)Rededsignated as 1650.10 (Subpart D); interim 614 Added; interim 615 1650.10 (Subpart D)Redesignated as 1650.11 (Subpart E); new 1650.10 (Subpart D) redesignated from 1650.11 (Subpart C); interim 614 Amended; interim 615 1650.11—1650.14 (Subpart E)Redesignated as 1650.12—1650.15 (Subpart F); interim 614 1650.11 (Subpart E)Redesignated from 1650.10 (Subpart D); interim 614 1650.11(a) amended; interim 615 1650.12—1650.15 (Subpart F)Redesignated from 1650.11—1650.14 (Subpart E); interim 614 1650.12Amended 615 1650.13(b)(5) amended; interim 615 1650.15—1650.21 (Subpart F)Redesignated as 1650.16—1650.22 (Subpart G); interim 614 1650.16—1650.22 (Subpart G)Redesignated from 1650.15—1650.21 (Subpart F); interim 614 1650.17(a) and (b) amended; interim 615 1650.22—1650.24 (Subpart G)Redesignated as 1650.24—1650.26 (Subpart H); interim 614 1650.22(a) amended; interim 615 1650.23Added; interim 615 1650.24—1650.26 (Subpart H)Redesignated from 1650.22—1650.24 (Subpart G); interim 614 1650.25—1650.41 (Subpart H)Redesignated as 1650.27—1650.43 (Subpart I); interim 614 1650.25(a) and (b) amended; interim 615 1650.26(b), (c) and (d) amended; interim 615 1650.27—1650.43 (Subpart I)Redesignated from 1650.25—1650.41 (Subpart H); interim 614 1650.28(d) amended; interim 615 1650.30(a) and (b) amended; interim 615 1650.31(d), (e)(5), (f)(2) and (3) amended; interim 615 1650.42—1650.45 (Subpart I)Redesignated as 1650.44—1650.47 (Subpart J); interim 614 1650.43(c) amended; interim 615 1650.44—1650.47 (Subpart J)Redesignated from 1650.42—1650.45 (Subpart I); interim 614 1650.47Amended 615 1650.50—1650.52 (Subpart J)Redesignated as Subpart K; interim 614 Chapter XIV 2412.16Added 33189 Chapter XV 2500Authority citation revised 8101 2500.7(b) revised 8101 2500.11Amended 8101 2502Authority citation revised 5741 2502.3(b) amended 5741 (a) revised 5742 2502.4(a) amended 5742 2502.6(a) and (e) revised 5742 2502.7Amended 5742 2502.9(b)(4) redesignated as (b)(5) and amended; new (b)(4) added 5742 2502.10Nomenclature change; (a) amended 5742 2502.11—2502.19Undesignated center heading added 5742 2502.11Revised 5742 2502.12Revised 5743 2502.13Revised 5743 2502.14Redesignated as 2502.16 and (b)(2)(i)(C) revised; new 2502.14 added 5744 2502.15Redesignated as 2502.17; new 2502.15 added 5744 2502.16Redesignated as 2502.18; new 2502.16 redesignated from 2502.14; (b)(2)(i)(C) revised 5744 2502.17Redesignated as 2502.19; new 2502.17 redesignated from 2502.15 5744 2502.18Redesignated from 2502.16 5744 2502.19Redesignated from 2502.17 5744 2502.31Nomenclature change 5744 2502.32Nomenclature change 5744 2502.33Nomenclature change 5744 Chapter XVI 2636Added; interim 1723 2636.205Effective date deferred to 10-15-91; interim 21589, 51319 Effective date deferred to 2-18-92; interim 51319 2637Authority citation revised; Note added 3963 2641Added; interim 3963 1992 5 CFR 57 FR Page Chapter II 1201Appendix II revised 21723 Appendix II amended 32881 Chapter VI 1650.21(a) and (b) revised; interim 57321 (c)(1) and (2) redesignated as (b)(2)(i) and (ii); interim 57322 (c) introductory text correctly removed; interim 60073 1650.22(b) revised; interim 57322 Chapter XVI 2610Added; interim 33268 2633Removed; interim 11804 2634Heading and authority citation revised 11804 2634.101—2634.105 (Subpart A)Revised; interim 11804 2634.101Correctly designated 21854 2634.105(a), (b), (c), (e), (f), (h) through (l) and (n) corrected 21854 2634.201—2634.205 (Subpart B)Revised; interim 11806 2634.201(a) introductory text, Example 2 and (d)(1) corrected 21854 2634.203Heading corrected 21854 2634.301—2634.311 (Subpart C)Revised; interim 11808 2634.301(c)(3) corrected 21854 2634.302(a)(1)(ii) corrected 21854 2634.303(a)(1) corrected 21854 2634.304(c) and (e)(2) corrected 62605 2634.307(b) corrected 21854 2634.310(b)(2)(ii) corrected 21854 2634.401—2634.408 (Subpart D)Revised; interim 11814 2634.403(b)(9)(ii)(D) corrected 21854 2634.404(c)(9)(ii)(C) corrected 21854 2634.501—2634.503 (Subpart E)Revised; interim 11821 2634.601—2634.607 (Subpart F)Revised; interim 11821 2634.603(c)(3) corrected 21854 2634.604(b) corrected 21854 2634.701—2634.704 (Subpart G)Revised; interim 11824 2634.801—2634.805 (Subpart H)Revised; interim 11825 2634.803(a) introductory text corrected 21855 2634.804(b)(1) corrected 21855 2634.805Heading corrected 21855 2634.901—2634.909 (Subpart I)Revised; interim 11826 2634.905(c) Example 3 corrected 21855 2634Appendix A revised; interim 11829 Appendix B revised; appendix C added; interim 11830 Appendix B corrected 21855 2635Revised; eff. 2-3-93 35041 Technical correction 52583 2635.202(c)(4)(iii) corrected 48557 2635.204(i)(1) corrected 48557 2635.801(d)(6) corrected 48557 2635.807(a) introductory text corrected 48557 2635.808(c)(1)(ii) corrected 48557 2636Authority citation revised 602 2636.203(a)(13) and Example 7 added; (a) Examples 3 and 6 revised; interim 602 2636.205Effective date deferred 5369 2637.214Revised; eff. 1-1-93 62468 2637.215Revised; eff. 1-1-93 62468 2637.216Revised; eff. 1-1-93 62468 2638Authority citation revised 11890 2638.701—2638.704 (Subpart G)Added 11890 Heading corrected 61612 Technical correction 15219 2638.703(a) and (b) revised 58400 (a)(1) corrected 61612 2638.704(b)(4) and (c)(1) revised 58400 2641Authority citation revised 3116 2641Appendix A added; Appendix B amended 3116 Appendix B amended 11673 1993 5 CFR 58 FR Page Chapter II 1201Authority citation corrected 31234 1201.4(i) and (l) amended 36345 1201.22(d) amended 36345 1201.26(b)(2) amended 36345 1201.114(c) amended 36345 1201appendix II revised 28917 appendix II corrected 31234 1208Removed 61611 1209.8(d) amended 36345 Chapter VI 1633Authority citation revised 31332 1633.1—1633.83 (Subpart A)Undesignated center headings removed 31332 1633.1Removed 31332 1633.2Removed 31332 1633.3Removed 31332 1633.5Removed 31332 1633.6Removed 31332 1633.7Removed 31332 1633.8Removed 31332 1633.9Removed 31332 1633.10Removed 31332 1633.20Removed 31332 1633.21Removed 31332 1633.30Removed 31332 1633.31Removed 31332 1633.32Removed 31332 1633.33Removed 31332 1633.34Removed 31332 1633.35Removed 31332 1633.36Removed 31332 1633.37Revised 31332 1633.38(a), (c)(1), (3), (4) and (5)(ii) removed; (b) redesignated as (a) and amended; (c)(2), (5) heading and (5)(i) redesignated as (b)(2), (3) heading and text; (e) redesignated as (c); new (b) added 31332 1633.39Removed 31332 1633.40Removed 31332 1633.41Removed 31332 1633.42Removed 31332 1633.43Removed 31332 1633.44Removed 31332 1633.45Removed 31332 1633.46Removed 31332 1633.47Removed 31332 1633.48Removed 31332 1633.49Removed 31332 1633.50Removed 31332 1633.51Removed 31332 1633.52Removed 31332 1633.53Removed 31332 1633.54Removed 31332 1633.55Removed 31332 1633.56Removed 31332 1633.70Removed 31332 1633.71Removed 31332 1633.72Removed 31332 1633.73Removed 31332 1633.74Removed 31332 1633.75Removed 31332 1633.76Removed 31332 1633.77Removed 31332 1633.78Removed 31332 1633.79Removed 31332 1633.80Removed 31332 1633.81Removed 31332 1633.82Removed 31332 1633.83Removed 31332 1633.200—1633.236 (Subpart B)Removed 31332 1633.250—1633.257 (Subpart C)Undesignated center headings removed 31332 1633.250Removed 31332 1633.251Removed 31332 1633.252(a), (c), (f) and (g) removed; (b), (d) and (e) redesignated as (a), (b) and (c) 31332 1633.253Removed 31332 1633.254Removed 31332 1633.255Removed 31332 1633.256Removed 31332 1633.257Removed 31332 1636Added 57696 1636.170(c) revised 57697 1650Authority citation revised 45381 1650.2Amended 45381 1650.4Heading revised 45381 1650.5Revised 45381 Chapter XI ChapterXI Removed; new Chapter XI heading added 68505 Chapter XIV 2429.24(a) revised 53105 2471.2Revised 53105 2471.4Revised 53105 2472.5Revised 53105 ChapterXIV appendix A amended 13695 Chapter XVI 2600Authority citation revised 69176 2634.203(c)(1) revised; interim 38912 2634.601(a) revised; interim 38912 2634.704(f) added; interim 38912 2634.903(a) revised; (b)(2)(ii) amended; (b)(2)(iii) added; interim 38912 2634.907(a)(1) and (2) revised 63024 2636.305(b) heading revised 69176 2637Authority citation revised 69176 2638.203(b)(3) and (4) amended 69176 2638.204(a) and (b) amended 69176 2641appendix B amended 33755 Chapter XXII ChapterXXII Established; interim 39627 Chapter XXVI ChapterXXVI Established; interim 47622 Chapter XXXIII ChapterXXXIII Established; interim 33320 Chapter XL ChapterXL Established 41990 Chapter XLI ChapterXLI Established 52638 Chapter XLVI ChapterXLVI Established; interim 42840 Chapter XLVII ChapterXLVII Established; interim 30695 1994 5 CFR 59 FR Page Chapter II 1200.1Heading revised 65233 1200.2Heading revised 65233 1200.3Added 39937 1200.10(l) amended; (m) revised 14739 Revised 65233 1201.3(a)(6)and (7) amended; (a)(21) added; (d) removed 65235 1201.4(d) amended 65235 1201.22(b) amended 31109 (a)amended 65235 1201.23Example revised 31109 1201.27(b) amended 31109 1201.37(a)(3) amended 31109, 65235 1201.112Revised 22125 1201.115(b)(1) and (2) revised; (c) redesignated as (d); new (c) added 30863 1201.116Redesignated as 1201.117; new 1201.116 added 30864 1201.117Redesignated as 1201.118; new 1201.117 redesignated from 1201.116 30864 1201.118Redesignated as 1201.119; new 1201.118 redesignated from 1201.117 30864 1201.119Redesignated as 1201.120; new 1201.119 redesignated from 1201.118 30864 1201.120Redesignated from 1201.119 30864 1201.122(c) amended 65235 1201.154(a), (b)(1) and (d) amended 31109 1201.163(c)(1) amended 65235 1201.182(a) and (c) amended 65235 1201Appendix II revised 14739 Appendix IIIamended 14740 Appendix Iamended 65235 AppendixesII and III amended 65242 1203.13(d) amended 65242 1203.14(b) revised 65242 1204.21Amended 65243 1205.31(a) amended 65243 1205.32(a), (b) and (c) amended 65243 1209.5(c) amended 31110 1209.8(b), (c) and (d) amended 65243 1209.9(c)(1) amended 65243 1209.10(b)(1) amended 65243 Chapter III 1320appendix A amended 50815 Chapter VI 1600Authority citation revised 55331 1600.2(b) revised 55331 1605.8(b)(2) amended 55331 1620.72(d) removed; interim 1889 1620.73Removed; new 1620.73 redesignated from 1620.74; interim 1889 1620.74Redesignated as 1620.73; new 1620.74 redesignated from 1620.75; interim 1889 1620.75Redesignated as 1620.74; new 1620.75 redesignated from 1620.76; interim 1889 1620.76Redesignated as 1620.75; interim 1889 1620.83(c) removed; interim 1889 1620.84Removed; new 1620.84 redesignated from 1620.85; interim 1890 1620.85Redesignated as 1620.84; new 1620.85 redesignated from 1620.86; interim 1890 1620.86Redesignated as 1620.85; interim 1890 1630.4(b) amended 55331 1630.5(a) revised 26409 1630.13(a) amended 55331 1631.3(b) amended 55331 1631.4(a) amended 55331, 55332 1631.6(a) amended 55331 1631.10(a) amended 55331 1632.4(c) amended 55331 1632.11(b) amended 55331 1633Revised 50817 1650.28(c) amended 55331, 55332 1650.32(b) amended 55331 1650.51(b) amended 55332 Chapter VIII 1800.1(a) amended 64843 1800.2(a) amended 64843 1800.3Amended 64843 1820.1(b) amended 64843 1820.2Amended 64843 1820.8Amended 64843 1830.1(a) amended 64844 1830.3Amended 64844 1850.170(c) amended 64844 Chapter XI 2100Added 30669 Chapter XIV ChapterXIV appendix A amended 30504 Chapter XVI 2610.201(f) amended 34755 2634.409Added; OMB number 34756 2634.601OMB number 34756 2634.603OMB number 34756 2635.403(a) amended 4780 2635.803Amended 4780 2635Appendix A added 4780 2636Authority citation revised 34756 2636.205OMB number 34756 2638.203(b)(6) revised; interim 12148 2638.702(a)(2) introductory text, (3) introductory text, (ii) and (iii) revised; interim 12148 2638.703Revised; interim 12148 2638.704(a), (b)(4), (c) and (d) revised; interim 12149 2641Authority citation revised 34756 2641.101Amended 34756 Chapter XLVIII Chapter XLVIIIEstablished 17459 Chapter LIX Chapter LIXEstablished 49336 Chapter LXIII Chapter LXIIIEstablished 3772 Chapter LXXVI Chapter LXXVIEstablished 50817 1995 5 CFR 60 FR Page Chapter II 1201Appendixes II and III revised 40744 Appendix II corrected 43001, 44254 Appendix III corrected 44255 Chapter III 1300Revised 12397 1320Revised 44984 Technical correction 46149 Chapter VI 1601.1Amended 36633 1601.4(c) removed 47837 1601.5Revised 36633 1601.6Revised 36633 1603Authority citation revised 24535 1603.1Amended; interim 24535 1603.3(a) and (b) amended; interim 24535 1620Authority citation revised 19990 1620.100—1620.107 (Subpart H)Added; interim 19990 1650Revised 9603 1653Added 13609 Authority citation revised 45624 1653.20—1653.25 (Subpart B)Added; interim 45624 Regulation at 60 FR 45624 confirmed 66061 Chapter IX 1900Revised 62702 1900.100Technical correction 63576 Chapter XIV 2421.11Revised; eff. 3-15-96 67291 2421.18Added; eff. 3-15-96 67291 2421.19Added; eff. 3-15-96 67291 2421.20Added; eff. 3-15-96 67291 2421.21Added; eff. 3-15-96 67291 2421.22Added; eff. 3-15-96 67291 2422Revised; eff. 3-15-96 67291 2429.21(a) and (b) revised; eff. 3-15-96 67298 2429.22Revised; eff. 3-15-96 67298 Chapter XIVAppendix A amended 49493 Chapter XVI 2604Added 10007 2610.106(a) amended 38666 2635.203(b)(7) note amended 51667 2635.403(a) note amended 6391 (a) note amended; eff. 1-3-96 66858 2635.803Note amended 6391 Note amended; eff. 1-3-96 66858 2635Appendix B added 6391 Appendix C added; eff. 1-3-96 66858 2640Added; interim 44709 Chapter XXI Chapter XXIEstablished 22251 Chapter XXII 3201Added 20174 Chapter XXX Chapter XXXEstablished; interim 30776 Chapter XXXI Chapter XXXIEstablished; interim (effective date pending) 30781 Regulation at 60 FR 30781 confirmed; eff. 9-13-95 47453 4101Concurrence 62319 Chapter XXXIII Chapter XXXIIIRegulation at 58 FR 33320 confirmed 37556 Chapter LII Chapter LIIEstablished; interim 17626 Chapter LIII Chapter LIIIEstablished; interim 5817 Chapter LX Chapter LXEstablished 47240 Chapter LXXVII Chapter LXXVIIEstablished 12397 1996 5 CFR 61 FR Page Chapter II 1201.3(a)(7), (8)(ii), (10), (12) and (13) amended 1 1201.126(c) amended 49049 1201Appendixes II and III revised 4586 Chapter VI 1600.1Amended; interim 58754 1605Revised 68472 1620Authority citation revised 2873, 41486, 55202 1620.72(b)(1) amended; interim 58755 1620.83(a) amended; interim 58755 1620.90—1620.99 (Subpart G)Revised; interim 41486 1620.110—1620.119 (Subpart I)Added; interim 2873 1620.110Revised; interim 55202 1620.111Amended; interim 55202 1620.112Revised; interim 55202 1620.114Revised; interim 55202 1620.118Revised; interim 55202 1645.1Amended 58973 1645.2Revised 58974 1645.3Amended 58974 1645.4Revised 58974 1645.5Revised 58974 1645.6Revised 58974 1645.7Revised 58974 1653.5(a) revised 18912 1653.25(a) revised 18912 1655Authority citation revised 58755 1655.1Amended; interim 58755 1655.2Amended; interim 58755 1655.3Revised; interim 58755 1655.4Revised; interim 58755 1655.9(b) and (c) revised; interim 58755 1655.10(c) revised; (d) removed; interim 58755 1655.11(d) revised; interim 58755 1655.12Revised; interim 58755 1655.13(a)(1), (2)(ii) and (3) revised; interim 58756 1655.15(b) revised; (c) amended; interim 58756 1655.16(b) revised; (d) removed; interim 58757 1655.17(a) and (b) amended; interim 58757 1655.18Revised; interim 58757 1655.19Revised; interim 58757 1655.21Removed; interim 58757 1655.22Removed; interim 58757 1655.23Removed; interim 58757 1655.24Removed; interim 58757 1660Removed 36610 Chapter IX 1900.100Corrected 13051 Chapter XIV 2470.1Amended 41294 2471.2Revised 41294 2471.3(a)(1), (b)(1) and (4) revised 41294 2471.4Revised 41294 2471.5Heading, (a), (b), (d) and (e) revised 41294 2471.6Heading, (a)(2) and (b) revised 41294 2471.7Heading and introductory text revised; (a) and (b) introductory text removed; (b)(1) through (6) redesignated as (a) through (f) 41295 2471.8Heading revised 41295 2471.9(a) revised 41295 2472Authority citation revised 41295 2472.2(d) through (n) redesignated as (e) through (o); new (d) added; new (j) revised 41295 2472.3Revised 41295 2472.4(a)(1) and (6) revised 41295 2472.5Revised 41295 2472.6Removed; new 2472.6 redesignated from 2472.7; heading, (a), (b), (d), (e) and (f) revised 41295 2472.7Redesignated as 2472.6; new 2472.7 redesignated from 2472.8 41295 (b) revised 41296 2472.8Redesignated as 2472.7; new 2472.8 redesignated from 2472.9 41295 Revised 41296 2472.9Redesignated as 2472.8; new 2472.9 redesignated from 2472.10 41295 2472.10Redesignated as 2472.9; new 2472.10 redesignated from 2472.11 41295 Revised 41296 2472.11Redesignated as 2472.10; new 2472.11 redesignated from 2472.12 41295 (a) introductory text and (b) revised 41296 2472.12Redesignated as 2472.11 41295 2473Added 41296 ChapterXIV Appendix A amended 1697, 51207 Appendix B amended 16043 Chapter XVI 2634Authority citation revised 32635 2634.1001(b) amended 32635 Corrected 35589 2634.1002(b)(1)(i), (ii), (iv)(B), (v) and (c) revised; (d) and (e) added 32635 (e)(1) corrected 40145 2635.204(g)(2) through (5) and (6) introductory text revised; (g)(6) Examples 2, 3 and 4 redesignated as (g)(6) Examples 4, 5 and 6; new (g)(6) Examples 2 and 3 added 42969 (g)(2) corrected 48733 (f) amended; interim 50691 2635.403(a) note amended 40951 2635.801(d)(7) revised; interim 50691 2635.803Note amended 40951 2635.808(a)(2) note revised; interim 50691 2635Appendix D added 40952 2640Revised; eff. 1-17-97 66841 Chapter XXII 3201.103(b)(4) amended 35915 3202Removed 50947 Chapter XXIII ChapterXXIII Established; interim 35087 Chapter XXIV ChapterXXIV Established 43414 Chapter XXVIII ChapterXXVIII Established; interim 59814 Chapter XXIX ChapterXXIX Established 56111 Chapter XXX ChapterXXX Regulation at 60 FR 30776 confirmed 4349 Chapter XXXV ChapterXXXV Established; interim 36996 Chapter XLII ChapterXLII Established; interim 57284 Chapter XLIII ChapterXLIII Established; interim 59818 Chapter XLV ChapterXLV Established 39763 Chapter L ChapterL Established 39903 Chapter LIV ChapterLIV Established 40502 Chapter LVII ChapterLVII Established 56401 Chapter LVIII ChapterLVIII Established 53828 Chapter LXII ChapterLXII Established; interim 7066 Chapter LXV ChapterLXV Established 36248 Chapter LXVI ChapterLXVI Established 40505 Chapter LXIX ChapterLXIX Established 20118 Chapter LXXI ChapterLXXI Established 65458 Chapter LXXIV ChapterLXXIV Established 39871 1997 5 CFR 62 FR Page Chapter II 1200.10 (Subpart B)Revised 49589 1201Authority citation revised 17044 1201.2(a) revised 66814 1201.3(b) amended; interim 17044 (c)(1)(ii) revised; (c)(1)(iii) added; (c)(2) amended; interim 17045 (a)(12) revised; (a)(19), (20) and (21) amended; (a)(22) added 66814 1201.22(b) revised 59992 (b) redesignated as (b)(1); new (b)(1) amended; (b)(2) added 66814 1201.27(b) amended 59992 1201.31(d) added 62689 (e) added 66815 1201.33Existing text designated as (a); (b) and (c) added 48935 1201.37Heading revised; (a) and (b) designation and heading removed; (b)(1), (2) and (3) redesignated as (a), (b) and (c); interim 17045 1201.41(b)(7) revised 62689 1201.55(b) amended; interim 17045 1201.111(b)(6) amended; interim 17045 1201.112(a)(3) amended; interim 17045 1201.113(a) and (d) revised 59992 1201.114(d) amended 59992 1201.115(b)(1) amended 43631 1201.121—1201.148 (Subpart D)Revised; interim 48451 1201.121Heading and (b) revised; interim 17045 (c) added 66815 1201.131Revised; interim 17045 (a) amended 66815 1201.154(a) revised; (d) amended 59992 1201.163(a) and (c) amended; interim 17045 1201.182(a) and (b) amended; (c) revised 48935 1201.201—1201.205 (Subpart H)Added; interim 17045 1209.3Amended; interim 17048 1209.4(a)(9) amended; (a)(10) redesignated as (a)(11); new (a)(10) added; new (a)(11) revised; interim 17048 1209.5(a)(1) revised; (c) amended 59993 1209.13 (Subpart E)Added; interim 17048 Chapter III 1305Added 29285 1312Revised 25426 Chapter VI 1603Authority citation revised 33968 1603.1Revised 33968 1603.2Heading, (b) and (c) revised; (d) added 33969 1603.3(a) and (b) introductory text revised 33969 1605.9(a)(1) amended 48936 1620Authority citation revised 18234 1620.102(b)(3) removed 18234 1639Added; interim 49417 1640.1Amended 34154 1640.2Revised 34155 1640.3Introductory text, (c)(2), (d) and (e) revised 34155 1640.4Revised 34155 1640.5Revised 34155 1640.6Revised 34155 1650Revised 49113 1651Added 32429 1655Regulation at 55 FR 979 confirmed 18019 1655.1Regulation at 61 FR 58755 confirmed 18019 1655.2Regulation at 61 FR 58755 confirmed 18019 1655.3Regulation at 61 FR 58755 confirmed 18019 1655.4Regulation at 61 FR 58755 confirmed 18019 1655.9Regulation at 61 FR 58755 confirmed 18019 1655.10Regulation at 61 FR 58755 confirmed 18019 1655.11Regulation at 61 FR 58755 confirmed 18019 1655.12Regulation at 61 FR 58755 confirmed 18019 1655.13Regulation at 61 FR 58756 confirmed 18019 1655.15Regulation at 61 FR 58756 confirmed 18019 1655.16Regulation at 61 FR 58757 confirmed 18019 1655.17Regulation at 61 FR 58757 confirmed 18019 1655.18Regulation at 61 FR 58757 confirmed 18019 1655.19Regulation at 61 FR 58757 confirmed 18019 1655.21Regulation at 61 FR 58757 confirmed 18019 1655.22Regulation at 61 FR 58757 confirmed 18019 1655.23Regulation at 61 FR 58757 confirmed 18019 1655.24Regulation at 61 FR 58757 confirmed 18019 1690Regulation at 52 FR 43315 confirmed 32473 Chapter XIV 2411.6(b) revised 60997 2411.10(g)(2) revised 60997 2423Revised 40916 Clarification 46175 2429Clarification 46175 2429.1Removed 40922 2429.7Amended; heading and (c) through (f) revised 40922 2429.11Revised 40923 2429.12(a) and (c) revised 40923 2429.13Revised 40923 2429.14Revised 40923 2429.21(b) revised 40923 2429.22Revised 40923 2429.24(e) revised 40924 2429.25Revised 40924 2429.27(b) and (d) revised 40924 2473Heading and authority citation correctly added 2547 Chapter XVI 2634.105(i) amended 48747 2634.601(a) revised; (d) added; OMB number 33976 2634.905Introductory text revised; (b)(2) and (c) amended; (d) added 33976 2635Authority citation revised 48747 2635.202(c)(4)(i) and (ii) amended; (c)(4)(iii) removed 48747 2635.204Regulation at 61 FR 50691 confirmed 12531 Example 5 removed; (l)(1) amended 48747 2635.401Amended 48747 2635.402(a) note, (c) introductory text, (d) heading, introductory text, (2)(ii) and (3)(ii) amended; (d)(1) revised 48748 2635.403(a) amended 48748 2635.501(b) amended 48748 2635.602(a) introductory text and (2) amended 48748 2635.605(a) amended 48748 2635.606(a) amended 48748 2635.704(b)(2) Examples 1 and 3 amended 48748 2635.801Regulation at 61 FR 50691 confirmed 12531 (d)(7) amended; (d)(8) removed; (d)(9) redesignated as new (d)(8) 48748 2635.803Amended 48748 2635.805(c) introductory text amended 48748 2635.807(a)(1)(i) and (a)(1)(iii) Example 1 removed; (a)(1)(ii) and (iii) redesignated as new (1)(1)(i) and (ii); (a)(3)(ii) Example 1 amended 48748 2635.808Regulation at 61 FR 50691 confirmed 12531 2635.902(f), (h) and (bb) revised; (l) and (n) removed 48748 2635Appendixes A through D removed 48748 2638Technical correction 14737 2638.701Revised; interim 11312 Regulation at 62 FR 11312 eff. date corrected to 6-10-97 13213 2638.702(a) designation and (b) removed; (a)(1), (2) and (3) redesignated as (a), (b) and (c); new (b)(i) through (v) redesignated as (b)(1) through (5); new (b) introductory text and new (5) amended; new (c) revised; interim 11312 Regulation at 62 FR 11312 eff. date corrected to 6-10-97 13213 2638.703(a)(3) amended; (b)(1) and (2) revised; interim 11313 Regulation at 62 FR 11312 eff. date corrected to 6-10-97 13213 2638.704(b)(4) amended; (b)(6) removed; (b)(7) redesignated as (b)(6); heading, (a), (b)(5), new (6), (c) introductory text and (d) revised; interim 11313 Regulation at 62 FR 11312 eff. date in part corrected to 6-10-97 13213 2640.201(c)(1) note corrected 1361 2640.202(b)(1) correctly designated 1361 2640.203(a)(2) amended 23128 2641Appendixes A and B amended 26917 Appendixes A and B corrected 31865 Chapter XXII 3201.102(c)(1)(i), (2), (3) and (d)(2) amended; (c)(1)(ii) revised; (c)(1)(iii) added 3772 Chapter XXV ChapterXXV Added; interim 53718 Chapter XXVIII 3801Revised 23942 3801.106(b)(1)(ii) corrected 31865 Chapter XXXV 4501Regulation at 61 FR 36996 confirmed 42899 Authority citation correctly revised 42899 4501.103(a)(3) corrected 32859 Chapter LXI ChapterLXI Established; interim 6447 Chapter LXII ChapterLXII Regulation at 61 FR 7066 confirmed 36447 1998 5 CFR 63 FR Page Chapter II 1201.3Regulations at 62 FR 17044 and 17045 confirmed 41179 1201.31(d) revised 35500 1201.37Regulation at 62 FR 17045 confirmed 41179 1201.41(b)(7) revised 35500 1201.55Regulation at 62 FR 17045 confirmed 41179 1201.111Regulation at 62 FR 17045 confirmed; (b)(6) revised 41179 1201.112Regulation at 62 FR 17045 confirmed 41179 1201.121—1201.148(Subpart D) Regulation at 62 FR 48451 confirmed 42686 1201.125(c)(2) amended 42686 1201.134(b) amended 42686 1201.136(b) revised 42686 1201.157Amended 41179 1201.163Removed 41179 1201.183(a)(4) and (b)(3) amended 41179 1201.201—1201.205(Subpart H) Revised 41179 1209.3Regulation at 62 FR 17048 confirmed 41181 1209.4Regulation at 62 FR 17048 confirmed 41181 1209.13(Subpart E) Regulation at 62 FR 17048 confirmed 41181 Chapter III 1303Authority citation revised 20514 1303.2Revised 20514 1303.3Revised 20514 1303.10Revised 20514 1303.20Revised 20515 1303.30(d) and (e) revised 20515 1303.40(f) revised 20515 1303.60(d) concluding text designated as (d)(3); (c) and new (d)(3) revised 20515 1310Revised 70311 Chapter VI 1605.2(c)(5) revised; interim 4366 (c)(5) revised 24380 1605.4(c)(1) revised; interim 4366 (c)(1) revised 24381 1631Authority citation revised 41708 1631.4(a) revised 41708 1631.6(f) and (g) added 41708 1631.8Revised 41708 1631.10Revised 41708 1631.11(a)(4) amended 41708 1631.13(c) amended 41709 1631.14(a) and (b) amended 41709 1631.18Revised 41709 1655.18(f) added 45391 Chapter XIV 2420Authority citation revised 46158 2420.1Introductory text revised 46158 2421Authority citation revised 46158 2421.2(a) revised 46158 2421.14Revised 46158 2422Authority citation revised 46158 2422.34(b) revised 46158 2423Authority citation revised 46158 2423.0Added 65642 2423.1—2423.12(Subpart A) Revised 65642 2423.41(c) revised 46158 2424Revised; eff. 4-1-99 66413 2470Authority citation revised 46159 2470.1Revised 46159 2470.2(a) revised 46159 ChapterXIV Appendix A amended 70989 Appendix A corrected 72350 Chapter XVI 2610.102Amended 13116 2610.105(b)(4) and (5) amended; (b)(6) added 13116 2610.106(b) and (c) redesignated as (c) and (d); new (b) added; new (d) revised 13116 2610.107(b) amended 13116 2610.108Heading revised; (a) and (b) amended 13116 2610.201(a) and (b) introductory text revised; (f) amended 13116 2610.204(a) revised; (c) amended 13116 2634.105(h)(5) and (6) amended; (h)(7) added 69992 2634.201(a) amended 69992 2634.302(a)(2) revised and stayed 43068 2634.304(e) amended 69992 2634.601(c) removed; (d) redesignated as (c) 43068 2634.902Removed 69992 2634.903(a) amended 69992 2634.904(a)(1) introductory text amended 69992 2634.906Amended 15274 2634.907(a) introductory text amended 69992 2634Appendixes A and C amended; Appendix A heading and Appendix B heading revised 58620 2635.203(e) revised and Example 2 added; eff. 1-19-99 69993 2635.204Introductory text and (a) amended; eff. 1-19-99 69993 (a) Example 5 added; eff. 1-19-99 69994 2636Heading revised 43068 2636.101Revised 43068 2636.102(a) amended 43068 2636.103(a)(2)(i) revised 43068 2636.104(a) amended; (c) and (d) removed 43068 2636.201—2636.205(Subpart B) Removed 43069 2636.302Introductory text amended; (a) and (b) removed 43069 2636.303(b)(7) revised; (c) concluding text amended 43069 Chapter XXV ChapterXXV Regulation at 62 FR 53718 confirmed 34259 3501.101(b)(3) removed; (b)(4) and (5) redesignated as (b)(3) and (4) 34259 3501.104(a) corrected 18501 Heading correctly revised 20447 3501.105(b)(4)(ii)(E) amended 34259 Chapter XLVII 5701Authority citation revised 43070 5701.102Added 43070 1999 5 CFR 64 FR Page Chapter II 1200.10(a)(9) and (b)(9) removed; (a)(10) and (b)(10) redesignated as (a)(9) and (b)(9); (b)(8) revised 15916 1201.22(b)(1) revised 27899 (b)(2) revised 54508 1201.111(c)(1) designation and (2) added 27900 1201.115(b) and (c) revised 27900 1204Revised 51039 1205Revised 51043 1205.12(d) correctly designated 71267 Chapter III 1315Added 52586 Chapter IV ChapterIV Removed 49639 Chapter VI 1620Revised 31057 1630.2(e) amended; (f) through (n) redesignated as (g) through (l), (n), (o) and (p); new (f) and (m) added; eff. 1-3-00 67693 (n) amended; eff. 1-3-00 67695 1630.4(a)(1) revised; (a)(2), (3) and (4) redesignated as (a)(3), (4) and (5); new (a)(2) added; eff. 1-3-00 67693 (a)(3) amended; eff. 1-3-00 67695 1630.5(a) and (b) amended; eff. 1-3-00 67694 1630.6(a) amended; eff. 1-3-00 67694, 67695 1630.7(a) and (b) amended; (c) revised; eff. 1-3-00 67694 1630.8(a), (b)(1) and (5) amended; eff. 1-3-00 67694 1630.10(a) introductory text and (1) amended; eff. 1-3-00 67695 1630.11(a)(1), (3) and (5) amended; eff. 1-3-00 67694 (a)(2) amended; eff. 1-3-00 67695 1630.12(a) amended; eff. 1-3-00 67695 1630.14(c) amended; eff. 1-3-00 67695 1630.16(c) and (d)(1) amended; eff. 1-3-00 67695 1650.15(c) and (d) added 31062 1651.1Amended 31062 1651.2(c) added 31062 1690.2Added 31052 Chapter XIV 2411.8Revised 18799 2430Authority citation revised 30861 2430.4(a) amended 30861 Chapter XVI 2604.103Amended 28090 2604.201—2604.202 (Subpart B)Heading revised 28090 2604.201Heading revised; (a)(1) designation and (2) added; new (a)(1), (b) and (c) amended; (b)(4) redesignated as (b)(5); new (b)(4) and (d) added 28090 2604.202(a) amended 28090 2604.301(a) amended; (e) added 28090 2604.302(b) heading and (c) revised; (b) amended 28090 2604.303(b)(2) amended; (b)(3) redesignated as (b)(4); new (b)(3) added 28091 2604.305(a)(1) designation and (2) added; new (a)(1) amended 28091 2604.402(b) amended 28091 2604.501(b)(1)(i) and (3) amended 28091 2604.601—2604.602 (Subpart F)Revised 28091 2634Authority citation revised 47096 2634.101Revised 47096 2634.304(f)(3)(iii) amended 2422 (f)(1) introductory text, (i), (2) and (3) revised; (f)(1)(ii) Example added 49640 2634.701(b) amended 47096 2634.702(a) and (b) amended 47097 2634.703Amended 47097 2634.904(b) amended 2422 2635.203(b)(7) note amended 2422 2635.601Amended 13064 2635.602Introductory text and note amended 13064 2635.603(d) revised 13064 2635.604(a) amended 13064 2635.605(a) and (b) amended 13064 2635.606(a) amended 13064 2635.902(o) and (z) amended; (q) revised 2422 2636Authority citation revised 47097 2636.104(a) revised 47097 2636.303(a) introductory text revised; (a)(4) amended 2422 2641Appendix B amended 5710 Chapter XLII 5201Regulation at 61 FR 57286 confirmed 73853 Chapter LVIII 6801.103(a)(2) revised; (c)(1)(i) and (c)(1)(ii) redesignated as (c)(1)(ii) and (c)(1)(iii); new (c)(1)(i) added 68616 2000 5 CFR 65 FR Page Chapter II 1201Authority citation revised 5409 1201.3(a)(20) and (21) amended; (a)(22) removed; (b) redesignated as (b)(2); (b)(1) added 5409 1201.21(d) revised 25624 1201.22(b)(2) revised 5409 1201.31(e) removed 5409 1201.53Revised 19293 1201.54Removed 19293 1201.121(c) amended 5409 1201.154(d) introductory text revised 25624 1201.173(f)(1) amended 48885 1201.202(a)(6) and (7) amended; (a)(8) added; (d)(1) revised 5409 1201.203(a)(3) revised 24381 1201Appendix II amended 58902 1203.11(b)(2) amended 57939 1203.13(a) amended 48885 1204.2(d) amended 48885 1204.11(a) amended 48886 1204.21(b) amended 48886 1205.11(a) amended 48886 1205.21Introductory text amended 48886 1205.31(a) amended 48886 1206.8Amended 48886 1207.170(c) amended 48886 1208Added; interim 5412 1208.11(b) and (c) amended 49896 1208.12Amended 49896 1208.13(a)(3) revised; (a)(4) amended 49896 1208.14Revised 49896 1208.22(a) and (b) amended 49896 1208.23(a)(5)(i) amended 49896 1209.6(a)(4) and (5)(ii) revised; (a)(6) added 67608 Chapter III 1315Authority citation revised 78404 1315.2(h) revised; interim 78404 1315.4(d), (e) and (g)(1) revised; (g)(2), (3) and (4) redesignated as (g)(3), (4) and (5); new (g)(2) added; interim 78405 1315.5(d) added; interim 78405 1315.9(b) introductory text and (1) through (10) redesignated as (b)(1) introductory text and (i) through (x); new (b)(1) introductory text and (c) introductory text revised; new (b)(2) added; interim 78405 1315.10(b)(1) revised; interim 78405 1315.20Added; interim 78405 Chapter VIII 1800.1Revised 64882 1800.2Revised 64883 1800.3Amended 81325 1820.1(b) amended 81325 1820.2Amended 81325 1820.8Amended 81325 1830.1(a) amended 81325 1830.3Amended 81325 1850.170(c) amended 81325 Chapter XIV 2430Authority citation revised 10374 2430.4(a) revised 10374 2430.5Revised 10374 Chapter XVI 2634.301(d)(6) and (7) amended; (d)(8) added 69656 2634.302(b)(1)(viii) amended; (b)(1)(ix) added 69656 2634.304(a), (b) and (d) amended 69656 2635.204(g)(2) and (6) amended 69657 2635.807(a)(2)(iii)(B) and (C) amended; (a)(2)(iii)(D) added 53652 2635.902(l) added 69657 2638Technical correction 10598 2638.101(a) and (b) amended 69657 2638.104Amended 69657 2638.201Amended 69657 2638.701—2638.706 (Subpart G)Revised; interim 7279 2640.203(l) added; interim 16513 Regulation at 65 FR 16513 confirmed 47831 Chapter LXXIII Chapter LXXIIIEstablished; interim 15828 8301Revised 58638 8301.103(d)(2) corrected 21239 2001 5 CFR 66 FR Page Chapter II 1201.3(a)(6) and (7) amended 30635 1201Appendix I revised 30635 Appendix II amended 57841 Chapter VI 1600Revised 22089 1601Revised 22093 1604Added 50713 1605Revised 44277 1605.4(a)(3) amended 14448 1605.6Revised 14448 1605.8Revised 14448 1606Authority citation revised 44283 1606.2Revised 44283 1606.5Revised 44283 1606.7Revised 44284 1606.8Revised 44284 1606.9(a)(3) revised 44284 1606.11(c), (d) and (e) revised; (f) added 44284 1606.13(a), (b) and (c) revised; (d) and (e) amended; (g) removed 44285 1606.15(a) revised 44285 1650.31Revised 43462 1650.42Revised 43462 Chapter XVI 2604.103Amended 3439 2604.301(a) and (b)(2) amended 3439 2604.302(a) and (d) amended 3439 2604.303(a), (b) introductory text and (2) amended 3439 2604.304(a) amended 3439 2604.305(a)(1) and (2) amended 3439 2604.402(c) introductory text, (2), (e) introductory text, (3), (f), (g)(1) and (4) amended 3439 2634.903(d) revised 55872 2635.807(a)(2)(iii)(D) Note and Examples 1, 2 and 4 revised 59674 Chapter XXI 3101Authority citation revised 8506 3101.109(c)(1) and (3) revised 8506 Chapter L 6001Authority citation revised 60140 6001.104(b) revised; (d) redesignated as (e); new (d) added 60140 Chapter LIX 6901Authority citation revised 59136 6901.102Removed 59136 ○