[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 22
Foreign Relations
________________________
Parts 1 to 299
Revised as of April 1, 2018
Containing a codification of documents of general
applicability and future effect
As of April 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 22:
Chapter I--Department of State 3
Chapter II--Agency for International Development 783
Finding Aids:
Table of CFR Titles and Chapters........................ 1103
Alphabetical List of Agencies Appearing in the CFR...... 1123
List of CFR Sections Affected........................... 1133
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 1.1 refers to
title 22, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
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Each volume of the Code is revised at least once each calendar year
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Title 1 through Title 16.................................as of January 1
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[[Page vi]]
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2018
[[Page ix]]
THIS TITLE
Title 22--Foreign Relations is composed of two volumes. The first
volume, parts 1--299 contains Chapter I--Department of State regulations
and Chapter II--Agency for International Development regulations. The
second volume, part 300 to End is composed of Chapter III--Peace Corps;
Chapter IV--International Joint Commission, United States and Canada;
Chapter V--Broadcasting Board of Governors; Chapter VII--Overseas
Private Investment Corporation; Chapter IX--Foreign Service Grievance
Board; Chapter X--Inter-American Foundation; Chapter XI--International
Boundary and Water Commission, United States and Mexico, United States
Section; Chapter XII--United States International Development
Cooperation Agency; Chapter XIII--Millennium Challenge Board; Chapter
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; Chapter XV--African
Development Foundation; Chapter XVI--Japan-United States Friendship
Commission; and Chapter XVII--United States Institute of Peace. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 2018.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains parts 1 to 299)
--------------------------------------------------------------------
Part
chapter i--Department of State.............................. 1
chapter ii--Agency for International Development............ 200
[[Page 3]]
CHAPTER I--DEPARTMENT OF STATE
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SUBCHAPTER A--GENERAL
Part Page
1 Insignia of rank............................ 9
2 Protection of foreign dignitaries and other
official personnel...................... 9
3 Gifts and decorations from foreign
governments............................. 11
3a Acceptance of employment from foreign
governments by members of the uniformed
services................................ 17
4 Notification of foreign official status..... 19
5 Organization................................ 20
7 [Reserved]
9 Security information regulations............ 22
9a Security information regulations applicable
to certain international energy
programs; related material.............. 28
9b Regulations governing Department of State
press building passes................... 30
SUBCHAPTER B--PERSONNEL
11 Appointment of Foreign Service officers..... 34
12 Complaints against employees by alleged
creditors............................... 40
13 Personnel................................... 40
16 Foreign Service grievance system............ 41
17 Overpayments from the Foreign Service
Retirement and Disability Fund under the
Foreign Service Retirement and
Disability System (FSRDS) and the
Foreign Service Pension System (FSPS)... 49
18 Regulations concerning post employment
conflict of interest.................... 51
19 Benefits for spouses and former spouses of
participants in the Foreign Service
retirement and disability system........ 55
20 Benefits for certain former spouses......... 76
[[Page 4]]
21 Indemnification of employees................ 80
SUBCHAPTER C--FEES AND FUNDS
22 Schedule of fees for consular services--
Department of State and Foreign Service. 82
23 Finance and accounting...................... 87
SUBCHAPTER D--CLAIMS AND STOLEN PROPERTY
33 Fishermen's Protective Act Guaranty Fund
procedures under section 7.............. 89
34 Debt collection............................. 93
35 Program fraud civil remedies................ 103
SUBCHAPTER E--VISAS
40 Regulations pertaining to both nonimmigrants
and immigrants under the Immigration and
Nationality Act, as amended............. 120
41 Visas: Documentation of nonimmigrants under
the Immigration and Nationality Act, as
amended................................. 133
42 Visas: Documentation of immigrants under the
Immigration and Nationality Act, as
amended................................. 178
43-45 [Reserved]
46 Control of aliens departing from the United
States.................................. 205
47 [Reserved]
SUBCHAPTER F--NATIONALITY AND PASSPORTS
50 Nationality procedures...................... 212
51 Passports................................... 217
53 Passport requirement and exceptions......... 233
SUBCHAPTER G--PUBLIC DIPLOMACY AND EXCHANGES
61 World-wide free flow of audio-visual
materials............................... 236
62 Exchange visitor program.................... 239
63 Payments to and on behalf of participants in
the international educational and
cultural exchange program............... 307
64 Participation by Federal employees in
cultural exchange programs of foreign
countries............................... 312
65 Foreign students............................ 314
66 Availability of the records of the National
Endowment for Democracy................. 315
[[Page 5]]
67 Organization of the National Endowment for
Democracy............................... 323
SUBCHAPTER H--PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND
ESTATES
71 Protection and welfare of citizens and their
property................................ 328
72 Deaths and estates.......................... 331
SUBCHAPTER I--SHIPPING AND SEAMEN
89 Prohibitions on longshore work by U.S.
nationals............................... 340
SUBCHAPTER J--LEGAL AND RELATED SERVICES
91 Import controls............................. 349
92 Notarial and related services............... 349
93 Service on foreign state.................... 378
94 International child abduction............... 379
95 Implementation of torture convention in
extradition cases....................... 382
96 Intercountry adoption accreditation of
agencies and approval of persons........ 383
97 Issuance of adoption certificates and
custody declarations in Hague Convention
adoption cases.......................... 430
98 Intercountry adoption--Convention record
preservation............................ 433
99 Reporting on Convention and non-Convention
adoptions of emigrating children........ 434
SUBCHAPTER K--ECONOMIC AND OTHER FUNCTIONS
101 Economic and commercial functions........... 436
103 Regulations for implementation of the
Chemical Weapons Convention and the
Chemical Weapons Convention
Implementation Act of 1998 on the taking
of samples and on enforcement of
requirements concerning recordkeeping
and inspections......................... 437
104 International trafficking in persons:
Interagency coordination of activities
and sharing of information.............. 444
SUBCHAPTER L [RESERVED]
SUBCHAPTER M--INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
120 Purpose and definitions..................... 445
121 The United States munitions list............ 459
122 Registration of manufacturers and exporters. 506
123 Licenses for the export and temporary import
of defense articles..................... 509
[[Page 6]]
124 Agreements, off-shore procurement, and other
defense services........................ 527
125 Licenses for the export of technical data
and classified defense articles......... 538
126 General policies and provisions............. 544
127 Violations and penalties.................... 585
128 Administrative procedures................... 592
129 Registration and licensing of brokers....... 599
130 Political contributions, fees and
commissions............................. 606
SUBCHAPTER N--MISCELLANEOUS
131 Certificates of authentication.............. 612
132 Books, maps, newspapers, etc................ 612
133 Governmentwide requirements for drug-free
workplace (financial assistance)........ 612
134 Equal Access to Justice Act; implementation. 618
136 Personal property disposition at posts
abroad.................................. 624
138 Restrictions on lobbying.................... 627
139 Irish peace process cultural and training
program................................. 639
140 Prohibition on assistance to drug
traffickers............................. 643
SUBCHAPTER O--CIVIL RIGHTS
141 Nondiscrimination in federally-assisted
programs of the Department of State--
effectuation of title VI of the Civil
Rights Act of 1964...................... 650
142 Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 659
143 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 672
144 Enforcement of non-discrimination on the
basis of handicap in programs or
activities conducted by the United
States Department of State.............. 677
146 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 683
[[Page 7]]
147 Electronic and information technology....... 700
SUBCHAPTER P--DIPLOMATIC PRIVILEGES AND IMMUNITIES
151 Compulsory liability insurance for
diplomatic missions and personnel....... 703
SUBCHAPTER Q--ENVIRONMENTAL PROTECTION
161 Regulations for implementation of the
National Environmental Policy Act (NEPA) 706
SUBCHAPTER R--ACCESS TO INFORMATION
171 Public access to information................ 719
172 Service of process; production or disclosure
of official information in response to
court orders, subpoenas, notices of
depositions, requests for admissions,
interrogatories, or similar requests or
demands in connection with Federal or
State litigation; expert testimony...... 738
173 Availability of public diplomacy program
material in the United States........... 743
SUBCHAPTER S--INTERNATIONAL AGREEMENTS
181 Coordination, reporting and publication of
international agreements................ 745
SUBCHAPTER T--HOSTAGE RELIEF
191 Hostage relief assistance................... 753
192 Victims of terrorism compensation........... 760
193 Benefits for hostages in Iraq, Kuwait, or
Lebanon................................. 771
SUBCHAPTER U--INTERNATIONAL COMMERCIAL ARBITRATION
194 Inter-American Commercial Arbitration
Commission rules of procedure........... 773
196 Thomas R. Pickering Foreign Affairs/Graduate
Foreign Affairs Fellowship Program...... 780
197-199 [Reserved]
[[Page 9]]
SUBCHAPTER A_GENERAL
PART 1_INSIGNIA OF RANK--Table of Contents
Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
Sec. 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State
shall be as follows: On a blue rectangular field a white disk bearing
the official coat of arms of the United States adopted by the act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of blue and white to be added. The sizes to be in accordance with
military and naval customs.
[22 FR 10788, Dec. 27, 1957]
Sec. 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary
of State shall be as follows: On a white rectangular field a blue disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a five-
pointed star with one point upward. The colors and automobile flag to be
the same design, adding a blue fringe. For the colors a cord and tassel
of white in accordance with military and naval customs.
[38 FR 30258, Nov. 2, 1973]
Sec. 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries
of State shall be as follows: On a red rectangular field a white disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of white and red to be added. The sizes to be in accordance with
military and naval customs.
[38 FR 30258, Nov. 2, 1973]
PART 2_PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL
--Table of Contents
Sec.
2.1 Designation of personnel to carry firearms and exercise appropriate
power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.
Sec. 2.1 Designation of personnel to carry firearms and exercise
appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is
authorized to designate certain employees of the Department of State and
the Foreign Service, as well as employees of other departments and
agencies detailed to and under the supervision and control of the
Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when
engaged in the performance of the duties prescribed in section (1) of
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be
so designated unless he has either qualified in the use of firearms in
accordance with standards established by the Deputy Assistant Secretary
of State for Security, or in accordance with standards established by
the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in
the performance of duties prescribed in section (1) of the act of June
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and
deliver into custody any person violating the provisions of section 111
or 112 of title 18, United States Code, in their presence or if they
have reasonable grounds to believe that the person to be arrested has
[[Page 10]]
committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to an individual who has been
designated by the President to serve as Secretary of State, prior to his
appointment, or to a departing Secretary of State. In providing such
protection, they are authorized to exercise the authorities described in
paragraphs (a) (1) and (2) of section. Such protection shall be for the
period or periods determined necessary by the Under Secretary of State
for Management, except that in the case of a departing Secretary of
State, the period of protection under this paragraph shall in no event
exceed 30 calendar days from the date of termination of that
individual's incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to a departing United States
Representative to the United Nations. In providing such protection, they
are authorized to exercise the authorities described in paragraphs (a)
(1) and (2) of this section. Such protection shall be for the period or
periods determined necessary by the Under Secretary of State for
Management, except that the period of protection under this paragraph
shall in no event exceed 30 calendar days from the date of termination
of that individual's incumbency as United States Representative to the
United Nations.
(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658,
2666)
[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982;
50 FR 14379, Apr. 12, 1985]
Sec. 2.2 Purpose.
Section 1116(b)(2) of title 18 of the United States Code, as added
by Pub. L. 92-539, An Act for the Protection of Foreign Officials and
Official Guests of the United States (86 Stat. 1071), defines the term
``foreign official'' for purposes of that Act as ``any person of a
foreign nationality who is duly notified to the United States as an
officer or employee of a foreign government or international
organization, and who is in the United States on official business, and
any member of his family whose presence in the United States is in
connection with the presence of such officer or employee.'' Section
1116(c)(4) of the same Act defines the term ``official guest'' for the
purposes of that Act as ``a citizen or national of a foreign country
present in the United States as an official guest of the Government of
the United States pursuant to designation as such by the Secretary of
State.'' It is the purpose of this regulation to specify the officer of
the Department of State who shall be responsible for receiving
notification of foreign officials under the Act and determining whether
persons are ``duly notified'' to the United States and who shall be
responsible for processing official guest designations by the Secretary
of State.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24817, Nov. 22, 1972]
Sec. 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section
1116(b)(2) of Title 18 of the United States Code shall be directed by
the foreign government or international organization concerned to the
Chief of Protocol, Department of State, Washington, DC 20520. For
persons normally accredited to the United States in diplomatic or
consular capacities and also for persons normally accredited to the
United Nations and other international organizations and in turn
notified to the Department of State, the procedure for placing a person
in the statutory category of being ``duly notified to the United
States'' shall be the current procedure for accreditation, with
notification in turn when applicable. The Chief of the Office of
Protocol will place on the roster of persons ``duly notified to the
United States'' the names of all persons currently accredited and, when
applicable, notified in turn, and will maintain the roster as part of
the official files of the Department of State adding to and deleting
therefrom as changes in accreditations occur.
[[Page 11]]
(b) For those persons not normally accredited, the Chief of Protocol
shall determine upon receipt of notification, by letter from the foreign
government or international organization concerned, whether any person
who is the subject of such a notification has been duly notified under
the Act. Any inquiries by law enforcement officers or other persons as
to whether a person has been duly notified shall be directed to the
Chief of Protocol. The determination of the Chief of Protocol that a
person has been duly notified is final.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
Sec. 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons
designated by the Secretary of State as official guests. Any inquiries
by law enforcement officers or other persons as to whether a person has
been so designated shall be directed to the Chief of Protocol. The
designation of a person as an official guest is final. Pursuant to
section 2658 of title 22 of the U.S.C., the authority of the Secretary
of State to perform the function of designation of official guests is
hereby delegated to the Chief of Protocol.
(22 U.S.C. 2658)
[45 FR 55716, Aug. 21, 1980]
Sec. 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files
of the Department of State a cumulative roster of all persons who have
been duly notified as foreign officials or designated as official guests
under this part. The roster will reflect the name, position,
nationality, and foreign government or international organization
concerned or purpose of visit as an official guest and reflect the date
the person was accorded recognition as being ``duly notified to the
United States'' or designated as an official guest and the date, if any,
of termination of such status.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
PART 3_GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS--
Table of Contents
Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for administration
of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more
than minimal value and reporting acceptance of travel or
travel expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing agency
for official use.
3.9 Disposal of gifts and decorations which become the property of the
United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of
restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in
cultural exchange programs from coverage of foreign gifts and
decorations legislation.
Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342
(1976).
Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.
Sec. 3.1 Purpose.
These regulations provide basic standards for employees of the
Department of State, the United States International Development
Cooperation Agency (IDCA), the Agency for International Development
(AID), and the International Communication Agency (USICA), their spouses
(unless separated) and their dependents to accept and retain gifts and
decorations from foreign governments.
Sec. 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of
1978 (91 Stat. 862-866), approved August 17, 1977,
[[Page 12]]
(hereafter referred to as ``the Act'') amended section 7342 of title 5,
U.S. Code (1976), making substantial changes in the law relating to the
acceptance and retention of gifts and decorations from foreign
governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe
regulations as necessary to carry out the new law.
Sec. 3.3 Definitions.
When used in this part, the following terms have the meanings
indicated:
(a) Employee means (1) an officer or employee of the Department,
AID, IDCA, or USICA, including an expert or consultant, however
appointed, and (2) a spouse (unless separated) or a dependent of such a
person, as defined in section 152 of the Internal Revenue Code of 1954
(26 U.S.C. 152).
(b) Foreign government means: (1) Any unit of foreign governmental
authority, including any foreign national, State, local, or municipal
government; (2) any international or multinational organization whose
membership is composed of any unit of foreign government as described in
paragraph (b)(1) of this section; (3) any agent or representative of any
such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a
decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia,
emblem or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the
time of acceptance of $100 or less, except that on January 1, 1981, and
at 3-year intervals thereafter, ``minimal value'' is to be redefined in
regulations prescribed by the Administrator of General Services, in
consultation with the Secretary of State, to reflect changes in the
consumer price index for the immediately preceding 3-year period.
Sec. 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise
encouraging the tender of a gift or decoration from a foreign
government. An employee is also prohibited from accepting a gift or
decoration from a foreign government, except in accordance with these
regulations.
(b) An employee may accept and retain a gift of minimal value
tendered and received as a souvenir or mark of courtesy, subject,
however, to the following restrictions--
(1) Where more than one tangible item is included in a single
presentation, the entire presentation shall be considered as one gift,
and the aggregate value of all items taken together must not exceed
``minimal value''.
(2) The donee is responsible for determining that a gift is of
minimal value in the United States at the time of acceptance. However,
should any dispute result from a difference of opinion concerning the
value of a gift, the employing agency will secure the services of an
outside appraiser to establish whether the gift is one of ``minimal
value''. If, after an appraisal has been made, it is established that
the value of the gift in question is $200 or more at retail in the
United States, the donee will bear the costs of the appraisal. If,
however, the appraised value is established to be less than $200, the
employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when
(1) such gift is in the nature of an educational scholarship or medical
treatment, or (2) it appears that to refuse the gift would likely cause
offense or embarrassment or otherwise adversely affect the foreign
relations of the United States, except that a tangible gift of more than
minimal value is deemed to have been accepted on behalf of the United
States and, upon acceptance, shall become the property of the United
States.
(d) An employee may accept gifts of travel or expenses for travel
taking place entirely outside the United States (such as transportation,
food, and lodging) of more than minimal value if such acceptance is
appropriate, consistent with the interests of the United States, and
permitted by the employing agency. Except where the employing agency has
specific interests which may be favorably affected by employee travel
wholly outside the
[[Page 13]]
United States, even though it would not normally authorize its employees
to engage in such travel, the standards normally applied to determine
when proposed travel will be in the best interests of the employing
agency and of the United States Government shall be applied in approving
acceptance of travel or travel expenses offered by a foreign government.
(1) There are two circumstances under which employees may accept
gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him
or her in the position of accepting travel or travel expenses offered by
a foreign government which are directly related to the authorized
purpose of the travel; or
(ii) When the employee's travel orders specifically anticipate the
acceptance of additional travel and travel expenses incident to the
authorized travel.
(2) When an employee is traveling under circumstances described in
paragraph (d)(1)(i) of this section, that is, without specific
instructions authorizing acceptance of additional travel expenses from a
foreign government, the employee must file a report with the employing
angency under the procedures prescribed in Sec. 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully
become the personal property of the donee, all supervisory officials
shall, in advising employees of their responsibilities under the
regulations, impress upon them their obligation to decline acceptance of
such gifts, whenever possible, at the time they are offered, or to
return them if they have been sent or delivered without a prior offer.
All practical measures, such as periodic briefings, shall be taken to
minimize the number of gifts which employees must deposit and which thus
become subject to disposal as provided by law and regulation. Employees
should not accept gifts of more than minimal value on the assumption
that refusal would be likely to ``cause offense or embarrassment or
otherwise adversely affect the foreign relations of the United States''.
In many instances it should be possible, by explanation of the
prohibition against an employee's retention of such gifts, to avoid
consequences of acceptance, including possible return of the gift to the
donor. Refusal of the gift at the inception should typically be regarded
as in the interest both of the foreign government donor and the U.S.
Government.
Sec. 3.5 Designation of officials and offices responsible for
administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of
administration relative to the disposal of foreign gifts and decorations
which become U.S. Government property. Each agency is now responsible
for receiving from its employees deposits of foreign gifts of more than
minimal value, as well as of foreign decorations not meeting the
statutory criteria for retention by the recipient. The agency is also
responsible for disposing of this property by return to the donor, for
retaining it in the agency if official use of it is approved, for
reporting to the General Services Administration within 30 calendar days
after deposit items neither disposed of nor retained, and for assuming
custody, proper care and handling of such property pending removal from
that custody pursuant to disposal arrangements by the General Services
Administration. The Secretary of State, however, is made responsible for
providing guidance to other executive agencies in the development of
their own regulations to implement the Act, as well as for the annual
publication of lists of all gifts of more than minimal value deposited
by Federal employees during the preceding year. [See Sec. 3.5(c).]
Authority for the discharge of the Secretary's responsibilities is
delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary
responsibility for administration of the Act within the Department of
State. That Office will, however, serve as the depository only for those
foreign gifts and decorations which are turned in by State Department
employees. The Director of Personnel Services of the USICA will have
responsibility for administration of the Act within that agency and will
serve as the depository of foreign gifts and decorations. Employees of
the other
[[Page 14]]
foreign affairs agencies must deposit with their respective agencies any
gifts or decorations deposit of which is required by law.
(c) Any questions concerning the implementation of these regulations
or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the
Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and
Public Affairs; and
(4) For USICA, to the General Counsel.
Sec. 3.6 Procedure to be followed by employees in depositing gifts
of more than minimal value and reporting acceptance of travel or
travel expenses.
(a) An employee who has accepted a tangible gift of more than
minimal value shall, within 60 days after acceptance, relinquish it to
the designated depository office for the employing agency for disposal
or, with the approval of that office, deposit it for official use at a
designated location in the employing agency or at a specified Foreign
Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of
Management Planning in AID;
(3) For AID, the General Services Division of the Office of
Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal
value for disposal or for official use pursuant to paragraph (a) of this
section, or within 30 days after accepting a gift of travel or travel
expenses as provided in Sec. 3.4(d) (unless the gift of such travel or
travel expenses has been accepted in accordance with specific
instructions from the Department or agency), the employee shall file a
statement with the designated depository office with the following
information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance;
(iii) The identity of the foreign government and the name and
position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee's best estimate in specific dollar terms of the value
of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State
Department employees, forms for this purpose are available in the Office
of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance; and
(iii) The identity of the foregign government and the name and
position of the individual who presented the gift.
(c) The information contained in the statements called for in
paragraph (b) of this section is needed to comply with the statutory
requirement that, not later than Janaury 31 of each year, the Secretary
of State publish in the Federal Register a comprehensive listing of all
such statements filed by Federal employees concerning gifts of more than
minimal value received by them during the preceding year.
Sec. 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in
time of combat operations or awarded for other outstanding or unusually
meritorious performance may be accepted, retained, and worn by an
employee, subject to the approval of the employing agency. Without such
approval, the decoration is deemed to have been accepted on behalf of
the United States and, like tangible gifts of more than minimal value,
must be deposited by the employee with the designated depository office
for the employing agency within sixty days after acceptance, for
retention for official use or for disposal in accordance with Sec. 3.9.
[[Page 15]]
(b) The decision as to whether a decoration has been awarded for
outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant
Secretary of State or comparable official, except that, in the case of a
decoration awarded to an Assistant Secretary or other officer of
comparable or higher rank, the decision shall be made by the Office of
Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General
Counsel, or the Director of the Office of Congressional and Public
Liaison (for domestic employees), and by the Director of Area Offices
(for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign
government, preferably in the form of a citation which shows the
specific basis for the tender of the award, should be supplied. An
employee who has received or been tendered a decoration should forward
to the designated depository office of the employing agency a request
for review of the case. This request should contain a statement of
circumstances of the award and such documentation from the foreign
government as has accompanied it. The depository office will obtain the
decision of the cognizant office as to whether the award meets the
statutory criteria and thus whether the decoration may be retained and
worn. Pending receipt of that decision, the decoration should remain in
the custody of the recipient.
Sec. 3.8 Approval of retention of gifts or decorations with employing
agency for official use.
(a) At the request of an overseas post or an office within the
employing agency, a gift or decoration deemed to have been accepted on
behalf of the United States may be retained for official use. Such
retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID's Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
However, to qualify for such approval, the gift or decoration should be
an item which can be used in the normal conduct of agency business, such
as a rug or a tea service, or an art object meriting display, such as a
painting or sculpture. Personal gift items, such as wristwatches,
jewelry, or wearing apparel, should not be regarded as suitable for
``official use''. Only under unusual circumstances will retention of a
decoration for official use be authorized. Every effort should be made
to place each ``official use'' item in a location that will afford the
largest number of employees, and, if feasible, members of the public,
the maximum opportunity to receive the benefit of its display, provided
the security of the location is adequate.
(b) Items approved for official use must be accounted for and
safeguarded as Federal property at all times under standard Federal
property management procedures. Within 30 days after the official use of
a gift has been terminated, the gift or decoration shall be deposited
with the designated depository office of the employing agency to be held
pending completion of disposal arrangements by the General Services
Administration.
Sec. 3.9 Disposal of gifts and decorations which become the property
of the United States.
(a) Gifts and decorations which have been reported to an employing
agency shall either be returned to the donor or kept in safe storage
pending receipt of instructions from the General Services Administration
for transfer, donation or other disposal under the provisions of the
Federal Property and Administrative Services Act of 1949, 63 Stat. 377,
as amended, and the Federal Property Management Regulations (41 CFR part
101-49). The employing agency shall examine each gift or decoration and
the circumstances surrounding its donation and assess whether any
adverse effect upon the foreign relations of the United States might
result from a return of the gift (or decoration) to the donor, which
shall be the preferred
[[Page 16]]
means of disposal. If this is not deemed feasible, the employing agency
is required by GSA regulations to report deposit of the gift or
decoration within 30 calendar days, using Standard Form 120, Report of
Excess Personal Property and, as necessary, Standard Form 120A,
Continuation Sheet, and citing section 7342 of title 5, U.S. Code
(1976), on the reporting document. Such reports shall be submitted to
the General Services Administration, Washington National Capital Region
(WDPO), Attention: Federal Property Resources Service, Seventh and D
Streets, SW., Washington, DC 20407.
(b) No gift or decoration deposited with the General Services
Administration for disposal may be sold without the approval of the
Secretary of State, upon a determination that the sale will not
adversely affect the foreign relations of the United States. When
depositing gifts or decorations with the designated depository office of
their employing agency, employees may indicate their interest in
participating in any subsequent sale of the items by the Government.
Before gifts and decorations may be considered for sale by the General
Services Administration, however, they must first have been offered for
transfer to Federal agencies and for donation to the States.
Consequently, employees should understand that there is no assurance
that an item will be offered for sale, or, if so offered, that it will
be feasible for an employee to participate in the sale. Employees are
reminded in this connection that the primary aim of the Act is to
discourage employees' acceptance of gifts of more than minimal value.
Sec. 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting
to the Attorney General cases in which there is reason to believe that
one of its employees has violated the Act. The Attorney General in turn
may file a civil action in any United States District Court against any
Federal employee who has knowingly solicited or accepted a gift from a
foreign government in violation of the Act, or who has failed to deposit
or report such gift, as an Act required by the Act. In such case, the
court may assess a maximum penality of the retail value of a gift
improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies
shall be responsible for providing periodic reorientation of all
employees under their supervision on the basic features of the Act and
these regulations, and for ensuring that those employees observe the
requirements for timely reporting and deposit of any gifts of more than
minimal value they may have accepted.
(c) Employees are advised of the following actions which may result
from failure to comply with the requirements of the Act and these
regulations:
(1) Any supervisor who has substantial reason to believe that an
employee under his or her supervision has violated the reporting or
other compliance provisions of the Act shall report the facts and
circumstances in writing to the senior official in charge of
administration within the cognizant bureau or office or at the post
abroad. If that official upon investigation decides that an employee who
is the donee of a gift or is the recipient of travel or travel expenses
has, through actions within the employee's control, failed to comply
with the procedures established by the Act and these regulations, the
case shall be referred to the Attorney General for appropriate action.
(2) In cases of confirmed evidence of a violation, whether or not
such violation results in the taking of action by the Attorney General,
the senior administrative official referred to in paragraph (c)(1) of
this section as responsible for forwarding a violation report to the
Attorney General shall institute appropriate disciplinary action against
an employee who has failed to (i) Deposit tangible gifts within 60 days
after acceptance, (ii) account properly for the acceptance of travel
expenses or (iii) comply with the Act's requirements respecting disposal
of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but
no evidence that the violation was willful on the part of the employee,
the senior administrative official referred to in paragraph (c)(1) of
this section shall institute appropriate disciplinary action of a lesser
degree than that called for in
[[Page 17]]
paragraph (c)(2) of this section in order to deter future violations by
the same or another employee.
Sec. 3.11 Responsibility of chief of mission to inform host
government of restrictions on employees' receipt of gifts
and decorations.
A special provision of the Act requires the President to direct
every chief of a United States diplomatic mission to inform the host
government that it is a general policy of the United States Government
to prohibit its employees from receiving gifts of more than minimal
value or decorations that have not been tendered ``in recognition of
active field service in time of combat operations or awarded for other
outstanding or unusually meritorious performance.'' Accordingly, all
Chiefs of Mission shall in January of each year conduct a thorough and
explicit program of orientation aimed at appropriate officials of the
host government concerning the operation of the Act.
Sec. 3.12 Exemption of grants and other foreign government assistance
in cultural exchange programs from coverage of foreign gifts and
decorations legislation.
The Act specifically excludes from its application grants and other
forms of assistance ``to which section 108A of the Mutual Educational
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and
(b) for the terms and conditions under which Congress consents to the
acceptance by a Federal employee of grants and other forms of assistance
provided by a foreign government to facilitate the participation of such
employee in a cultural exchange.
PART 3a_ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS
OF THE UNIFORMED SERVICES--Table of Contents
Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government
employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.
Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as
amended, 63 Stat. 111 (22 U.S.C. 2658).
Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.
Sec. 3a.1 Definitions.
For purposes of this part--
(a) Applicant means any person who requests approval under this part
to accept any civil employment (and compensation therefor) from a
foreign government and who is: (1) Any retired member of the uniformed
services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public
Health Service.
The term ``applicant'' also includes persons described in paragraph
(a)(1), (2), or (3) of this section, who have already accepted foreign
government employment and are requesting approval under this part to
continue such employment.
(b) Uniformed services means the Armed Forces, the commissioned
Regular and Reserve Corps of the Public Health Service, and the
commissioned corps of the National Oceanic and Atmospheric
Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with
respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of
the Navy and the Marine Corps, members of the Navy and Marine Corps
Reserves, and retired members of the Coast Guard and members of the
Coast Guard Reserve when the Coast Guard is operating as a service in
the Navy;
(3) The Secretary of the Air Force, with respect to retired members
of the Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members
of the Coast Guard and members of the Coast
[[Page 18]]
Guard Reserve when the Coast Guard is not operating as a service in the
Navy;
(5) The Secretary of Commerce, with respect to retired members of
the commissioned corps of the National Oceanic and Atmospheric
Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to
retired members of the commissioned Regular Corps of the Public Health
Service and members of the commissioned Reserve Corps of the Public
Health Service.
Sec. 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, section 9, clause 8)
prohibits the acceptance of civil employment with a foreign government
by an officer of the United States without the consent of Congress.
Congress has consented to the acceptance of civil employment (and
compensation therefor) by any person described in Sec. 3a.1(b) subject
to the approval of the Secretary concerned and the Secretary of State
(37 U.S.C. 801, Note). Civil employment with a foreign government may
not be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment
with a foreign government by any officer of the United States other than
a person described in Sec. 3a.1(a). The acceptance of employment with a
foreign government by any other officer of the United States remains
subject to the constitutional prohibition described in paragraph (a) of
this section.
(c) Any person described in Sec. 3a.1(a) who accepts employment
with a foreign government without the approval required by this section
or otherwise obtaining the consent of Congress is subject to forfeiture
of retired pay to the extent of his or her compensation from the foreign
government, according to the Comptroller General of the United States
(44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other
penalty which may be imposed under law or regulation. \1\
---------------------------------------------------------------------------
\1\ Approval under this part does not constitute an exception to the
provisions of the Immigration and Nationality Act concerning loss of
United States citizenship, for example, by becoming a citizen of or
taking an oath of allegiance to another country. See 8 U.S.C. 1481 et
seq.
---------------------------------------------------------------------------
Sec. 3a.3 Authority to approve or disapprove proposed foreign
government employment.
The Director, Bureau of Politico-Military Affairs, is authorized to
approve or disapprove any request by an applicant for approval under
this part to accept civil employment (and compensation therefor) from a
foreign government. The Director may delegate this authority within the
Bureau of Politico-Military Affairs, Department of State.
Sec. 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign
government employment to the Secretary concerned, whose approval is also
required by law for the applicant's acceptance of civil employment from
a foreign government. The request must contain information concerning
the applicant's status, the nature of the proposed employment in as much
detail as possible, the identity of and relationship to the foreign
government concerned, and other matters as may be required by the
Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to
the Director, Bureau of Politico-Military Affairs, for approval.
Requests received by the Director, Bureau of Politico-Military Affairs,
directly from an applicant will be initially forwarded to the Secretary
concerned, or his designee, for approval of disapproval.
Sec. 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs,
under this part shall be based on whether the applicant's proposed
employment with a foreign government would adversely affect the foreign
relations of the United States, in light of the applicant's official
status as a retiree or reservist.
[[Page 19]]
Sec. 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the
Secretary concerned when an applicant's proposed foreign government
employment is approved. Notification of approval to the applicant will
be made by the Secretary concerned or his designee.
Sec. 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify
the applicant directly when an applicant's proposed foreign employment
is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include
a statement of the reasons for the disapproval, with as much specificity
as security and foreign policy considerations permit, together with a
notice of the applicant's right to seek reconsideration of the
disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an
applicant whose request has been disapproved may submit a request for
reconsideration by the Director, Bureau of Politico-Military Affairs. A
request for reconsideration should provide information relevant to the
reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of
Politico-Military Affairs, will be final, unless a timely request for
reconsideration is received. In the event of a request for
reconsideration, the Director, Bureau of Politico-Military Affairs, will
make a final decision after reviewing the record of the request. A final
decision after reconsideration to approve the applicant's proposed
employment with a foreign government will be communicated to the
Secretary concerned as provided in Sec. 3a.6. A final decision after
reconsideration to disapprove the applicant's proposed employment with a
foreign government will be communicated directly to the applicant as
provided in paragraph (a) of this section and the Secretary concerned
will be informed. The Director's authority to make a final decision
after reconsideration may not be redelegated.
Sec. 3a.8 Change in status.
In the event that an applicant's foreign government employment
approved under this part is to be materially changed, either by a
substantial change in duties from those described in the request upon
which the original approval was based, or by a change of employer, the
applicant must obtain further approval in accordance with this part for
such changed employment.
PART 4_NOTIFICATION OF FOREIGN OFFICIAL STATUS--Table of Contents
Sec.
4.1 General.
4.2 Procedure.
Authority: 22 U.S.C. 2651a(a)(4).
Source: 61 FR 32328, June 24, 1996, unless otherwise noted.
Sec. 4.1 General.
In accordance with Article 10 of the Vienna Convention on Diplomatic
Relations and Article 24 of the Vienna Convention on Consular Relations,
diplomatic missions must notify the Office of Protocol immediately upon
the arrival, in the United States, of any foreign government officer or
employee (including domestics and family members), who are serving at
diplomatic missions, consular posts, or miscellaneous foreign government
offices. If the employee is already in the United States in some other
capacity, the notification should be made upon assumption of duties.
This initial notification requirement also includes all U.S. citizens
and permanent resident aliens who are employed by foreign missions.
Sec. 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents:
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer
and Career Consular Officer;
(b) All other foreign government employees who are serving at
diplomatic missions, consular posts, or miscellaneous foreign government
offices and
[[Page 20]]
their dependents: Form DSP-111, Notification of Appointment of Foreign
Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of
Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State
of any change in the status of officers or employees of the missions and
their family members originally reported to Protocol, or to apply for an
identification card.
(e) Upon termination of employment of any diplomatic or consular
officer, honorary consular officer, embassy or consular employee, or
miscellaneous foreign government staff member, a Form DSP-115, Notice of
Termination of Diplomatic, Consular, or Foreign Government Employment,
must be submitted to the Office of Protocol.
PART 5_ORGANIZATION--Table of Contents
Sec.
5.1 Introduction.
5.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may
secure information, make submittals, or request, or obtain
decisions; and statements of the general course and method by
which its functions are channeled and determined.
5.3 Rules of procedure, description of forms available or the places at
which forms may be obtained, and instructions as to the scope
and content of all papers, reports, or examinations.
5.4 Substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretation of
general applicability formulated and adopted by the agency.
Authority: Sec. 4, 63 Stat. 111, as amended, sec. 501, 65 Stat. 290;
22 U.S.C. 2658, 31 U.S.C. 483a, 5 U.S.C. 552, E.O. 10501; 18 FR 7049; 3
CFR, 1949-1953 Comp., page 979.
Source: 33 FR 7078, May 11, 1968, unless otherwise noted.
Sec. 5.1 Introduction.
The sections in this part 5 are issued pursuant to section 3 of the
Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.
Sec. 5.2 Central and field organization, established places at which,
the officers from whom, and the methods whereby the public may secure
information, make submittals, or request, or obtain decisions;
and statements of the general course and method by which its functions
are channeled and determined.
(a) The following statements of the central and field organization
of the Department of State and its Foreign Service posts are hereby
prescribed:
(1) The central organization of the Department of State was issued
as Public Notice No. 267, 32 FR 8923, June 22, 1967.
(2) The foreign field organization of the Department of State was
issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.
(3) The domestic field organization of the Department of State was
issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.
(b) As used in the following sections, the term ``Department of
State'' includes all offices within the Department in Washington, its
domestic field offices in the United States, all Foreign Service posts
throughout the world, and U.S. missions to international organizations
unless otherwise specified.
(c) Any person desiring information concerning a matter handled by
the Department of State, or any person desiring to make a submittal or
request in connection with such a matter, should communicate either
orally or in writing with the appropriate office. If the office
receiving the communication does not have jurisdiction to handle the
matter, the communication, if written, will be forwarded to the proper
office, or, if oral, the person will be advised how to proceed. When the
submittal or request consists of a formal application for one of the
documents, privileges, or other benefits provided for in the laws
administered by the Department of State, or in the regulations
implementing these laws, the instructions on the form as to preparation
and place of submission should be followed. In such cases, the
provisions of this part referring to the particular regulation concerned
should be consulted.
[[Page 21]]
Sec. 5.3 Rules of procedure, description of forms available or the
places at which forms may be obtained, and instructions as to the
scope and content of all papers, reports, or examinations.
Rules of procedure regarding the following listed matters may be
consulted under the corresponding regulations referenced in Sec. 5.4,
or obtained upon application to the offices listed below. Forms
pertaining to the following listed matters, and instructions relating
thereto may also be obtained at the offices indicated below:
----------------------------------------------------------------------------------------------------------------
Subject matter Office Address
----------------------------------------------------------------------------------------------------------------
Appointment of Foreign Service Officers.. Board of Examiners for the Department of State, Room 7314, 1800 N.
Foreign Service. Kent St., Arlington, Va. 22209.
Authentication and other services........ Document and Reference Department of State, Room 2815, 22d and
Division. D Sts. NW., Washington, DC 20520.
Claims and stolen property............... Legal Adviser............... Department of State, 2201 C Street NW.,
Washington, DC 20520.
International educational and cultural Bureau of Educational and Department of State, 2201 C Street NW.,
exchange program. Cultural Affairs. Washington, DC 20520.
International traffic in arms............ Office of Munitions Control. Department of State, Room 800, 1700 N.
Lynn St., Arlington, Va. 22209.
Nationality and passports................ Passport Office............. Department of State, Room 362, 1425 K
St., NW., Washington, DC 20524.
Protection and welfare of U.S. citizens, Office of Special Consular Department of State, 2201 C Street NW.,
shipping and seamen, and other consular Services. Washington, DC 20520.
services abroad.
Visa issuance............................ Visa Office................. Department of State, Annex 2, 515 22d
Street NW., Washington, DC 20520.
----------------------------------------------------------------------------------------------------------------
Sec. 5.4 Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretation
of general applicability formulated and adopted by the agency.
(a) The regulations of the Department of State required to be
published under the provisions of the Administrative Procedure Act are
found in the Code of Federal Regulations and the Federal Register. Any
person desiring information with respect to a particular procedure
should examine the pertinent regulation cited hereafter.
(b) The following are citations to regulations within the scope of
this section.
(1) Acceptance of Gifts and Decorations from Foreign Governments. 22
CFR part 3 et seq.
(2) Employee Responsibility and Conduct. 22 CFR part 10 et seq.
(3) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(4) Fees for Services in the United States, fees and Charges,
Foreign service. 22 CFR part 21 et seq.; 22 CFR part 22 et seq.
(5) Claims and Stolen Property. 22 CFR part 31 et seq.
(6) Issuance of Visas. 22 CFR parts 41-42 et seq.
(7) Nationality and Passports. 22 CFR part 50 et seq.
(8) International Educational and Cultural Exchanges. 22 CFR part 61
et seq.
(9) Protection and Welfare of Americans Abroad. 22 CFR part 71 et
seq.
(10) Shipping and Seamen Abroad. 22 CFR part 81 et seq.
(11) Other Consular Services Abroad. 22 CFR part 91 et seq.
(12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR
part 101 et seq.
(13) International Traffic in Arms. 22 CFR part 121 et seq.
(14) Certificates of Authentication. 22 CFR part 131 et seq.
(15) Civil Rights. 22 CFR part 141 et seq.
(16) Department of State Procurement. 41 CFR part 6-1 et seq.
(c) These regulations are supplemented from time to time by
amendments appearing initially in the Federal Register.
PART 7 [RESERVED]
[[Page 22]]
PART 9_SECURITY INFORMATION REGULATIONS--Table of Contents
Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Sharing other-agency classified information.
9.13 Access to classified information by historical researchers and
certain former government personnel.
9.14 Pre-publication review of writings by former Department personnel.
9.15 Assistance to the Historian's Office.
9.16 Safeguarding.
Authority: E.O. 13526 (75 FR 707, January 5, 2010); Information
Security Oversight Office Directive 32 CFR part 2001 (75 FR 37254, June
28, 2010).
Source: 79 FR 35936, June 25, 2014, unless otherwise noted.
Sec. 9.1 Basis.
The regulations in this part, taken together with 32 CFR part 2001
and Volume 5 of the Department's Foreign Affairs Manual, provide the
basis for the security classification program of the U.S. Department of
State (``the Department'') implementing Executive Order 13526 on
Classified National Security Information (``the Executive Order'' or
``the Order'').
Sec. 9.2 Objective.
The objective of the Department's classification program is to
ensure that national security information is protected from unauthorized
disclosure, but that it remains classified only to the extent and for
such a period as is necessary.
Sec. 9.3 Senior agency official.
The Executive Order requires that each agency that originates or
handles classified information designate a Senior Agency Official to
direct and administer its information security program. The Department's
senior agency official is the Under Secretary of State for Management.
The Senior Agency Official is assisted in carrying out the provisions of
the Executive Order and the Department's information security program by
the Assistant Secretary for Diplomatic Security, the Assistant Secretary
for Administration, and the Deputy Assistant Secretary for Global
Information Services.
Sec. 9.4 Original classification.
(a) Definition. Original classification is the initial determination
that certain information requires protection against unauthorized
disclosure in the interest of national security (i.e., national defense
or foreign relations of the United States), together with a designation
of the level of classification.
(b) Classification levels. (1) Top Secret shall be applied to
information the unauthorized disclosure of which reasonably could be
expected to cause exceptionally grave damage to the national security
that the original classification authority is able to identify or
describe.
(2) Secret shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security that the original classification authority is
able to identify or describe.
(3) Confidential shall be applied 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.
(c) Classification requirements and considerations. (1) Information
may not be considered for classification unless its unauthorized
disclosure could reasonably be expected to cause identifiable or
describable damage to the national security in accordance with section
1.2 of the Executive Order, and it pertains to one or more of the
following:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States,
including confidential sources;
[[Page 23]]
(v) Scientific, technological, or economic matters relating to the
national security;
(vi) United States Government programs for safeguarding nuclear
materials or facilities;
(vii) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the
national security; or
(viii) The development, production, or use of weapons of mass
destruction.
(2) In classifying information, the public's interest in access to
government information must be balanced against the need to protect
national security information.
(3) The unauthorized disclosure of foreign government information is
presumed to cause damage to national security.
(d) Classification limitations and prohibitions. (1) In no case
shall information be classified in order to conceal violations of law,
inefficiency, or administrative error, or to prevent embarrassment to a
person, organization, or agency, to restrain competition, or to prevent
or delay the release of information that does not require protection in
the interest of the national security.
(2) A reference to classified documents that does not directly or
indirectly disclose classified information may not be classified or used
as a basis for classification.
(3) Only information owned by, produced by or for, or under the
control of the U.S. Government may be originally classified.
(e) Duration of classification. (1) Information shall be classified
for as long as is required by national security considerations, subject
to the limitations set forth in section 1.5 of the Executive Order. When
it can be determined, a specific date or event for declassification in
less than 10 years shall be set by the original classification authority
at the time the information is originally classified. If a specific date
or event for declassification cannot be determined, information shall be
marked for declassification 10 years from the date of the original
decision, unless the original classification authority determines that
the sensitivity of the information requires that it be marked for
declassification for up to 25 years from the date of the original
decision except for:
(i) Information that would reveal the identity of a confidential
human source or a human intelligence source, or key design concepts of
weapons of mass destruction, in which case the duration of
classification shall be up to 75 years and shall be designated with the
markings ``50X1-HUM'' and ``50X2-WMD,'' respectively; and
(ii) Specific information incorporated into the classification guide
under section 2.2(e) of the Executive Order relating to exemptions from
automatic declassification.
(2) An original classification authority may extend the duration of
classification up to 25 years from the date of origin of the document,
change the level of classification, or reclassify specific information
only when the standards and procedures for classifying information under
the Executive Order are met.
(3) No information may remain classified indefinitely. Information
marked for an indefinite duration of classification under predecessor
orders, such as ``Originating Agency's Determination Required'' (OADR)
or classified information that contains incomplete declassification
instructions or lacks declassification instructions, shall be
declassified in accordance with Part 3 of the Order.
Sec. 9.5 Original classification authority.
(a) Authority for original classification of information as Top
Secret may be exercised by the Secretary and those officials delegated
this authority in writing by the Secretary. Such authority has been
delegated to the Deputy Secretaries, the Under Secretaries, the
Counselor, Assistant Secretaries and equivalents; Chiefs of Mission and
U.S. representatives to international organizations; and certain other
officers within the Department and at posts abroad.
(b) Authority for original classification of information as Secret
or Confidential may be exercised only by the Secretary, the Senior
Agency Official, and those officials delegated this authority in writing
by the Secretary or
[[Page 24]]
the Senior Agency Official. Such authority has been delegated to Deputy
Assistant Secretaries, Principal Officers at consulates general and
consulates abroad, and certain other officers within the Department and
at posts abroad. In the absence of the Secret or Confidential
classification authority, the person designated to act for that official
may exercise that authority.
Sec. 9.6 Derivative classification.
(a) Definition. Derivative classification is: the incorporating,
paraphrasing, restating, or generating in new form information that is
already classified and the marking of the new material consistent with
the classification of the source material, or the marking of the
information in accordance with an authorized classification guide.
Duplication or reproduction of existing classified information is not
derivative classification. Persons who apply classification markings
derived from source material or as directed by a classification guide
need not possess original classification authority.
(b) Responsibility. Information classified derivatively from other
classified information shall be classified and marked in accordance with
instructions from an authorized classifier or in accordance with an
authorized classification guide and shall comply with the standards set
forth in sections 2.1-2.2 of the Executive Order and 32 CFR 2001.22. The
duration of classification of a document classified by a derivative
classifier using a classification guide shall not exceed 25 years except
for:
(1) Information that would reveal the identity of a confidential
human source or a human intelligence source (50X1-HUM) or key design
concepts of weapons of mass destruction (50X2-WMD), and
(2) Specific information incorporated into the classification guide
under section 2.2(e) of the Executive Order relating to exemptions from
automatic declassification.
(c) Department of State Classification Guide. The Department of
State Classification Guide (DSCG) is the primary authority for the
classification of information in documents created by Department of
State personnel. The Guide is classified ``Confidential'' and is found
on the Department of State's classified Web site.
Sec. 9.7 Identification and marking.
(a) Classified information shall be marked pursuant to the standards
set forth in section 1.6 of the Executive Order, 32 CFR part 2001,
subpart C, and internal Department guidance in 5 Foreign Affairs Manual.
(b) Foreign government information shall retain its original
classification markings or be marked and classified at a U.S.
classification level that provides a degree of protection at least
equivalent to that required by the entity that furnished the
information. Foreign government information retaining its original
classification markings need not be assigned a U.S. classification
marking provided the responsible agency determines that the foreign
government markings are adequate to meet the purposes served by U.S.
classification markings.
(c) Information assigned a level of classification under predecessor
executive orders shall be considered as classified at that level of
classification despite the omission of other required markings.
(d) Prior to public release, all declassified records shall be
appropriately marked to reflect their declassification.
Sec. 9.8 Classification challenges.
(a) Challenges. Authorized holders of information pertaining to the
Department of State who believe that its classification status is
improper are expected and encouraged to challenge the classification
status of the information. Such persons making challenges to the
classification status of information shall not be subject to retribution
for such action. Informal, usually oral, challenges are encouraged.
Formal challenges to classification actions shall be in writing to an
original classification authority (OCA) with jurisdiction over the
information and a copy of the challenge shall be sent to the Office of
Information Programs and Services (IPS) of the Department of State, SA-
2, 515 22nd St. NW., Washington, DC 20522-8100. The Department (either
the
[[Page 25]]
OCA or IPS) shall provide an initial response in writing within 60
calendar days.
(b) Appeal procedures and time limits. A negative response may be
appealed to the Department's Appeals Review Panel (ARP) and should be
sent to: Chairman, Appeals Review Panel, c/o Director, Office of
Information Programs and Services/Appeals Officer, at the IPS address
given above. The appeal shall include a copy of the original challenge,
the response, and any additional information the appellant believes
would assist the ARP in reaching its decision. The ARP shall respond
within 90 calendar days of receipt of the appeal. A negative decision by
the ARP may be appealed to the Interagency Security Classification
Appeals Panel (ISCAP) referenced in section 5.3 of Executive Order
13526. If the Department fails to respond to a formal challenge within
120 calendar days or if the ARP fails to respond to an appeal within 90
calendar days, the challenge may be sent directly to the ISCAP.
(c) Pre-publication review materials. The provisions for
classification challenges do not apply to material required to be
submitted for pre-publication review, or other administrative action,
pursuant to a non-disclosure agreement.
Sec. 9.9 Declassification and downgrading.
(a) Declassification processes. Declassification of classified
information may occur:
(1) After review of material in response to a Freedom of Information
Act (FOIA) request, mandatory declassification review request, discovery
request, subpoena, classification challenge, or other information access
or declassification request;
(2) After review as part of the Department's systematic
declassification review program;
(3) As a result of the elapse of the time or the occurrence of the
event specified at the time of classification;
(4) By operation of the automatic declassification provisions of
section 3.3 of the Executive Order with respect to material more than 25
years old.
(b) Downgrading. When material classified at the Top Secret level is
reviewed for declassification and it is determined that classification
continues to be warranted, a determination shall be made whether
downgrading to a lower level of classification is appropriate. If
downgrading is determined to be warranted, the classification level of
the material shall be changed to the appropriate lower level.
(c) Authority to downgrade and declassify. (1) Classified
information may be downgraded or declassified by:
(i) The official who originally classified the information if that
official is still serving in the same position and has original
classification authority;
(ii) A successor in that capacity if that individual has original
classification authority;
(iii) A supervisory official of either if the supervisory official
has original classification authority;
(iv) Other Department officials specifically delegated
declassification authority in writing by the Secretary or the Senior
Agency Official; or
(v) The Director of the Information Security Oversight Office
pursuant to Sec. 3.1(a) of E.O. 13526.
(2) The Department shall maintain a record of Department officials
specifically designated as declassification and downgrading authorities.
(d) Declassification in the public interest. Although information
that continues to meet the classification criteria of the Executive
Order or a predecessor order normally requires continued protection, in
some exceptional cases the need to protect information may be outweighed
by the public interest in disclosure of the information. When such a
question arises, it shall be referred to the Secretary or the Senior
Agency Official for decision on whether, as an exercise of discretion,
the information should be declassified and disclosed. This provision
does not amplify or modify the substantive criteria or procedures for
classification or create any substantive or procedural right subject to
judicial review.
(e) Public disclosure of declassified information. Declassification
of information is not, by itself, authorization for its public
disclosure. Previously classified information that is declassified may
be exempt from public disclosure under the FOIA, the Privacy Act, or
[[Page 26]]
various statutory confidentiality provisions. There also may be treaties
or other international agreements that would preclude public disclosure
of declassified information.
Sec. 9.10 Mandatory declassification review
(a) Scope. All information classified under E.O. 13526 or
predecessor orders shall be subject to mandatory declassification review
upon request by a member of the public or a U.S. government employee or
agency with the following exceptions:
(1) Information originated by the incumbent President or the
incumbent Vice President; the incumbent President's White House staff or
the incumbent Vice President's staff; committees, commissions, or boards
appointed by the incumbent President; other entities within the
Executive Office of the President that solely advise and assist the
incumbent President;
(2) Information that is the subject of pending litigation; and
(3) Information that has been reviewed for declassification within
the past two years which need not be reviewed again, but the requester
shall be given appeal rights.
(b) Requests. Requests for mandatory declassification review should
be addressed to the Office of Information Programs and Services, U.S.
Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100.
(c) Description of information. In order to be processed, a request
for mandatory declassification review must describe the document or the
material containing the information sought with sufficient specificity
to enable the Department to locate the document or material with a
reasonable amount of effort. Whenever a request does not sufficiently
describe the material, the Department shall notify the requester that no
further action will be taken unless additional description of the
information sought is provided.
(d) Refusal to confirm or deny existence of information. The
Department may refuse to confirm or deny the existence or nonexistence
of requested information whenever the fact of existence or nonexistence
is itself classified.
(e) Processing. In responding to mandatory declassification review
requests, the Department shall make a review determination as promptly
as possible, but in no case more than one year from the date of receipt
of the request, and notify the requester accordingly. When the requested
information cannot be declassified in its entirety, the Department shall
release all meaningful portions that can be declassified and that are
not exempt from disclosure on other grounds.
(f) Other agency information. When the Department receives a request
for information in its possession that was originally classified by
another agency, it shall refer the request and the pertinent information
to the other agency unless that agency has agreed that the Department
may review such information for declassification on behalf of that
agency. In any case, the Department is responsible for responding to the
requester with regard to any responsive information, including other-
agency information, unless a prior arrangement has been made with the
originating agency.
(g) Foreign government information. In the case of a request for
material containing foreign government information, the Department shall
determine whether the information may be declassified and may, if
appropriate, consult with the relevant foreign government on that issue.
If the Department is not the agency that initially received the foreign
government information, it may consult with the original receiving
agency.
(h) Documents or material containing RD or Transclassified Foreign
Nuclear Information (TFNI). Documents or material containing RD or TFNI
will be submitted to DOE for review. Documents containing FRD will be
submitted to DOE or DoD for review.
(i) Appeals. Any denial of a mandatory declassification review
request may be appealed to the ARP. A denial by the ARP of a mandatory
declassification review appeal may be further appealed to the ISCAP. A
failure of the Department to make a determination on a mandatory
declassification review request within one year from the date of its
receipt or to respond to an appeal
[[Page 27]]
of a denial by the ARP within 180 calendar days of its receipt may be
appealed directly to the ISCAP.
Sec. 9.11 Systematic declassification review.
The Director of the Office of Information Programs and Services
shall be responsible for conducting a program for systematic
declassification review of historically valuable records that: were
exempted from the automatic declassification provisions of section 3.3
of the Executive Order; or will soon become subject to the automatic
declassification provisions of section 3.3 of the Order. The Director
shall prioritize such review in accordance with priorities established
by the National Declassification Center.
Sec. 9.12 Sharing other-agency classified information.
The long-standing third-agency rule has required prior originating
agency approval before a receiving agency could further disseminate
classified information. Under the Executive Order, unless the
originating agency indicates on the material that prior approval is
required and provided that the criteria for access under section 4.1(a)
of the Order are met, a receiving agency may further disseminate
classified information in documents created subsequent to the effective
date of the Order to another agency or U.S. entity without consultation
with the originating agency. ``U.S. entity'' includes cleared state,
local, tribal, and private sector entities. Similarly, under certain
circumstances, receiving agencies may pass such classified information
to foreign governments.
Sec. 9.13 Access to classified information by historical researchers
and certain former government personnel.
(a) The restriction in E.O. 13526 and predecessor orders on limiting
access to classified information to individuals who have a need-to-know
the information may be waived, under the conditions set forth below, for
persons who: are engaged in historical research projects; have served as
President or Vice President; have occupied senior policy-making
positions in the Department of State or other U.S. government agencies
to which they were appointed or designated by the President or the Vice
President. It does not include former Foreign Service Officers as a
class or persons who merely received assignment commissions as Foreign
Service Officers, Foreign Service Reserve Officers, Foreign Service
Staff Officers, and employees.
(b) Requests by such persons must be submitted in writing to the
Office of Information Programs and Services at the address set forth
above and must include a general description of the records sought, the
time period covered by the records that are the subject of the request,
and an explanation why access is sought. Requests for access by such
requesters may be granted if:
(1) The Secretary or the Senior Agency Official determines in
writing that access is consistent with the interests of national
security;
(2) The requester agrees in writing to safeguard the information
from unauthorized disclosure or compromise;
(3) The requester submits a statement in writing authorizing the
Department to review any notes and manuscripts created as a result of
access;
(4) The requester submits a statement in writing that any
information obtained from review of the records will not be disseminated
without the express written permission of the Department;
(c) If a requester uses a research assistant, the requester and the
research assistant must both submit a statement in writing acknowledging
that the same access conditions set forth in paragraphs (b)(2) through
(b)(4) of this section apply to the research assistant. Such a research
assistant must be working for the applicant and not gathering
information for publication on his or her own behalf.
(d) Access granted under this section shall be limited to items the
official originated, reviewed, signed, or received while serving as a
Presidential or Vice Presidential appointee or designee or as President
or Vice President.
(e) Such requesters may seek declassification and release of
material to which they have been granted access under this section
through either the
[[Page 28]]
FOIA or the mandatory declassification review provisions of E.O. 13526.
Such requests shall be processed in the order received, along with other
FOIA and mandatory declassification review requests, and shall be
subject to the fees applicable to FOIA requests.
Sec. 9.14 Pre-publication review of writings by former Department
personnel.
The Department provides pre-publication review of writings on
foreign relations topics by former Department personnel, including
contractors and detailees, who had security clearances to try to ensure
that former personnel do not violate their agreements on non-disclosure
of classified national security information in such writings.
Manuscripts (including articles, speeches, books, etc.) should be sent
to the Director, Office of Information Programs and Services, 515 22nd
St. NW., Washington, DC 20522-8100. Questions about pre-publication
clearance may be sent to [email protected].
Sec. 9.15 Assistance to the Historian's Office.
All elements of the Department shall assist the Historian's Office
in its preparation of the Foreign Relations of the United States (FRUS)
series such as by providing prompt access to and, when possible,
declassification of information deemed appropriate for inclusion in the
FRUS.
Sec. 9.16 Safeguarding.
Specific controls on the use, processing, storage, reproduction, and
transmittal of classified information within the Department to provide
protection for such information and to prevent access by unauthorized
persons are contained in Volume 12 of the Department's Foreign Affairs
Manual.
PART 9a_SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN
INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL--Table of Contents
Sec.
9a.1 Security of certain information and material related to the
International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.
Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209,
National Security Council Directive of May 17, 1972 (37 FR 10053).
Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977,
unless otherwise noted.
Sec. 9a.1 Security of certain information and material related to
the International Energy Program.
These regulations implement Executive Order 11932 dated August 4,
1976 (41 FR 32691, August 5, 1976) entitled ``Classification of Certain
Information and Material Obtained from Advisory Bodies Created to
Implement the International Energy Program.''
Sec. 9a.2 General policy.
(a) The United States has entered into the Agreement on an
International Energy Program of November 18, 1974, which created the
International Energy Agency (IEA). This program is a substantial factor
in the conduct of our foreign relations and an important element of our
national security. The effectiveness of the Agreement depends
significantly upon the provision and exchange of information and
material by participants in advisory bodies created by the IEA.
Confidentiality is essential to assure the free and open discussion
necessary to accomplish the tasks assigned to those bodies.
(b) These regulations establish procedures for the classification,
declassification, storage, access, and dissemination of certain
information related to the International Energy Program.
Sec. 9a.3 Scope.
These regulations apply to all information and material classified
by the United States under the provisions of E.O. 11932, dated August 4,
1976 entitled ``Classification of Certain Information and Material
Obtained From Advisory Bodies Created To Implement The International
Energy Program.''
[[Page 29]]
Sec. 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information
and material obtained pursuant to the International Energy Program and
which requires protection against unauthorized disclosure in the
interest of the national defense or foreign relations of the United
States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and
communications, in the possession of the United States Government which
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C.
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program
Relating to the International Energy Program (40 FR 16041, April 8,
1975), or (3) the Voluntary Agreement and Plan of Action to Implement
the International Energy Program (41 FR 13998, April 1, 1976), or (4)
Any similar Voluntary Agreement and Program entered into under the
Energy Policy and Conservation Act shall be reviewed by an officer of
the Department of State with classifying authority for the purpose of
determining whether such information or material should be classified
pursuant to E.O. 11652. If the officer determines that the information
or material warrants classification, he shall assign it the appropriate
classification. Such information or material may be exempted from the
General Declassification Schedule established by section 5 of Executive
Order No. 11652 if it was obtained by the United States on the
understanding that it be kept in confidence, or if it might otherwise be
exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the
Department of State shall follow the standards in E.O. 11652 and the
provisions of 22 CFR 9.5 through 9.8.
Sec. 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b)
shall govern declassification and downgrading of such information or
material.
Sec. 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the
marking of information or material classified under the provisions of
these regulations, except that the following stamp shall be used as
appropriate:
(Top Secret, Secret or Confidential)
Classified by: _______________
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on _______
(effective date or event if any)
Exemption category ``E.O. 11932'' shall be used for information and
material obtained by the United States on e understanding that it be
kept in confidence and classified under E.O. 11932.
(b) If the information or material does not qualify for exemption
from the General Declassification Schedule, ordinary stamps and marking
may be used.
Sec. 9a.7 Access.
(a) Except as set forth in this section, access to information or
material classified under the provisions of these regulations shall be
governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in
connection with an advisory body to the IEA may be made available to
participants in such advisory body and their colleagues in accordance
with the following subsections.
(c) Such information and material classified ``Confidential'' may be
made available for review to participants in the meeting of the advisory
body in which it was developed or discussed. Where participants are
acting as representatives of companies or of the IEA Secretariat, such
information and material may be made available for review to employees
or other representatives of, or counsel for, such companies or
Secretariat: Provided, That such person is determined by an appropriate
officer of the Department to be trustworthy and to have a need for
access to the particular classified information sought in connection
with the performance of duties in furtherance of the
[[Page 30]]
purposes of the IEA, including the furnishing of legal advice to such
participants.
(d) Such information and material classified ``Confidential'' may be
left in the custody of such participants or other persons who may review
it for reasonable period of time: Provided, That an appropriate officer
of the Department determines that it will be protected from unauthorized
disclosure by adequate security safeguards. Such information or material
may not be reproduced by those permitted to review it pursuant to this
section without the written consent of an officer of the Department with
classifying authority.
(e) Such information and material classified other than
``Confidential'' under E.O. 11652 may be made available for review only
to participants in the meeting in which it was developed or discussed;
it must be reviewed in the presence of an official of the United States
Government with an appropriate security clearance granted by the
Department, and may not be left in the custody of such participants.
Sec. 9a.8 Physical protection.
Except as provided in Sec. 9a.7, the physical protection of
information or material classified under this regulation shall be
governed by the appropriate provisions of 22 CFR 9.45 through 9.49.
PART 9b_REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING
PASSES--Table of Contents
Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by United States media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of
State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department of
State press building passes.
9b.8 Term and renewal of Department of State press building passes.
Authority: 22 U.S.C. 2658.
Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.
Sec. 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press
building passes shall have access to the Main State building identical
to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press
building passes:
(1) May enter and have access 24 hours a day, during regular working
hours, outside regular working hours, on weekends and on holidays,
without an appointment, to the reception area of the Diplomatic Lobby, C
Street Mezzanine area, press booths (Room 2310), press briefing room
(Room 2118), and when in operation, the Office of Press Relations (Room
2109).
(2) May enter and have access without an appointment, on the
basement level or on the first and second floors, to the cafeteria, post
office, banks, concessionaries, barber shop, dry cleaners and the
Foreign Affairs Recreation Association offices for the purposes for
which they are established and when they are in operation.
(3) May not escort non-passholders into the Department of State
building.
(c) Media correspondents, with or without a Department of State
press building pass, may enter areas above the second floor of the Main
State building only if the correspondent is invited by a Department
employee to attend a specific social or official function in an office
located above the second floor. Permission to enter areas above the
second floor is strictly limited to direct passage to and from the
appointment location of the Department of State employee, or the office
or reception room where the function takes place.
(d) Possession of State Department press building pass does not
confer access to or other privileges at other Federal buildings. It is
not to be construed as official United States Government recognition,
approval or accreditation of a correspondent.
[54 FR 1686, Jan. 17, 1989]
[[Page 31]]
Sec. 9b.2 Press correspondents employed by United States media
organizations.
In order to obtain a Department of State press building pass, press
correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a
letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520, a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]
Sec. 9b.3 Press correspondents employed by foreign media
organizations.
In order to obtain a Department of State press building pass,
correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State,
Washington, DC 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, DC Embassy of the nation where the
organization is headquartered or from the Embassy of the United States
in the nation where the organization is headquartered attesting to the
existence of the news organization and the applicant's employment by
that organization. The Director of the Office of Press Relations may
accept a letter from another source attesting to the existence of such
news organizations and the applicant's employment if, in his or her
judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520 a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
[[Page 32]]
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
Sec. 9b.4 Department of State building press pass for technical
crews.
Department of State press building passes are issued to members of
television and radio technical crews who provide technical support on a
daily basis for media correspondents assigned to the Department of
State. Members of technical crews who do not possess press passes, but
who provide technical support for media correspondents assigned to the
Department of State, may apply to the Office of Press Relations for a
visitor's pass valid for one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications
stated in Sec. Sec. 9b.2(a)(1) and 9b.2(a)(2) or Sec. Sec. 9b.3(a) and
9b.3(b), but does not have regular and substantial assignments in
connection with the Department of State may make arrangements with the
Office of Press Relations for the issuance of a visitor's pass valid for
one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.6 Grounds for denial, revocation, or non-renewal of
Department of State press building passes.
In consultation with the Bureau of Diplomatic Security and the
Office of the Legal Adviser, the Director of the Office of Press
Relations of the Department of State, may deny, revoke, or not renew the
Department of State press building pass of any media correspondent or
technician who:
(a) Does not meet the qualifications stated in Sec. Sec.
9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or Sec. Sec. 9b.3(a)(1),
9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-
renewal the correspondent or technician may not re-apply for a period of
one year unless there are material changes in meeting the
qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of
State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds
to believe might violate federal or state law or Department of State
regulations.
(d) Has been convicted of a felony (or a crime in a foreign country
that would be considered a felony if it were committed in the United
States).
(e) Fails to claim an approved authorization form for a State
Department press building pass after notification by the Office of Press
Relations following a period of three (3) months.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]
Sec. 9b.7 Procedures for denial, revocation, or non-renewal of
Department of State press building passes.
(a) If the Director of the Office of Press Relations, Department of
State, anticipates, after consultation with the Office of the Legal
Adviser, that in applying the standard set forth in Sec. 9b.6 a
Department of State press building pass might be denied, revoked or not
renewed, the media correspondent or technician will be notified in
writing by the Director of the basis for the proposed denial in as much
detail as the security of any confidential source of information will
permit. This notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or non-
renewal sent to the correspondent will also contain a statement advising
the correspondent of his or her right to respond to the proposed denial
and to rebut any factual basis supporting the proposed denial.
(c) The correspondent shall be allowed thirty (30) days from the
date of the mailing of the proposed denial, revocation or non-renewal
notification to respond in writing. The response shall consist of any
explanation or rebuttal deemed appropriate by the correspondent and will
be signed by the correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30
days, an extension for one additional 30-day period will be granted upon
receipt of the correspondent's written request for such an extension.
[[Page 33]]
(e) At the time of the filing of the media correspondent's or
technician's written response to the notification of the proposed
denial, revocation or non-renewal, the correspondent or technician may
request, and will be granted, the opportunity to make a personal
appearance before the Director of the Office of Press Relations,
Department of State, for the purpose of personally supporting his/her
eligibility for a press pass and to rebut or explain the factual basis
for the proposed denial. The Director shall exercise, in consultation
with the Bureau of Diplomatic Security and the Office of the Legal
Adviser, final review authority in the matter. The correspondent or
technician may be represented by counsel during this appearance.
(f)(1) On the basis of the correspondent's or technician's written
and personal response and the factual basis for the proposed denial,
revocation or non-renewal, the Director of the Office of Press
Relations, Department of State, will consult with the Bureau of
Diplomatic Security and the Office of the Legal Adviser to determine
whether or not further inquiry or investigation concerning the issues
raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final
decision will be issued in conformity with paragraph (g) of this
section.
(3) If a decision is made that such further inquiry is necessary,
the Director of the Office of Press Relations of the Department of
State, the Bureau of Diplomatic Security and the Office of the Legal
Adviser will conduct such further inquiry as is deemed appropriate. At
the Director's discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of
this section.
(g) On the basis of the correspondent's or technician's written and
personal response, the factual basis for the proposed denial and the
additional inquiry provided for if such inquiry is conducted, the
Director of the Office of Press Relations of the Department of State
will consult with the Bureau of Diplomatic Security and the Office of
the Legal Adviser and expeditiously reach a final decision in accordance
with the standard set forth in Sec. 9b.6. If a final adverse decision
is reached, the correspondent or technician will be notified of this
final decision in writing. This notification will set forth as precisely
as possible, and to the extent that security considerations permit, the
factual basis for the denial in relation to the standard set forth in
Sec. 9b.6. This notification will be sent by registered mail and will
be signed by the Director of the Office of Press Relations of the
Department of State.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
Sec. 9b.8 Term and renewal of Department of State press building
passes.
(a) Department of State press building passes for U.S. citizens are
issued with three years' validity. Subject to positive completion of an
international background check, passes for non-U.S. citizens are issued
with one year's validity and may be renewed for three years.
Notwithstanding its initial validity, any press building pass that has
not been used for a twelve-month period, as recorded by the Bureau of
Diplomatic Security's turnstyle entry devices, will become invalid at
the end of that twelve-month period.
(b) For any valid passes issued before October 1, 1995, notification
shall be sent by the Department of State to the holder of the pass that
the pass has become invalid by reason of lack of use for 12-month
period. However, failure of the holder for any reason to receive such a
notification shall not affect the invalidity of the pass. Anyone whose
pass has become invalid may apply for a new pass in accordance with
Sec. Sec. 9b.2 through 9b.5.
[61 FR 3800, Feb. 2, 1996]
[[Page 34]]
SUBCHAPTER B_PERSONNEL
PART 11_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents
Sec.
11.10 Links to relevant provisions of the Foreign Affairs Manual.
11.20 Entry-level Foreign Service Officer career candidate appointments.
11.30 Mid-level Foreign Service Officer career candidate appointments.
[Reserved]
11.40 Senior Foreign Service Officer career candidate appointments.
[Reserved]
11.50 Foreign Service specialist career candidate appointments.
11.60 Limited non-career appointments.
Authority: 22 U.S.C. 2651a, 3926, 3941.
Source: 80 FR 64320, Oct. 23, 2015, unless otherwise noted.
Sec. 11.10 Links to relevant provisions of the Foreign Affairs Manual.
(a) The Foreign Affairs Manual (FAM) is the formal written document
for recording, maintaining, and issuing Department of State (Department)
directives that address personnel and other matters. It is the primary
authority for appointment of current Department employees to the Foreign
Service. This part is the primary authority for the appointment of non-
employees to the Foreign Service. The FAM provides Department procedures
and policies that are not repeated in this part. It is an important
resource for understanding the provisions of this part.
(b) The two FAM volumes relevant to this part are Volume 3,
Personnel, and Volume 16, Medical. FAM provisions are cited by volume
followed by chapter or subchapter--for example, Chapter 210 of Volume 16
would be cited 16 FAM 210. All of the relevant FAM provisions are on the
Department's public Web site. The links for the relevant FAM provisions
are as follows:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
3 FAM 2215................... http://www.state.gov/documents/ organization/84854.pdf.
3 FAM 2216.2
3 FAM 2216.3
3 FAM 2217
3 FAM 2218
3 FAM 2245................... http://www.state.gov/documents/ organization/84851.pdf.
3 FAM 2250................... http://www.state.gov/documents/ organization/84850.pdf.
3 FAM 2251.3
3 FAM 2290................... http://www.state.gov/documents/ organization/84846.pdf.
16 FAM 210................... http://www.state.gov/documents/ organization/89692.pdf.
----------------------------------------------------------------------------------------------------------------
Sec. 11.20 Entry-level Foreign Service Officer career candidate
appointments.
(a) General considerations--(1) Authority. Pursuant to section 302
of the Foreign Service Act of 1980 (hereinafter referred to as ``the
Act''), all Foreign Service Officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service Officer
unless that person is a citizen of the United States, is twenty-one, and
is world-wide available. Pursuant to section 306 of the Act, such
appointment is initially a career-candidate appointment. The tenuring of
Foreign Service Officer career candidates is governed by the provisions
of 3 FAM 2245.
(2) Veterans' preference. Pursuant to section 301 of the Act, the
fact that an applicant for appointment as a Foreign Service Officer
candidate is a veteran or disabled veteran, as defined in 5 U.S.C. 2108,
must be considered as an affirmative factor in making such appointments.
(3) Policy. Appointment as an Entry Level Foreign Service Officer
career candidate of class 6, 5, or 4 is governed by these regulations.
Successful applicants will be appointed as career candidates for a
period not to exceed 5
[[Page 35]]
years. Under precepts of the Commissioning and Tenure Board, career
candidates may be granted tenure and recommended for appointment as
career Foreign Service Officers. Those who are not granted tenure prior
to the expiration of their career-candidate appointments will be
separated from the Foreign Service. Separated candidates who originally
were employees of an agency and who accepted a limited appointment to
the Foreign Service with the consent of the head of the agency in which
they were employed will be entitled to reemployment rights in their
former agency in accordance with section 310 of the Act.
(b) The Foreign Service Officer Test (FSOT). The following
regulations apply to the FSOT:
(1) Purpose. The FSOT is designed to enable the Board of Examiners
for the Foreign Service to test the applicant's knowledge, skills, and
abilities, including writing skills that are necessary to the work of a
Foreign Service Officer.
(2) Eligibility. Before each FSOT, the Board of Examiners will
establish a closing date for the receipt of applications for designation
to take the test. No person will be designated to take the test who has
not, as of that closing date, filed a complete application with the
Board. To be designated to take the FSOT, an applicant, as of the date
of the test, must be a citizen of the United States and at least 20
years of age.
(3) When and where given. The FSOT will be given periodically, in
designated cities in the United States and at selected locales abroad,
on dates established by the Board of Examiners and publicly announced on
careers.state.gov.
(4) Scoring. The several parts of the FSOT will be weighted and
graded according to standards established by the Board of Examiners. The
Board of Examiners may adjust the passing score of the FSOT to reflect
the projected hiring needs of the Foreign Service.
(c) Qualifications Evaluation Panel (QEP). The following regulations
apply to the QEP:
(1) Purpose. Each QEP is designed to enable the Board of Examiners
for the Foreign Service to review each candidate's file and evaluate it
against established precepts of successful Foreign Service Officer
performance. The QEPs rank order candidates within each career track.
(2) Panels. QEPs are career track specific and are staffed by
panelists approved by the Board of Examiners from a roster of qualified
active duty and retired Foreign Service Officers. At least one of the
panelists will be from the same career track as those in the candidate
pool.
(3) Eligibility. Candidates whose score on the FSOT is at or above
the passing level set by the Board of Examiners will be invited to
submit their responses to Personal Narrative Questions. The questions,
linked to the Foreign Service performance precepts, are designed to
elicit specific examples of past performance where the candidate
demonstrated the requisite precept.
(4) When administered. The Board of Examiners holds one session of
QEPs following each FSOT.
(5) Scoring. Panelists will score files according to standards
established by the Board of Examiners. The candidacy of anyone whose
score is at or above the passing level set by the Board of Examiners
will continue. The candidacy of anyone whose score is below the passing
level will be ended and may not be considered again until the candidate
has passed a new FSOT, at minimum of a year later. The Board of
Examiners sets the passing score for each QEP based on the projected
hiring needs of the Foreign Service. All candidates exempt from the
FSOT, except Mustang applicants, are also exempt from review by a QEP.
(i) The Board of Examiners may authorize QEPs to give special
consideration in the selection of candidates to certain factors, e.g.,
demonstrating language ability, which the Board will publicly announce
on careers.state.gov.
(ii) The Board of Examiners may choose to verify accounts given by
candidates in their personal narratives.
(d) Foreign Service Oral Assessment (FSOA). The following
regulations apply to the FSOA:
(1) Purpose. The FSOA is designed to enable the Board of Examiners
for the Foreign Service to test the candidate's ability to demonstrate
the qualities or dimensions that are essential to the
[[Page 36]]
successful performance of Foreign Service work. The FSOA for the Entry
Level Foreign Service Officer Career Candidate Program will consist of
an assessment procedure publicly announced by the Board of Examiners on
careers.state.gov. The process is generally referred to as the Foreign
Service Oral Assessment or FSOA.
(2) Eligibility--(i) Through the FSOT and QEP review. (A) Candidates
who pass the FSOT and whose score on the QEP review is at or above the
passing level set by the Board of Examiners will be invited to take the
FSOA.
(B) Candidates must schedule the FSOA within 12 months of receiving
their invitation to take the FSOA unless they receive an extension of
time. Candidates may request an extension of up to an additional 12
months. Active duty military have unrestricted time to take an FSOA if
they notify the Board of Examiners of their active duty status. Failure
to take the FSOA within 12 months of the invitation will result in the
cancellation of the candidacy, unless the candidate has requested and
obtained an extension of eligibility. The candidacy of anyone for whom
the scheduling period is extended by the Board due to being outside of
the United States will automatically be terminated if the candidate
fails to notify his or her registrar of the change in status within
three months of returning to the United States. The candidate must
schedule an FSOA, but if a candidate fails to appear for a scheduled
FSOA, the candidacy is automatically terminated. The Director of the
Office of Recruitment, Examination, and Employment in the Bureau of
Human Resources, or his/her designee, will consider requests to
reschedule on a case-by-case basis if a candidate so requests prior to
his/her scheduled FSOA.
(ii) Through the Mustang Program. Career employees of the Department
of State in classes FS-6 and above or grades GS-5 and above who are at
least 21 years of age and who have at least three years of service with
the Department may be selected by the Board of Examiners for admission
to the FSOA for Entry Level Career Candidates under the Department's
Mustang Program. Mustang candidates must meet all program requirements
and submit all application material to be considered for the Mustang
Program. See the procedures set forth in 3 FAM 2216.2-4 (Foreign Service
Officer Oral Assessment (FSOA)).
(iii) Through a mid-level conversion program. Employees of the
Department of State in grade GS-13 and above are eligible to apply to
enter the Foreign Service through a mid-level conversion program (see 3
FAM 2216.3-2) whenever held.
(iv) Through other programs. (A) Under programs established pursuant
to section 105(d)(1) of the Act, which addresses diversity within the
Foreign Service.
(B) Under any other special entry programs created by the Department
to meet specific needs of the Foreign Service.
(3) When and where given. The FSOA will be held intermittently in
Washington, DC, and may be held in selected cities in the United States
or abroad as necessary, as publicly announced.
(4) Assessment panel. (i) The FSOA will be given by a panel of
assessors approved by the Board of Examiners from a roster of active
duty and/or retired Foreign Service Officers.
(ii) Service as an assessor shall be limited to a maximum of 5
years, unless a further period is specifically authorized by the Board.
Normally assessment panels shall be chaired by a career officer of the
Foreign Service, trained in personnel testing and evaluation.
Determinations of duly constituted panels of assessors are final unless
modified by specific action of the Board of Examiners.
(5) Scoring. Candidates taking the FSOA will be scored numerically
according to standards established and publicly announced by the Board
of Examiners, in places such as careers.state.gov. The candidacy of
anyone whose score is at or above the passing level set by the Board
will be continued. The candidacy of anyone whose score is below the
passing level will be terminated.
(e) Background investigation. Candidates who pass the FSOA and elect
to continue the hiring process will be subject to a background
investigation. The
[[Page 37]]
background investigation must be conducted to determine the candidate's
eligibility for a security clearance and serves as the basis for
determining suitability for appointment to the Foreign Service (see 3
FAM 2212.1 (Security Investigation)).
(f) Medical examination--(1) Eligibility. Candidates who pass the
oral assessment and elect to continue the hiring process must undergo a
medical examination. See the procedures in of 16 FAM 210 (Medical
Clearances).
(2) [Reserved]
(g) Suitability Review Panel. Generally after the medical clearance
has been issued and the background investigation is received, the
candidate's entire file (excluding any medical records) is reviewed and
evaluated by the Suitability Review Panel to determine the candidate's
suitability for the Foreign Service. See the procedures in 3 FAM 2215
(Suitability Review). The candidacy of any candidate who is determined
by the Suitability Review Panel to be unsuitable for appointment shall
be terminated and the candidate so informed. According to procedures
established by the Board of Examiners, a candidate may appeal this
decision to the Board of Examiners Staff Director or designee whose
decision will be final. The Bureau of Diplomatic Security (DS) will re-
submit applicants to the Suitability Review Panel if they are found to
have falsified information in the application process or are found to
have disqualifying factors.
(h) Certification for appointment--(1) Eligibility. (i) A candidate
will not be certified as eligible for appointment as a Foreign Service
Officer Career Candidate unless that candidate is at least 21 years of
age and a citizen of the United States.
(ii) Except for preference eligible individuals, career candidate
appointments must be made before the candidate's 60th birthday.
Preference eligible individuals must be appointed before their 65th
birthday. The maximum age for appointment under this program is based on
the requirement that all career candidates must be able to:
(A) Complete at least two full tours of duty, exclusive of
orientation and training;
(B) Complete the requisite eligibility period for tenure
consideration; and
(C) Complete the requisite eligibility period to receive retirement
benefits, prior to reaching the mandatory retirement age of 65
prescribed by the Act.
(iii) A candidate may be certified as eligible for direct
appointment to classes FS-6, FS-5 or FS-4 based on established, publicly
available, criteria.
(iv) Employees who receive a career candidate appointment, i.e., who
are untenured, have five years to obtain tenure. These career-candidate
appointments, including the appointment of an individual who is the
employee of any agency, may not exceed five years in duration, and may
not be renewed or be extended beyond five years. A candidate denied
tenure under 3 FAM 2250 may not be reappointed as a career candidate to
become a generalist.
(2) Career-track rank-order registers. The Board of Examiners
maintains separate rank-order registers for career candidates in
administrative, consular, economic, public diplomacy and political
career tracks within the Department of State. Appointments from each
career-track register will be made in rank order according to hiring
needs.
(3) Special programs. Mustang candidates who are career employees of
the Department of State and who have satisfactorily completed all
aspects of the assessment process will be certified by the Board of
Examiners for placement on the Hiring Register to compete for a hiring
opportunity as a Foreign Service Officer. Mustang candidates who have
previously passed the FSOT/QEP will continue in the career track they
selected when registering for the FSOT and be placed on the appropriate
career track register.
(4) Foreign language requirement. A candidate may be certified for
appointment to classes FS-6, FS-5, or FS-4 without first having passed
an examination in a foreign language, but the appointment will be
subject to the condition that the newly appointed career candidate may
not be appointed as a career Foreign Service Officer unless, within a
specified period of time, proficiency in a foreign language is achieved.
[[Page 38]]
(i) Termination of eligibility--(1) Time limit. Candidates who have
qualified but have not been appointed because of lack of openings will
be removed from the rank-order register 18 months after the date of
placement on the rank-order register. Time spent in civilian Federal
Government service abroad (to a maximum of 2 years of such service),
including Peace Corps volunteer service, spouses of Foreign Service
officers, or in active regular or reserve military service (no maximum),
will not be counted as part of the 18-month eligibility period.
(2) Extension. The Board of Examiners may extend the eligibility
period when such extension is, in its discretion, justified by the needs
of the Foreign Service.
(3) Postponement of entrance on duty. Postponement of entrance on
duty because of civilian Federal Government service abroad (to a maximum
of 2 years of such service), including Peace Corps volunteer service, or
as spouse of a Foreign Service Officer, or active regular or reserve
military service (to a maximum of the limit of such required service),
may be authorized by the Board.
(j) Travel expenses. The travel and other personal expenses of
candidates incurred in connection with the written and oral examination
will not be borne by the Government. However, the participating foreign
affairs departments may issue round-trip invitational travel orders to
bring candidates to Washington, DC, at government expense, when it is
determined by the agencies that this is necessary in the interest of the
Foreign Service.
Sec. 11.30 Mid-level Foreign Service Officer career candidate
appointments. [Reserved]
Sec. 11.40 Senior Foreign Service Officer career candidate
appointments. [Reserved]
Sec. 11.50 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Pursuant to section 303 of the Act,
the Secretary may appoint individuals to the Foreign Service (other than
those who are in the personnel categories specified in section 302(a) of
the Act). Pursuant to section 306 of the Act, such appointment is
initially a career candidate appointment. Section 303 governs the
appointment by the Department of State of Foreign Service specialist
career candidates to classes FS-1 and all classes below. Specialist
candidates comprise all candidates for career appointment in all career
tracks other than generalist career tracks (i.e., management, consular,
economic, political, and public diplomacy). The tenuring of specialist
career candidates is governed by the procedures in 3 FAM 2250.
(2) Veterans' preference shall apply to the selection and
appointment of Foreign Service specialist career candidates. Veterans'
preference is an affirmative factor once the candidate has been
qualified for the position. As soon as veterans go on the Hiring
Register, they may apply for additional points to increase their rank
order standing.
(b) Specialist career candidate appointments--(1) Certification of
need. (i) Candidates for appointment as specialist career candidates
must be world-wide available and must have a professional or a
functional skill for which there is a continuing need in the Foreign
Service. No applicant shall be appointed for which there is no certified
need established at a specific class level. Either the Director General
may determine in advance which specialties are routinely or frequently
in shortage or need periodic recruitment through publicly posted vacancy
announcements, or the Director General may certify that there is a need
for an applicant in a specific specialist category and at a specific
class.
(ii) Candidates who receive a career candidate appointment, i.e.,
who are untenured, have four years with the possibility of five years
(see 3 FAM 2251.3) to obtain tenure. These appointments, including the
appointment of an individual who is the employee of any agency, may not
exceed five years in duration, and may not be renewed or be extended
beyond five years. A specialist candidate denied tenure under 3 FAM 2250
generally may not be reappointed as a career candidate in the same
career track.
(2) Eligibility. An applicant must be a citizen of the United States
and at
[[Page 39]]
least 20 years of age. The minimum age for appointment as a career
candidate is 21. Except for preference eligible candidates, all career
candidate appointments shall be made before the candidate's 60th
birthday. Preference eligible candidates may be appointed up to their
65th birthday. The maximum age for appointment under the program is
based on the requirement that all career candidates shall be able to:
(i) Complete at least two full tours of duty, exclusive of
orientation and training,
(ii) Complete the requisite eligibility period for tenure
consideration, and
(iii) Complete the requisite eligibility period to receive
retirement benefits, prior to reaching the mandatory retirement age of
65 prescribed by the Act.
(3) Screening. (i) Specialist career candidates will be screened
initially on the basis of education and experience.
(ii) Based on a job analysis, the Board of Examiners, in
coordination with any bureau responsible for the specialty, will
establish the knowledge, skills, and abilities required to perform
successfully the tasks and duties of Foreign Service specialists in that
functional field. Assessors working for the Board of Examiners will
screen applications under those approved criteria and select those who
meet the requirements to invite to an oral assessment.
(4) Oral assessment. Candidates are selected through the initial
screening process. The oral assessment will be given by a panel of
assessors, at least one of whom will be a career Foreign Service
employee proficient in the functional field for which the candidate is
being tested. The assessment may include a writing sample. Candidates
taking the oral assessment will be scored numerically according to
standards set by the Board of Examiners. The candidacy of anyone whose
score is at or above the passing level set by the Board will be
continued. The candidacy of anyone whose score is below the passing
level will be terminated. The candidate may only reapply after the first
anniversary date of the original application.
(5) Background investigation. Specialist candidates who pass the
oral assessment and elect to continue the hiring process will be subject
to a background investigation. The background investigation must be
conducted to determine the candidate's eligibility for a security
clearance and serves as the basis for determining suitability for
appointment to the Foreign Service (see 3 FAM 2212.1-1 (Security
Investigation)).
(6) Medical examination. Candidates who pass the oral assessment and
elect to continue the hiring process must undergo a medical examination.
See the procedures in 16 FAM 210 (Medical Clearances).
(7) Suitability Review Panel. After the medical examination
clearance has been issued and the background investigation is received,
the candidate's entire file (excluding any medical records) is reviewed
and evaluated by a Suitability Review Panel to determine the candidate's
suitability for the Foreign Service. See the procedures in 3 FAM 2215
(Suitability Review). According to procedures established by the Board
of Examiners, a candidate may appeal this decision to the Board of
Examiners Staff Director or designee, whose decision will be final. DS
will re-submit applicants to the Suitability Review Panel if they are
found to have falsified information on their application or are found to
have disqualifying factors.
Sec. 11.60 Limited non-career appointments.
Consistent with section 303 of the Act (22 U.S.C. 3943), the
Secretary of State may also appoint Civil Service employees and other
individuals to the Foreign Service, and, consistent with section 309 of
the Act (22 U.S.C. 3949), such appointments may include limited non-
career appointments (LNAs). After meeting the job specific requirements,
candidates must meet applicable medical, security, and suitability
requirements. Limited non-career appointments are covered under 3 FAM
2290.
[[Page 40]]
PART 12_COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS--
Table of Contents
Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.
Sec. 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint
against an employee by an alleged creditor, so far as the complainant is
concerned, beyond acknowledging receipt of his communication.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
Sec. 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims
will be denied access to employees for the purpose of presenting or
collecting claims during the hours set apart for the transaction of
public business or while the employees concerned are on duty.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
PART 13_PERSONNEL--Table of Contents
Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 [Reserved]
13.4 False certificate as to ownership of property.
Authority: 22 U.S.C. 2651a; 22 U.S.C. 4198-4199, 4209, and 4217-
4218.
Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.
Sec. 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be
collected, for any services any other or greater fees than are allowed
by law for such services, shall, besides his or her liability to refund
the same, be liable to pay to the person by whom or in whose behalf the
same are paid, treble the amount of the unlawful charge so collected, as
a penalty. The refund and penalty may be recovered with costs, in any
proper form of action, by such person for his or her own use. The amount
of such overcharge and penalty may at the discretion of the Secretary of
the Treasury be ordered withheld from the compensation of such officer
for payment to the person entitled to the same (22 U.S.C. 4209).
Note: The foregoing relates to improper collection and personal
withholding of funds by consular officers. For procedure where a
collection, having been erroneously made, has been returned by the
officer to the Treasury in good faith, making a subsequent accounting
adjustment necessary, see Sec. 22.6, Refund of fees of this chapter.
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984;
79 FR 43247, July 25, 2014]
Sec. 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects
belonging to a citizen of the United States and shall not within a
reasonable time after demand made upon him or her by the Secretary of
State or by such citizen, his or her executor, administrator, or legal
representative, account for and pay over all moneys, property, and
effects, less his or her lawful fees, due to such citizen, shall be
deemed guilty of embezzlement, and shall be punishable by imprisonment
for not more than five years, and by a fine of not more than $2,000 (22
U.S.C. 4217). Penalties of imprisonment and fine are also prescribed for
embezzlement in connection with the acceptance, without execution of a
prescribed form of bond, of appointment from any foreign state as
administrator, guardian, or to any other office of trust for the
settlement or conservation of estates of deceased persons or of their
heirs or of persons under legal disabilities (22 U.S.C. 4198 and 4199).
Acceptance of such appointments is not ordinarily permitted under
existing regulations. See Sec. 92.81 of this chapter.
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984;
79 FR 43247, July 25, 2014]
[[Page 41]]
Sec. 13.3 [Reserved]
Sec. 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that
property belonging to foreigners is property belonging to citizens of
the United States, he or she shall be punishable by imprisonment for not
more than three years, and by a fine of not more than $10,000 (22 U.S.C.
4218).
[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR
16989, Apr. 23, 1984; 79 FR 43247, July 25, 2014]
PART 16_FOREIGN SERVICE GRIEVANCE SYSTEM--Table of Contents
Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.
Authority: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat.
111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037;
sec. 10 of E.O. 11636 (36 FR 24901).
Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.
Sec. 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a
citizen of the United States; or for purposes of paragraphs (c) (7) and
(8) of this section, a former officer or employee of the Service; or in
the case of death of the officer or employee, a surviving spouse or
dependent family member of the officer or employee.
(c) Grievance means any act or condition subject to the control of
the Foreign Affairs agencies (the Department of State, the Agency for
International Development, or the U.S. Information Agency) which is
alleged to deprive the grievant of a right or benefit authorized by law
or regulation or is otherwise a source of concern or dissatisfaction to
the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee
allegedly contrary to law or regulation or predicated upon alleged
inaccuracy (including inaccuracy resulting from omission or any relevant
and material document), error, or falsely prejudicial character of any
part of the grievant's official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of
applicable law, regulation, or published policy affecting the terms and
conditions of the grievant's employment or career status;
(3) Allegedly wrongful disciplinary action against an employee
constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the
agency with respect to the grievant's physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in
the grievant's official personnel file;
(6) Action alleged to be in the nature of reprisal or other
interference with freedom of action in connection with an employee's
participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily
retired pursuant to sections 633 and 634 of the Act within 6 years prior
to December 1, 1975, ``grievance'' shall mean a complaint that such
involuntary retirement violated applicable law or regulation effective
at the time of the retirement or that the involuntary retirement was
predicated directly upon material contained in the grievant's official
personnel file alleged to be erroneous or falsely prejudicial in
character; and
(8) When the grievant is a former officer or employee or a surviving
spouse or dependent family member of a former officer or employee,
``grievance'' shall mean a complaint that an allowance or other
financial benefit
[[Page 42]]
has been denied arbitrarily, capriciously or contrary to applicable law
or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign
Service officers or employees, which are ordered in accordance with law
and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623
of the Act, or of equivalent bodies, in ranking Foreign Service officers
and employees for promotion on the basis of merit, or judgments in
examinations prescribed by the Board of Examiners pursuant to section
516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C.
929 and 1008, and the pertinent regulations prescribed by the employing
agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals
procedure exists (see appendix A for examples).
A grievance filed under these procedures may be based on matters for
which there is a specific statutory appeals procedure which is
applicable to the Foreign Service grievant. Should the jurisdiction of
the Grievance Board over a specific grievance be placed into question on
grounds that the basis of the grievance is not encompassed within the
Board's authority (Sec. 16.1(d)(4) and Appendix A), the Board shall
consult with the other statutory body concerned, transmitting the views
of the parties concerned before determining whether it has jurisdiction.
(e) Employee organization means any employee organization accorded
recognition as the excusive employee representative pursuant to
Executive Order 11636 dated December 17, 1971.
(f) Grievance Board or Board means the full Foreign Service
Grievance Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having
control over the act or condition forming the subject matter of the
grievance.
(h) Bureau means equivalent organizational elements in State and
USIA, and includes offices in AID.
(i) Days means calendar days.
Sec. 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as
required by law to provide Foreign Service officers and employees (and
their survivors) of the Foreign Affairs agencies, a grievance procedure
to insure a full measure of due process, and to provide for the just
consideration and resolution of grievances of such officers, employees,
and survivors. No regulation promulgated in this part shall be
interpreted or applied in any manner which would alter or abridge the
provisions of the due process established by the Congress in Pub. L. 94-
141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to
settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage
employees to discuss complaints with them and should respond in a timely
manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the
employee's current supervisor or with the responsible officer who has
immediate jurisdiction over the complaint to give that person an
opportunity to resolve the matter, before further steps are taken under
these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from
seeking guidance from any official who might be helpful respecting the
submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or
other person involved in a proceeding hereunder shall be free from any
restraint, interference, coercion, harassment, discrimination, or
reprisal in those proceedings or by virtue of them. The Foreign Affairs
agencies recognize their obligation to insure compliance with this
section. Any person involved or having immediate knowledge of any
alleged breach of this section should call it to the attention of the
pertinent foreign affairs agency through appropriate channels for
corrective action as
[[Page 43]]
necessary. Normally such allegations should be brought to the attention
of the senior agency official at the post; and at Washington, DC, to the
Director, Grievance Staff for State; Chief, Employee Relations Branch
for AID and Chief, Employee-Management Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant's
own choosing at every stage of the proceedings. The grievant and repre-
sentative(s) who are under the control, supervision, or responsibility
of the Foreign Affairs agencies shall be granted reasonable periods of
administrative leave to prepare, to be present, and to present the
grievance.
(3) Any witness under the control, supervision, or responsibility of
a Foreign Affairs agency shall be granted reasonable periods of
administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall
have authority to ensure that no copy of the determination of the agency
head or designee to reject a Grievance Board recommendation, no notation
of the failure of the Grievance Board to find for the grievant, and no
notation that a proceeding is pending or has been held, shall be entered
in the personnel records of the grievant (unless by order of the
Grievance Board as a remedy for the grievance) or those of any other
officer or employee connected the grievance. The Foreign Affairs
agencies shall maintain grievance records under appropriate safeguards
to preserve confidentiality (Sec. 16.9).
Sec. 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant's
representative shall have access to the record of proceedings, including
the decision of the Board.
(b) Agency records. (1) In considering the validity of a grievance,
the Grievance Board shall have access, to the extent permitted by law,
to any agency record considered by the Board to be relevant to the
grievant and the subject matter of the grievance.
(2) The agency shall, subject to applicable law, promptly furnish
the grievant any agency record which the grievant requests to
substantiate the grievance and which the agency or the Grievance Board
determines is relevant and material to the proceeding. When deemed
appropriate by the agency or the Board, a grievant may be supplied with
only a summary of extract of classified material. If a request by a
grievant for a document is denied prior to or during the agency's
consideration of a grievance, such denial may be raised by the grievant
as an integral part of the grievance before the Board.
(3) These regulations do not require disclosure of any official
agency record to the Grievance Board or a grievant where the head of
agency or deputy determines in writing that such disclosure whould
adversely affect the foreign policy or national security of the United
States.
Sec. 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be
presented at any time if its adverse effect is presently continuing.
Documents contained in official employee personnel files, for example,
shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under
these regulations is forever barred, and the Grievance Board shall not
consider or resolve the grievance, unless the grievance is presented
within a period of 3 years after the occurrence or occurrences giving
rise to the grievance, except that if the grievance arose earlier than 2
years prior to the effective date of these regulations, the grievance
shall be so barred, and no considered and resolved, unless it is
presented within a period of 2 years after the effective date of these
regulations, There shall be excluded from the computation of any such
period any time during which the grievant was unaware of the grounds
which are the basis of the grievance and could not have discovered such
grounds if the grievant had exercised, as determined by the Grievance
Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible
official
[[Page 44]]
(Sec. 16.7(b)), transmitted to post or bureau (Sec. 16.7(c)) submitted
for agency review (Sec. 16.8) or filed with the Grievance Board Sec.
16.11(a):
(1) On the date of its dispatch by telegram, registered or certified
mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if
delivered by any other means.
Sec. 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if
the grievant has formally requested, prior to filing a grievance, that
the matter or matters which are the basis of the grievance be considered
or resolved and relief be provided, under another provision of law,
regulation, or executive order, and the matter has been carried to final
decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under
these regulations by paragraph (a) of this section, the grievant may
file under these regulations notwithstanding the fact that such
grievance may be eligible for consideration, resolution, and relief
under a regulation or executive order other than under these
regulations, but such election of remedies shall be final upon the
acceptance of jurisdiction by the Board.
Sec. 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security
clearances whenever necessary to ensure a fair and prompt investigation
and hearing.
Sec. 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered
through the steps provided in this section before they are filed with
the Grievance Board.
(2) During the pendency of agency procedures under this section, the
grievant may request a suspension of the proposed action of the
character of separation or termination of the grievant, disciplinary
action against the grievant, or recovery from the grievant of alleged
overpayment of salary, expenses or allowances, which is related to the
grievance. The request must be in writing and addressed to the
responsible official of the agencies, as designated in Sec. 16.8(a)(2)
stating the reasons for such suspension. If the request is related to
separation or termination of the grievant, and the agency considers that
the grievance is not frivolous and is integral to the proposed action,
the agency shall suspend its proposed action until completion of agency
procedures, and for a period thereafter if necessary, consistent with
paragraph (a) of Sec. 16.11, to permit the grievant to file a grievance
with the Board, and to request interim relief under paragraph (c) of
Sec. 16.11. If a request is denied, the agency shall provide the
grievant in writing the reason for denial. Nothing in these regulations
shall be deemed to preclude an employee from requesting the suspension
of any proposed action.
(b) Consideration by responsible officer. (1) While every effort
should be made to resolve a complaint by an initial discussion between
an employee and the supervisor or responsible officer, an employee may
present the complaint as a grievance by submitting it in writing, to
that person. (The term ``responsible officer'' as used herein includes
any appropriate officer who has immediate jurisdiction over the
complaint.) The presentation shall include a description of the act or
condition which is the subject of the grievance; its effect on the
grievant; any provision of law, regulation, or agency policy which the
grievant may believe was violated or misapplied; any documentary
evidence readily available to the grievant on which the grievance rests;
the identity of individuals having knowledge of relevant facts; and a
statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use
independent judgment in deciding whether the grievance is meritorious
and what the resolution of it should be. Within 15 days from receipt of
the written grievance, the responsible officer shall provide the
grievant with a written response, which shall include a statement of any
proposed resolution of the grievance.
(3) If the response denies in whole or in part the remedial action
requested, such response shall notify the grievant of the time within
which to appeal the
[[Page 45]]
decision, and identity of the senior official, or designee, to whom the
appeal should be addressed. In those cases in which the senior official,
or designee, is the responsible officer to whom the grievance was
initially presented or has participated in the decision process and has
formally approved the written response of the responsible officer, the
grievant shall be so notified and advised that the grievance may be
submitted directly to the agency for review under Sec. 16.8.
(c) Bureau or post review. (1) If the responsible officer's written
response does not resolve the grievance to the grievant's satisfaction,
within 10 days of receiving it (or, if no response is received, within
25 days after first presenting the grievance), the grievant may pursue
the grievance by transmitting it in writing to the senior official, or
the designee in the bureau or post which has authority to resolve the
grievance. The written transmission shall include all the information
required by paragraph (b)(1) of this section and copies of any
correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall
provide the grievant with a written decision, including any proposed
resolution of the grievance. If the decision denies in whole or in part
the remedial action requested, the communication shall notify the
grievant of the time within which to submit the grievance for agency
review and the identity of the appropriate agency official to whom the
grievance should be addressed.
Sec. 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency
review if the grievance (i) is not within the jurisdiction of a post or
bureau, or (ii) the grievance has been considered but not resolved to
the grievant's satisfaction within the post or bureau as provided in
Sec. 16.7(c) within 10 days after receipt of the post's or bureau's
decision (or, if no response is received, within 25 days after
presenting it to the senior official or the designee). The grievant
shall submit it in writing to the responsible official of the agency
which has control of the act or condition which is the subject of the
grievance.
(2) Responsible officials. The responsible officials of the agencies
are the Deputy Assistant Secretary for Personnel (State), the Director
of Personnel and Manpower (AID), and the Chief, Employee-Management
Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a
description of the act or condition which is the subject of the
grievance; its effect on the grievant; any provision of law, regulation
or agency policy which the grievant may believe was violated or
misapplied; copies of any correspondence under Sec. 16.7(a), any
documentary evidence readily available to the grievant on which the
grievance rests; the identity of individuals having knowledge of
relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the
basis of available documentary evidence, and, in that official's
discretion, interview persons having knowledge of the facts. The agency
review shall be completed and its decision dispatched within 90 days
from the date of the initial written presentation of the grievance. The
grievant shall be informed in writing of the findings of the responsible
official and any proposed resolution of the grievance. The communication
shall also include the time within which the grievant may file a
grievance with the Grievance Board and the appropriate procedure to be
followed in this respect.
Sec. 16.9 Records.
All official records concerning agency consideration of grievances,
except those appropriate to implementation of decisions favorable to
grievants, shall be kept separate from the official personnel record of
the grievant and any other individuals connected with the grievance, and
shall not be accessible to agency personnel other than the grievant, the
grievant's representative, and those responsible for consideration of
grievances.
[[Page 46]]
Sec. 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a
Foreign Service Grievance Board for the Department of State, the Agency
for International Development and the U.S. Information Agency to
consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor
more than 15 members (including a chairperson) who shall be independent,
distinguished citizens of the United States, well known for their
integrity, who are not active officers, employees, or consultants of the
Foreign Affairs agencies (except consultants who served as public
members of the Interim Grievance Board previously established under
section 660, Volume 3, Foreign Affairs Manual) but may be retired
officers or employees. On its initial establishment, the Board shall
consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members
designated by the chairperson, except that hearings within the
continental United States shall be held by panels of at least three
members unless the parties agree otherwise. Reference in these
regulations to the Grievance Board shall be considered to be reference
to a panel or member of the Grievance Board where appropriate. All
members of the Grievance Board shall act as impartial individuals in
considering grievances.
(d) The members of the Grievance Board, including the chairperson,
shall be appointed by the Secretary of State after being designated by
the written agreement of the Foreign Affairs agencies and the employee
organization.
(e) The Board chairperson and other members shall be appointed for
terms of 2 years, subject to renewal upon the agreement of the Foreign
Affairs agencies and the employee organization; except that the terms of
7 of the initially appointed members shall expire at the end of one
year.
(f) Any vacancies shall be filled by the Secretary of State upon the
nomination by the Board following the agreement of the agencies and the
employee organization.
(g) Compensation. Members, including the chairperson, who are not
employees of the Federal Government shall receive compensation for each
day they are performing their duties as members of the Grievance Board
(including travel time) at the daily rate paid an individual at GS-18
level of the General Schedule under section 5332 of title 5 of the
United States Code.
(h) Removal. Grievance Board members shall be subject to removal by
the Secretary of State for corruption, other malfeasance, or the
demonstrated incapacity to perform their functions. No member shall be
removed from office until after the Board of the Foreign Service has
conducted a hearing and made its recommendations in writing to the
Secretary of State, except where the right to a hearing is waived in
writing. The Board of the Foreign Service shall provide a member with
full notice of the charges against that member, and afford a member the
right to counsel, to examine and cross-examine witnesses, and to present
documentary evidence.
(i) Grievance Board procedures. In accordance with part J, title VI
of the Act, the Board may adopt regulations concerning the organization
of the Board and such other regulations as mey be necessary to govern
its proceedings.
(j) Board facilities and staff support. The Grievance Board may
obtain facilities, services, and supplies through the general
administrative services of the Department of State. All expenses of the
Board, including necessary costs of the grievant's travel and travel-
related expenses, shall be paid out of funds appropriated to the
Department for obligation and expenditure by the Board. At the request
of the Board, officers and employees on the rolls of the Foreign Affairs
agencies may be assigned as staff employees to the Grievance Board.
Within the limit of appropriated funds, the Board may appoint and fix
the compensation of such other employees as the Board considers
necessary to carry out its functions. The officers and employees so
appointed or assigned shall be responsible solely to the Grievance Board
and the Board
[[Page 47]]
shall prepare the performance evaluation reports for such officers and
employees. The records of the Grievance Board shall be maintained by the
Board and shall be separate from all other records of the Foreign
Affairs agencies.
Sec. 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved
satisfactorily under agency procedures (Sec. 16.7) shall be entitled to
file a grievance with the Grievance Board no later than 60 days after
receiving the agency decision. In the event that an agency has not
provided its decision within 90 days of presentation, the grievant shall
be entitled to file a grievance with the Grievance Board no later than
150 days after the date of presentation to the agency. The Board may
extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance
Board finds that a grievance has not been presented for agency
consideration or that a grievance has been expanded or modified to
include materially different elements, the Board shall return the
grievance to the official responsible for final agency review unless the
agency waives any objection to Board consideration of the grievance
without such review.
(c) Prescription of interim relief. If the Grievance Board
determines that the agency is considering any action of the character of
separation or termination of the grievant, disciplinary action against
the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending
before the Board, and that such action should be suspended, the agency
shall suspend such action until the Board has ruled upon the grievance.
Notwithstanding such suspension of action, the head of the agency
concerned or a chief of mission or principal officer may exclude an
officer or employee from official premises or from the performance of
specified duties when such exclusion is determined in writing to be
essential to the functioning of the post or office to which the officer
or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at
the request of a grievant in any case which involves disciplinary
action, or a grievant's retirement from the Service under sections 633
and 634 of the Act, or which in the judgment of the Board can best be
resolved by a hearing or by presentation of oral argument. In those
grievances in which the Board holds no hearing, the Board shall offer to
each party the opportunity to review and to supplement, by written
submission, the record of proceedings prior to its decision.
Sec. 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable
number of representatives of the grievant's own choosing, and a
reasonable number of agency representatives, are entitled to be present
at the hearing. The Grievance Board may, after considering the views of
the parties and any other individuals connected with the grievance,
decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by
oath or affirmation which any Board member or person designated by the
Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine
witnesses at the hearing or by deposition, and to serve interrogatories
answered by the other party unless the Board finds such interrogatory
irrelevant or immaterial. Upon request of the Board, or upon a request
of the grievant deemed relevant and material by the Board, and agency
shall promptly make available at the hearing or by deposition any
witness under its control, supervision or responsibility, except that if
the Board determines that the presence of such witness at the hearing is
required for just resolution of the grievance, then the witness shall be
made available at the hearing, with necessary costs and travel expenses
provided by the agency.
(3) During any hearings held by the Board, any oral or documentary
evidence may be received but the Board
[[Page 48]]
shall exclude any irrelevant, immaterial, or unduly repetitious evidence
normally excluded in hearings conducted under the Administrative
Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be
part of the record of proceedings.
Sec. 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record
as the Board may find appropriate in the absence of a hearing, the board
shall expeditiously decide the grievance on the basis of the record of
proceedings. In each case the decision of the Board shall be in writing,
shall include findings of fact, and shall include the reasons for the
Board's decision.
(b) If the Grievance Board finds that the grievance is meritorious,
the Board shall have the authority within the limitations of the
authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the
grievant which the Board finds to be inaccurate, erroneous, or falsely
prejudicial;
(2) To reverse and administrative decision denying the grievant
compensation including related within-class salary increases pursuant to
section 625 of the Act or any other perquisite of employment authorized
by law or regulation when the Board finds that such denial was
arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in
consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and
regulations, an employee where it is clearly established that the
separation or suspension without pay of the employee was unjustified or
unwarranted;
(5) To order an extension of the time of an employee's eligibility
for promotion to a higher class where the employee suffered career
impairment in consequence of the matter by which the employee is
aggrieved;
(6) To order that an employee be provided with facilities relating
to the physical working environment which the employee has been denied
arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial
review as provided for in section 694 of the Act, except that
reinstatement of former officers who have filed grievances under Sec.
16.1(c)(7) shall be presented as Board recommendations, the decision on
which shall be subject to the sole discretion of the agency head or
designee, who shall take into account the needs of the Service in
deciding on such recommendations, and shall not be subjected to judicial
review under section 694 of the Act. The reason(s) for the agency head's
(or designee's) decision will be conveyed in writing to the Board and
the grievant.
(d) If the Board finds that the grievance is meritorious and that
remedial action should be taken that directly relates to promotion or
assignment of the grievant, or to other remedial action, including
additional step increases, not provided for in paragraph (b) of this
section, or if the Board finds that the evidence before it warrants
disciplinary action against any officer or employee, it shall make an
appropriate recommendation to the head of the agency, and forward to the
head of the agency the record of the Board's proceedings, including the
transcript of the hearing, if any. The head of the agency (or designee,
who shall not have direct responsibility for administrative management)
shall make a written decision to the parties and to the Board on the
Board's recommendation within 30 days from receipt of the
recommendation. A recommendation of the Board may be rejected in part or
in whole if the action recommended would be contrary to law, would
adversely affect the foreign policy or security of the United States, or
would substantially impair the efficiency of the Service. If the
decision rejects the Board's recommendation in part or in whole, the
decision shall state specifically any and all reasons for such action.
Pending the decision, there shall be no ex parte communications
concerning the grievance between the agency head, or designee, and any
person involved in the grievance proceeding.
[[Page 49]]
Sec. 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the
Board may obtain reconsideration by the Board only upon presenting newly
discovered or previously unavailable material evidence not previously
considered by the Board and then only upon approval of the Board.
Sec. 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations,
and revisions thereto, and final actions of the agency head (or
designee) or the Grievance Board hereunder, in the District Courts of
the United States, in accordance with the standards set forth in chapter
7 of title 5 of the United States Code. Section 706 of title 5 shall
apply without limitation or exception.
PART 17_OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND
DISABILITY FUND UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY
SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)--
Table of Contents
Sec.
17.1 General.
17.2 Conditions for waiver of recovery of an overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.
Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5
CFR 845.301-07.
Source: 71 FR 16229, Mar. 31, 2006, unless otherwise noted.
Sec. 17.1 General.
This part establishes procedures for notifying individuals of their
rights if they have received an overpayment from the Foreign Service
Retirement and Disability Fund under Chapter 8 of the Foreign Service
Act of 1980, as amended, including their right to contest the
determination that there has been an overpayment and the right to
request a waiver of recovery of the overpayment. This part also provides
the procedures for administrative determination of these rights and for
appeals of negative determinations.
Sec. 17.2 Conditions for waiver of recovery of an overpayment.
(a) Foreign Service Retirement and Disability System. Recovery of an
overpayment from the Foreign Service Retirement and Disability Fund
under the Foreign Service Retirement and Disability System may be waived
pursuant to section 4047(d), of title 22, United States Code when the
individual is without fault and recovery would be against equity and
good conscience or administratively infeasible.
(b) Foreign Service Pension System. Recovery of an overpayment from
the Foreign Service Retirement and Disability Fund under the Foreign
Service Pension System may be waived pursuant to section 4071(b) of
title 22, United States Code and section 8470(b) of title 5, United
States Code when the individual is without fault and recovery would be
against equity and good conscience.
(c) When it has been determined that the recipient of an overpayment
is ineligible for waiver, the individual is nevertheless entitled to an
adjustment in the recovery schedule if he or she shows that it would
cause him or her financial hardship to make payment at the rate
scheduled.
Sec. 17.3 Fault.
A recipient of an overpayment is without fault if he or she
performed no act of commission or omission that resulted in the
overpayment. The fact that the Department of State or other agency may
have been at fault in initiating an overpayment will not necessarily
relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are--
(1) Whether payment resulted from the individual's incorrect but not
necessarily fraudulent statement, which he/she should have known to be
incorrect;
(2) Whether payment resulted from the individual's failure to
disclose material facts in his/her possession which
[[Page 50]]
he/she should have known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should
have known to be erroneous.
(b) Mitigation factors. The individual's age, physical and mental
condition or the nature of the information supplied to him or her by the
Department of State or a Federal agency may mitigate against finding
fault if one or more contributed to his or her submission of an
incorrect statement, a statement which did not disclose material facts
in his or her possession, or his or her acceptance of an erroneous
overpayment.
Sec. 17.4 Equity and good conscience.
(a) Defined. Recovery is against equity and good conscience when--
(1) It would cause financial hardship to the person from whom it is
sought;
(2) The recipient of the overpayment can show (regardless of his or
her financial circumstances) that due to the notice that such payment
would be made or because of the incorrect payment either he/she has
relinquished a valuable right or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
(b) [Reserved]
Sec. 17.5 Financial hardship.
(a) Waiver of overpayment will not be allowed in any case prior to
receipt and evaluation of a completed Statement of Financial Status,
duly sworn by the recipient of the overpayment.
(b) Financial hardship may be deemed to exist in, but not limited
to, those situations where the recipient from whom collection is sought
needs substantially all of his or her current income and liquid assets
to meet current ordinary and necessary living expenses and liabilities.
(1) Considerations. Some pertinent considerations in determining
whether recovery would cause financial hardship are as follows:
(i) The individual's financial ability to pay at the time collection
is scheduled to be made.
(ii) Income to other family member(s), if such member's ordinary and
necessary living expenses are included in expenses reported by the
individual.
(c) Exemptions. Assets exempt from execution under State law should
not be considered in determining an individual's ability to repay the
indebtedness, rather primary emphasis shall be placed upon the
individual's liquid assets and current income in making such
determinations.
Sec. 17.6 Ordinary and necessary living expenses.
An individual's ordinary and necessary living expenses include rent,
mortgage payments, utilities, maintenance, food, clothing, insurance
(life, health and accident), taxes, installment payments, medical
expenses, support expenses when the individual is legally responsible,
and other miscellaneous expenses which the individual can establish as
being ordinary and necessary.
Sec. 17.7 Waiver precluded.
(a) Waiver of an overpayment cannot be granted when:
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(b) [Reserved]
Sec. 17.8 Burdens of proof.
(a) Burden of the Department of State. The Bureau of Resource
Management, Department of State, must establish by the preponderance of
the evidence that an overpayment occurred.
(b) Burden of individual. The recipient of an overpayment must
establish by substantial evidence that he or she is eligible for waiver
or an adjustment in the recovery schedule.
Sec. 17.9 Procedures.
(a) Notice. The Bureau of Resource Management, Department of State,
shall give written notification to any individual who has received an
overpayment promptly by first-class mail to the individual at the
individual's most current address in the records of the Bureau of
Resource Management. The written notice shall inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
[[Page 51]]
(3) The intention of the Department to seek repayment of the
overpayment,
(4) The date by which payment should be made to avoid the imposition
of interest, penalties, and administrative costs;
(5) The applicable standards for the imposing of interest,
penalties, and administrative costs;
(6) The department's willingness to discuss alternative payment
arrangements and how the individual may offer to enter into a written
agreement to repay the amount of the overpayment under terms acceptable
to the Department; and
(7) The name, address and telephone number of a contact person
within the Bureau of Resource Management. The written notice also shall
inform the individual of their right to contest the overpayment, their
right to request a waiver of recovery of the overpayment, and the
procedures to follow in case of such contest or request for waiver of
recovery. The notification shall allow at least 30 days from its date
within which the individual may contest in writing the overpayment or
request a waiver of recovery, including with their submission all
evidence and arguments in support of their position.
(b) Administrative file. The Bureau of Resource Management will
prepare an administrative file as a basis for determination in each case
where an individual contests a claim to recover overpayment or requests
waiver of recovery of the overpayment. On the basis of the
administrative file, the Chief Financial Officer or his or her delegate,
shall make the final administrative determination.
(c) Additional information. At any time before the final
administrative decision, the Department may request the individual to
supplement his or her submission with additional factual information and
may request that the individual authorize the Department of State to
have access to bank and other financial records bearing on the
application of these regulations. If the individual, without good cause
shown, fails or refuses to produce the requested additional information
or authorization, the Department of State is entitled to make adverse
inferences with respect to the matters sought to be amplified,
clarified, or verified.
(d) Decision and right of appeal. The final administrative decision
shall be reduced to writing and sent to the individual. If the decision
is adverse to the individual, the notification of the decision shall
include a written description of the individual's rights of appeal to
the Foreign Service Grievance Board. The Foreign Service Grievance Board
shall consider any appeal under this part in accordance with the
regulations of the Board set forth in 22 CFR part 901.
PART 18_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST
--Table of Contents
Subpart A_General Provisions
Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.
Subpart B_Applicable Rules
18.5 Interpretative standards; advisory opinions.
Subpart C_Administrative Enforcement Proceedings
18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.
Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.
Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.
[[Page 52]]
Subpart A_General Provisions
Sec. 18.1 Scope.
This part contains rules governing disciplinary action against a
former officer or employee of the Department of State, including the
Foreign Service, because of a violation of the post employment conflict
of interest prohibitions. Such disciplinary action may include
prohibition from practice before the Department of State and any
component thereof as defined in this part.
Sec. 18.2 Definitions.
For the purpose of this part--
(a) The term Department means the Department of State and includes
the Foreign Service.
(b) The term Director General means the Director General of the
Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance
before, or, with the intent to influence, any oral or written
communication to the Department on a pending matter of business on
behalf of any other person (except the United States).
Sec. 18.3 Director General.
The Director General shall institute and provide for the conduct of
disciplinary proceedings involving former employees of the Department as
authorized by 18 U.S.C. 207(j), and perform such other duties as are
necessary or appropriate to carry out his/her functions under this part.
Sec. 18.4 Records.
The roster of all persons prohibited from practice before the
Department shall be available to public inspection at the Office of
Director General. Other records may be disclosed upon specific request,
in accordance with appropriate disclosure regulations of the Department.
Subpart B_Applicable Rules
Sec. 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in
conformance with the standards established in the interpretative
regulations promulgated, either in interim or final form by the Office
of Government Ethics and published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know
whether a proposed course of conduct would be in conformity with the Act
or the interpretive regulations thereunder may contact the Assistant
Legal Adviser for Management to request an advisory opinion.
Subpart C_Administrative Enforcement Proceedings
Sec. 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after
notice and opportunity for a hearing, that a former officer or employee
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the
Director General in his/her discretion may prohibit that person from
engaging in practice before the Department for a period not to exceed
five years, or may take other appropriate disciplinary action.
Sec. 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to
believe that a former officer or employee of the Department has violated
any provision of this part, or if any such officer or employee receives
information to that effect, he/she shall promptly make a written report
thereof, which report or a copy thereof shall be forwarded to the
Director General. If any other person has information of such
violations, he/she may make a report thereof to the Director General or
to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this
part with the Department of Justice in cases where it initiates criminal
prosecution.
Sec. 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient
reason to believe that any former officer or employee of the Department
has violated 18 U.S.C. 207(a), (b) or (c), he/she may
[[Page 53]]
institute an administrative disciplinary proceeding. The proceeding may
be for that person's suspension from practice before the Department or
for some lesser penalty. The proceeding shall be instituted by a
complaint which names the respondent and is signed by the Director
General and filed in his/her office. Except in cases of willfulness, or
where time, the nature of the proceeding, or the public interest does
not permit, a proceeding will not be instituted under this section until
facts or conduct which may warrant such action have been called to the
attention of the proposed respondent in writing and he/she has been
accorded the opportunity to provide his/her position on the matter.
Sec. 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations
which constitute the basis for the proceeding. A complaint shall be
deemed sufficient if it fairly informs the respondent of the charges
against him/her so that the respondent is able to prepare a defense.
Written notification shall be given of the place and of the time within
which the respondent shall file his/her answer, which time shall not be
less than 15 days from the date of service of the complaint. Notice
shall be given that a decision by default may be rendered against the
respondent in the event he/she fails to file an answer.
Sec. 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail; by delivering it to the respondent or
his/her attorney or agent of record either in person; or by leaving it
at the office or place of business of the respondent, attorney or agent;
in any other manner which has been agreed to by the respondent; or by
first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a respondent as provided in paragraph (a)
of this section or by mailing the paper by first-class mail to the
respondent at the last address known to the Director General, or by
mailing the paper by first-class mail to the respondent's attorney or
agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in
connection with a proceeding, and the place of filing is not specified
by this subpart or by rule or order of the hearing examiner, the paper
shall be filed with the Director General, Department of State,
Washington, DC 20520. All papers shall be filed in duplicate.
Sec. 18.11 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
General. The answer shall be filed in duplicate with the Director
General.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint. The respondent may also
state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved. Failure to file
an answer within the time prescribed in the notice to the respondent,
except as the time for answer is extended by the Director General shall
constitute a waiver of hearing, and the Director General may make his/
her decision by default without a hearing or further procedure.
Sec. 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed
with the Director General.
Sec. 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she
may be represented by counsel or other representative. The Director
General may be represented by an attorney or other employee of the
Department.
Sec. 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to
continue the
[[Page 54]]
administrative disciplinary proceedings, he/she shall appoint a hearing
examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have
authority, in connection with any proceeding assigned or referred to
him/her, to do the following:
(1) Take evidence under appropriate formalities;
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time
as occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and
examine witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the
settlement or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
Sec. 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the
testimony of witnesses shall be taken under oath or affirmation.
Hearings will be closed unless an open hearing is requested by the
respondent, except that if classified information or protected
information of third parties is likely to be adduced at the hearing, it
will remain closed. If either party to the proceeding fails to appear at
the hearing, after due notice thereof has been sent to him/her, he/she
shall be deemed to have waived the right to a hearing and the hearing
examiner may make a decision against the absent party by default.
Sec. 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not
controlling in hearings under this part. However, the hearing examiner
shall exclude evidence which is irrelevant, immaterial, or unduly
repetitious.
Sec. 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the
parties in writing or the written approval of the hearing examiner, be
taken by either the Director General or the respondent or their duly
authorized representatives. Depositions may be taken upon oral or
written interrogatories. There shall be at least 10 days written notice
to the other party. The requirement of a 10-day written notice may be
waived by the parties in writing. When a deposition is taken upon
written interrogatories, any cross-examination shall be upon written
interrogatories. Copies of such written interrogatories shall be served
upon the other party with the notice, and copies of any written cross-
interrogation shall be mailed or delivered to the opposing party at
least 5 days before the date of taking the depositions, unless the
parties mutually agree otherwise. Expenses in the reporting of
depositions shall be borne by the party at whose instance the deposition
is taken.
Sec. 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
hearing examiner, prior to making his/her decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
Sec. 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the hearing examiner shall make the initial decision. The
decision shall include
(a) A statement of findings and conclusions, as well as the reasons
or basis therefor, upon all the material issues of fact, law, or
discretion presented on the record, and
[[Page 55]]
(b) An order of suspension from practice before the Department or
other appropriate disciplinary action, or an order of dismissal of the
complaint. The hearing examiner shall file the decision with the
Director General and shall transmit a copy thereof to the respondent or
his/her attorney of record. A party adversely affected by the decision
shall be given notice of his or her right to appeal to the Board of
Appellate Review (part 7 of this chapter) within 30 days from the date
of the hearing examiner's decision.
Sec. 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner's decision,
either party may appeal to the Board of Appellate Review. The appeal
shall be taken by filing notice of appeal, in triplicate, with the Board
of Appellate Review, which shall state with particularity exceptions to
the decision of the hearing examiner and reasons for such exceptions. If
an appeal is by the Director General, he/she shall transmit a copy
thereof to the respondent. Within 30 days after receipt of an appeal or
copy thereof, the other party may file a reply brief, in triplicate,
with the Board of Appellate Review. If the reply brief is filed by the
Director General, he/she shall transmit a copy of it to the respondent.
The Director General shall transmit the entire case record to the Board
of Appellate Review within 30 days after an appeal has been taken.
Sec. 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis
of the record. The decision of the Board shall be final, and not subject
to further administrative review. Copies of the Board's decision shall
be forwarded promptly to the parties by the Board.
Sec. 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or
employee from practice before the Department, the Director General shall
give notice thereof to appropriate officers and employees of the
Department. Officers and employees of the Department shall refuse to
participate in any appearance by such former officer or employee or to
accept any communication which constitutes the prohibited practice
before the Department during the period of suspension. The Director
General shall take other appropriate disciplinary action as may be
required by the final order.
PART 19_BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS
IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM--
Table of Contents
Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of
payments to former spouses.
19.5 Required notifications to department respecting spouses and former
spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or
former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.
[[Page 56]]
19.10-5 Reduced annuity with additional survivor annuity to spouse of
former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.
Authority: Secs. 206 and 801 of Foreign Service Act of 1980 (94
Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).
Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted.
Redesignated at 46 FR 18970, Mar. 27, 1981.
Sec. 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94
Stat. 2102) (hereafter ``the Act''), and any Executive order issued
under authority of section 827 of the Act.
Sec. 19.2 Definitions.
(a) Agencies means the Department, the Agency for International
Development (AID), the International Communication Agency (USICA), the
Foreign Agricultural Service (FAS), and the Foreign Commercial Service
(FCS).
(b) Annuitant means any person including a former participant or
survivor who meets all requirements for an annuity from the Fund under
the provisions of the Foreign Service Act of 1980, or any other law and
who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative
action before deductions and exclusive of additional compensation of any
kind. It includes the salary fixed by sections 401, 402, 403, and 406 of
the Act and salary incident to assignment under section 503 of the Act.
Basic salary excludes premium pay for overtime, night, Sunday and
holiday work, allowances, post and special differentials, and
charg[eacute] pay.
(d) Chief of Mission means a principal officer in charge of a
diplomatic mission of the United States or of a United States Office
abroad which has been designated diplomatic in nature or any member of
the Foreign Service assigned under the terms of the Act to be
charg[eacute] d'affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an
unmarried child, under the age of 18 years, or such unmarried child
regardless of age who because of physical or mental disability incurred
before age 18 is incapable of self-support. In addition to the offspring
of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than
one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was
filed by a participant, and who is adopted by the surviving spouse of
the participant after the latter's death. ``Child'' also means an
unmarried student under the age of 22 years. For this purpose, a child
whose twenty-second birthday occurs before July 1 or after August 31 of
a calendar year, and while a student, is deemed to have become 22 years
of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of
Columbia.
(g) Court Order means any court decree of divorce or annulment, or
any court approved property settlement agreement incident to any court
decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of
divorce or annulment.
(j) Expressly provided for means a direction by a court order to
divide a member's Foreign Service Retirement benefits or survivor
benefits and awarding a portion of such benefits to an eligible
beneficiary.
[[Page 57]]
(k) Former spouse \1\ means a former wife or husband of a
participant or former participant who was married to such participant
for not less than ten years during periods of service by that
participant which are creditable under section 816 of the Act provided
the participant was making contributions to the Fund under section 805
of the Act during some portion of such service, and provided the divorce
occurred after February 15, 1981. For this purpose, a former spouse
shall not be considered as married to a participant for periods assumed
to be creditable under section 808 of the Act in the case of a
disability annuity or section 809 of the Act in the case of a death in
service. A former spouse will be considered married to a participant for
any extra period of creditable service provided under section 817 of the
Act for service at an unhealthful post during which the former spouse
resided with the participant. See Sec. 19.5-3 for procedures to
determine this extra period of marriage.
---------------------------------------------------------------------------
\1\ Note: Section 804(6) of the Act defines ``former spouse'' with
respect to duration of marriage as being married to a participant ``for
not less than 10 years during periods of service by that participant
which are creditable under section 816.'' The Department interprets this
as necessarily implying that the marriage must have covered a period of
at least one day while the member of the Foreign Service was a
participant in the System.
---------------------------------------------------------------------------
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department's Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service
after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric
Administration or predecessor organization after June 30, 1961.
However, this definition does not include service in the National Guard,
except when ordered to active duty in the service of the United States.
(o) Participant means a person as described in Sec. 19.3.
(p) Previous spouse means any person formerly married to a
principal, whether or not such person qualifies as a former spouse under
paragraph (k) of this section.
(q) Principal means a participant or former participant whose
service forms the basis for a benefit under chapter 8 of the Act for a
spouse, previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department's Retirement Division in the
Bureau of Personnel.
(s) Pro rata share means, in the case of any former spouse of any
participant or former participant, a percentage which is equal to the
percentage that (1) the number of years and months during which the
former spouse was married to the participant during the creditable
service of that participant is of (2) the total number of years and
months of such creditable service. When making this calculation, item
(1) is adjusted in accordance with paragraph (k) of this section and
item (2) is adjusted in accordance with Sec. 19.4. In the total period,
30 days constitutes a month and any period of less than 30 days is not
counted.
(t) Spousal agreement means any written agreement between a
participant or former participant, and the participant's spouse or
former spouse.
(u) Student means a child regularly pursuing a full-time course of
study or training in residence in a high school, trade school, technical
or vocational institute, junior college, university, or comparable
recognized educational institution. A child who is a student shall not
be deemed to have ceased to be a student during any interim between
school years, semesters, or terms if the interim or other period of
nonattendance does not exceed 5 calendar months and if the child shows
to the satisfaction of the Retirement Division (PER/ER/RET) that the
child has a bona fide intention of continuing to pursue such course
during the school year, semester, or term immediately following the
interim.
(v) Surviving spouse means the surviving wife or husband of a
participant or annuitant who, in the case of death in service or
marriage after retirement, was married to the participant
[[Page 58]]
or annuitant for at least one year immediately preceding death or is the
parent of a child born of the marriage.
(w) System means the Foreign Service Retirement and Disability
System.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.3 Participants.
The following persons are participants in the System:
(a) Members of the Service serving under a career appointment or as
a career candidate under section 306 of the Act (1) in the Senior
Foreign Service, or (2) assigned to a salary class in the Foreign
Service Schedule;
(b) Any person not otherwise entitled to be a participant who has
served as chief of mission or an ambassador at large for an aggregate
period of 20 years or more, exclusive of extra service credit for
service at unhealthful posts, and who has paid into the Fund a special
contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee
and who completed, prior to February 15, 1981, at least 5 years of
satisfactory service as a grantee, as determined by the Director of
Personnel of USICA, or under any other appointment under the Foreign
Service Act of 1946, as amended, who has paid into the Fund a special
contribution for such service.
(d) Any person converted to the competitive service pursuant to
section 2104 of the Act who elects to participate in the System pursuant
to section 2106(b)(1) or (2) shall remain a participant so long as he/
she is employed in an agency which is authorized to utilize the Foreign
Service personnel system.
Sec. 19.4 Special rules for computing creditable service for purposes
of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor
annuity or lump-sum payable to a former spouse, the following shall be
considered creditable service--
(a) The entire period of a principal's approved leave without pay
during full-time service with an organization composed primarily of
Government employees irrespective of whether the principal elects to
make payments to the Fund for this service;
(b) The entire period of Government service for which a principal
received a refund of retirement contributions which he/she has not
repaid unless the former spouse received under Sec. 19.13 a portion of
the (lump-sum) refund or unless a spousal agreement or court order
provided that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years.
The period covered by the credit for unused sick leave is not creditable
for this purpose.
Sec. 19.5 Required notifications to Department respecting spouses
and former spouses.
Sec. 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of
the divorce on or prior to its effective date. The notice shall include
the effective date of the divorce, the full name, mailing address, and
date of birth of the former spouse and the date of the member's marriage
to that person, and enclose a certified copy of the divorce decree. If
there is a court order or spousal agreement concerning payment or
nonpayment of Foreign Service benefits to the former spouse, the
original or a certified copy of the order or agreement shall also be
forwarded to PER/ER/RET. In the absence of a court order or spousal
agreement providing otherwise, the Department will pay a pro rata share
of the member's benefits to the former spouse. (A former spouse of a
former participant who separated from the Service on or before February
15, 1981 is not eligible for a pension under Sec. 19.9, i.e., not
eligible for a pro rata share of the principal's annuity.) Upon receipt
of notice of a divorce, a court order, or spousal agreement, the
Department will proceed as indicated in Sec. 19.6 or Sec. 19.7.
Delinquent notice to the Department of the divorce of an annuitant will
result in retroactive payments to any qualified former spouse
[[Page 59]]
to the extent that the retroactive payments can be deducted from future
annuity payments to the principal as stated in Sec. 19.6-4.
Sec. 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the
following on a timely basis:
(a) A divorce from a participant or former participant when the
former spouse is notified by the court of the divorce before the
participant is notified;
(b) Any change in address; and
(c) Any remarriage.
Notices shall be sent to the Department of State, Attention PER/ER/RET,
Washington, DC 20520.
Sec. 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former
spouse, and the determination of whether a person qualifies as a
``former spouse'' depends on the length of the marriage. The latter,
under the definition in the Act and when the principal has received
extra service credit for an assignment to an unhealthful post, depends
upon whether a spouse has resided with the principal at the unhealthful
post. In order to determine residency for this purpose, whenever a
married participant is assigned to an unhealthful post for which he/she
does not receive post differential and does receive or request extra
service credit, the participant shall report on Form OF-140, Election to
Receive Extra Service Credit Towards Retirement, whether his/her spouse
is or is not residing at the post. Although a chief of mission is not
required to submit Form OF-140 in order to receive extra credit for
service at an unhealthful post, he/she must nevertheless submit this
form if the chief of mission has a spouse that does not accompany him/
her at post for the entire assignment. Both the participant and spouse
shall sign the completed form. If there is a change in residence of the
spouse during the assignment, a new joint Form OF-140 shall be filed to
report the change.
(b) Whenever a participant retires or becomes divorced, or whenever
a former participant becomes divorced who has extra service credit for
assignment at unhealthful posts completed prior to the issuance of this
regulation who was married during at least a portion of the assignment,
the participant or former participant shall submit a statement to PER/
ER/RET reporting on whether his/her spouse resided at the unhealthful
post and the dates of such residence. The statement shall be signed by
the principal and his/her spouse or former spouse whenever possible.
(c) In the event of a disagreement between a principal and his/her
spouse or former spouse concerning residency at an unhealthful post, or
the submission of a report or statement by a principal showing a period
of nonresidence at a post by a spouse which is not signed by the spouse,
the determination of residence will be made by PER/ER/RET and based on
records in the Department of payments for travel and allowances plus any
other evidence that can be adduced. In the absence of any evidence to
the contrary, the assumption will be made that the spouse resided at the
post.
Sec. 19.6 Court orders and divorce decrees.
Sec. 19.6-1 Orders by a court.
(a) A court may--
(1) Fix the amount of any pension to a former spouse under Sec.
19.9, or order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former
spouse under paragraphs (a) and (b) of Sec. 19.11, or order that none
be paid;
(3) Order provision of an additional survivor annuity for a spouse
or former spouse under Sec. 19.10-5;
(4) Fix the amount of any benefit under Sec. 19.10-6 based on
recall service payable to a former spouse to whom the annuitant was
married during any portion of the recall service, or order that none be
paid;
(5) Fix the amount of any lump-sum payable to a former spouse under
Sec. 19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in
Sec. 19.8 between a participant and a former
[[Page 60]]
spouse, and pursuant to any court decree of divorce, legal separation or
annulment or any court ordered or approved property settlement agreement
incident to any court decree of divorce, legal separation, or annulment,
that any payment from the Fund which would otherwise be made to a former
participant based on his/her service shall be paid (in whole or in part)
by the Secretary of State to a previous spouse or child of such
participant. No apportionment under this paragraph may be made of a
payment authorized to be paid to a survivor of a participant or
annuitant.
(b) An order by a court that does not meet the definition of
``court'' in Sec. 19.2(f) is not valid for purposes of this section
even though a divorce decree issued by such court may be a basis for pro
rata share payments to a former spouse as described in these
regulations.
Sec. 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be
found to be ``qualified'' by PER/ER/RET acting for the Secretary of
State. A qualifying court order must--
(1) Be consistent with the terms of the Act and applicable
regulations;
(2) Not direct payment of an amount in excess of the maximum amount
authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a
principal's Foreign Service retirement benefit or survivor benefit. If a
court directs or implies that a principal, rather than the Secretary of
State or the Government, make the payments, the order will not be
considered qualified unless the principal does not object during the 30-
day notice period provided under Sec. 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it
can be readily calculated from information in the normal files of the
Department;
(5) Not make payment contingent upon events other than those on
which other payments from the Fund are based such as age, marital status
and school attendance; and
(6) Not be in conflict with any previously issued court order which
remains valid.
(b) No apportionment of annuity to a beneficiary under Sec. 19.6-
1(a) (1) or (6) shall exceed the net annuity of the principal. The net
annuity is computed by excluding from the gross annuity the amounts
which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906
of Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life
Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts
withheld are not greater than they would be if the individual claimed
all dependents to which he/she was entitled.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the
beneficiary must submit an application in writing to the Chief of the
Retirement Division (PER/ER/RET), Department of State, Washington, DC
20520. The application must be typed or printed, signed by the
beneficiary, and include--
(1) The full name, date of birth, current address and current
marital status of the beneficiary;
(2) Full name and date of birth of the participant or former
participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former
spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended,
superseded, or set aside;
The original of the court order or a recently certified copy must be
enclosed with the application, or a statement appended that such a copy
has been sent to the Department by other means.
[[Page 61]]
(b) When payments are subject to termination upon the occurrence of
a condition subsequent, such as marriage, remarriage or termination of
schooling, or death of the principal, no payment will be made until the
beneficiary submits a statement to PER/ER/RET that--
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15
calendar days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her
resulting from the occurrence of the condition subsequent. PER/ER/RET
may require periodic recertification of these statements.
Sec. 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a
former spouse under Sec. 19.9 may not be given effect by the Department
if it is issued more than 12 months after the divorce becomes final. A
court order adjusting the amount of a regular or additional survivor
annuity to a former spouse under Sec. 19.11-2 or Sec. 19.10-5 may not
be given effect by the Department if it is issued after the death of the
principal.
(b) A court order issued within 12 months after a divorce becomes
final directing payment of a pension to a former spouse in an amount
other than provided in Sec. 19.9 may be made retroactively effective to
the first of the month in which the divorce becomes final if so
specified by the court. In such event, the Department will adjust any
future payments that may become due to an annuitant and a former spouse
by increasing one and correspondingly reducing the other in order to
give effect to the order of the court. However, if future payments to
one party are not due, as for example if a court orders that no payments
be made to a former spouse, or that 100 percent of an annuity be paid as
pension to a former spouse, the Department will not give retroactive
effect to a court order by collecting overpayments from one party in
order to pay them to the other party and will not make overpayments from
the Fund.
(c) A court order under this chapter involving any payment other
than a pension to a former spouse under Sec. 19.9 may not be given
retroactive effect and shall not be effective until it is determined to
be a qualifying order under Sec. 19.6-5.
Sec. 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under Sec. 19.6-3,
PER/ER/RET will determine whether--
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is
completed, the beneficiary is eligible and the court order appears on
its face to be a qualifying order, PER/ER/RET will provide the
notification required by Sec. 19.6-6, otherwise, it will notify the
applicant of any deficiency or requirement for additional information,
and if the order is determined to be non-qualifying, the basis for such
determination.
(b) Upon receipt of a certified copy of a final decree of divorce,
PER/ER/RET will determine whether--
(1) It is a valid decree. Any decree recognized as valid by the
parties will be considered valid for this purpose. In addition, any non-
recognized decree will be considered valid for this purpose unless:
(i)(A) Neither party was domiciled within the court's jurisdiction,
and
(B) The party denying recognition did not participate in the
proceedings, or
(ii) The party denying recognition was not afforded notice of the
proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse.
If a divorce decree is deemed valid under this paragraph, a pro rata
share payment is due a former spouse unless PER/ER/RET is in receipt of
a court order which it has deemed qualified under paragraph (a) of this
section, or a valid spousal agrement providing otherwise. If it
determines that a pro rata share payment is due, it will provide the
notification required by Sec. 19.6-6, otherwise, unless action is being
taken pursuant to a related court order, it will notify both parties to
the
[[Page 62]]
divorce the reason a pro rata share payment is not payable.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a
former spouse or other eligible beneficiary--
(1) a court order which it deems qualified that requires payment to
the beneficiary; or
(2) A final decree of divorce which it deems valid together with a
request for a pro rata share payment--PER/ER/RET will send a copy of the
document to the principal and a notice stating: (i) That PER/ER/RET
deems the order qualified or the divorce decree valid, (ii) that
payments will be made from the principal's account to the beneficiary
and the effective date of such payments, (iii) the effect of such
payments on the principal's retirement benefit. In the case of any court
order with retroactive or immediate effect, and in the case of pro rata
share payments, the amounts will be withheld from future payments to the
principal but will not be paid to the beneficiary for 30 days from the
notice date in order to give the principal an opportunity to contest the
court order or the validity of the divorce.
PER/ER/RET will provide the former spouse or other beneficiary the same
information, stating the exact amount that will be payable to the
beneficiary and explaining how that amount was calculated.
(b) Notification to a former spouse. When PER/ER/RET receives from a
principal--(1) a court order which it deems qualified that requires or
forbids payment to a former spouse; or (2) a final decree of divorce
which it deems valid without an accompanying court order--PER/ER/RET
will send a copy of the document to the former spouse and a notice
stating: (i) That PER/ER/RET deems the court order qualified or the
divorce decree valid, (ii) that PER/ER/RET intends to honor the court
decree or to make pro rata share payments because of the divorce, (iii)
the effective date, exact amount, and method of calculation of any
payments to the former spouse.
PER/ER/RET will provide the same information to the principal and will
explain the effect any payment to a former spouse will have on the
principal's retirement benefit.
Sec. 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a
principal within the 30-day period under Sec. 19.6-6a, payment will be
made in accordance with the notification. When a response is received,
the Chief, PER/ER/RET will consider the response. If it is shown that a
court order is not qualifying or that a divorce is not valid under terms
of the Act and these regulations, payment proposed in the notification
will not be made. In such a case, PER/ER/RET will advise both parties of
the basis for its decision and the alternative action, if any, that it
proposes to take.
(b) If a principal responding to a notification under Sec. 19.6-6a
objects to the payment or other action proposed by the Department in the
notification based on the validity of the court order or divorce decree,
and the record contains support for the objection, PER/ER/RET will grant
the principal 30 days to initiate formal legal action to determine the
validity of the objection, will continue to delay payment to the former
spouse or other beneficiary during this period, and will notify the
beneficiary of this action. If evidence is submitted that formal legal
action has been started within the 30-day period, the amount of any
proposed payment to a former spouse or other beneficiary will continue
to be withheld from any payments due the principal, but no payment will
be made to the former spouse or other beneficiary until a judicial
decision is rendered or agreement reached between the parties.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs
or implies that payment to the beneficiary is to be made by the
principal rather than the Secretary of State, the principal may make an
allotment to the beneficiary from his/her annuity. An annuitant may also
make an allotment
[[Page 63]]
from his/her annuity to a previous spouse in the absence of a court
order.
Sec. 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order
under Sec. 19.6-1(a)(6) only while the principal is living. Payment of
apportioned amounts will be made only to a previous spouse and/or the
children of the principal. Such payments will not be made to any of the
following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one
dollar and, in the absence of compelling circumstances, shall be in
whole dollars.
(c) In honoring and complying with a court order, the Department
shall not be required to disrupt the scheduled method of accruing
retirement benefits or the normal timing for making such payments,
despite the existence of any special schedule relating to a previous
spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the
retirement benefits, PER/ER/RET will initially determine the amount of
proper payment. That amount will only be increased by future cost-of-
living increases unless the court directs otherwise.
Sec. 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from
retirement benefits pursuant to a court order if such payment is made in
accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one
court order with respect to the same retirement benefits, the benefits
shall be available to satisfy the court orders on a first-come, first-
served basis.
(c) A previous spouse or other beneficiary may request that an
amount be withheld from the retirement benefits of a principal or
survivor of a principal which is less than the amount stipulated in a
court order, or otherwise scheduled to be paid to the beneficiary under
this chapter. This lower amount will be deemed a complete fulfillment of
the obligation of the Department for the period in which the request is
in effect. See Sec. 19.14.
Sec. 19.7 Spousal agreements.
Sec. 19.7-1 Purpose.
A spousal agreement may be used by both parties to establish an
agreed-upon level of benefits to a spouse or a former spouse and to
relieve the participant of responsibility for providing a higher level
of benefits.
Sec. 19.7-2 Agreement with spouse.
(a) A spousal agreement between a participant and a spouse may waive
or fix the level of a regular survivor annuity under Sec. 19.11-3. If
an agreement is filed, it will assure the spouse that the agreed-upon
level of survivor annuity will be paid, irrespective of a future divorce
provided the survivor meets the definition of ``former spouse'' in Sec.
19.2(k). If an agreement is not filed, the participant's annuity will be
reduced under Sec. 19.10-2 to provide the maximum regular survivor
annuity for the spouse, but in the event of a future divorce if the
spouse meets the definition of ``former spouse,'' that person will be
entitled only to a pro rata share of the survivor annuity. An agreement
under this paragraph may be filed with PER/ER/RET at any time prior to
retirement (commencement of the principal's annuity).
(b) A spousal agreement between an annuitant and a spouse filed with
PER/ER/RET before commencement of a supplemental annuity for recall
service may waive a supplemental survivor annuity that would otherwise
be provided for a spouse under Sec. 19.10-6.
(c) A spousal agreement between a participant or former participant
and a spouse may be filed with PER/ER/RET at any time in accordance with
Sec. 19.10-5 and provide for an additional survivor annuity for the
spouse.
(d) A spousal agreement filed under paragraph (a), (b), or (c)
remains valid and binding in the event of divorce if the spouse
qualifies as a former spouse.
[[Page 64]]
Sec. 19.7-3 Agreement with former spouse.
(a) A spousal agreement between a participant or former participant
and a former spouse may waive, reduce or increase the following benefits
for a former spouse;
(1) A pension under Sec. 19.9;
(2) A regular survivor annuity under Sec. 19.11-2;
(3) A supplemental survivor annuity under Sec. 19.10-6;
(4) A lump sum payment for regular or recall service under Sec.
19.13.
A spousal agreement shall also be used by a participant or former
participant who has a former spouse on February 15, 1981, to elect a
regular survivor annuity for such former spouse in accordance with Sec.
19.11-2(e). An agreement to establish or increase any benefit for a
former spouse entered into while the principal is married to someone
else, must be signed and agreed to by both the spouse and the former
spouse. An agreement affecting pension benefits may be filed at any time
and will govern payments made after its acceptance by PER/ER/RET. An
agreement affecting a regular survivor annuity must be filed before the
end of the 12-month period after the divorce involving that former
spouse or at the time of retirement, whichever occurs first, except as
authorized in Sec. 19.11-2(b) for persons retired on February 15, 1981,
or in Sec. 19.11-2(e) with respect to persons who were former spouses
on February 15, 1981. This filing requirement stated in the Act makes it
impossible to adjust, other than by court order, a regular survivor
annuity for a former spouse when the divorce occurs after a retirement
which occurs on or after February 15, 1981. The survivor annuity for the
former spouse in such case is fixed by any spousal agreement entered
into prior to the divorce, by Sec. 19.11-2 or by court order. An
agreement affecting supplemental survivor benefits or lump-sum payments
must be filed before the supplemental annuity of the principal begins or
lump-sum payment is made.
(b) A spousal agreement between a participant or former participant
and a former spouse may be filed with PER/ER/RET at any time in
accordance with Sec. 19.10-5 to provide an additional survivor annuity
for the former spouse.
Sec. 19.7-4 Form of agreement.
(a) A spousal agreement is any legal agreement between the parties
accepted by PER/ER/RET as meeting the requirements of this section. If
in accordance with the regulations, PER/ER/RET will accept as a valid
spousal agreement a property settlement agreed to by the parties and
approved by a court regardless of the date of the agreement.
(b) A spousal agreement must either be authenticated by a court or
notarized.
Sec. 19.7-5 Limitations.
(a) A spousal agreement may not provide for any payment from the
Fund in excess of the amount otherwise authorized to be paid, or at a
time not authorized by these regulations, or to a person other than a
spouse or former spouse.
(b) A spousal agreement must be filed with the Department, Attention
PER/ER/RET, and accepted by that office as in conformance with the Act
and these regulations prior to the times specified in Sec. Sec. 19.7-2
and 19.7-3. That office will provide advice to the parties on the
validity of any proposed agreement and on proper format.
(c) A spousal agreement may apply only to payments from the Fund for
periods after receipt of a valid agreement by the Department.
(d) Paragraphs (b), (c) and (d) of Sec. Sec. 19.6-9 and 19.6-10
apply to spousal agreements and payments made pursuant to spousal
agreements to the same extent that they apply to court orders and court
ordered payments.
Sec. 19.7-6 Duration and precedence of spousal agreements.
(a) A spousal agreement may be revised or voided by agreement of the
parties (by filing a new agreement under this section) at any time prior
to the last day for filing an agreement determined in accordance with
Sec. 19.7-2 or Sec. 19.7-3, except spousal agreements for additional
survivor annuities are irrevocable. After the last day for filing a
particular agreement, such agreement is irrevocable.
[[Page 65]]
(b) A valid spousal agreement entered into subsequent to the
issuance of a court order affecting the same parties will override the
court order, and shall govern payments from the Fund.
(c) A spousal agreement may not override a previous spousal
agreement involving the same principal but a different spouse or former
spouse without agreement of such spouse or former spouse.
Sec. 19.8 Obligations of members.
Participants and former participants are obligated by the Act and
these regulations to provide the following benefits to others and must
accept the necessary reductions in their own retirement benefits to meet
these obligations:
(a) A pension to a former spouse pursuant to Sec. 19.9;
(b) A court ordered apportionment of annuity to a previous spouse or
child under Sec. 19.6-1 (a)(6) (the benefit to a child referred to here
is paid during the annuitant's lifetime as distinguished from the
automatic survivorship annuity to a child described in Sec. 19.11-7);
(c) A regular survivor annuity to a former spouse who has not
remarried prior to age 60, and to a spouse to whom married when annuity
commences, pursuant to Sec. Sec. 19.11-2 and 19.11-3;
(d) An additional survivor annuity for a spouse or former spouse
under Sec. 19.10-5 when elected by the participant or ordered by a
court;
(e) Lump-sum payments to a former spouse pursuant to Sec. 19.13;
(f) Benefits ordered by a court under Sec. 19.6 or specified in a
spousal agreement under Sec. 19.7.
Sec. 19.9 Pension benefits for former spouses.
Sec. 19.9-1 Entitlement.
(a) Unless otherwise expressly provided by a spousal agreement under
Sec. 19.7 or a court order under Sec. 19.6, a person who, after
February 15, 1981, becomes a former spouse of a participant (or former
participant who separated from the Service after February 15, 1981) and
who has not remarried prior to becoming 60 years of age, becomes
entitled to a monthly pension benefit effective on a date determined
under Sec. 19.9-2 in an amount determined under Sec. 19.9-3.
(b) A former spouse shall not be qualified for a pension under this
subsection if, before the commencement of that pension, the former
spouse remarries before becoming 60 years of age.
(c) A pension benefit under this section is treated the same as a
survivor annuity for purposes of Sec. 19.11-5(b): a former spouse who
elects to receive a pension under this section must waive simultaneous
receipt of any survivor annuity.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.9-2 Commencement and termination.
(a) The pension of a former spouse under this subsection commences
on the latter of the day the principal becomes entitled to a Foreign
Service annuity or on the first day of the month in which the divorce
becomes final. (Suspension or reduction of a Foreign Service annuity
because or reemployment does not affect the commencement of a pension to
a former spouse.) In the case of any former spouse of a disability
annuitant, the pension of such former spouse shall commence on the
latter of:
(1) The date the principal would qualify for an annuity (other than
a disability annuity) on the basis of his/her creditable service;
(2) The date the disability annuity begins; or
(3) The first of the month in which the divorce becomes final.
(b) The pension of a former spouse and the right thereto terminate
on:
(1) The last day of the month before the former spouse dies or
remarries before 60 years of age; or
(2) The date the annuity of the former participant terminates unless
the termination results from recall, reappointment or reinstatement in
the Foreign Service or reemployment in Government service.
Sec. 19.9-3 Computation and payment of pension to former spouse.
(a) A pension to a former spouse is paid monthly on the same date
that annuity is paid to the principal.
[[Page 66]]
(b) No spousal agreement or court order may provide for a pension or
any combination of pensions to former spouses of any one principal which
exceeds the net annuity of the principal as defined in Sec. 19.6-2(b).
(c) A pension to a former spouse not fixed by a spousal agreement or
court order shall equal the former spouse's pro rata share of 50 percent
of the annuity to which the principal is entitled on the date the
divorce becomes final, or, if not then entitled to an annuity, 50
percent of the annuity to which the principal first becomes entitled
following that date. A pension to a former spouse of a disability
annuitant shall be calculated on the basis of an annuity for which the
participant would qualify if not disabled. A pension to a former spouse
will be increased by the same percentage of each cost-of-living
adjustment received by the principal.
(d) The Department will initiate payment of a pension to a former
spouse after complying with the notification and other procedures
described in Sec. 19.6.
(e) If a pension can not be paid because a former spouse is missing,
the principal may file an affidavit with PER/ER/RET that he/she does not
know the whereabouts of the former spouse. In such an event, the
principal and the Department will follow the procedures in Sec. 19.11-4
in an effort to locate the former spouse. The annuity of the principal
will be reduced by the amount of the pension to the former spouse even
though the latter is not being paid. If the former spouse has not been
located during the 12-month period following the date the principal
files an affidavit under this section, the annuity of the principal will
be recomputed effective from its commencing date (or on the date
following the last month a pension payment was made to the former
spouse) and paid without reduction of the amount of pension to the
former spouse. If the former spouse subsequently is located, pension
payments to him/her will be initiated at that time at the rate that
would have been payable had they been paid continuously from the
original effective date. The Department shall not be liable to make any
pension payments to the former spouse for the missing period if the
procedures under this section were faithfully complied with nor will the
Department be responsible for recovering any payments made to the
principal for the benefit of the former spouse.
Sec. 19.9-4 Effect on annuitant.
Any pension payable to a former spouse under this section or
pursuant to any spousal agreement or court order shall be deducted from
the annuity of the principal. (See Sec. 19.6-4 concerning retroactive
adjustments.) If the annuity of such a principal in any month is
discontinued or reduced so that the net amount payable is less than the
pension to the former spouse or spouses of the principal because of
recall, reappointment or reinstatment in the Foreign Service or
reemployment in the Government service, the principal's salary, rather
than annuity, shall be reduced by the amount of the pension payment(s).
Such salary reductions shall be deposited in the Treasury to the credit
of the Fund. If a pension to a former spouse is discontinued for any
reason except a suspension pending a determination of entitlement, the
annuity of the principal shall be recomputed effective as of the date of
discontinuance of the pension, and paid as if the pension to the former
spouse had never been deducted.
Sec. 19.10 Types of annuities to members.
Sec. 19.10-1 Full annuity.
If a participant retires and does not provide a survivor annuity to
a spouse, former spouse or designated beneficiary, the participant
receives a ``full'' annuity. A full annuity means an annuity computed
without any survivorship reduction. Example: Average salary $20,000 and
maximum of 35 years of service.
Average basic annual salary for high 3 consecutive years of $20,000
service......................................................
Multiplied by 2 pct........................................... .02
---------
$400.00
Multiplied by 35 years of creditable service.................. .35
---------
Full annuity.................................................. $14,000
Sec. 19.10-2 Reduced annuity with regular survivor annuity to spouse
or former spouse.
(a) At commencement of annuity, a participant or former participant
may
[[Page 67]]
provide a regular survivor annuity for any eligible former spouse and,
within the limits of paragraph (b) of this section, a regular survivor
annuity to any spouse to whom he/she is then married as described in
Sec. Sec. 19.11-2 and 19.11-3, respectively. A regular survivor annuity
for a spouse or former spouse equals 55 percent of the portion of the
retiree's annuity (up to the full amount) designated as the base for the
survivor annuity. To provide the survivor annuity, the participant must
accept a reduction in his/her full annuity equal to 2\1/2\ percent of
the first $3,600 of the designated base, plus 10 percent of the balance
of the base. If a regular survivor annuity is being provided for both a
spouse and a former spouse, the bases for each are added and the
calculation made as in the following example:
Participant's full annuity as computed in Sec. 19.10-1: $14,000.
Maximum regular survivor annuity is 55 percent of full annuity:
$7,700.
Case I (Participant has a spouse and former spouse at retirement) If
the pro rata share for a former spouse is 75 percent, the base for this
benefit will be 75 percent of $14,000: $10,500.
The base for the maximum regular survivor annuity for a spouse would
then be 25 percent of $14,000, or $3,500.
Combined base: $14,000.
Participant's full annuity reduced as follows:
2\1/2\ percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400:
$1,040.
Total reduction in participant's full annuity: $1,130.
Participant's reduced annuity: $12,870.
Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
Case II (Participant married at retirement with no former spouse.
All calculations made without reference to cost-of-living increases
described in Sec. 19.11-5d.)
Joint election of base for regular survivor annuity of 90 percent of
the maximum, or 90 percent of $14,000: $12,600.
Participant's full annuity reduced as follows:
2\1/2\ percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000:
$900.
Total reduction in participant's full annuity: $990.
Participant's reduced annuity: $13,010.
In this example, if divorce occurs subsequent to retirement and a
court orders a 75 percent share for the former spouse, the base for the
survivor annuity for the former spouse would be 75 percent of $14,000:
$10,500.
The participant's full annuity would then be reduced by $780 in
accordance with the above formula for this survivor benefit, and the
reduced annuity would be $14,000-780: $13,220.
If the former spouse qualifies for a pension as described in Sec.
19.9 based on a pro rata share of 75 percent, the pension would equal 50
percent of the participant's reduced annuity times 75 percent (50% x
$13,220 x 75%): 4,957.50.
The participant's reduced annuity would then be further reduced by
this pension ($13,220-$4,957.50) to provide an annuity to the former
participant of $8,262.50.
If this annuitant later remarried, the maximum base for the regular
survivor annuity for the new spouse would be the amount designated at
retirement, $12,600, less the amount committed to the former spouse,
$10,500: $12,600-10,500 or $2,100.
The survivor annuity for this spouse: 55 percent of $2,100 or
$1,555.
The election of this benefit for the new spouse would be made
individually by the annuitant since a marriage after retirement does not
give a spouse a right to participate in the election.
If the election is made to provide a regular survivor annuity to the
new spouse, all of the above calculations would be recomputed effective
the first day of the month beginning one year after the date of the
remarriage, as follows:
Base for survivor annuity for former spouse: 75% of $14,000 or
$10,500.
Survivor annuity for former spouse: 55% of $10,500 or $5,775.
Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
Survivor annuity for spouse: 55% of $2,100 or $1,555.
The combined base for the survivor benefits is $10,500 plus $2,100
or $12,600. The annuity reduction on this combined base as computed
above is $990.
The participant's annuity after reduction for survivor benefit would
be $14,000-$990 or $13,010.
The pension for the former spouse would be 50% x $13,010 x 75% or
$4,878.75.
The participant's annuity would be further reduced by this amount:
$13,010-$4,878.75 to provide an annuity after this recalculation of
$8,131.25.
(b) The maximum regular survivor annuity or combination of regular
survivor annuities that may be provided under this section is limited to
55% of the principal's full annuity computed at retirement. If an
annuitant is recalled to active duty in the Foreign Service, he/she may
provide additional
[[Page 68]]
regular survivor annuities under Sec. 19.10-6. The maximum regular
survivor annuity or combination of regular survivor annuities that an
annuitant who was married at retirement may elect or provide, pursuant
to a court order or otherwise, after retirement in the event of his/her
divorce or remarriage, is limited to the amount provided at the time of
initial retirement or reversion to retired status following recall
service.
Sec. 19.10-3 Marriage after retirement.
If an annuitant who was unmarried at the time of retirement,
marries, he/she may within one year after such marriage irrevocably
elect to receive a reduced annuity and to provide, subject to any
obligation to provide a survivor annuity for a former spouse, a survivor
annuity for the new spouse. If such an election is made, the principal's
annuity shall be reduced in accordance with Sec. 19.10-2 effective on
the first day of the first month which begins at least one year after
the date of the marriage. The reduction is computed on the commencing
rate of the principal's annuity.
Sec. 19.10-4 Death or divorce of a spouse and remarriage after
retirement.
(a) If the marriage of an annuitant who received a reduced annuity
at retirement under Sec. 19.10-2 to provide a survivor annuity for a
spouse is dissolved by divorce or by death of the spouse, the retiree's
annuity shall be recomputed, if necessary, as of the first of the month
following the death or divorce. If the marriage was dissolved by death,
the annuity shall be recomputed and paid at its full amount. If the
marriage is dissolved by divorce, procedures in Sec. 19.11-2(b) shall
be followed.
(b) In the event an annuitant affected by this paragraph remarries,
the annuitant may elect within one year of remarriage to provide a
survivor annuity for the new spouse equal in amount to the survivor
benefit formerly in effect for the previous spouse less any amount
committed for a former spouse. The annuity of a retiree making such an
election shall be reduced effective on the first day of the first month
which begins at least one year after the remarriage to the amount that
would have been payable had there been no recomputation under paragraph
(a) of this section.
Sec. 19.10-5 Reduced annuity with additional survivor annuity to
spouse or former spouse.
(a) General. This section provides an opportunity for a participant
or former participant who has provided a regular survivor annuity to a
former spouse to provide a survivor annuity to a second spouse or to
another former spouse. The additional survivor annuity provided under
this section generally is more costly than the regular survivor annuity
because the participant is required to pay it's full cost by deduction
from salary or annuity, or otherwise, as specified in paragraph (e) of
this section. The participant must also be in normal health for his/her
age and pass a physical examination prescribed by the Secretary of State
(M/MED) to be eligible to provide an additional survivor annuity under
this section.
(b) Limitation on amount. Neither the total amount of additional
survivor annuity or annuities under this section provided by any
participant or former participant nor any combination of regular or
additional survivor annuities for any one surviving spouse or former
spouse of a principal may exceed 55 percent of the principal's full
annuity counting any supplemental annuity or recomputation of annuity
because of recall service. An additional survivor annuity provided by
any principal shall be further limited to the amount that can be
provided by a monthly payment which is not greater than the principal's
net annuity described in Sec. 19.6-2(b). The amount of any additional
survivor annuity provided by a spousal agreement effective prior to the
principal's retirement, shall be reduced as necessary by PER/ER/RET
after the principal's retirement to comply with this limitation. Any
amount paid by a participant for the portion of additional survivor
annuity cancelled pursuant to this paragraph shall be treated as an
additional lump sum payment under paragraph (e) of this section and used
to increase the amount of the additional annuity. A participant who
separates from the
[[Page 69]]
Service without entitlement to any annuity is not entitled to provide an
additional survivor annuity. Payments in such a case would be
discontinued as described in paragraph (e) of this section.
(c) Procedures to grant additional survivor annuity. A participant
or former participant who has provided a regular survivor annuity to a
former spouse who wishes to provide, or who is ordered by a court to
provide an additional survivor annuity under this section to a spouse or
another former spouse, shall do so by filing a spousal agreement with
PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be
irrevocable when accepted by PER/ER/RET unless the beneficiary of the
additional survivor annuity is subsequently made a beneficiary of a
regular survivor annuity in equal amount. Within the limitations
specified in paragraph (b) of this section, an individual may be made
the beneficiary of both a regular and an additional survivor annuity. A
spousal agreement granting an additional survivor annuity to a spouse
will remain valid in the event the marriage is dissolved and the spouse
qualifies as a former spouse under the definition Sec. 19.2(k).
(d) Eligibility for additional survivor annuity. A spouse or former
spouse must meet the same criteria (Sec. 19.2(v) or Sec. 19.2(k)) to
be eligible for an additional survivor annuity as a spouse or former
spouse must meet to be eligible for a regular survivor annuity. Payment
of a special survivor annuity will commence on the day after the
participant dies and shall terminate on the last day of the month before
death or remarriage before attaining age 60. If it is discontinued
because of remarriage, it will not be resumed.
(e) Payment for additional survivor annuity. (1) Payment for an
additional survivor annuity will commence on the first of the month
following the effective date of a spousal agreement provising the
additional survivor annuity. The effective date will be the date of
acceptance of the spousal agreement by PER/ER-RET (upon a finding that
the agreement conforms to the law and regulations) or such later date as
may be specified in the agreement. No payment will be made to a
beneficiary under the agreement if the principal dies before its
effective date. Accordingly, in order to give protection to a
beneficiary during active service, the agreement must be made effective,
and payment commence, during active service. Payment will be made by a
participant or annuitant by deduction from salary or annuity. Payment
will be made by a former participant while awaiting commencement of a
deferred annuity by direct payment to the Department, Office of
Financial Operations (M/COMP/FO). Payments not received by the due date
may, at the option of M/COMP/FO and with notice to the principal and the
beneficiary be collected from the principal's lump-sum account. Amounts
so collected must be repaid by the principal with interest compounded at
10 percent annually to prevent exhaustion of the lump-sum account. If
the lump-sum account does become exhausted, any rights to the lump-sum
payment under Sec. 19.13 and survivorship rights under this paragraph
will expire on that date. If the principal dies with an amount owing, it
shall be collected by set off from the survivor annuity or lump-sum
account.
(2) Monthly payments may be reduced or eliminated by direct payment
to M/COMP/FO by any participant or former participant under terms
mutually agreed upon by the participant and PER/ER/RET. Minimum monthly
payments will be based upon actuarial tables prescribed from time to
time by the Director General of the Foreign Service (M/DGP) with the
advice of the Secretary of Treasury. Such tables will be calculated so
that the present value of all payments equal the present value of the
survivor annuity. If new tables are prescribed, they would be applicable
to additional survivor annuities provided by spousal agreements that
become effective on or after the effective date of the new tables.
Additional survivor annuities will be increased by regular cost-of-
living adjustments from their commencing dates only when so specified at
the option of the participant or former participant in a spousal
agreement. Monthly payments will be higher if cost-of-living adjustments
are provided.
[[Page 70]]
(3) In the event of the disqualification of a beneficiary for an
additional survivor annuity because of death, remarriage prior to age 60
or divorce from the principal and failure to meet the definition of
``former spouse,'' or in the event of an authorized reduction or
cancellation of an election for an additional survivor annuity, the
monthly payment for such discontinued or reduced additional survivor
annuity will be discontinued or reduced, as appropriate, effective at
the beginning of the first month following termination or reduction of
the benefit. Except as otherwise specified in paragraph (b) of this
section, any amount paid for such discontinued or reduced benefit by a
participant or former participant in excess of the minimum monthly
payments described above shall be refunded to the participant or former
participant with interest calculated at the annual rate used in the last
evaluation of the System or at such higher rate as may be authorized by
M/COMP/FO as will not cause a loss to the Fund. The following table
illustrates the minimum monthly payments schedule in effect February 15,
1981.
------------------------------------------------------------------------
Minimum monthly payment
required to provide an
additional survivor
Age of principal and beneficiary on effective annuity of $100 per
date of spousal agreement month.
-------------------------
Without
COLA With COLA
------------------------------------------------------------------------
40............................................ $7.49 $12.34
50............................................ 14.18 22.01
60............................................ 23.55 33.90
70............................................ 35.57 47.12
------------------------------------------------------------------------
(4) Reduction from annuity to a principal to pay for an additional
survivor annuity will be in the nature of an allotment and will not
affect computations of cost-of-living adjustments to the principal.
Sec. 19.10-6 Benefits for recall service.
(a) Annuity of recalled participant. Any participant who is recalled
to the Service under section 308 of the Act, shall, while serving, be
entitled in lieu of annuity to the full salary of the class in which
serving. During such service, the recalled annuitant shall make
contributions to the Fund under section 805(a) of the Act. If a share of
the annuity is being paid as a pension to a former spouse under Sec.
19.9, that share shall be deducted from the salary of the recalled
annuitant during the period of the recall service. Upon reversion of the
annuitant to retired status, any pension payable to a former spouse that
was being deducted from the salary of the principal shall again be
deducted from the annuity of the principal which shall be determined as
follows:
(1) If the recall service lasts less than one year, a refund of
retirement contributions made during the recall period will be refunded
under Sec. 19.13 and the former annuity will be resumed at the previous
rate adjusted by any cost-of-living increases that became effective
during recall service.
(2) If the recall service lasts between one and five years, the
annuitant will be entitled to elect benefits under paragraph (a)(1) of
this section or receive both the former annuity adjusted by cost-of-
living increases and a supplemental annuity computed under Sec. 19.10
on the basis of service credit and average salary earned during the
recall period, irrespective of the number of years of service credit
previously earned.
(3) If the recall service lasts five years or more, the annuitant
will be entitled to recomputation of the annuity as if there had been no
previous retirement, or elect benefits under paragraph (a) (1) or (2) of
this section.
(4) An annuitant may receive credit in any computation under
paragraph (a) (2) or (3) of this section for any Federal service
performed subsequent to the separation upon which the original annuity
was computed provided a special contribution is made for such service
under section 805 of the Act.
(5) An annuitant entitled to a supplemental annuity under paragraph
(a)(3) of this section or a recomputated annuity under paragraph (a)(4)
of this section is obligated, in the absence of a court order or spousal
agreement to the contrary, to have those annuities reduced to provide
the benefits described in Sec. 19.8 to any spouse or former spouse to
whom married during any portion of the recall service. An annuitant must
accept a reduction of 10 percent of his/her supplemental annuity in
order to provide a supplemental survivor annuity to a spouse or former
[[Page 71]]
spouse. The maximum supplemental survivor annuity equals 55 percent of
the supplemental annuity. If, upon reversion to retired status, an
annuitant has a former spouse entitled to a pro rata share or some other
share of the supplemental survivor annuity, but no spouse, the
appropriate share of the supplemental annuity shall be reduced by 10
percent to provide such former spouse a share of the maximum
supplemental survivor annuity.
(b) Survivor benefit for death during recall service. (1) If an
annuitant entitled to a reduced annuity under Sec. 19.10-2 dies in
service after being recalled and is survived by a spouse or former
spouse entitled to a survivor annuity based on the service of such
annuitant, such survivor annuity shall be computed as if the recall
service had otherwise terminated on the day of death and the annuity of
the deceased had been resumed in accordance with paragraph (a) of this
section. If such death occurs after the annuitant had completed
sufficient recall service to attain eligibility for a supplemental
annuity, a surviving spouse or surviving former spouse who was married
to the participant at any time during a period of recall service shall
be entitled to elect, in addition to any other benefits and in lieu of a
refund of retirement contributions made during the recall service, a
supplemental survivor annuity computed and paid under Sec. 19.10-6a(5)
as if the recall service had otherwise terminated. If the annuitant had
completed sufficient recall service to attain eligibility to have his/
her annuity determined anew, a surviving spouse or such a surviving
former spouse may elect, in lieu of any other survivor benefit under
Sec. 19.11, to have the rights of the annuitant redetermined and to
receive a survivor annuity computed under Sec. 19.11-2 or Sec. 19.11-3
on the basis of the total service of the annuitant. In the event such an
annuitant is survived both by a spouse and such a former spouse, the
former spouse will be entitled to a pro rata share of any refund or
supplemental survivor benefit under this section computed on the basis
of total service during the recall period and months of marriage during
such period. If the surviving spouse and surviving former spouse elect
different benefits under this paragraph, the former spouse will receive
the pro rata share of the benefit he/she elects and the spouse will
receive the reciprocal share of the benefit he/she elects.
(2) In the event an annuitant dies during recall service and is
survived by a former spouse to whom not married during any period of the
recall service, such former spouse will not be entitled to any benefits
based on the recall service.
Sec. 19.11 Survivor benefits.
Sec. 19.11-1 Kinds of survivor benefits.
If a participant or former participant dies in active service or
after retirement, regular survivor annuities are payable under terms of
this section to an eligible surviving spouse, former spouse or child.
Also, if all rights to annuity and survivor annuity terminate prior to
exhaustion of the participant's lump-sum credit, a lump-sum payment is
made pursuant to Sec. 19.13. In addition to the above, an additional
survivor annuity, and a supplemental survivor annuity may be payable to
an eligible survivor under Sec. Sec. 19.10-5 and 19.10-6, respectively.
If any participant or former participant makes an election, files a
spousal agreement or becomes subject to a court order to provide a
regular survivor annuity for a spouse or former spouse and does not
subsequently become entitled to leave a survivor annuity under these
regulations (because of separation from the Service and withdrawal of
contributions, death after separation but before commencement of a
deferred annuity, or for any other reason), none will be paid and such
election, spousal agreement or court order to provide such survivor
annuity will have no force or effect.
Sec. 19.11-2 Regular survivor annuity for a former spouse.
(a) Divorce prior to retirement. If a participant or former
participant is divorced prior to commencement of annuity, any former
spouse shall be entitled to a pro rata share of such a principal's
maximum regular survivor annuity (based on service performed prior to
the first date the principal becomes
[[Page 72]]
eligible for an annuity following the divorce) unless a different amount
is elected in a spousal agreement filed with PER/ER/RET within 12 months
after the divorce becomes final or at the time of the retirement,
whichever occurs first, or unless a different amount is specified by a
court prior to the death of the principal. The principal's annuity shall
be reduced at the commencing date under Sec. 19.10-2 in order to
provide the survivor annuity committed to the former spouse.
(b) Divorce after retirement. In the event an annuitant is divorced
after retirement (commencement of annuity), the maximum survivor annuity
that may be provided for that former spouse is limited to the amount
provided for that person at the time of retirement. Within that limit,
the former spouse is entitled to a pro rata share of the participant's
maximum survivor benefit (based on service performed prior to the
divorce) unless a different amount was elected in a spousal agreement
filed with PER/ER/RET at the time of retirement, or in the case of
retirement before February 15, 1981, filed with PER/ER/RET within 12
months after the divorce becomes final, or unless a different amount is
specified by a court prior to the death of the principal. For this
purpose, a joint election filed with PER/ER/RET at the time of
retirement is considered a spousal agreement. If the survivor annuity
for the former spouse is reduced at the time of the divorce (because the
pro rata share or the amount specified in a spousal agreement or court
order is less than the amount elected at retirement), the principal's
annuity shall be recomputed and paid, effective on the date the survivor
benefit is reduced, as if the lower amount had been elected at the
outset of retirement.
(c) Death or remarriage of former spouse and transfer of survivor
benefit to a spouse. Remarriage below age 60 or death of a former spouse
while a principal is alive will disqualify the former spouse for
benefits under this section. In the event of such a remarriage or death
of a former spouse, the portion of a principal's survivor annuity
committed to that person will become available for transfer to any
spouse. If such a remarriage or death of the former spouse occurs after
the principal's annuity commences, any reduction in the principal's
annuity for that former spouse will be discontinued effective at the
beginning of the first month following the remarriage or death unless
the annuitant elects to provide or to increase a survivor benefit for a
spouse. Such an election may be made within one year after the annuitant
receives notice of the remarriage or death of his/her former spouse. The
Department (PER/ER/RET) and the annuitant shall each notify the other
promptly whenever either receives independent notice of such a
remarriage or death. If an election to transfer survivor benefits to a
spouse is not made by the annuitant, his/her annuity will be recomputed
and paid as if there had been no reduction for the discontinued survivor
benefit. If an annuity is so recomputed and an election is subsequently
made to designate as beneficiary a spouse to whom married for at least
one year at the time the election is made, the principal's annuity shall
be restored retroactively to its former, lower rate and then adjusted by
cost-of-living increases that have occured since the date of the first
recomputation. If an election is made for a spouse when the marriage has
not yet lasted a year, the procedures in Sec. 19.10-4 shall be
followed.
(d) Amount of survivor annuity. The amount of a regular survivor
annuity is determined under Sec. 19.11-3(c).
(e) Special rules for election of survivor annuity for a person who
is a former spouse on February 15, 1981. (1) Any participant, or former
participant eligible for a deferred annuity which has not yet commenced,
who, on February 15, 1981 has a former spouse, may at any time prior to
commencement of annuity, elect, with the consent of any spouse to whom
married at the time of the election, to receive a reduced annuity and
provide a regular survivor annuity for such former spouse. Such survivor
annuity shall be limited by Sec. 19.10-2(b). An election under this
paragraph for a former spouse will reduce the amount of any regular
survivor annuity that may subsequently be provided for any spouse or
other former spouse.
[[Page 73]]
(2) Any former participant in receipt of an annuity who has a former
spouse on February 15, 1981 and who has not committed his/her entire
annuity as a base for a regular survivor annuity for a spouse or any
other former spouse, may, prior to December 31, 1982, designate any
portion of the uncommitted base as the base for a regular survivor
annuity for such former spouse.
(3) The annuity of a former participant making an election under
this paragraph shall be reduced under Sec. 19.10-2(a) effective
February 15, 1981, or from its commencing date if later.
(4) An election under this paragraph shall be made by filing a
spousal agreement with PER/ER/RET under Sec. 19.7. A spousal agreement
to provide a regular survivor annuity under this paragraph for a former
spouse may be revoked or amended after its acceptance by PER/ER/RET as
in accordance with the Act and these regulations, only by agreement of
the parties up to the last day allowed by this paragraph for filing such
an agreement. Thereafter, it is irrevocable. If a participant dies in
service after having filed a valid election under this section, a
survivor annuity will be paid to an eligible former suriving spouse in
accordance with the terms of the election.
Sec. 19.11-3 Regular survivor annuity for a spouse.
(a) In the absence of a joint election or a spousal agreement to the
contrary, a participant or former participant who is separated from
active service on or after February 15, 1981 who is married at the
commencement of his/her annuity shall provide a regular survivor annuity
for a spouse under Sec. 19.10-2 equal to the maximum amount that
remains available under limitations stated in paragraph (b) of that
section after allowing for any commitment of a regular survivor annuity
for a former spouse who has not remarried prior to age 60 and who is
alive on the date the former participant becomes eligible for an
annuity.
(b) A regular survivor annuity is also payable to a surviving spouse
for whom a principal elected an annuity under Sec. 19.10-3, Sec.
19.10-4, or Sec. 19.11-2(c) following a marriage after comencement of
his/her annuity.
(c) The amount of a regular survivor annuity equals 55 percent of
the base designated for the benefit at the time the principal's annuity
commenced, adjusted by the total percentage of cost-of-living increases
the principal was receiving at death.
(d) A survivor annuity is payable to a surviving spouse only if that
person was married to the principal at the time of his/her death or if
the spouse became a former spouse under the definition in Sec. 19.2(k).
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.11-4 Procedure in event a spouse or former spouse is missing.
If a participant or former participant has a spouse or former spouse
whose whereabouts are unknown, such participant may elect to reduce or
eliminate the share of a regular survivor annuity provided for that
person under Sec. 19.11-2 or Sec. 19.11-3 by filing an affidavit with
PER/ER/RET stating that his/her spouse or former spouse is missing and
giving full name, last known address, date last heard from,
circumstances of the disappearance and a description of the effort that
has been made to locate the individual. Thereafter, the participant
shall take such additional steps to locate the missing person as may be
directed by PER/ER/RET. That Office shall also attempt to locate the
missing person by sending a letter to the individual's last known
address given in the Department's files, to the address given on the
affidavit, and, if a Social Security number is known, to the Social
Security Administration for forwarding. The election and affidavit may
be filed at any time before commencement of annuity. It must remain on
file with PER/ER/RET for at least one year before being given
irrevocable effect by the Department. If the annuity to the former
participant becomes effective prior to the expiration of this one year
period, the annuity shall be computed and paid without reference to the
election filed under this section. Following this one-year period, or at
the commencement of annuity, if later, if the missing person has not
been located, the affidavit may be reaffirmed by the participant, after
which an election by the participant to reduce or
[[Page 74]]
eliminate the share of regular survivor annuity for the missing person
shall be given irrevocable effect by the Department. If the annuity to
the former participant has commenced, it shall be recomputed and paid
retroactively to give effect to any election made under this section.
Sec. 19.11-5 Commencement, termination and adjustment of annuities.
(a) An annuity payable from the Fund to a surviving spouse or former
spouse begins on the day after the participant or annuitant dies and
stops on the last day of the month before the survivor's (1) marriage
before age 60, or (2) death. If a survivor annuity is terminated because
of remarriage, the annuity is restored at the same rate effective on the
date such remarriage is terminated, provided any lump-sum paid upon
termination of the annuity is returned to the Fund. The termination of a
surviving spouse annuity due to remarriage does not apply to a survivor
annuitant who is a surviving spouse of a participant who died in service
or retired before October 1, 1976, unless elected following a marriage
after retirement under circumstances described in Sec. 19.10-3 or Sec.
19.10-4.
(b) A surviving spouse or former spouse shall not become entitled to
a survivor annuity or to the restoration of a survivor annuity payable
from the Fund unless the survivor elects to receive it instead of any
other survivor annuity to which entitled under this or any other
retirement system for Government employees. (For this purpose, neither
the Social Security system nor the military retirement system is
considered a retirement system for Government employees.) This
restriction does not apply to a survivor annuitant who is a surviving
spouse of a participant who died in service or retired before October 1,
1976, unless the survivor annuity was elected under circumstances
described in Sec. 19.10-3 or Sec. 19.10-4.
(c) A child's annuity begins on the day after the participant dies,
or if a child is not then qualified, on the first day of the month in
which the child becomes eligible. A child's annuity shall terminate on
the last day of the month which precedes the month in which eligibility
ceases.
(d) Regular and supplemental survivor annuities to a spouse or
former spouse of an annuitant described in Sec. Sec. 19.11-2, 19.11-3
and 19.10-6(b) are increased from their effective date by the cumulative
percentage of cost-of-living increases the annuitant was receiving under
section 826 of the Act at death. All annuities payable to survivors on
the date a cost-of-living adjustment becomes effective are increased by
that percentage except (1) the first increase to a surviving spouse of a
participant who dies in service shall be pro rated and (2) additional
survivor annuities under Sec. 19.10-5 when the spousal agreement
authorizing the annuity makes no provision for cost-of-living increases.
(e) The annuity of survivors becomes effective as specified in this
section but is not paid until the survivor submits Form JF-38,
Application for Death Benefits, supported by such proof as may be
required, for example, death, marriage, and/or divorce certificates. In
the event that such is not submitted during an otherwise eligible
beneficiary's lifetime, no annuity is due or payable to the
beneficiary's estate.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.11-6 Death during active duty.
(a) Annuity for surviving former spouse. In the event a participant
dies before separation from the Service and leaves a former spouse, such
former spouse is entitled to a regular survivor annuity under Sec.
19.11-2 computed as if the participant had retired on the date of death
unless a court order or spousal agreement is on file in the Department
waiving such entitlement or providing for some other computation, or
unless the former spouse had been found missing and an election filed
under the procedures of Sec. 19.11-4 waiving a survivor benefit for
that person. Any assumed service authorized to be used under paragraph
(b) of this section in computing the annuity for a surviving spouse may
not be counted as ``years of marriage'' when determining whether the
previous spouse qualifies as a ``former spouse'' under the definition in
Sec. 19.2(k) or when computing the pro
[[Page 75]]
rata share under Sec. 19.2(s). A former spouse is entitled to an
additional survivor annuity under Sec. 19.10-5 provided death occurs on
or after the effective date of a spousal agreement providing for the
additional annuity.
(b) Annuity for surviving spouse. If a participant who has at least
19 months of civilian service credit toward retirement under the System,
excluding extra service credited for unhealthful post duty in accordance
with section 816 of the Act, dies before separation from the Service,
and is survived by a spouse as defined in Sec. 19.2(v) such survivor
shall be entitled to an annuity equal to 55 percent of the annuity
computed in accordance with Sec. 19.10-1 less any annuity payable to a
former spouse under paragraph a. If the participant had less than three
years of creditable civilian service at the time of death, the survivor
annuity is computed on the basis of the average salary for the entire
period of such service. If, at time of death, the participant had less
than 20 years of creditable service, the annuity shall be computed on
the assumption that the participant has had 20 years of service, but
such additional service credit shall in no case exceed the difference
between the participant's age on the date of death and age 65. A spouse
is entitled to an additional survivor annuity under Sec. 19.10-5
provided death occurs on or after the effective date of a spousal
agreement providing for the additional annuity.
(c) Annuity for a child or children. If a participant described in
paragraph (b) of this section is survived by a child or children, each
surviving child is entitled to an annuity as described in Sec. 19.11-7.
(d) Annuity changes. Annuities based on a death in service are
subject to the provisions of Sec. 19.11-5 governing commencement,
adjustment, termination and resumption of annuities.
Sec. 19.11-7 Annuity payable to surviving child or children.
(a) If a participant who has at least 18 months of civilian service
credit under the System dies in service, or if an annuitant who was a
former participant dies, annuities are payable to a surviving child or
children, as defined in Sec. 19.2(e) as follows:
(1) When survived by spouse and child or children. If a principal is
survived by a wife or husband and by a child or children, in addition to
any other annuity, there shall be paid to or on behalf of each child an
annuity equal to the smallest of:
(i) $900
(ii) $2,700 divided by the number of children--adjusted under
paragraph (b).
(2) When survived by a child or children but no spouse. If the
principal is not survived by a wife or husband, but by a child or
children, each surviving child shall be paid an annuity equal to the
smallest of:
(i) $1,080
(ii) $3,240 divided by the number of children--adjusted under
paragraph (b) of this section.
(b) Adjusted rates. In order to reflect cost-of-living increases,
the amounts referred to in paragraphs (a)(1) and (2) are increased from
the commencing date of the annuity to each child by the cumulative
percentage of all cost-of-living increases that have occurred under 5
U.S.C. 8340 since October 31, 1969.
(c) Recomputation of annuity for child or children. If a surviving
wife or husband dies or the annuity of a child is terminated, the
annuities of any remaining children shall be recomputed and paid as
though such spouse or child had not survived the participant. If the
annuity to a surviving child who has not been receiving an annuity is
initiated or resumed, the annuities of any other children shall be
recomputed and paid from that date as though the annuities to all
currently eligible children in the family were then being initiated.
Sec. 19.11-8 Required elections between survivor benefits.
(a) Bar against concurrent payment under this Act and Workers'
Compensation Act. Except as stated below, survivor annuities and
survivors' compensation for work injuries under 5 U.S.C. 8102 are not
payable concurrently if both are based on the death of the same
employee. A survivor entitled to both must elect which of the two
benefits he/she prefers. Should all eligible survivors of a deceased
employee
[[Page 76]]
elect to receive the compensation benefit rather than the survivor
annuity, their rights to the latter are terminated and, if the lump-sum
credit has not been exhausted, a lump-sum payment will become due under
Sec. 19.13. The one exception to this rule occurs when a widow or
widower is being paid the balance of a scheduled compensation award
under 5 U.S.C. 8107 due the deceased employee. If so, the widow or
widower may receive the survivor annuity and compensation award
concurrently.
(b) Election between survivor annuity and social security benefits.
Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for
annuity which is based in part on military service performed by a
principal between September 16, 1940, and December 31, 1956, and also
for survivor benefits under the Social Security system, may elect to
have the military service credited toward the Social Security benefit.
In practice, the survivors should apply for both benefits, ask the
Department and the Social Security Administration for statements showing
the amount of each benefit, and then make their election of where to
credit the military service. If Social Security benefits are elected,
the rights of all survivors to a foreign service annuity are terminated.
Sec. 19.12 Employment in a Government agency.
An annuitant who is reemployed by a Federal Government agency may
not receive a combination of salary and annuity which exceeds his/her
Foreign Service salary at the time of retirement. Refer to Sec. 19.9-4.
Sec. 19.13 Lump-sum payment.
Sec. 19.13-1 Lump-sum credit.
``Lump-sum credit'' is the compulsory and special contributions to a
participant's or former participant's credit in the Fund for his/her
first 35 years of service plus interest thereon computed from the
midpoint of each service period and compounded at four percent annually
to the date of separation or December 31, 1976, whichever is earlier,
and after such date, for a participant who separates from the Service
after completing at least one year of civilian service and before
completing 5 years of such service, at the rate of three percent
annually to the date of separation. Interest shall not be paid for a
fractional part of a month in the total service or on compulsory and
special contributions from the annuitant for recall service or other
service performed after the date of separation which forms the basis for
annuity.
Sec. 19.13-2 Share payable to a former spouse.
A former spouse of a participant or annuitant is entitled to a
prorata share of 50 percent of any lump-sum payment authorized to be
paid to a former participant under this section who separated from the
Service on or after February 15, 1981, unless otherwise directed in a
court order or a spousal agreement.
Sec. 19.13-3 Payment after death of principal.
If a participant or former participant dies and no claim for annuity
is payable, the lump-sum credit is paid to surviving beneficiaries.
Sec. 19.14 Waiver of annuity.
An individual entitled to be paid an annuity may, for personal
reasons, decline to accept all or any part of the annuity. However, a
principal may not waive the portion of his/her annuity authorized to be
paid to a former spouse under Sec. 19.7 or Sec. 19.9 or to a
beneficiary under Sec. 19.6. An annuity waiver shall be in writing and
sent to the Department (PER/ER/RET). A waiver may be revoked in writing
at any time. Payment of the annuity waived may not be made for the
period during which the waiver was in effect.
PART 20_BENEFITS FOR CERTAIN FORMER SPOUSES--Table of Contents
Sec.
20.1 Definitions.
20.2 Funding.
20.3 Qualifications.
20.4 Retirement benefits.
20.5 Survivor benefits.
20.6 COLA.
20.7 Waiver.
20.8 Effect on other benefits.
20.9 Application procedure.
Authority: 22 U.S.C. 3901 et seq.
[[Page 77]]
Source: 53 FR 39457, Oct. 7, 1988, unless otherwise noted.
Sec. 20.1 Definitions.
As used in this part, unless otherwise specified, the following have
the meaning indicated:
COLA means cost-of-living adjustment in annuity.
Creditable service or service means employment or other periods that
are counted under sections 816, 817, or 854 in determining retirement
benefits.
Disability annuitant means a participant in FSRDS or FSPS entitled
to a disability annuity under section 808 of the Act or subchapter V,
chapter 84, title 5 U.S.C., and a disability annuity means a Foreign
Service annuity computed under those sections.
FSRDS means the Foreign Service Retirement and Disability System
established by subchapter I, chapter 8, of the Act.
FSPS means the Foreign Service Pension System established by
subchapter II, chapter 8, of the Act.
Former spouse means a former wife or husband of a participant or
former participant who was married to such participant for not less than
10 years during service of the participant which is creditable under
chapter 8 of the Act with at least 5 years occurring while the employee
was a member of the Foreign Service and who retired from the Foreign
Service Retirement System.
Full annuity equals the annuity the former participant would be
eligible to receive except for deductions made to provide survivor
benefits or because of payment of a portion of the annuity to others.
Participant means a person who contributes to the Fund identified in
Sec. 20.2. Such person may participate in either FSRDS or FSPS.
Principal means a participant or former participant whose service
forms the basis for a benefit for a former spouse under this part.
Pro rata share, in the case of a former spouse of a participant or
former participant, means the percentage obtained by dividing the number
of months during which the former spouse was married to the participant
during the creditable service of the participant by the total number of
months of such creditable service. In the total period, 30 days
constitutes a month and any period of less than 30 days is not counted.
When making this calculation for a former spouse married to a
participant during a period the participant earned extra service credit
under section 817 of the Act, the number of months of such extra service
credit earned during that period of the marriage shall be added to the
total number of months of the marriage.
Sec. 20.2 Funding.
Benefits under this part are paid from the Fund maintained by the
Secretary of the Treasury pursuant to section 802 of the Act but are not
authorized to be paid except to the extent provided therefor.
Appropriations for such Fund are authorized by section 821(a) of the
Act.
Sec. 20.3 Qualifications.
To be eligible for retirement or survivor benefits under this part,
a former spouse must--
(a) Have been a former spouse on February 14, 1981;
(b) After becoming a former spouse, not have remarried before
attaining age 55;
(c) In the case of any retirement benefit under Sec. 20.5; elect
this benefit instead of any survivor annuity for which the former spouse
may simultaneously be eligible under this or another retirement system
for Government employees; and
(d) Submit an application to the Department of State by June 22,
1990, in accordance with Sec. 20.9 unless that date is extended as
authorized by that section. The deadline for submission of an
application for survivor benefits under Sec. 20.5 will be deemed to
have been met if the former spouse submits an application for retirement
benefits within the deadline.
Sec. 20.4 Retirement benefits.
(a) Type of benefits. (1) A former spouse who meets the
qualification requirements of Sec. 20.3 is entitled to a share of any
Foreign Service annuity (other than a disability annuity) or any
supplemental annuity computed under section 806(a), 823 or 824 of the
Act to which the principal is entitled
[[Page 78]]
under FSRDS and to any Foreign Service annuity (other than a disability
annuity) or annuity supplement computed under section 824 or 855 of the
Act of 5 U.S.C. 8415 to which the principal is entitled under FSPS.
(2) A former spouse of a disability annuitant is entitled to a share
of benefits to which the annuitant would qualify under paragraph (a) of
this section, he or she not been disabled based on the actual age and
service of the annuitant.
(b) Share. The share of a participant's benefits to which a
qualified former spouse is entitled is--
(1) 50 percent of the benefits described in Sec. 20.4(a) if the
former spouse was married to the participant throughout the latter's
creditable service; or
(2) A pro rata share of 50 percent of such benefits if the former
spouse was not married to the participant throughout such creditable
service.
(c) Reduction of benefits. If retirement benefits of a principal are
reduced because of reemployment, attainment of eligibility for Social
Security benefits or for any other reason, the amount of the share
payable to a former spouse is correspondingly reduced during the period
of the reduction.
(d) Commencement, termination and suspension. (1) Entitlement to
retirement benefits under this section (except for a former spouse of a
disability annuitant) shall commence on the latter of--
(i) The day the principal becomes entitled to benefits described in
Sec. 20.4(a); or
(ii) December 22, 1987.
(2) Entitlement to retirement benefits under this section for a
former spouse of a disability annuitant shall commence on the latter
of--
(i) The date the principal would qualify for benefits (other than a
disability annuity) described in Sec. 20.4(a) on the basis of the
principal's actual age and service;
(ii) The date the disability annuity begins; or
(iii) December 22, 1987.
(3) Entitlement to retirement benefits under this section shall
terminate or be suspended on the earlier of--
(i) Last day of the month before the former spouse dies or remarries
before attaining age 55;
(ii) Date benefits of the principal terminate or are suspended
because of death, recall, reemployment, recovery from disability or for
any other reason.
(4) Entitlement to benefits under this section shall be resumed for
a former spouse, following their suspension, or the date they are
resumed for the principal.
Sec. 20.5 Survivor benefits.
(a) Type of benefits. A former spouse who meets the eligibility
requirements of Sec. 20.3 is entitled to survivor benefits equal to one
of the following; whichever is applicable:
(1) 55 percent of the full annuity to which the principal was
entitled on the commencement or recomputation date of the annuity in the
case of a principal who dies while in receipt of a Foreign Service
annuity computed under section 806, 808, 823, 824, or 855 of the Act of
5 U.S.C. 8415;
(2) 55 percent of the annuity to which the principal was entitled at
death in the case of a principal who dies while in receipt of a Foreign
Service annuity computed under 5 U.S.C. 8452;
(3) 55 percent of the full annuity to which the principal would have
been entitled if he or she retired (or returned to retirement status) on
the date of death computed--depending on the provision that would be
used to compute an annuity for a surviving spouse of the principal--
under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415
and using the actual service of the principal, in the case of a
principal who dies while in active service, including service on recall
or reemployment while annuity is suspended or reduced; or,
(4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b)
that the principal could have elected to receive commencing on the date
of death or, if later, commencing on the date the principal would have
attained the minimum retirement age described in 5 U.S.C. 8412(h), in
the case of a principal while entitled to a deferred annuity under 5
U.S.C. 8413(b), but before commencement of that annuity. A survivor
annuity under this paragraph may not
[[Page 79]]
commence before the date the principal would have attained the minimum
retirement age.
(b) Effect of election of alternate form annuity. If a principal
elects an alternate form annuity under section 829 of the Act or 5
U.S.C. 8420a, survivor benefits for a former spouse under this section
shall, nevertheless, be based on what the principal's annuity would have
been had the principal not withdrawn retirement contributions in a lump
sum.
(c) Reduction because of receipt of other survivor benefits. If a
former spouse is in receipt of a survivor annuity based on an election
by the principal under section 806(f) or 2109 of the Act, the survivor
benefits for the former spouse under this section shall be reduced on
the effective date by the amount of such elected survivor annuity.
(d) Commencement and Termination. Entitlement to survivor benefits
under this section--
(1) Shall commence on the latter of--
(i) The date the principal dies;
(ii) December 22, 1987; and
(2) Shall terminate on the last day of the month before the former
spouse dies or remarries before attaining age 55.
Sec. 20.6 COLA.
(a) Retirement benefits. A retirement annuity payable to a former
spouse under Sec. 20.4 is adjusted for cost-of-living increases under
section 826 or 858 of the Act in the same manner as the annuity of the
principal. The first such increase for a former spouse shall be prorated
under the applicable section in the same way the first increase for the
principal is adjusted, irrespective of whether the annuity to the former
spouse commences on the same date as the annuity to the principal. If
the benefit of a former spouse is based in part on an annuity supplement
payable to a principal under 5 U.S.C. 8421 which is not adjusted by
COLA, then that portion of the benefit payable to a former spouse is not
adjusted by COLA.
(b) Survivor benefits. (1) Survivor annuities payable to a former
spouse are adjusted for COLA under section 826 or 858 of the Act in the
same manner as annuities are or would be adjusted for other survivors of
the principal.
(2) A survivor annuity payable to a former spouse under Sec. 20.5-
1(A) shall be increased from its commencing date pursuant to paragraph
(c)(2) of section 826 of the Act or 8462 of Title 5, U.S. Code, by all
COLA received by the principal at death, irrespective of the date of
death and in instances where death occurred prior to December 22, 1987,
by all COLA that would have been paid to a survivor annuitant from the
date of death until December 22, 1987.
(3) The first increase to which a former spouse becomes entitled
whose annuity is computed under Sec. 20.5(a)(2) shall be prorated
pursuant to 5 U.S.C. 8462(c)(4).
(4) The first increase to which a former spouse becomes entitled
whose annuity is computed under Sec. 20.5(a)(3) or
(5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of
the Act or 8462 or title 5, U.S. Code.
Sec. 20.7 Waiver.
A former spouse entitled to an annuity under this part may decide to
decline all or any part of the annuity for personal reasons. An annuity
waiver shall be in writing and sent to the Retirement Division (PER/ER/
RET), Department of State, Washington, DC 20520. A waiver may be revoked
in writing at any time. Payment of the annuity waived prior to receipt
by the Retirement Division of the renovation may not be made.
Sec. 20.8 Effect on other benefits.
Payment to a former spouse under this part shall not impair, reduce,
or otherwise affect benefits paid under the Act to the principal or
other persons.
Sec. 20.9 Application procedure.
(a) Submission of application. To be eligible for retirement or
survivor benefits under this part, a former spouse must submit a
properly executed and completed application to the Department of State
by June 22, 1990 or, if an exception is made for compelling cause to
this deadline, within 60 days following the date of the letter from the
Department transmitting the application to the former spouse. The
application must be delivered or mailed to the Retirement Division (PER/
ER/RET),
[[Page 80]]
Room 1251, Department of State, Washington, DC 20520.
(b) Request for application. The Department of State has attempted
to mail applications to all former spouses of whom it is aware that it
believes may be eligible for benefits under this part. Any eligible
former spouse who does not have an application at the time this part is
published in the Federal Register (October 7, 1988) must communicate
with the Department as soon as possible and request an application.
Request may be in person or by mail to the address in Sec. 20.9(a) or
by telephoning the Retirement Division on area code 202-647-9315. A
request by letter must include the typed or printed full name and
current address of the former spouse.
It shall also give the dates of marriage and divorce or annulment
that establish eligibility and fully identify the Foreign Service
employee or former employee in question and state the agency of current
or last employment.
(c) Payment of benefits delayed. Payment of benefits cannot be made
to a former spouse until the application for benefits is approved by the
Retirement Division of the Department. Upon such approval, benefits will
be paid to an eligible former spouse retroactively, if necessary, back
to the commencing date determined under this part.
PART 21_INDEMNIFICATION OF EMPLOYEES--Table of Contents
Authority: 5 U.S.C. 301; 22 U.S.C. 2658.
Source: 60 FR 29988, June 7, 1995, unless otherwise noted.
Sec. 21.1 Policy.
(a) The Department of State may indemnify an employee for any
verdict, judgment, or other monetary award which is rendered against
such employee, provided that the conduct giving rise to the verdict,
judgment, or award was taken within the scope of employment and that
such indemnification is in the interest of the United States, as
determined as a matter of discretion by the Under Secretary for
Management or his or her designee.
(b) The Department of State may settle or compromise a personal
damages claim against an employee by the payment of available funds at
any time, provided the alleged conduct giving rise to the personal
damages claim was taken within the scope of employment and that such
settlement or compromise is in the interest of the United States, as
determined as a matter of discretion by the Under Secretary for
Management or his or her designee.
(c) The Director General of the Foreign Service and Director of
Personnel (``Director General'') shall be the designee of the Under
Secretary for Management with respect to determinations under paragraphs
(a) and (b) of this section in cases which involve:
(1) Foreign courts or foreign administrative bodies and
(2) Requests of less than five thousand dollars.
(d) Absent exceptional circumstances as determined by the Under
Secretary for Management or his or her designee, the Department will not
entertain a request either to agree to indemnify or to settle a personal
damages claim before entry of an adverse verdict, judgment, or award.
(e) When an employee in the United States becomes aware that an
action has been filed against the employee in his or her personal
capacity as a result of conduct taken within the scope of his or her
employment, the employee shall immediately notify the Department through
the Executive Director of the Office of the Legal Adviser that such an
action is pending. Employees overseas shall notify their Administrative
Counselor who shall then notify the Assistant Legal Adviser for Special
Functional Problems. Employees may be authorized to receive legal
representation by the Department of Justice in accordance with 28 CFR
50.15.
(f) The employee may thereafter request indemnification to satisfy a
verdict, judgment, or award entered against the employee. The employee
shall submit a written request, with appropriate documentation including
copies of the verdict, judgment, award, or settlement proposal if on
appeal, to the Legal Adviser. Except as provided in paragraph (g) of
this section, the Legal Adviser and the Director General
[[Page 81]]
shall then, in coordination with the Bureau of Finance and Management
Policy, forward the request with their recommendation to the Under
Secretary for Management for decision. The Legal Adviser may seek the
views of the Department of Justice, as appropriate, in preparing this
recommendation.
(g) Cases in which the Director General is the designee under
paragraph (c) of this section may be forwarded by the Assistant Legal
Adviser for Special Functional Problems, along with the views of the
employee and the bureau or post as appropriate, to the Director General
for decision.
(h) Personal services contractors of the Department are considered
employees for purposes of the policy set forth in this part.
(i) Any payment under this part either to indemnify a Department of
State employee or to settle a personal damages claim shall be contingent
upon the availability of appropriated funds.
(j) In addition to the indemnification provisions contained in the
regulations in this part, the Department will also follow any specific
policies or regulations adopted with respect to damages awarded against
Department health care personnel for malpractice claims within the scope
of 22 U.S.C. 2702.
[60 FR 29988, June 7, 1995]
[[Page 82]]
SUBCHAPTER C_FEES AND FUNDS
PART 22_SCHEDULE OF FEES FOR CONSULAR SERVICES_DEPARTMENT OF STATE
AND FOREIGN SERVICE--Table of Contents
Sec.
22.1 Schedule of fees.
22.2 Requests for services in the United States.
22.3 Remittances in the United States.
22.4 Requests for services, Foreign Service.
22.5 Remittances to Foreign Service posts.
22.6 Refund of fees.
22.7 Collection and return of fees.
Authority: 8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 1351
note, 1713, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 22
U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 4219, 6551; 31
U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957); Exec. Order 11,295,
31 FR 10603 (1966).
Effective Date Note: At 83 FR 4428, Jan. 31, 2018, the authority
citation for part 22 was revised, effective Apr. 2, 2018. For the
convenience of the user, the revised text is set forth as follows:
Authority: 8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 1351
note, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 22 U.S.C.
214, 214 note, 1475e, 2504(a), 2651a, 4201, 4206, 4215, 4219, 6551; 31
U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957); Exec. Order 11,295,
31 FR 10603 (1966).
Source: 46 FR 58071, Nov. 30, 1981, unless otherwise noted.
Sec. 22.1 Schedule of fees.
The following table sets forth the new fees for the following
categories listed on the U.S. Department of State's Schedule of Fees for
Consular Services:
Schedule of Fees for Consular Services
------------------------------------------------------------------------
Item No. Fee
------------------------------------------------------------------------
Passport and Citizenship Services
------------------------------------------------------------------------
1. Passport Book or Card Execution: Required for $25.
first-time applicants and others who must apply
in person (Applicants applying for both the
book and card simultaneously on the same
application pay only one execution fee.).
2. Passport Book Application Services for:
(a) Applicants age 16 or over (including $50
renewals).
(b) Applicants under age 16................. $20
(c) [Reserved]..............................
(d) Passport book replacement for name NO FEE.
change if submitted within one year of
passport issuance.
(e) Passport book replacement for passport NO FEE.
book limited in validity if submitted
within one year of passport issuance.
(Passport books limited in validity because
of multiple losses, thefts, damage, or
mutilations cannot be replaced).
(f) Passport book replacement for data NO FEE.
correction (name, date of birth, place of
birth, sex printed erroneously) if
submitted within one year of passport
issuance.
(g) Passport book security surcharge 60
(enhanced border security fee).
3. Expedited service: Passport processing within $60.
the expedited processing period published on
the Department's website (see 22 CFR 51.56(b))
and/or in-person service at a U.S. Passport
Agency (not applicable abroad).
4. Exemptions: The following applicants are
exempted from all passport fees listed in Item
2 above:
(a) Officers or employees of the United NO FEE.
States and their immediate family members
(22 U.S.C. 214) and Peace Corps Volunteers
and Leaders (22 U.S.C. 2504(h)) proceeding
abroad or returning to the United States in
the discharge of their official duties.
(b) U.S. citizen seamen who require a NO FEE.
passport in connection with their duties
aboard an American flag vessel (22 U.S.C.
214(a)).
(c) Widows, children, parents, or siblings NO FEE.
of deceased members of the Armed Forces
proceeding abroad to visit the graves of
such members (22 U.S.C. 214(a)).
(d) Employees of the American National Red NO FEE.
Cross proceeding abroad as members of the
Armed Forces of the United States (10
U.S.C. 2602(c)).
5. Travel Letter: Provided in rare, life-or- NO FEE unless consular
death situations as an emergency accommodation time charges (Item
to a U.S. citizen returning to the United 75) apply.
States when the consular officer is unable to
issue a passport book.
6. File search and verification of U.S. $150.
citizenship: When applicant has not presented
evidence of citizenship and previous records
must be searched (except for an applicant
abroad whose passport was stolen or lost abroad
or when one of the exemptions is applicable).
7. Application for Consular Report of Birth $100.
Abroad of a Citizen of the United States.
8. Administrative Processing of Request for 2,350
Certificate of Loss of Nationality.
[[Page 83]]
9. Passport Card Application Services for:
(a) Applicants age 16 or over (including $30.
renewals) [Adult Passport Card].
(b) Applicants under age 16 [Minor Passport $15.
Card].
(c) Passport card replacement for name NO FEE.
change if submitted within one year of
passport issuance.
(d) Passport card replacement for data NO FEE.
correction (name, date of birth, place of
birth, sex printed erroneously) if
submitted within one year of passport
issuance.
(Item 10 vacant.)
------------------------------------------------------------------------
Overseas Citizens Services
Arrests, Welfare and Whereabouts and Related Services
------------------------------------------------------------------------
11. Arrest and prison visits.................... NO FEE.
12. Assistance regarding the welfare and NO FEE.
whereabouts of a U.S. Citizen, including child
custody inquiries and processing of
repatriation and emergency dietary assistance
loans.
(Item 13 vacant.)
------------------------------------------------------------------------
Death and Estate Services
------------------------------------------------------------------------
14. Assistance to next-of-kin:
(a) After the death of a U.S. citizen abroad NO FEE.
(providing assistance in disposition of
remains, making arrangements for shipping
remains, issuing Consular Mortuary
Certificate, and providing up to 20
original Consular Reports of Death).
(b) Making arrangements for a deceased non- $200 plus expenses.
U.S. citizen family member (providing
assistance in shipping or other disposition
of remains of a non-U.S. Citizen).
15. Issuance of Consular Mortuary Certificate on $60.
behalf of a non-U.S. Citizen.
16. Acting as a provisional conservator of
estates of U.S. Citizens:
(a) Taking possession of personal effects; NO FEE.
making an inventory under an official seal
(unless significant time and/or expenses
incurred).
(b) Overseeing the appraisal, sale, and NO FEE.
final disposition of the estate, including
disbursing funds, forwarding securities,
etc. (unless significant time and/or
expenses incurred).
(c) For services listed in Item 16(a) or (b) Consular time (Item
when significant time and/or expenses are 75) plus expenses.
incurred.
(Items 17 through 19 vacant.)
------------------------------------------------------------------------
Nonimmigrant Visa Services
------------------------------------------------------------------------
20. Filing Nonimmigrant Visa Petition Based on For fee amount, see 8
Blanket L Petition (collected for USCIS and CFR 103.7(b)(1).
subject to change)
(a) Petition for a nonimmigrant worker (Form For fee amount, see 8
I-129). CFR 103.7(b)(1).
(b) Nonimmigrant petition based on blanket L For fee amount, see 8
petition. CFR 103.7(b)(1).
21. Nonimmigrant Visa Application and Border
Crossing Card Processing Fees (per person):
(a) Non-petition-based nonimmigrant visa $160
(except E category).
(b) H, L, O, P, Q and R category $190
nonimmigrant visa.
(c) E category nonimmigrant visa............ $205
(d) K category (fianc[eacute]) nonimmigrant $265
visa.
(e) Border crossing card--age 15 and over $160
(10 year validity).
(f) Border crossing card--under age 15; for $16
Mexican citizens if parent or guardian has
or is applying for a border crossing card
(valid 10 years or until the applicant
reaches age 15, whichever is sooner).
22. EXEMPTIONS from Nonimmigrant Visa
Application Processing Fee:
(a) Applicants for A, G, C-3, NATO and NO FEE.
diplomatic visas as defined in 22 CFR 41.26.
(b) Applicants for J visas participating in NO FEE.
official U.S. Government sponsored
educational and cultural exchanges.
(c) Replacement machine-readable visa when NO FEE.
the original visa was not properly affixed
or needs to be reissued through no fault of
the applicant.
(d) Applicants exempted by international NO FEE.
agreement as determined by the Department,
including members and staff of an observer
mission to United Nations Headquarters
recognized by the UN General Assembly, and
their immediate families.
(e) Applicants traveling to provide NO FEE.
charitable services as determined by the
Department.
(f) U.S. government employees traveling on NO FEE.
official business.
(g) A parent, sibling, spouse, or child of a NO FEE.
U.S. government employee killed in the line
of duty who is traveling to attend the
employee's funeral and/or burial; or a
parent, sibling, spouse, son, or daughter
of a U.S. government employee critically
injured in the line of duty for visitation
during emergency treatment and
convalescence.
23. Nonimmigrant Visa Issuance Fee, including RECIPROCAL.
Border-Crossing Cards (Reciprocity Fee).
24. EXEMPTIONS from Nonimmigrant Visa Issuance
Fee:
(a) An official representative of a foreign NO FEE.
government or an international or regional
organization of which the U.S. is a member;
members and staff of an observer mission to
United Nations Headquarters recognized by
the UN General Assembly; and applicants for
diplomatic visas as defined under item
22(a); and their immediate families.
[[Page 84]]
(b) An applicant transiting to and from the NO FEE.
United Nations Headquarters.
(c) An applicant participating in a U.S. NO FEE.
government sponsored program.
(d) An applicant traveling to provide NO FEE.
charitable services as determined by the
Department.
25. Fraud Prevention and Detection Fee for Visa $500.
Applicant included in L Blanket Petition
(principal applicant only).
(Items 26 through 30 vacant.)
------------------------------------------------------------------------
Immigrant and Speical Visa Services
------------------------------------------------------------------------
31. Filing Immigrant Visa Petition (collected
for USCIS and subject to change):
(a) Petition to classify status of alien For fee amount, see 8
relative for issuance of immigrant Visa. CFR 103.7(b)(1).
(b) Petition to classify orphan as an For fee amount, see 8
immediate relative. CFR 103.7(b)(1).
32. Immigrant Visa Application Processing Fee
(per person)
(a) Immediate relative and family preference $325
applications.
(b) Employment-based applications........... $345
(c) Other immigrant visa applications $205
(including I-360 self-petitioners and
special immigrant visa applicants).
(d) Certain Iraqi and Afghan special NO FEE.
immigrant visa applications.
33. Diversity Visa Lottery Fee (per person $330.
applying as a result of the lottery program).
34. Affidavit of Support Review (only when $120
reviewed domestically).
35. Special Visa Services:
(a) Determining Returning Resident Status... $180
(b) Waiver of two year residency requirement $120
(c) Waiver of immigrant visa ineligibility For fee amount, see 8
(collected for USCIS and subject to change). CFR 103.7(b)(1).
(d) Refugee or significant public benefit NO FEE.
parole case processing.
(Items 36 through 40 vacant.)
------------------------------------------------------------------------
Documentary Services
------------------------------------------------------------------------
41. Providing notarial service:
(a) First service (seal).................... $50.
(b) Each additional seal provided at the $50.
same time in connection with the same
transaction.
42. Certification of a true copy or that no
record of an official file can be located (by a
post abroad):
(a) First Copy.............................. $50.
(b) Each additional copy provided at the $50.
same time.
43. Provision of documents, certified copies of
documents, and other certifications by the
Department of State (domestic):
(a) Documents relating to births, marriages, $50.
and deaths of U.S. citizens abroad
originally issued by a U.S. embassy or
consulate.
(b) Issuance of Replacement Report of Birth $50.
Abroad.
(c) Certified copies of documents relating $50.
to births and deaths within the former
Canal Zone of Panama from records
maintained by the Canal Zone Government
from 1904 to September 30, 1979.
(d) Certifying a copy of a document or $50.
extract from an official passport record.
(e) Certifying that no record of an official $50.
file can be located.
(f) Each additional copy provided at same $50.
time.
44. Authentications (by posts abroad):
(a) Authenticating a foreign notary or other $50.
foreign official seal or signature.
(b) Authenticating a U.S. Federal, State, or $50.
territorial seal.
(c) Certifying to the official status of an $50.
officer of the U.S. Department of State or
of a foreign diplomatic or consular officer
accredited to or recognized by the U.S.
Government.
(d) Each authentication..................... $50.
45. Exemptions: Notarial, certification, and
authentication fees (Items 41-44) or passport
file search fees (Item 6) will not be charged
when the service is performed:
(a) At the direct request of any Federal NO FEE.
Government agency, any state or local
government, the District of Columbia, or
any of the territories or possessions of
the United States (unless significant costs
would be incurred).
(b) With respect to documents to be NO FEE.
presented by claimants, beneficiaries, or
their witnesses in connection with
obtaining Federal, state, or municipal
benefits.
(c) For U.S. citizens outside the United NO FEE.
States preparing ballots for any public
election in the United States or any of its
territories.
(d) At the direct request of a foreign NO FEE.
government or an international agency of
which the United States is a member if the
documents are for official noncommercial
use.
(e) At the direct request of a foreign NO FEE.
government official when appropriate or as
a reciprocal courtesy.
(f) At the request of direct-hire U.S. NO FEE.
Government personnel, Peace Corps
volunteers, or their dependents stationed
or traveling officially in a foreign
country.
(g) With respect to documents whose NO FEE.
production is ordered by a court of
competent jurisdiction.
[[Page 85]]
(h) With respect to affidavits of support NO FEE.
for immigrant visa applications.
(i) With respect to endorsing U.S. Savings NO FEE.
Bonds Certificates.
(Items 46 through 50 vacant.)
------------------------------------------------------------------------
Judicial Assistance Services
------------------------------------------------------------------------
51. Processing letters rogatory and Foreign $2,275.
Sovereign Immunities Act (FSIA) judicial
assistance cases, including providing seal and
certificate for return of letters rogatory
executed by foreign officials.
52. Taking depositions or executing commissions
to take testimony:
(a) Scheduling/arranging appointments for $1,283.
depositions, including depositions by video
teleconference (per daily appointment).
(b) Attending or taking depositions, or $309 per hour plus
executing commissions to take testimony expenses.
(per hour or part thereof).
(c) Swearing in witnesses for telephone Consular time (Item
depositions. 75) plus expenses.
(d) Supervising telephone depositions (per Consular time (Item
hour or part thereof over the first hour). 75) plus expenses.
(e) Providing seal and certification of $415.
depositions.
53. Exemptions: Deposition or executing
commissions to take testimony. Fees (Item 52)
will not be charged when the service is
performed:
(a) At the direct request of any Federal NO FEE.
Government agency, any state or local
government, the District of Columbia, or
any of the territories or possessions of
the United States (unless significant time
required and/or expenses would be incurred).
(b) Executing commissions to take testimony NO FEE.
in connection with foreign documents for
use in criminal cases when the commission
is accompanied by an order of Federal court
on behalf of an indigent party.
(Items 54 through 60 vacant.)
------------------------------------------------------------------------
Services Relating to Vessels and Seamen
------------------------------------------------------------------------
61. Shipping and Seaman's services: Including Consular time (Item
but not limited to recording a bill of sale of 75) plus expenses.
a vessel purchased abroad, renewal of a marine
radio license, and issuance of certificate of
American ownership.
(Items 62 through 70 vacant.)
------------------------------------------------------------------------
Administrative Services
------------------------------------------------------------------------
71. Non-emergency telephone calls............... $10 plus long distance
charge.
72. Setting up and maintaining a trust account: $30.
For 1 year or less to transfer funds to or for
the benefit of a U.S. citizen in need in a
foreign country.
73. Transportation charges incurred in the Expenses incurred.
performance of fee and no-fee services when
appropriate and necessary.
74. Return check processing fee................. $25.
75. Consular Time Charges: As required by this $135
schedule and for fee services performed away
from the office or during after-duty hours (per
hour or part thereof/per consular officer).
76. Photocopies (per page)...................... $1.
(Items 77 through 80 vacant.)
------------------------------------------------------------------------
[75 FR 36532, June 28, 2010, as amended at 76 FR 76035, Dec. 6, 2011; 77
FR 18913, Mar. 29, 2012; 79 FR 51253, Aug. 28, 2014; 79 FR 79066, Dec.
31, 2014; 80 FR 53709, Sept. 8, 2015; 80 FR 72591, Nov. 20, 2015]
Effective Date Note: At 83 FR 4428, Jan. 31, 2018, Sec. 22.1 was
amended in the table by revising item 1, effective Apr. 2, 2018. For the
convenience of the user, the revised text is set forth as follows:
Schedule of Fees for Consular Services
------------------------------------------------------------------------
Item No. Fee
------------------------------------------------------------------------
Passport and Citizenship Services
------------------------------------------------------------------------
1. Passport Book or Card Execution: Required for $35
first-time applicants and others who must apply
in person.
------------------------------------------------------------------------
[[Page 86]]
Sec. 22.2 Requests for services in the United States.
(a) Requests for records. Requests by the file subject or the
individual's authorized agent for services involving U.S. passport
applications and related records, including consular birth, marriage and
death records and authentication of other passport file documents, as
well as records of births, marriages and deaths within the former Canal
Zone of Panama recorded and maintained by the Canal Zone Government from
1904 to September 30, 1979, shall be addressed to Passport Services,
Correspondence Branch, Department of State, Washington, D.C. 20524.
Requests for consular birth records should specify whether a Consular
Report of Birth (Form FS 240, or long form) or Certification of Birth
(Form DS 1350, or short form) is desired. Advance remittance of the
exact fee is required for each service.
(b) Authentication services. Requests for Department of State
authentication of documents other than passport file documents must be
accompanied by remittance of the exact total fee chargeable and
addressed to the Authentication Officer, Department of State,
Washington, DC 20520.
[46 FR 58071, Nov. 30, 1981, as amended at 64 FR 66770, Nov. 30, 1999]
Sec. 22.3 Remittances in the United States.
(a) Type of remittance. Remittances shall be in the form of: (1)
Check or bank draft drawn on a bank in the United States; (2) money
order--postal, international or bank; or (3) U.S. currency. Remittances
shall be made payable to the order of the Department of State. The
Department will assume no responsibility for cash which is lost in the
mail.
(b) Exact payment of fees. Fees must be paid in full prior to
issuance of requested documents. If uncertainty as to the existence of a
record or as to the number of sheets to be copied precludes remitting
the exact fee chargeable with the request, the Department of State will
inform the interested party of the exact amount required.
Sec. 22.4 Requests for services, Foreign Service.
Officers of the Foreign Service shall charge for official services
performed abroad at the rates prescribed in this schedule, in coin of
the United States or at its representative value in exchange (22 U.S.C.
1202). For definition of representative value in exchange, see Sec.
23.4 of this chapter. No fees named in this schedule shall be charged or
collected for the official services to American vessels and seamen (22
U.S.C. 1186). The term ``American vessels'' is defined to exclude, for
the purposes of this schedule, undocumented American vessels and the
fees prescribed herein shall be charged and collected for such
undocumented vessels. However, the fees prescribed herein shall not be
charged or collected for American public vessels, which includes any
vessel owned or operated by a U.S. Government department or agency and
engaged exclusively in official business on a non-commercial basis. This
schedule of fees shall be kept posted in a conspicuous place in each
Foreign Service consular office, subject to the examination by all
persons interested therein (22 U.S.C. 1197).
Sec. 22.5 Remittances to Foreign Service posts.
Remittances to Foreign Service posts from persons in the United
States in payment of offical fees and charges or for the purpose of
establishing deposits in advance of rendition of services shall be in a
form acceptable to the post, drawn payable to the American Embassy (name
of city), American Consulate General (name of city) or American
Consulate (name of city), as the case may be. This will permit cashing
of negotiable instruments for deposit in the Treasury when not
negotiated locally. See Sec. 23.2 of this chapter.
(a) Time at which fees become payable. Fees are due and payble prior
to issue or delivery to the interested party of a signed document, a
copy of a record, or other paper representative of a service performed.
(b) Receipt for fees; register of services. Every officer of the
Foreign Service responsible for the performance of services as
enumerated in the Schedule of
[[Page 87]]
Fees for Consular Services, Department of State and Foreign Service
(Sec. 22.1), shall give receipts for fees collected for the official
services rendered, specifying the nature of the service and numbered to
correspond with entries in a register maintained for the purpose (22
U.S.C. 1192, 1193, and 1194). The register serves as a record of
official acts performed by officers of the Foreign Service in a
governmental or notarial capacity, corresponding in this regard with the
record which notaries are usually expected or required to keep of their
official acts. See Sec. 92.2 of this chapter.
(c) Deposits to guarantee payment of fees or incidental costs. When
the amount of any fee is determinable only after initiation of the
performance of a service, or if incidental costs are involved, the total
fee and incidental costs shall be carefully estimated and an advance
deposit required, subject to refund of any unused balance to the person
making the deposit.
Sec. 22.6 Refund of fees.
(a) Fees which have been collected for deposit in the Treasury are
refundable:
(1) As specifically authorized by law (See 22 U.S.C. 214a concerning
passport fees erroneously charged persons excused from payment and 46
U.S.C. 8 concerning fees improperly imposed on vessels and seamen);
(2) When the principal officer at the consular post where the fee
was collected (or the officer in charge of the consular section at a
combined diplomatic/consular post) finds upon review of the facts that
the collection was erroneous under applicable law; and
(3) Where determination is made by the Department of State with a
view to payment of a refund in the United States in cases which it is
impracticable to have the facts reviewed and refund effected by and at
the direction of the responsible consular office. See Sec. 13.1 of this
chapter concerning refunds of fees improperly exacted by consular
officers who have neglected to return the same.
(b) Refunds of $5.00 or less will not be paid to the remitter unless
a claim is specifically filed at the time of payment for the excess
amount. An automatic refund on overpayments due to misinformation or
mistakes on the part of the Department of State will be made.
[52 FR 29515, Aug. 10, 1987, as amended at 65 FR 14212, Mar. 16, 2000]
Sec. 22.7 Collection and return of fees.
No fees other than those prescribed in the Schedule of Fees, Sec.
22.1, or by or pursuant to an act of Congress, shall be charged or
collected by officers of the Foreign Service for official services
performed abroad (22 U.S.C. 1201). All fees received by any officer of
the Foreign Service for services rendered in connection with the duties
of office or as a consular officer shall be accounted for and paid into
the Treasury of the United States (22 U.S.C. 99 and 812). For receipt,
registry, and numbering provisions, see Sec. 22.5(b). Collections for
transportation and other expenses necessary for performance of services
or for Interested Party toll telephone calls shall be refunded to post
allotment accounts and made available for meeting such expenses.
PART 23_FINANCE AND ACCOUNTING--Table of Contents
Sec.
23.1 Remittances made payable to the Department of State.
23.2 Endorsing remittances for deposit in the Treasury.
23.3 Refunds.
23.4 Representative value in exchange.
23.5 Claims for settlement by Department of State or General Accounting
Office.
Authority: 22 U.S.C. 2651a.
Source: 22 FR 10793, Dec. 27, 1957, unless otherwise noted.
Sec. 23.1 Remittances made payable to the Department of State.
Except as otherwise specified in this title, remittances of moneys
shall be drawn payable to the Department of State and sent to the
Department for action and deposit. (See Sec. Sec. 21.2, 22.2, and 51.40
of this chapter.)
Sec. 23.2 Endorsing remittances for deposit in the Treasury.
The Office of Finance--Cashier Unit, the Authentication Office, the
Passport Office or Passport Agency, American
[[Page 88]]
Embassy, American Legation, American consular office, or other office or
unit of the Department of State authorized and required to deposit funds
in the Treasury of the United States, is hereby authorized to endorse,
or to have endorsed, to the order of the Treasurer of the United States
by appropriate stamp, checks, drafts, money orders, or other forms of
remittance, regardless of how drawn, which are for payment to the
Department of State for deposit in the Treasury of the United States,
including those payable to the Secretary of State.
Sec. 23.3 Refunds.
(a) Rectifications and readjustments. See Sec. 22.6 of this chapter
for outline of circumstances under which fees which have been collected
for deposit in the Treasury may be refunded.
(b) Refund of wrongful exactions. See Sec. 13.1 of this chapter
concerning recovery from consular officers of amounts wrongfully exacted
and withheld by them.
[22 FR 10793, Dec. 27, 1957, as amended at 65 FR 14212, Mar. 16, 2000]
Sec. 23.4 Representative value in exchange.
Representative value in exchange for the collection of a fee means
foreign currency equivalent to the prescribed United States dollar fee
at the current rate of exchange at the time and place of payment of the
fee. ``Current rate'' of exchange for this purpose means the bank
selling rate at which the foreign bank will sell the number of United
States dollars required to liquidate the obligation to the United States
for the Foreign Service fee.
Sec. 23.5 Claims for settlement by Department of State or General
Accounting Office.
Claims for settlement by the Department of State or by the General
Accounting Office shall be submitted to the Department in duplicate over
the handwritten signature, together with the post office address of the
claimant, and with appropriate recommendations of the officer of the
Foreign Service, for items such as:
(a) Refunds of amounts representing payroll deductions such as for
any retirement and disability fund;
(b) Amounts due deceased, incompetent, or insolvent persons
including payees or bona fide holders of unpaid Government checks;
(c) Amounts claimed from the Government when questions of fact
affect either the amount payable or the terms of payment, when for any
reason settlement cannot or should not be affected at the Foreign
Service office; and
(d) Amounts of checks, owned by living payees or bona fide holders,
which have been covered into outstanding liabilities. The Foreign
Service post or the Department of State shall be consulted before
preparing the claim to ascertain whether any special form is required to
be used. Claims for unpaid compensation of deceased alien employees
shall be forwarded to the respective Foreign Service post.
[[Page 89]]
SUBCHAPTER D_CLAIMS AND STOLEN PROPERTY
PART 33_FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER
SECTION 7--Table of Contents
Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty agreements.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedures.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.
Authority: 22 U.S.C. 1977.
Source: 61 FR 49967, Sept. 24, 1996, unless otherwise noted.
Sec. 33.1 Purpose.
These rules clarify procedures for the administration of Section 7
of the Fishermen's Protective Act of 1967. Section 7 of the Act
establishes a Fishermen's Guaranty Fund to reimburse owners and
charterers of United States commercial fishing vessels for certain
losses and costs caused by the seizure and detention of their vessels by
foreign countries under certain claims to jurisdiction not recognized by
the United States.
Sec. 33.2 Definitions.
For the purpose of this part, the following terms mean:
Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et
seq.).
Capital equipment. Equipment or other property which may be
depreciated for income tax purposes.
Depreciated replacement costs. The present replacement cost of
capital equipment after being depreciated on a straight line basis over
the equipment's depreciable life, which is standardized at ten years.
Downtime. The time a vessel normally would be in port or transiting
to and from the fishing grounds.
Expendable items. Any property, excluding that which may be
depreciated for income tax purposes, which is maintained in inventory or
expensed for tax purposes.
Fund. The Fishermen's Guaranty Fund established in the U.S. Treasury
under section 7(c) of the Act (22 U.S.C. 1977(c)).
Market value. The price property would command in a market, at the
time of property loss, assuming a seller willing to sell and buyer
willing to buy.
Other direct charge. Any levy which is imposed in addition to, or in
lieu of any fine, license fee, registration fee, or other charge.
Owner. The owner or charterer of a commercial fishing vessel.
Secretary. The Secretary of State or the designee of the Secretary
of State.
Seizure. Arrest of a fishing vessel by a foreign country for
allegedly illegal fishing.
U.S. fishing vessel. Any private vessel documented or certified
under the laws of the United States as a commercial fishing vessel.
Sec. 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to apply
for an agreement with the Secretary providing for a guarantee in
accordance with section 7 of the Act.
Sec. 33.4 Applications.
(a) Applicant. An eligible applicant for a guaranty agreement must:
(1) Own or charter a U.S. fishing vessel; and
(2) Submit with his application the fee specified in Sec. 33.6
below.
(b) Application forms. Application forms may be obtained by
contacting the Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
(c) Where to apply. Applications must be submitted to the Director,
Office of marine Conservation, Bureau of Oceans and International
Environmental and Scientific Affairs, Room 7820, U.S. Department of
State, Washington, DC 20520-7818.
[[Page 90]]
(d) Application approval. Application approval will be by execution
of the guaranty agreement by the Secretary or by the Secretary's
designee.
Sec. 33.5 Guaranty agreements.
(a) Period in effect. Agreements are effective for a Fiscal Year
beginning October 1 and ending on the next September 30. Applications
submitted after October 1 are effective from the date the application
and fee are mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the
Secretary's prior consent, be transferred when a vessel which is the
subject of a guaranty agreement is transferred to a new owner if the
transfer occurs during the agreement period.
(c) Guaranty agreement renewal. A guaranty agreement may be renewed
for the next agreement year by submitting an application form with the
appropriate fee for the next year in accordance with the Secretary's
annually published requirements regarding fees. Renewals are subject to
the Secretary's approval.
(d) Provisions of the agreement. The agreement will provide for
reimbursement for certain losses caused by foreign countries' seizure
and detention of U.S. fishing vessels on the basis of claims to
jurisdiction which are not recognized by the United States. Recent
amendments to the Magnuson Fishery Conservation and Management Act (16
U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory
species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly,
as a matter of international law, the United States now recognizes other
coastal states' claims to jurisdiction over tuna in their EEZ'S. This
change directly affect certification of claims filed under the
Fishermen's Protective Act. Participants are advised that this means
that the Department will no longer certify for payment claims resulting
from the seizure of a U.S. vessel while such vessel was fishing for tuna
within the exclusive economic zone of another country in violation of
that country's laws. Claims for detentions or seizures based on other
claims to jurisdiction not recognized by the United States, or on the
basis of claims to jurisdiction recognized by the United States but
exercised in a manner inconsistent with international law as recognized
by the United states, may still be certified by the Department.
Sec. 33.6 Fees.
(a) General. Fees provide for administrative costs and payment of
claims. Fees are set annually on the basis of past and anticipated claim
experience. The annual agreement year for which fees are payable starts
on October 1 and ends on September 30 of the following year.
(b) Amount and payment. The amount of each annual fee or adjusted
fee will be established by the Office Director of the Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs, by publication of a notice in the Federal Register.
Each notice will establish the amount of the fee, when the fee is due,
when the fee is payable, and any special conditions surrounding
extension of prior agreements or execution of new agreements. Unless
otherwise specified in such notices, agreement coverage will commence
with the postmarked date of the fee payment and application.
(c) Adjustment and refund. Fees may be adjusted at any time to
reflect actual seizure and detention experience for which claims are
anticipated. Failure to submit adjusted fees will result in agreement
termination as of the date the adjusted fee is payable. No fees will be
refunded after an agreement is executed by the Secretary.
(d) Disposition. All fees will be deposited in the Fishermen's
Guaranty Fund. They will remain available without fiscal year limitation
to carry out section 7 of the Act. Claims will be paid from fees and
from appropriated funds, if any. Fees not required to pay administrative
costs or claims may be invested in U.S. obligations. All earnings will
be credited to the Fishermen's Guaranty Fund.
Sec. 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the
seizure did not meet the requirements of
[[Page 91]]
the Act, payment of claims will be made when:
(1) A covered vessel is seized by a foreign country under conditions
specified in the Act and the guaranty agreement; and
(2) The incident occurred during the period the guaranty agreement
was in force for the vessel involved.
(b) Payments will be made to the owner for:
(1) All actual costs (except those covered by section 3 of the Act
or reimbursable from some other source) incurred by the owner during the
seizure or detention period as a direct result thereof, including:
(i) Damage to, or destruction of, the vessel or its equipment; or
(ii) Loss or confiscation of the vessel or its equipment; and
(iii) Dockage fees or utilities;
(2) The market value of fish or shellfish caught before seizure of
the vessel and confiscated or spoiled during the period of detention;
and
(3) Up to 50 percent of the vessel's gross income lost as a direct
result of the seizure and detention.
(c) The exceptions are that no payment will be made from the Fund
for a seizure which is:
(1) Covered by any other provision of law (for example, fines,
license fees, registration fees, or other direct charges payable under
section 3 of the Act);
(2) Made by a country at war with the United States;
(3) In accordance with any applicable convention or treaty, if that
treaty or convention was made with the advice and consent of the Senate
and was in force and effect for the United States and the seizing
country at the time of the seizure;
(4) Which occurs before the guaranty agreement's effective date or
after its termination;
(5) For which other sources of alternative reimbursement have not
first been fully pursued (for example, the insurance coverage required
by the agreement and valid claims under any law);
(6) For which material requirements of the guaranty agreement, the
Act, or the program regulations have not been fully fulfilled; or
(7) In the view of the Department of State occurred because the
seized vessel was undermining or diminishing the effectiveness of
international conservation and management measures recognized by the
United States, or otherwise contributing to stock conservation problems
pending the establishment of such measures.
Sec. 33.8 Claim procedures.
(a) Where and when to apply. Claims must be submitted to the Office
Director, Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818. Claims must be submitted
within ninety (90) days after the vessel's release. Requests for
extension of the filing deadline must be in writing and approved by the
Office Director, Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be
supported by documentary evidence. Foreign language documents must be
accompanied by an authenticated English translation. Claims must
include:
(1) The captain's sworn statement about the exact location and
activity of the vessel when seized;
(2) Certified copies of charges, hearings, and findings by the
government seizing the vessel;
(3) A detailed computation of all actual costs directly resulting
from the seizure and detention, supported by receipts, affidavits, or
other documentation acceptable to the Office Director, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs;
(4) A detailed computation of lost income claimed, including:
(i) The date and time seized and released;
(ii) The number of miles and running time from the point of seizure
to the point of detention;
(iii) The total fishing time lost (explain in detail if lost fishing
time claimed is any greater than the elapsed time from seizure to the
time required after release to return to the point of seizure);
[[Page 92]]
(iv) The tonnage of catch on board at the time of seizure;
(v) The vessel's average catch-per-day's fishing for the three
calendar years preceding the seizure;
(vi) The vessel's average downtime between fishing trips for the
three calendar years preceding the seizure; and
(vii) The price-per-pound for the catch on the first day the vessel
returns to port after the seizure and detention unless there is a pre-
negotiated price-per-pound with a processor, in which case the pre-
negotiated price must be documented; and
(5) Documentation for confiscated, damaged, destroyed, or stolen
equipment, including:
(i) The date and cost of acquisition supported by invoices or other
acceptable proof of ownership; and
(ii) An estimate from a commercial source of the replacement or
repair cost.
(c) Burden of proof. The claimant has the burden of proving all
aspects of the claim, except in cases of dispute over the facts of the
seizure where the claimant shall have the presumption that the seizure
was eligible unless there is clear and convincing credible evidence that
the seizure did not meet the eligibility standards of the Act.
Sec. 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the
gross income lost as a direct result of the seizure and detention, based
on the value of the average catch-per-day's fishing during the three
most recent calendar years immediately preceding the seizure as
determined by the Secretary, based on catch rates on comparable vessels
in comparable fisheries. The compensable period for cases of seizure and
detention not resulting in vessels confiscation is limited to the
elapsed time from seizure to the time after release when the vessel
could reasonably be expected to return to the point of seizure. The
compensable period in cases where the vessel is confiscated is limited
to the elapsed time from seizure through the date of confiscation, plus
an additional period to purchase a replacement vessel and return to the
point of seizure. In no case can the additional period exceed 120 days.
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value, based
on the price-per-pound.
(b) Fuel expense. Compensation for fuel expenses will be based on
the purchase price, the time required to run to and from the fishing
grounds, the detention time in port, and the documented fuel consumption
of the vessel.
(c) Stolen or confiscated property. If the claimant was required to
buy back confiscated property from the foreign country, the claimant may
apply for reimbursement of such charges under section 3 of the Act. Any
other property confiscated is reimbursable from this Guaranty Fund.
Confiscated property is divided into the following categories:
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than a vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement cost; and
(4) Compensation for confiscated catch will be for full value, based
on the price-per-pound.
(d) Insurance proceeds. No payments will be made from the Fund for
losses covered by any policy of insurance or other provisions of law.
(e) [Reserved]
(f) Appeals. All determinations under this section are final and are
not subject to arbitration or appeal.
[[Page 93]]
Sec. 33.10 Payments.
The Office Director, Office of Marine Conservation, Bureau of Oceans
and International Environmental and Scientific Affairs, will pay the
claimant the amount calculated under Sec. 33.9. Payment will be made as
promptly as practicable, but may be delayed pending the appropriation of
sufficient funds, should fee collections not be adequate to sustain the
operation of the Fund. The Director shall notify the claimant of the
amount approved for payment as promptly as practicable and the same
shall thereafter constitute a valid, but non-interest bearing obligation
of the Government. Delays in payments are not a direct consequence of
seizure and detention and cannot therefore be construed as increasing
the compensable period for lost fishing time. If there is a question
about distribution of the proceeds of the claim, the Director may
request proof of interest from all parties, and will settle this issue.