[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 29
Labor
________________________
Parts 900 to 1899
Revised as of July 1, 2023
Containing a codification of documents of general
applicability and future effect
As of July 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Publishing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Publishing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
SUBTITLE B--Regulations Relating to Labor (Continued)
Chapter IX--Construction Industry Collective
Bargaining Commission 5
Chapter X--National Mediation Board 9
Chapter XII--Federal Mediation and Conciliation
Service 33
Chapter XIV--Equal Employment Opportunity Commission 151
Finding Aids:
Table of CFR Titles and Chapters........................ 483
Alphabetical List of Agencies Appearing in the CFR...... 503
List of CFR Sections Affected........................... 513
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 901.1 refers
to title 29, part 901,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2023), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Publishing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Publishing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.govinfo.gov. For
more information, contact the GPO Customer Contact Center, U.S.
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) website for public
law numbers, Federal Register finding aids, and related information.
Connect to NARA's website at www.archives.gov/federal-register.
The eCFR is a regularly updated, unofficial editorial compilation of
CFR material and Federal Register amendments, produced by the Office of
the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2023
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, parts 1900-Sec. 1910.999, part
1910.1000-end of part 1910, parts 1911-1925, parts 1926-1999, and part
2000 to end. The contents of these volumes represent all current
regulations codified under this title as of July 1, 2023.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
For this volume, Robert James Sheehan, III 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 29--LABOR
(This volume contains parts 900 to 1899)
--------------------------------------------------------------------
SUBTITLE B--Regulations Relating to Labor (Continued)
Part
chapter ix--Construction Industry Collective Bargaining
Commission................................................ 901
chapter x--National Mediation Board......................... 1200
chapter xii--Federal Mediation and Conciliation Service..... 1400
chapter xiv--Equal Employment Opportunity Commission........ 1600
[[Page 3]]
Subtitle B--Regulations Relating to Labor (Continued)
[[Page 5]]
CHAPTER IX--CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING COMMISSION
--------------------------------------------------------------------
Part Page
900
[Reserved]
901 Policy statement on collective bargaining
disputes and applicable procedures...... 7
902-999
[Reserved]
[[Page 7]]
PART 900 [RESERVED]
PART 901_POLICY STATEMENT ON COLLECTIVE BARGAINING DISPUTES AND APPLICABLE
PROCEDURES--Table of Contents
Sec.
901.1 Scope and application.
901.2 Policy of Commission.
901.3 Participation by Commission.
901.4 Handling of disputes by Commission.
901.5 Agreement to refrain from strike or lockout.
901.6 Authority of Executive Director.
901.7 Inquiries and correspondence with Commission.
Authority: E.O. 11482; 3 CFR, 1969 Comp., p. 139.
Source: 35 FR 4752, Mar. 19, 1970, unless otherwise noted.
Sec. 901.1 Scope and application.
The Construction Industry Collective Bargaining Commission hereby
states its policy and sets forth procedures for handling disputes
involving the standard labor and management organizations in the
building and construction industry. These procedures are pursuant to the
authority set forth in Executive Order 11482, dated September 22, 1969.
Section 6 of the order states that, ``The Commission is authorized to
issue such rules and regulations, and to adopt such procedures governing
its affairs, including the conduct of its disputes settlement functions,
as shall be necessary and appropriate to effectuate the objectives of
this order.''
Sec. 901.2 Policy of Commission.
Section 3(c) of the Executive order provides that it is an objective
of the Commission ``to establish more effective machinery for the
resolution of disputes over the terms of collective bargaining
agreements which at the same time recognizes the interests of each
branch of the industry and preserves existing procedures that have been
effective.'' Accordingly, it is the policy of the Commission:
(a) To encourage each branch of the industry without such a
procedure to establish its own procedures to facilitate the settlement
of disputes over the terms and application of collective bargaining
agreements.
(b) To encourage each branch of the industry having such a
procedure, but which procedure is limited in application, to expand the
application of such procedure.
(c) To encourage parties in each branch of construction with a
procedure to utilize that machinery in all possible cases.
(d) To encourage the Federal Mediation and Conciliation Service to
refer disputes wherever possible to such machinery established in
various branches of the industry.
Sec. 901.3 Participation by Commission.
(a) The Commission will consider participation in specific disputes
which conform with the following criteria:
(1) The disputes will have a significant impact on construction
activity in the area involved.
(2) The dispute concerns negotiations for a new or expiring
agreement, or a question of interpretation or application of an existing
agreement, where all other internal methods of resolution have been
exhausted.
(b) The Commission will normally refrain from participating in
specific disputes where;
(1) The dispute involved concerns jurisdiction of work.
(2) The parties have failed to utilize an independent disputes
handling procedure presently in existence or subsequently established.
(A number of such procedures exists currently in several branches of the
industry.)
(3) The parties have not fully utilized the service of the Federal
Mediation and Conciliation Service.
(c) In setting forth a disputes procedure the Commission emphasizes
that it is not intended to provide a substitute for the collective
bargaining process. Nor is it a means to bypass or neglect existing
mediation facilities or industry branch dispute settling procedures. The
standard procedure for the Commission to accept cognizance over a
collective bargaining dispute is through referral to the Commission by
the Director of the Federal Mediation and Conciliation Service. The
Commission will exercise its judgment in accepting or declining specific
disputes. The staff of the Commission is directed to maintain close
contact with the
[[Page 8]]
Federal Mediation and Conciliation Service on all aspects of bargaining
in the construction industry and to see that critical disputes are
brought to the attention of the appropriate International Union and the
national offices of an appropriate contractor association.
Sec. 901.4 Handling of disputes by Commission.
The Commission will determine the particular method of dispute
handling appropriate for each dispute. Section 5(a) of the Executive
order states,
The Commission or a panel designated by the Commission may, with the
assistance of national labor organizations and national contractor
associations where appropriate, seek to mediate such dispute, or make an
investigation of the facts of the dispute and make such recommendations
to the parties for the resolution thereof as it determines appropriate.
Sec. 901.5 Agreement to refrain from strike or lockout.
As part of its conditions for entering the dispute, the Commission
may request the parties to continue the terms or conditions of
employment without the occurrence of a strike or lockout for a 30-day
period, as set forth in section 5(a) of the Executive Order, to enhance
the functions of mediation and other related activities.
Sec. 901.6 Authority of Executive Director.
The Commission delegates authority to the Executive Director to
accept or reject requests for Commission involvement in those instances
where a Commission meeting would not occur in sufficient time prior to a
contract expiration date to permit such involvement.
Sec. 901.7 Inquiries and correspondence with Commission.
Inquiries to the Commission about the status of disputes or other
matters should be directed as follows:
Executive Director, Construction Industry Collective Bargaining
Commission, room 5220, Department of Labor Building, 14th and
Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 961-
3736.
PARTS 902 999 [RESERVED]
[[Page 9]]
CHAPTER X--NATIONAL MEDIATION BOARD
--------------------------------------------------------------------
Part Page
1200
[Reserved]
1201 Definitions................................. 11
1202 Rules of procedure.......................... 12
1203 Applications for service.................... 14
1204 Labor contracts............................. 15
1205 Notices in re: Railway Labor Act............ 16
1206 Handling representation disputes under the
Railway Labor Act....................... 17
1207 Establishment of special adjustment boards.. 18
1208 Availability of information................. 20
1209 Public observation of National Mediation
Board meetings.......................... 29
1210-1299
[Reserved]
Abbreviation Used in This Chapter:
NMB = National Mediation Board.
[[Page 11]]
PART 1200 [RESERVED]
PART 1201_DEFINITIONS--Table of Contents
Sec.
1201.1 Carrier.
1201.2 Exceptions.
1201.3 Determination as to electric lines.
1201.4 Employee.
1201.5 Exceptions.
1201.6 Representatives.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1201.1 Carrier.
The term carrier includes any express company, sleeping car company,
carrier by railroad, subject to the Interstate Commerce Act (24 Stat.
379, as amended; 49 U.S.C. 1 et seq.), and any company which is directly
or indirectly owned or controlled by or under common control with any
carrier by railroad and which operates any equipment or facilities or
performs any service (other than trucking service) in connection with
the transportation, receipt, delivery, elevation, transfer in transit,
refrigeration or icing, storage, and handling of property transported by
railroad, and any receiver, trustee, or other individual or body,
judicial or otherwise, when in the possession of the business of any
such ``carrier.''
Sec. 1201.2 Exceptions.
(a) The term ``carrier'' shall not include any street, interurban,
or suburban electric railway, unless such railway is operating as a part
of a general steam-railroad system of transportation, but shall not
exclude any part of the general steam-railroad system of transportation
now or hereafter operated by any other motive power.
(b) The term ``carrier'' shall not include any company by reason of
its being engaged in the mining of coal, the supplying of coal to
carrier where delivery is not beyond the tipple, and the operation of
equipment or facilities therefor or any of such activities.
Sec. 1201.3 Determination as to electric lines.
The Interstate Commerce Commission is hereby authorized and directed
upon request of the Mediation Board or upon complaint of any part
interested to determine after hearing whether any line operated by
electric power falls within the terms of this part.
Sec. 1201.4 Employee.
The term employee as used in this part includes every person in the
service of a carrier (subject to its continuing authority to supervise
and direct the manner of rendition of his service) who performs any work
defined as that of an employee or subordinate official in the orders of
the Interstate Commerce Commission now in effect, and as the same may be
amended or interpreted by orders hereafter entered by the Commission
pursuant to the authority which is hereby conferred upon it to enter
orders amending or interpreting such existing orders: Provided, however,
That no occupational classification made by order of the Interstate
Commerce Commission shall be construed to define the crafts according to
which railway employees may be organized by their voluntary action, nor
shall the jurisdiction or powers of such employee organizations be
regarded as in any way limited or defined by the provisions of this Act
or by the orders of the Commission.
Sec. 1201.5 Exceptions.
The term ``employee'' shall not include any individual while such
individual is engaged in the physical operations consisting of the
mining of coal, the preparation of coal, the handling (other than
movement by rail with standard locomotives) of coal not beyond the mine
tipple, or the loading of coal at the tipple.
Sec. 1201.6 Representatives.
The term representative means any person or persons, labor union,
organization, or corporation designated either by a carrier or group of
carriers or by its or their employees, to act for it or them.
[[Page 12]]
PART 1202_RULES OF PROCEDURE--Table of Contents
Sec.
1202.1 Mediation.
1202.2 Interpretation of mediation agreements.
1202.3 Representation disputes.
1202.4 Secret ballot.
1202.5 Rules to govern elections.
1202.6 Access to carrier records.
1202.7 Who may participate in elections.
1202.8 Hearings on craft or class.
1202.9 Appointment of arbitrators.
1202.10 Appointment of referees.
1202.11 Emergency boards.
1202.12 National Air Transport Adjustment Board.
1202.13 Air carriers.
1202.14 Labor members of Adjustment Board.
1202.15 Length of briefs in NMB hearing proceedings.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1202.1 Mediation.
The mediation services of the Board may be invoked by the parties,
or either party, to a dispute between an employee or group of employees
and a carrier concerning changes in rates of pay, rules, or working
conditions not adjusted by the parties in conference; also, concerning a
dispute not referable to the National Railroad Adjustment Board or
appropriate airline adjustment board, when not adjusted in conference
between the parties, or where conferences are refused. The National
Mediation Board may proffer its services in case any labor emergency is
found by it to exist at any time.
Sec. 1202.2 Interpretation of mediation agreements.
Under section 5, Second, of title I of the Railway Labor Act, in any
case in which a controversy arises over the meaning or application of
any agreement reached through mediation, either party to said agreement,
or both, may apply to the National Mediation Board for an interpretation
of the meaning or application of such agreement. Upon receipt of such
request, the Board shall, after a hearing of both sides, give its
interpretation within 30 days.
Sec. 1202.3 Representation disputes.
If any dispute shall arise among a carrier's employees as to who are
the representatives of such employees designated and authorized in
accordance with the requirements of the Railway Labor Act, it is the
duty of the Board, upon request of either party to the dispute, to
investigate such dispute and certify to both parties, in writing, the
name or names of individuals or organizations that have been designated
and authorized to represent the employees involved in the dispute, and
to certify the same to the carrier.
Sec. 1202.4 Secret ballot.
In conducting such investigation, the Board is authorized to take a
secret ballot of the employees involved, or to utilize any other
appropriate method of ascertaining the names of their duly designated
and authorized representatives in such manner as shall insure the choice
of representatives by the employees without interference, influence, or
coercion exercised by the carrier. Except in unusual or extraordinary
circumstances, in a secret ballot the Board shall determine the choice
of representative based on the majority of valid ballots cast.
[75 FR 26088, June 10, 2010]
Sec. 1202.5 Rules to govern elections.
In the conduct of a representation election, the Board shall
designate who may participate in the election, which may include a
public hearing on craft or class, and establish the rules to govern the
election, or may appoint a committee of three neutral persons who after
hearing shall within 10 days designate the employees who may participate
in the election.
Sec. 1202.6 Access to carrier records.
Under the Railway Labor Act the Board has access to and has power to
make copies of the books and records of the carriers to obtain and
utilize such information as may be necessary to fulfill its duties with
respect to representatives of carrier employees.
[[Page 13]]
Sec. 1202.7 Who may participate in elections.
As mentioned in Sec. 1202.3, when disputes arise between parties to
a representation dispute, the National Mediation Board is authorized by
the Act to determine who may participate in the selection of employees
representatives.
Sec. 1202.8 Hearings on craft or class.
In the event the contesting parties or organizations are unable to
agree on the employees eligible to participate in the selection of
representatives, and either party makes application by letter for a
formal hearing before the Board to determine the dispute, the Board may
in its discretion hold a public hearing, at which all parties interested
may present their contentions and argument, and at which the carrier
concerned is usually invited to present factual information. At the
conclusion of such hearings the Board customarily invites all interested
parties to submit briefs supporting their views, and after considering
the evidence and briefs, the Board makes a determination or finding,
specifying the craft or class of employees eligible to participate in
the designation of representatives.
Sec. 1202.9 Appointment of arbitrators.
Section 5, Third, (a) of the Railway Labor Act provides in the event
mediation of a dispute is unsuccessful, the Board endeavors to induce
the parties to submit their controversy to arbitration. If the parties
so agree, and the arbitrators named by the parties are unable to agree
upon the neutral arbitrator or arbitrators, as provided in section 7 of
the Railway Labor Act, it becomes the duty of the Board to name such
neutral arbitrators and fix the compensation for such service. In
performing this duty, the Board is required to appoint only those whom
it deems wholly disinterested in the controversy, and to be impartial
and without bias as between the parties thereto.
Sec. 1202.10 Appointment of referees.
Section 3, Third, (e) title I of the act makes it the duty of the
National Mediation Board to appoint and fix the compensation for service
a neutral person known as a ``referee'' in any case where a division of
the National Railroad Adjustment Board becomes deadlocked on an award,
such referee to sit with the division and make an award. The National
Mediation Board in appointing referees is bound by the same requirements
that apply in the appointment of neutral arbitrators as outlined in
Sec. 1202.9
Sec. 1202.11 Emergency boards.
Under the terms of section 10 of the Railway Labor Act, if a dispute
between a carrier and its employees is not adjusted through mediation or
the other procedures prescribed by the act, and should, in the judgment
of the National Mediation Board, threaten to interrupt interstate
commerce to a degree such as to deprive any section of the country of
essential transportation service, the Board shall notify the President,
who may thereupon, in his discretion, create an emergency board to
investigate and report to him respecting such dispute. An emergency
board may be composed of such number of persons as the President
designates, and persons so designated shall not be pecuniarily or
otherwise interested in any organization of employees or any carrier.
The compensation of emergency board members is fixed by the President.
An emergency board is created separately in each instance, and is
required to investigate the facts as to the dispute and report thereon
to the President within 30 days from the date of its creation.
Sec. 1202.12 National Air Transport Adjustment Board.
Under section 205, title II, of the Railway Labor Act, when in the
judgment of the National Mediation Board it becomes necessary to
establish a permanent national board of adjustment for the air carriers
subject to the act to provide for the prompt and orderly settlement of
disputes between the employees and the carriers growing out of
grievances, or out of the application or interpretation of working
agreements, the Board is empowered by its order made, published, and
served, to direct the air carriers and labor organizations, national in
scope, to select and designate four representatives to constitute a
Board known as the National Air Transport Adjustment Board. Two
[[Page 14]]
members each shall be selected by the air carriers and the labor
organizations of their employees. Up to the present time, it has not
been considered necessary to establish the National Air Transport
Adjustment Board.
Sec. 1202.13 Air carriers.
By the terms of title II of the Railway Labor Act, which was
approved April 10, 1936, all of title I, except section 3, which relates
to the National Railroad Adjustment Board, was extended to cover every
common carrier by air engaged in interstate or foreign commerce, and
every carrier by air transporting mail for or under contract with the
United States Government, and to all employees or subordinate officials
of such air carriers.
Sec. 1202.14 Labor members of Adjustment Board.
Section 3, First, (f) of title I of the Railway Labor Act relating
to the settlement of disputes among labor organizations as to the
qualification of any such organization to participate in the selection
of labor members of the Adjustment Board, places certain duties upon the
National Mediation Board. This section of the act is quoted below:
(f) In the event a dispute arises as to the right of any national
labor organization to participate as per paragraph (c) of this section
in the selection and designation of the labor members of the Adjustment
Board, the Secretary of Labor shall investigate the claim of such labor
organization to participate, and if such claim in the judgment of the
Secretary of Labor has merit, the secretary shall notify the Mediation
Board accordingly, and within 10 days after receipt of such advice the
Mediation Board shall request those national labor organizations duly
qualified as per paragraph (c) of this section to participate in the
selection and designation of the labor members of the Adjustment Board
to select a representative. Such representatives, together with a
representative likewise designated by the claimant, and a third or
neutral party designated by the Mediation Board, constituting a board of
three, shall within 30 days after the appointment of the neutral member
investigate the claims of the labor organization desiring participation
and decide whether or not it was organized in accordance with section 2,
hereof, and is otherwise properly qualified to participate in the
selection of the labor members of the Adjustment Board, and the findings
of such boards of three shall be final and binding.
Sec. 1202.15 Length of briefs in NMB hearing proceedings.
(a) In the event briefs are authorized by the Board or the assigned
Hearing Officer, principal briefs shall not exceed fifty (50) pages in
length and reply briefs, if permitted, shall not exceed twenty-five (25)
pages in length unless the participant desiring to submit a brief in
excess of such limitation requests a waiver of such limitation from the
Board which is received within five (5) days of the date on which the
briefs were ordered or, in the case of a reply brief, within five (5)
days of receipt of the principal brief, and in such cases the Board may
require the filing of a summary of argument, suitably paragraphed which
shoud be a succinct, but accurate and clear, condensation of the
argument actually made in the brief.
(b) The page limitations provided by this section (Sec. 1202.15)
are exclusive of those pages containing the table of contents, tables of
citations and any copies of administrative or court decisions which have
been cited in the brief. All briefs shall be submitted on standard 8\1/
2\ x 11 inch paper with double spaced type.
(c) Briefs not complying with this section (Sec. 1202.15) will be
returned promptly to their initiators.
[44 FR 10601, Feb. 22, 1979]
PART 1203_APPLICATIONS FOR SERVICE--Table of Contents
Sec.
1203.1 Mediation services.
1203.2 Investigation of representation disputes.
1203.3 Interpretation of mediation agreements.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Sec. 1203.1 Mediation services.
Applications for the mediation services of the National Mediation
Board under section 5, First, of the Railway Labor Act, may be made on
printed forms N.M.B. 2, copies of which may be secured from the Board's
Chief of Staff's Office or on the Internet at
[[Page 15]]
www.nmb.gov. Such applications and all correspondence connected
therewith should be submitted in duplicate. The application should show
the exact nature of the dispute, the number of employees involved, name
of the carrier and name of the labor organization, date of agreement
between the parties, if any, date and copy of notice served by the
invoking party to the other and date of final conference between the
parties. Application should be signed by the highest officer of the
carrier who has been designated to handle disputes under the Railway
Labor Act, or by the chief executive of the labor organization,
whichever party files the application. These applications, after
preliminary investigation in the Board's offices, are given docket
number in series ``A'' and the cases are assigned for mediation to Board
members or to mediators on the Board's staff.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30,
1948, as amended at 64 FR 40287, July 26, 1999]
Sec. 1203.2 Investigation of representation disputes.
Applications for the services of the National Mediation Board under
section 2, Ninth, of the Railway Labor Act to investigate representation
disputes among carriers' employees may be made on printed forms NMB-3,
copies of which may be secured from the Board's Representation and Legal
Department or on the internet at www.nmb.gov. Such applications and all
correspondence connected therewith should be filed in duplicate and the
applications should be accompanied by signed authorization cards from
the employees composing the craft or class involved in the dispute. The
applications should show specifically the name or description of the
craft or class of employees involved, the name of the invoking
organization or employee seeking certification, or the name of the
employee seeking decertification, the name of the organization currently
representing the employees, if any, and the estimated number of
employees in each craft or class involved. The applications should be
signed by the chief executive of the invoking organization, some other
authorized officer of the organization, or by the invoking employee.
These disputes are given docket numbers in the series ``R''.
[84 FR 35989, July 26, 2019]
Sec. 1203.3 Interpretation of mediation agreements.
(a) Applications may be filed with the Board's Chief of Staff under
section 5, Second, of the Railway Labor Act, for the interpretation of
agreements reached in mediation under section 5, First. Such
applications may be made by letter from either party to the mediation
agreement stating the specific question on which an interpretation is
desired.
(b) This function of the National Mediation Board is not intended to
conflict with the provisions of section 3 of the Railway Labor Act.
Providing for interpretation of agreements by the National Railroad
Adjustment Board. Many complete working agreements are revised with the
aid of the Board's mediating services, and it has been the Board's
policy that disputes involving the interpretation or application of such
agreements should be handled by the Adjustment Board. Under this section
of the law the Board when called upon may only consider and render an
interpretation on the specific terms of an agreement actually signed in
mediation, and not for matters incident or corollary thereto.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30,
1948, as amended at 64 FR 40287, July 26, 1999]
PART 1204_LABOR CONTRACTS--Table of Contents
Sec.
1204.1 Making and maintaining contracts.
1204.2 Arbitrary changing of contracts.
1204.3 Filing of contracts.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1204.1 Making and maintaining contracts.
It is the duty of all carriers, their officers, agents, and
employees to exert every reasonable effort to make and
[[Page 16]]
maintain contracts covering rates of pay, rules, and working conditions.
Sec. 1204.2 Arbitrary changing of contracts.
No carrier, its officers, or agents shall change the rates of pay,
rules, or working conditions of its employees, as a class as embodied in
agreements except in the manner prescribed in such agreements or in
section 6 of the Railway Labor Act.
Sec. 1204.3 Filing of contracts.
Section 5, Third, (e) of the Railway Labor Act requires all carriers
to file with the National Mediation Board copies of all contracts in
effect with organizations representing their employees, covering rates
of pay, rules, and working conditions. Several thousand of such
contracts are on file in the Board's Washington office and are available
for inspection by interested parties.
PART 1205_NOTICES IN RE: RAILWAY LABOR ACT--Table of Contents
Sec.
1205.1 Handling of disputes.
1205.2 Employees' Bill of Rights.
1205.3 General Order No. 1.
1205.4 Substantive rules.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1205.1 Handling of disputes.
Section 2, Eighth, of the Railway Labor Act provides that every
carrier shall notify its employees by printed notices in such form and
posted at such times and places as shall be specified by order of the
Mediation Board and requires that all disputes between a carrier and its
employees will be handled in accordance with the requirements of the
act. In such notices there must be printed verbatim, in large type, the
third, fourth, and fifth paragraphs of said section 2, Eighth, of the
Railway Labor Act.
Sec. 1205.2 Employees' Bill of Rights.
The provisions of the third, fourth, and fifth paragraphs of section
2 are by law made a part of the contract of employment between the
carrier and each employee and shall be binding upon the parties
regardless of any other express or implied agreements between them.
Under these provisions the employees are guaranteed the right to
organize without interference of management, the right to determine who
shall represent them, and the right to bargain collectively through such
representatives. This section makes it unlawful for any carrier to
require any person seeking employment to sign any contract promising to
join or not to join a labor organization. Violation of the foregoing
provisions is a misdemeanor under the law and subjects the offender to
punishment.
Sec. 1205.3 General Order No. 1.
General Order No. 1, issued August 14, 1934, is the only order the
Board has issued since its creation in 1934. This order sent to the
President of each carrier coming under the act transmitted a sample copy
of the Mediation Board's Form MB-1 known as ``Notice in re: Railway
Labor Act.'' The order prescribes that such notices are to be standard
as to contents, dimensions of sheet, and size of type and that they
shall be posted promptly and maintained continuously in readable
condition on all the usual and customary bulletin boards giving
information to employees and at such other places as may be necessary to
make them accessible to all employees. Such notices must not be hidden
by other papers or otherwise obscured from view.
Sec. 1205.4 Substantive rules.
The only substantive rules issued by the National Mediation Board
are those authorized under section 2, Ninth, of the Railway Labor Act to
implement the procedure of determining employee representation.
[12 FR 2451, Apr. 16, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948,
as amended at 64 FR 40287, July 26, 1999]
[[Page 17]]
PART 1206_HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR
ACT--Table of Contents
Sec.
1206.1 Run-off elections.
1206.2 Percentage of valid authorizations required to determine
existence of a representation dispute.
1206.3 Age of authorization cards.
1206.4 Time limits on applications.
1206.5 Decertification of representatives.
1206.6 Eligibility of dismissed employees to vote.
1206.7 Construction of this part.
1206.8 Amendment or rescission of rules in this part.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 12 FR 3083, May 10, 1947, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1206.1 Run-off elections.
(a) In an election among any craft or class where three or more
options (including the option for no representation) receive valid
votes, if no option receives a majority of the legal votes cast, or in
the event of a tie vote, the Board shall authorize a run-off election.
(b) In the event a run-off election is authorized by the Board, the
two options which received the highest number of votes cast in the first
election shall be placed on the run-off ballot. No blank line on which
voters may write in the name of any organization, individual, or no
representation will be provided on the run-off ballot.
(c) Employees who were eligible to vote at the conclusion of the
first election shall be eligible to vote in the run-off election except:
(1) Those employees whose employment relationship has terminated;
and
(2) Those employees who are no longer employed in the craft or
class.
[77 FR 75549, Dec. 21, 2012, as amended at 84 FR 35989, July 26, 2019]
Sec. 1206.2 Percentage of valid authorizations required to determine
existence of a representation dispute.
(a) Upon receipt of an application requesting that an organization
or individual be certified as the representative of any craft or class
of employees, or to decertify the current representative and have no
representative, a showing of proved authorizations (checked and verified
as to date, signature, and employment status) from at least fifty (50)
percent of the craft or class must be made before the National Mediation
Board will authorize an election or otherwise determine the
representation desires of the employees under the provisions of section
2, Ninth, of the Railway Labor Act.
(b) Any intervening individual or organization must also produce
proved authorizations (checked and verified as to date, signature, and
employment status) from at least fifty (50) percent of the craft or
class of employees involved to warrant placing the name of the
intervenor on the ballot.
[77 FR 75549, Dec. 21, 2012, as amended at 84 FR 35989, July 26, 2019]
Sec. 1206.3 Age of authorization cards.
Authorizations must be signed and dated in the employee's own
handwriting or witnessed mark. No authorizations will be accepted by the
National Mediation Board in any employee representation dispute which
bear a date prior to one year before the date of the application for the
investigation of such dispute.
Sec. 1206.4 Time limits on applications.
Except in unusual or extraordinary circumstances, the National
Mediation Board will not accept an application for investigation of a
representation dispute among employees of a carrier:
(a) For a period of two (2) years from the date of a certification
or decertification covering the same craft or class of employees on the
same carrier, and
(b) For a period of one (1) year from the date on which:
(1) The Board dismissed a docketed application after having
conducted an election among the same craft or class of employees on the
same carrier and less than a majority of valid ballots cast were for
representation; or
(2) The Board dismissed a docketed application covering the same
craft or class of employees on the same carrier because no dispute
existed as defined in Sec. 1206.2 of these rules; or
[[Page 18]]
(3) The Board dismissed a docketed application after the applicant
withdrew an application covering the same craft or class of employees on
the same carrier after the application was docketed by the Board.
[44 FR 10602, Feb. 22, 1979, as amended at 75 FR 26088, May 11, 2010; 84
FR 35989, July 26, 2019]
Sec. 1206.5 Decertification of representatives.
Employees who no longer wish to be represented may seek to decertify
the current representative of a craft or class in a direct election. The
employees must follow the procedure outlines in Sec. 1203.2.
[84 FR 35989, July 26, 2019]
Sec. 1206.6 Eligibility of dismissed employees to vote.
Dismissed employees whose requests for reinstatement account of
wrongful dismissal are pending before proper authorities, which includes
the National Railroad Adjustment Board or other appropriate adjustment
board, are eligible to participate in elections among the craft or class
of employees in which they are employed at time of dismissal. This does
not include dismissed employees whose guilt has been determined, and who
are seeking reinstatement on a leniency basis.
[12 FR 3083, May 10, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948,
and further redesignated at 77 FR 75549, Dec. 21, 2012. And further
redesignated at 84 FR 35989, July 26, 2019]
Sec. 1206.7 Construction of this part.
The rules and regulations in this part shall be liberally construed
to effectuate the purposes and provisions of the act.
[12 FR 3083, May 10, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948,
and further redesignated at 77 FR 75549, Dec. 21, 2012. And further
redesignated at 84 FR 35989, July 26, 2019]
Sec. 1206.8 Amendment or rescission of rules in this part.
(a) The Board may at any time amend or rescind any rule or
regulation in this part by following the public rulemaking procedures
under the Administrative Procedure Act (5 U.S.C. 553) and after
providing the opportunity for a public hearing.
(b) The requirements of paragraph (a) of this section shall not
apply to any rule or proposed rule to which the third sentence of
section 553(b) of the Administrative Procedure Act applies.
(c) Any interested person may petition the Board, in writing, for
the issuance, amendment, or repeal of a rule or regulation in this part.
An original and three copies of such petition shall be filed with the
Board in Washington, DC, and shall state the rule or regulation proposed
to be issued, amended, or repealed, together with a statement of grounds
in support of such petition.
[77 FR 75549, Dec. 21, 2012. Redesignated at 84 FR 35989, July 26,
2019]]
PART 1207_ESTABLISHMENT OF SPECIAL ADJUSTMENT BOARDS--Table of Contents
Sec.
1207.1 Establishment of special adjustment boards (PL Boards).
1207.2 Requests for Mediation Board action.
1207.3 Compensation of neutrals.
1207.4 Designation of PL Boards, filing of agreements, and disposition
of records.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 31 FR 14644, Nov. 17, 1966, unless otherwise noted.
Sec. 1207.1 Establishment of special adjustment boards (PL Boards).
Public Law 89-456 (80 Stat. 208) governs procedures to be followed
by carriers and representatives of employees in the establishment and
functioning of special adjustment boards, hereinafter referred to as PL
Boards. Public Law 89-456 requires action by the National Mediation
Board in the following circumstances:
(a) Designation of party member of PL Board. Public Law 89-456
provides that within thirty (30) days from the date a written request is
made by an employee representative upon a carrier, or by a carrier upon
an employee representative, for the establishment of a PL Board, an
agreement establishing such a Board shall be made. If, however, one
party fails to designate a
[[Page 19]]
member of the Board, the party making the request may ask the Mediation
Board to designate a member on behalf of the other party. Upon receipt
of such request, the Mediation Board will notify the party which failed
to designate a partisan member for the establishment of a PL Board of
the receipt of the request. The Mediation Board will then designate a
representative on behalf of the party upon whom the request was made.
This representative will be an individual associated in interest with
the party he is to represent. The designee, together with the member
appointed by the party requesting the establishment of the PL Board,
shall constitute the Board.
(b) Appointment of a neutral to determine matters concerning the
establishment and/or jurisdiction of a PL Board. (1) When the members of
a PL Board constituted in accordance with paragraph (a) of this section,
for the purpose of resolving questions concerning the establishment of
the Board and/or its jurisdiction, are unable to resolve these matters,
then and in that event, either party may ten (10) days thereafter
request the Mediation Board to appoint a neutral member to determine
these procedural issues.
(2) Upon receipt of this request, the Mediation Board will notify
the other party to the PL Board. The Mediation Board will then designate
a neutral member to sit with the PL Board and resolve the procedural
issues in dispute. When the neutral has determined the procedural issues
in dispute, he shall cease to be a member of the PL Board.
(c) Appointment of neutral to sit with PL Boards and dispose of
disputes. (1) When the members of a PL Board constituted by agreement of
the parties, or by the appointment of a party member by the Mediation
Board, as described in paragraph (a) of this section, are unable within
ten (10) days after their failure to agree upon an award to agree upon
the selection of a neutral person, either member of the Board may
request the Mediation Board to appoint such neutral person and upon
receipt of such request, the Mediation Board shall promptly make such
appointment.
(2) A request for the appointment of a neutral under paragraph (b)
of this section or this paragraph (c) shall;
(i) Show the authority for the request--Public Law 89-456, and
(ii) Define and list the proposed specific issues or disputes to be
heard.
Sec. 1207.2 Requests for Mediation Board action.
(a) Requests for the National Mediation Board to appoint neutrals or
party representatives should be made on NMB Form 5.
(b) Those authorized to sign request on behalf on parties:
(1) The ``representative of any craft or class of employees of a
carrier,'' as referred to in Public Law 89-456, making request for
Mediation Board action, shall be either the General Chairman, Grand
Lodge Officer (or corresponding officer of equivalent rank), or the
Chief Executive of the representative involved. A request signed by a
General Chairman or Grand Lodge Officer (or corresponding officer of
equivalent rank) shall bear the approval of the Chief Executive of the
employee representative.
(2) The ``carrier representative'' making such a request for the
Mediation Board's action shall be the highest carrier officer designated
to handle matters arising under the Railway Labor Act.
(c) Docketing of PL Board agreements: The National Mediation Board
will docket agreements establishing PL Board, which agreements meet the
requirements of coverage as specified in Public Law 89-456. No neutral
will be appointed under Sec. 1207.1(c) until the agreement establishing
the PL Board has been docketed by the Mediation Board.
Sec. 1207.3 Compensation of neutrals.
(a) Neutrals appointed by the National Mediation Board. All neutral
persons appointed by the National Mediation Board under the provisions
of Sec. 1207.1 (b) and (c) will be compensated by the Mediation Board
in accordance with legislative authority. Certificates of appointment
will be issued by the Mediation Board in each instance.
(b) Neutrals selected by the parties. (1) In cases where the party
members of a
[[Page 20]]
PL Board created under Public Law 89-456 mutually agree upon a neutral
person to be a member of the Board, the party members will jointly so
notify the Mediation Board, which Board will then issue a certificate of
appointment to the neutral and arrange to compensate him as under
paragraph (a) of this section.
(2) The same procedure will apply in cases where carrier and
employee representatives are unable to agree upon the establishment and
jurisdiction of a PL Board, and mutually agree upon a procedural neutral
person to sit with them as a member and determine such issues.
Sec. 1207.4 Designation of PL Boards, filing of agreements,
and disposition of records.
(a) Designation of PL Boards. All special adjustment boards created
under Public Law 89-456 will be designated PL Boards, and will be
numbered serially, commencing with No. 1, in the order of their
docketing by the National Mediation Board.
(b) Filing of agreements. The original agreement creating the PL
Board under Public Law 89-456 shall be filed with the National Mediation
Board at the time it is executed by the parties. A copy of such
agreement shall be filed by the parties with the Administrative Officer
of the National Railroad Adjustment Board, Chicago, Ill.
(c) Disposition of records. Since the provisions of section 2(a) of
Public Law 89-456 apply also to the awards of PL Boards created under
this Act, two copies of all awards made by the PL Boards, together with
the record of proceedings upon which such awards are based, shall be
forwarded by the neutrals who are members of such Boards, or by the
parties in case of disposition of disputes by PL Boards without
participation of neutrals, to the Administrative Officer of the National
Railroad Adjustment Board, Chicago, Ill., for filing, safekeeping, and
handling under the provisions of section 2(q), as may be required.
PART 1208_AVAILABILITY OF INFORMATION--Table of Contents
Sec.
1208.1 General provisions.
1208.2 Requests for records or information under the Freedom of
Information Act.
1208.3 Proactive disclosure of information.
1208.4 Material relating to representation function.
1208.5 Material relating to mediation function.
1208.6 Fees under the Freedom of Information Act.
1208.7 Subpoenas and other requests for testimony and production of
documents in legal proceedings where the NMB is not a party.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 82 FR 8895, Feb. 1, 2017, unless otherwise noted.
Sec. 1208.1 General provisions.
(a) The purpose of this part is to set forth the regulations of the
NMB regarding the availability and disclosure of information in its
possession and to implement the Freedom of Information Act (FOIA). These
regulations establish procedures for requesting access to records
maintained by the NMB and should be read together with the FOIA, the
1987 Office of Management and Budget Guidelines for FOIA Fees, Executive
Order 12,600, and the NMB's other rules and regulations.
(b) Public policy and the successful effectuation of the NMB's
mission require that Board members and the employees of the NMB maintain
a reputation for impartiality and integrity. Labor and management and
other interested parties participating in mediation efforts must have
assurance, as must labor organizations, carriers, and individuals
involved in questions of representation, that confidential information
disclosed to Board members and employees of the NMB will not be
divulged, voluntarily or by compulsion.
(c) Notwithstanding this general policy, the Board will under all
circumstances endeavor to make public as much information as can be
allowed. The Board will withhold information under the FOIA only if it
reasonably foresees that disclosure would harm an interest protected by
one of the exemptions described in the FOIA or when
[[Page 21]]
disclosure is prohibited by law. When full disclosure is not possible,
the NMB will consider whether partial disclosure of information is
possible and will take necessary steps to segregate and release
nonexempt information.
(d) The NMB will preserve all correspondence pertaining to requests
it receives under the FOIA, as well as copies of all requested records,
until disposition or destruction is authorized pursuant to Title 44 of
the United States Code or the General Records Schedule 14 of the
National Archives and Records Administration. The NMB will not dispose
of or destroy records while they are the subject of a pending request,
appeal, or lawsuit under the FOIA.
Sec. 1208.2 Requests for records or information under the Freedom of
Information Act.
(a) Requests for records. (1) All requests for NMB records shall be
filed in writing by emailing [email protected] or mailing the request to the
Chief FOIA Officer, National Mediation Board, 1301 K Street NW., Suite
250E, Washington, DC 20005. Additional information about submitting
requests is available at www.nmb.gov. Requesters must provide contact
information, such as their phone number, email address, and/or mailing
address, to assist in communications about the request.
(2) The request shall reasonably describe the records being sought
in a manner which permits identification and location of the records. To
the extent possible, requesters should include specific information that
may help the NMB identify the requested records, such as the date, title
or name, author, recipient, subject matter, case or file number, or
reference number. Before submitting a request, a requester may contact
the NMB's FOIA Public Liaison to discuss the records sought or to
receive assistance in describing the records.
(3) The request shall include any request for waiver of fees,
clearly outlining the reasons for any such request.
(4) Requests may specify the preferred form or format (including
electronic formats) for the records sought. The NMB will accommodate
such requests if the record is readily reproducible in that form or
format.
(5) Upon receipt of a request for the records, the Chief FOIA
Officer shall assign the request a FOIA tracking number and record the
date and time received, the name and address of the requester, and the
nature of the records requested. If the request will take more than 10
working days to process, the Chief FOIA Officer will acknowledge the
request in writing, providing the requester with an individualized
tracking number and a brief description of records sought.
(6) All time limitations established pursuant to this section with
respect to processing initial requests and appeals shall commence at the
time a written request for records is received at the Board's offices in
Washington, DC, or via email.
(b) Processing the request--(1) Time limits. Within 20 working days
after a request for records is received, the Chief FOIA Officer shall
determine whether to comply with the request and immediately notify the
requester, unless an extension is taken under paragraph (b)(2) of this
section. The NMB may make one request for additional information from
the requester or clarify a fee issue with the requester and may toll the
20-day period while awaiting receipt of the additional information.
(2) Extension of time. In unusual circumstances as specified in this
paragraph, the Chief FOIA Officer may extend the time for initial
determination on requests up to a total of 10 days (excluding Saturdays,
Sundays, and legal public holidays). Extensions shall be made by written
notice to the requester within 20 working days of receipt of the request
and shall set forth the reason for the extension, provide the date on
which a determination is expected to be dispatched, and make available
the NMB's Public Liaison to assist with any disputes between the
requester and the NMB. Where the extension exceeds 10 working days, the
Chief FOIA Officer will notify the requester of the right to seek
dispute resolution services from the Office of Government Information
Services. As used in this paragraph ``unusual circumstances'' means, but
only to the
[[Page 22]]
extent necessary to the proper processing of the request:
(i) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(ii) The need for consultation, according to the procedures set
forth in paragraph (b)(4), with another agency having substantial
interest in the determination of the request.
(3) Expedited processing. The Chief FOIA Officer shall process a
request on an expedited basis whenever a requester demonstrates a
compelling need. A request for expedited processing may be made at any
time.
(i) For purposes of this section, ``compelling need'' means that a
failure to obtain the requested records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual or, with respect to a request made by a
person primarily engaged in disseminating information, urgency to inform
the public concerning actual or alleged Federal Government activity.
(ii) The Chief FOIA Officer shall make a determination of whether to
provide expedited processing, and notice of the determination shall be
provided to the person making the request, within 10 days after the date
of the request.
(4) Consultations and referrals. (i) When the NMB receives a request
for a record (or a portion thereof) in its possession that originated
with another federal agency, the Chief FOIA Officer shall refer the
request and record to that agency for direct response to the requester.
The Chief FOIA Officer will notify the requester of any referral and
provide the requester with the name and FOIA contact information of the
agency to which the request was referred.
(ii) In instances where a record is requested that originated with
the NMB and another federal agency has a significant interest in the
record (or a portion thereof), the NMB shall consult with that federal
agency before responding to a requester.
(iii) All consultations and referrals received by the NMB will
receive a tracking number and be processed according to the date that
the first agency received the request.
(5) Requests for business information provided to the NMB. Business
information is financial or commercial information obtained by the NMB
from a submitter that may be protected from disclosure under Exemption 4
of the FOIA, 5 U.S.C. 552(b)(4).
(i) When the NMB has reason to believe that requested information
may fall under Exemption 4, it will promptly provide written notice to
the submitter. The notice will either describe the requested business
information or include a copy of the requested records. The NMB shall
provide the submitter with seven days (excepting Saturdays, Sunday, and
legal public holidays) to provide a statement of any objection to
disclosure.
(ii) The NMB will consider the submitter's objections in deciding
whether to disclose business information. If the NMB decides to disclose
business information over such objection, it shall provide written
notice to the submitter of its reasons for not sustaining the
objections, a description of information to be disclosed, and the
disclosure date.
(iii) Whenever the NMB provides a submitter with notice and the
opportunity to object under paragraph (b)(5)(ii) of this section, it
shall also inform the requestor that the request is being processed
according to these provisions and there may be a subsequent delay in
processing.
(iv) A submitter of confidential business information must use good
faith efforts to designate any portion of its submission that it
considers to be protected from disclosure under Exemption 4. These
designations expire 10 years after the date of the submission unless the
submitter requests and provides justification for a longer designation
period.
(6) Response to requests. Within 20 days (excepting Saturdays,
Sunday, and legal public holidays) after the receipt of a request, the
requester shall be notified of the determination and the right to seek
assistance from the NMB's FOIA Public Liaison. If the request for
records is not granted in full, the final response letter shall also
include:
[[Page 23]]
(i) A reference to the specific exemption or exemptions under the
FOIA authorizing the withholding of the record or parts of the record
and a brief explanation of how the exemption applies to the record
withheld.
(ii) A statement that the denial may be appealed within 90 days by
writing to the Chairman, by emailing [email protected], or by writing to
National Mediation Board, 1301 K Street NW., Suite 250E, Washington, DC
20005, and that judicial review will thereafter be available in the
district in which the requester resides, or has his principal place of
business, or the district in which Agency records are situated, or the
District of Columbia.
(iii) A notification of the right to seek dispute resolution
services from the Office of Government Information Services.
(7) Treatment of delay as a denial. If no determination has been
dispatched at the end of the 20-day period, or the last extension
thereof, the requester may deem the request denied, and exercise a right
of appeal, in accordance with paragraph (c) of this section. When no
determination can be dispatched within the applicable time limit, the
Chief FOIA Officer shall continue to process the request and shall
inform the requester of the reason for the delay, the date on which a
determination may be expected to be dispatched, and of the right to
treat the delay as a denial and to appeal to the Chairman of the Board
in accordance with paragraph (c) of this section.
(c) Appeals to the Chairman of the Board. (1) When a request for
records has been denied in whole or in part by the Chief FOIA Officer or
other person authorized to deny requests, the requester may, within 90
days of its receipt, appeal the denial to the Chairman of the Board.
Appeals to the Chairman shall be in writing, addressed to the Chairman,
National Mediation Board, Washington, DC 20005 or emailed to
[email protected].
(2) The Chairman of the Board will act upon the appeal within 20
working days (excluding Saturdays, Sundays and legal public holidays) of
its receipt unless an extension is made under paragraph (c)(3) of this
section.
(3) In unusual circumstances as defined in paragraph (b)(2) of this
section, the time for action on an appeal may be extended up to 10 days
(excluding Saturdays, Sundays and legal public holidays). Written notice
of such extension shall be made prior to the expiration of the 20-day
response period, setting forth the reason for the extension and the date
on which a determination is expected to be dispatched.
(4) If no determination on the appeal has been dispatched at the end
of the 20-day period or the last extension thereof, the requester is
deemed to have exhausted administrative remedies, giving rise to a right
of review in a district court of the United States, as specified in 5
U.S.C. 552(a)(4). When no determination can be dispatched within the
applicable time limit, the appeal will nevertheless continue to be
processed; on expiration of the time limit the requester shall be
informed of the reason for the delay, of the date on which a
determination may be expected to be dispatched, and of a right to seek
judicial review in the United States district court in the district in
which they reside or have their principal place of business, the
district in which the Board records are situated or the District of
Columbia. The requester may be asked to forego judicial review until
determination of the appeal.
Sec. 1208.3 Proactive disclosure of information.
The NMB shall, in conformance with 5 U.S.C. 552(a)(2), maintain and
make available for public inspection, by posting on its Web site (unless
the Board determines by order published in the Federal Register that
such publication would be unnecessary or impracticable) the following
information: Final opinions, including concurring and dissenting
opinions made in representation cases; statements of policy and
interpretation made by the NMB but not published in the Federal
Register; administrative staff materials, such as the Representation
Manual; frequently requested materials, defined as those released in
response to a FOIA request and for which the Agency has received at
least three requests or those records that because of the nature of
their subject matter the Agency determines are
[[Page 24]]
likely to become the subject of subsequent requests; and a general index
of records available under this section.
Sec. 1208.4 Material relating to representation function.
(a) The documents constituting the record of a case, such as the
notices of hearing, motions, rulings, findings upon investigation,
determinations of craft or class, dismissals, withdrawals, and
certifications, are matters of official record and shall be made
available on the NMB's Web site.
(b) This part notwithstanding, the NMB will treat as confidential
evidence submitted in connection with the showing of interest in a
representation dispute, including authorization cards and signature
samples, and other personally identifying information received during an
investigation.
Sec. 1208.5 Material relating to mediation function.
All files, reports, letters, memoranda, and documents relating to
the mediation function of the NMB, with the exception of procedural or
administrative materials, such as applications, docket letters, or
public meeting notices, in the custody of the NMB or its employees
relating to or acquired in their mediatory capacity under the Railway
Labor Act are hereby declared to be confidential. No such confidential
documents or the material contained therein shall be disclosed to any
unauthorized person, or be taken or withdrawn, copied or removed from
the custody of the NMB or its employees by any person or by any agent of
such person or their representative without the explicit consent of the
NMB.
Sec. 1208.6 Fees under the Freedom of Information Act.
(a) In general. The NMB will charge for processing requests under
the FOIA in accordance with the provisions of this section and with
Office of Management and Budget Guidelines. For purposes of assessing
fees, the FOIA establishes three categories of requesters: Commercial
use requesters, non-commercial scientific or educational institutions or
news media requesters, and all other requesters. Different fees are
assessed depending on the category. Requesters may seek a fee waiver.
The NMB will consider requests for fee waivers in accordance with the
requirements in paragraph (k) of this section. To resolve any fee issues
that arise under this section, the NMB may contact a requester for
additional information. The NMB ordinarily will collect all applicable
fees before sending copies of records to a requester. Requesters must
pay fees by check or money order made payable to the United States
Treasury.
(b) Definitions. For purposes of this section:
Commercial use request is a request that asks for information for a
use or a purpose that furthers a commercial, trade, or profit interest,
which can include furthering those interests through litigation. An
agency's decision to place a requester in the commercial use category
will be made on a case-by-case basis based on the requester's intended
use of the information. The NMB will notify requesters of their
placement in this category.
Direct costs are those expenses that an agency incurs in searching
for and duplicating (and, in the case of commercial use requests,
reviewing) records in order to respond to a FOIA request. For example,
direct costs include the salary of the employee performing the work
(i.e., the basic rate of pay for the employee, plus 16 percent of that
rate to cover benefits) and the cost of operating computers and other
electronic equipment, such as photocopiers and scanners. Direct costs do
not include overhead expenses such as the costs of space, and of heating
or lighting a facility.
Duplication is reproducing a copy of a record, or of the information
contained in it, necessary to respond to a FOIA request. Copies can take
the form of paper, audiovisual materials, or electronic records, among
others.
Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with his or her role
[[Page 25]]
at the educational institution. Agencies may seek verification from the
requester that the request is in furtherance of scholarly research, and
agencies will advise requesters of their placement in this category.
Noncommercial scientific institution is an institution that is not
operated on a ``commercial'' basis, as defined in this paragraph (b) and
that is operated solely for the purpose of conducting scientific
research the results of which are not intended to promote any particular
product or industry. A requester in this category must show that the
request is authorized by and is made under the auspices of a qualifying
institution and that the records are sought to further scientific
research and are not for a commercial use. The NMB will advise
requesters of their placement in this category.
Representative of the news media is any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
Internet. A request for records supporting the news-dissemination
function of the requester will not be considered to be for a commercial
use. ``Freelance'' journalists who demonstrate a solid basis for
expecting publication through a news media entity will be considered as
a representative of the news media. A publishing contract would provide
the clearest evidence that publication is expected; however, agencies
can also consider a requester's past publication record in making this
determination. The NMB will advise requesters of their placement in this
category.
Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time spent
both obtaining and considering any formal objection to disclosure made
by a confidential business information submitter under Sec.
1208.2(b)(5), but it does not include time spent resolving general legal
or policy issues regarding the application of exemptions.
Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records and the
reasonable efforts expended to locate and retrieve information from
electronic records.
(c) Charging fees. In responding to FOIA requests, the NMB will
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided below already account for the direct costs associated with a
given fee type, the NMB will not add any additional costs to charges
calculated under this section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. The NMB will charge search fees
for all other requesters, subject to the restrictions of paragraph (d)
of this section. The NMB may properly charge for time spent searching
even if it does not locate any responsive records or determines that the
records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require new
programming, direct costs will be charged.
(iii) The NMB will also charge direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. The NMB will notify the
requester of the costs associated with creating such a program, and the
[[Page 26]]
requester must agree to pay the associated costs before the costs may be
incurred.
(2) Duplication. The NMB will charge duplication fees to all
requesters, subject to the restrictions of paragraph (d) of this
section. The NMB will honor a requester's preference for receiving a
record in a particular form or format where it can readily reproduce it
in the form or format requested. Where photocopies are supplied, the NMB
will provide one copy per request at the cost of 15 cents per page. For
copies of records produced on tapes, disks, or other media, the NMB will
charge the direct costs of producing the copy, including operator time.
Where paper documents must be scanned in order to comply with a
requester's preference to receive the records in an electronic format,
the requester must also pay the direct costs associated with scanning
those materials. For other forms of duplication, the NMB will charge the
direct costs.
(3) Review. The NMB will charge review fees to requesters who make
commercial use requests. Review fees will be assessed in connection with
the initial review of the record, i.e., the review conducted by the NMB
to determine whether an exemption applies to a particular record or
portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if a particular exemption is deemed to no longer apply,
any costs associated with the re-review of the records in order to
consider the use of other exemptions may be assessed as review fees.
Review fees will be charged at the same rates as those charged for a
search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) When the NMB determines that
a requester is an educational institution, non-commercial scientific
institution, or representative of the news media, and the records are
not sought for commercial use, it will not charge search fees.
(2)(i) If the NMB fails to comply with the time limits described in
section 1208.2(b)(1) in which to respond to a request, it may not charge
search fees, or, in the instances of requests from requesters described
in paragraph (d)(1) of this section, may not charge duplication fees,
except as described in paragraph (d)(2)(ii) through (iv) of this
section.
(ii) If the NMB has determined that unusual circumstances as defined
in section 1208.2(b)(2) apply and the NMB provided timely written notice
to the requester in accordance with that section, a failure to comply
with the time limit shall be excused for an additional 10 days.
(iii) If the NMB has determined that unusual circumstances apply and
more than 5,000 pages are necessary to respond to the request, the NMB
may charge search fees, or, in the case of requesters described in
paragraph (d)(1) of this section, may charge duplication fees, if the
following steps are taken. The NMB must have provided timely written
notice of unusual circumstances to the requester in accordance with the
FOIA and must have discussed with the requester via written mail, email,
or telephone (or made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request in
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is
satisfied, the NMB may charge all applicable fees incurred in the
processing of the request.
(iv) If a court has determined that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use, the
NMB will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.
(e) Notice of anticipated fees in excess of $25.00. (1) When the NMB
determines
[[Page 27]]
or estimates that the fees to be assessed in accordance with this
section will exceed $25.00, the Agency must notify the requester of the
actual or estimated amount of the fees, including a breakdown of the
fees for search, review or duplication, unless the requester has
indicated a willingness to pay fees as high as those anticipated. If
only a portion of the fee can be estimated readily, the NMB will advise
the requester accordingly. If the request is not for noncommercial use,
the notice will specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge and, if the
requester is charged search fees, two hours of search time at no charge,
and will advise the requester whether those entitlements have been
provided.
(2) If the NMB notifies the requester that the actual or estimated
fees are in excess of $25.00, the request will not be considered
received and further work will not be completed until the requester
commits in writing to pay the actual or estimated total fee, or
designates some amount of fees the requester is willing to pay, or in
the case of a noncommercial use requester who has not yet been provided
with the requester's statutory entitlements, designates that the
requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing, and must, when applicable, designate an exact dollar amount
the requester is willing to pay. The NMB is not required to accept
payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the NMB estimates that the total fee will
exceed that amount, it will toll the processing of the request when it
notifies the requester of the estimated fees in excess of the amount the
requester has indicated a willingness to pay. The NMB will inquire
whether the requester wishes to revise the amount of fees the requester
is willing to pay or modify the request. Once the requester responds,
the time to respond will resume from where it was at the date of the
notification.
(4) The NMB will make available its FOIA Public Liaison or other
FOIA professional to assist any requester in reformulating a request to
meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide
special services, if the NMB chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same document,
or sending records by means other than first class mail.
(g) Charging interest. The NMB may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the billing date until payment is
received by the Agency. The NMB will follow the provisions of the Debt
Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and
its administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset.
(h) Aggregating requests. When the NMB reasonably believes that a
requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, it may aggregate those requests and charge accordingly.
The NMB may presume that multiple requests of this type made within a
30-day period have been made in order to avoid fees. For requests
separated by a longer period, the NMB will aggregate them only where
there is a reasonable basis for determining that aggregation is
warranted in view of all the circumstances involved. Multiple requests
involving unrelated matters cannot be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) or (i)(3) of this section, the NMB will not require
the requester to make an advance payment before work is commenced or
continued on a request. Payment owed for work already completed (i.e.,
payment before copies are sent to a requester) is not an advance
payment.
[[Page 28]]
(2) When the NMB determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. The NMB may
elect to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee within 30 calendar days of the billing date, the NMB
may require that the requester pay the full amount due, plus any
applicable interest on that prior request, and it may require that the
requester make an advance payment of the full amount of any anticipated
fee before beginning to process a new request or continuing to process a
pending request or any pending appeal. Where the NMB has a reasonable
basis to believe that a requester has misrepresented the requester's
identity in order to avoid paying outstanding fees, it may require that
the requester provide proof of identity.
(4) In cases in which the NMB requires advance payment, the request
will not be considered received and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within 30 calendar days after the date of the fee
determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires the NMB to set and collect fees for particular
types of records. In instances where records responsive to a request are
subject to a statutorily-based fee schedule program, the NMB must inform
the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters may
seek a waiver of fees by submitting a written application demonstrating
how disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(2) The NMB will furnish records responsive to a request without
charge or at a reduced rate when it determines, based on all available
information, that the factors described in paragraphs (k)(2)(i) through
(iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information is likely to contribute
significantly to public understanding of those operations or activities.
This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure of
information that already is in the public domain, in either the same or
a substantially identical form, would not be meaningfully informative if
nothing new would be added to the public's understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. Agencies will presume that a representative of the news
media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, agencies will consider the following criteria:
(A) The NMB will identify whether the requester has any commercial
interest that would be furthered by the requested disclosure. A
commercial interest includes any commercial, trade, or profit interest.
Requesters must be
[[Page 29]]
given an opportunity to provide explanatory information regarding this
consideration.
(B) If there is an identified commercial interest, the NMB must
determine whether that is the primary interest furthered by the request.
A waiver or reduction of fees is justified when the requirements of
paragraphs (k)(2)(i) and (ii) of this section are satisfied and any
commercial interest is not the primary interest furthered by the
request. The NMB will presume that when a news media requester has
satisfied the factors in paragraphs (k)(2)(i) and (ii) of this section,
the request is not primarily in the commercial interest of the
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return will not be
presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver will be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted and should address the criteria
referenced above. A requester may submit a fee waiver request at a later
time so long as the underlying record request is pending or on
administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester must pay any costs incurred up to the date the fee waiver
request was received.
Sec. 1208.7 Subpoenas and other requests for testimony and production of
documents in legal proceedings where the NMB is not a party.
(a) In legal proceedings between private litigants, a subpoena or
other demand for the production of records held by the Agency or for
oral or written testimony of a current or former NMB employee should be
addressed to the General Counsel, National Mediation Board, 1301 K
Street NW., Suite 250E, Washington, DC 20005. No other official or
employee of the NMB is authorized to accept service of a demand or
subpoena on behalf of the Agency.
(b) No current or former employee may produce official records or
information or provide testimony in response to a demand or subpoena
unless authorized by the General Counsel.
(c) The General Counsel may grant an employee permission to testify
or produce official records or information in response to a demand or
subpoena. In making this determination, the General Counsel shall
consider whether:
(1) Release of the requested records or testimony is prohibited
under Sec. 1208.5;
(2) The disclosure is appropriate under the rules of procedure
governing the case or matter;
(3) The requested testimony or records are privileged under the
relevant substantive law concerning privilege;
(4) Disclosure would violate a statute or regulation;
(5) Disclosure would reveal trade secrets without the owner's
consent; and
(6) Allowing testimony or production of records would be in the best
interest of the NMB or the United States.
PART 1209_PUBLIC OBSERVATION OF NATIONAL MEDIATION BOARD
MEETINGS--Table of Contents
Sec.
1209.01 Scope and purpose.
1209.02 Definitions.
1209.03 Conduct of National Mediation Board business.
1209.04 Open meetings.
1209.05 Closing of meetings; reasons therefor.
1209.06 Action necessary to close meetings; record of votes.
1209.07 Notice of meetings; public announcement and publication.
1209.08 Transcripts, recordings or minutes of closed meetings;
retention; public availability.
1209.09 Requests for records under Freedom of Information Act.
1209.10 Capacity of public observers.
Authority: 5 U.S.C. 552(b)(g).
Source: 42 FR 60739, Nov. 29, 1977, unless otherwise noted.
Sec. 1209.01 Scope and purpose.
(a) The provisions of this part are intended to implement the
requirements of section 3(a) of the Government in the Sunshine Act, 5
U.S.C. 552b.
[[Page 30]]
(b) It is the policy of the National Mediation Board that the public
is entitled to the fullest practicable information regarding its
decisionmaking processes. It is the purpose of this part to provide the
public with such information while protecting the rights of individuals
and the ability of the agency to carry out its responsibilities.
Sec. 1209.02 Definitions.
For purposes of this part:
(a) The terms Board or Agency mean the National Mediation Board, a
collegial body composed of three members appointed by the President with
the advice and consent of the Senate.
(b) The term meeting means the deliberations of at least two members
of the Board where such deliberations determine or result in the joint
conduct or disposition of official agency business, but does not include
deliberations required or permitted or with respect to any information
proposed to be withheld under by 5 U.S.C. 552b(d) or (e)/5 U.S.C.
552b(c).
Sec. 1209.03 Conduct of National Mediation Board business.
Members shall not jointly conduct or dispose of agency business
other than in accordance with this part.
Sec. 1209.04 Open meetings.
Every portion of every Board meeting shall be open to public
observation except as otherwise provided by Sec. 1209.05 of this part.
Sec. 1209.05 Closing of meetings; reasons therefor.
(a) Except where the Board determines that the public interest
requires otherwise, meetings, or portions thereof, shall not be open to
public observation where the deliberations concern the issuance of a
subponea, the Board's participation in a civil action or proceeding or
an arbitration, or the initiation, conduct or disposition by the Board
of any matter involving a determination on the record after opportunity
for a hearing, or any court proceeding collateral or ancillary thereto.
(b) Except where the Board determines that the public interest
requires otherwise, the Board also may close meetings, or portions
thereof, when the deliberations concern matters or information falling
within the scope of 5 U.S.C. 552b (c)(1) (secret matters concerning
national defense or foreign policy); (c)(2) (internal personnel rules
and practices); (c)(3) (matters specifically exempted from disclosure by
statute); (c)(4) (trade secrets and commercial or financial information
obtained from a person and privileged or confidential); (c)(5) (matters
of alleged criminal conduct or formal censure); (c)(6) (personal
information where disclosure would cause a clearly unwarranted invasion
of personal privacy); (c)(7) (certain materials or information from
investigatory files compiled for law enforcement purposes); or (c)(9)(B)
(disclosure would significantly frustrate implementation of a proposed
agency action).
Sec. 1209.06 Action necessary to close meetings; record of votes.
A meeting shall be closed to public observation under Sec. 1209.05,
only when a majority of the members of the Board who will participate in
the meeting vote to take such action.
(a) When the meeting deliberations concern matters specified in
Sec. 1209.05(a), the Board members shall vote at the beginning of the
meeting, or portion thereof, on whether to close such meeting, or
portion thereof, to public observation, and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation A record of such vote,
reflecting the vote of each member of the Board, shall be kept and made
available to the public at the earliest practicable time.
(b) When the meeting deliberations concerns matters specified in
Sec. 1209.05(b), the Board shall vote on whether to close such meeting,
or portion thereof, to public ovservation, and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation. The vote shall be taken at a
time sufficient to permit inclusion of information concerning the open
or closed status of the meeting in the public announcement thereof. A
single vote may be taken with respect to a series of meetings at which
the deliberations will concern the same particular matters where
subsequent
[[Page 31]]
meetings in the series are scheduled to be held within one day after the
vote is taken.
(c) Whenever any person whose interests may be directly affected by
deliberations during a meeting, or a portion thereof, requests that the
Board close that meeting, or portion thereof, to public observation for
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged
criminal conduct or formal censure), (c)(6) (personal information where
disclosure would cause a clearly unwarranted invasion of personal
privacy), or (c)(7) (certain materials or information from investigatory
files compiled for law enforcement purposes), the Board members
participating in the meeting upon request of any one member of the
Board, shall vote on whether to close such meeting, or any portion
thereof, for that reason. A record of such vote, reflecting the vote of
each member of the Board participating in the meeting, shall be kept and
made available to the public within one day after the vote is taken.
(d) After public announcement of a meeting as provided in Sec.
1209.07 of this part, a meeting, or portion thereof, announced as closed
may be opened or a meeting, or portion thereof, announced as open may be
closed, only if a majority of the members of the Board who will
participate in the meeting determine by a recorded vote that Board
business so requires and that an earlier announcement of the change was
not possible. The change made and the vote of each member on the change
shall be announced publicly at the earliest practicable time.
(e) Before a meeting may be closed pursuant to Sec. 1209.05 the
General Counsel of the Board shall certify that in his or her opinion
the meeting may properly be closed to public observation. The
certification shall set forth each applicable exemptive provision for
such closing. The certification shall be retained by the agency and made
publicly available as soon as practicable.
Sec. 1209.07 Notice of meetings; public announcement and publication.
(a) A public announcement setting forth the time, place and subject
matter of meetings or portions thereof closed to public observation
pursuant to the provisions of Sec. 1209.05(a) of this part, shall be
made at the earaliest practicable time.
(b) Except for meetings closed to public observation pursuant to the
provisions of Sec. 1209.05(a) of this part, the agency shall make
public announcement of each meeting at least 7 days before the scheduled
date of the meeting. The announcement shall specify the time, place and
subject matter of the meeting, whether it is to be open to public
observation or closed, and the name, address and phone number of an
agency official designated to respond to requests for information about
the meeting. The 7 day period for advance notice may be shortened only
upon a determination by a majority of the members of the Board who will
participate in the meeting that agency business requires that such
meeting be called at an earlier date, in which event the public
announcement shall be made at the earliest practicable time. A record of
the vote to schedule a meeting at an earlier date shall be kept and made
available to the public.
(c) Within one day after a vote to close a meeting, or any portion
thereof, pursuant to the provisions of Sec. 1209.05(b) of this part,
the agency shall make publicly available a full written explanation of
its action closing the meeting, or portion thereof, together with a list
of all persons expected to attend the meeting and their affiliation.
(d) If after a public announcement required by paragraph (b) of this
section has been made, the time and place of the meeting are changed, a
public announcement of such changes shall be made at the earliest
practicable time. The subject matter of the meeting may be changed after
public annmouncment thereof only if a majority of the members of the
Board who will participate in the meeting determine that agency business
so requires and that no earlier announcement of the change was possible.
When such a change in subject matter is approved a public announcement
of the change shall be made at the earliest practicable time. A record
of the vote to change the subject matter of the meeting shall be kept
and made available to the public.
[[Page 32]]
(e) All announcements or changes thereof issued pursuant to the
provisions of paragraphs (b) and (d) of this section, or pursuant to the
provisions of Sec. 1209.06(d), shall be submitted for publication in
the Federal Register immediately following their release to the public.
(f) Announcement of meeting made pursuant to the provisions of this
section shall be posted on a bulletin board maintained for such purpose
at the Board's offices, 1425 K Street, NW., Washington, DC. Interested
individuals or organizations may request the Chief of Staff, National
Mediation Board, Washington, DC 20572 to place them on a mailing list
for receipt of such announcements.
[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]
Sec. 1209.08 Transcripts, recordings or minutes of closed meetings;
retention; public availability.
(a) For every meeting or portion thereof closed under the provisions
of Sec. 1209.05, the presiding officer shall prepare a statement
setting forth the time and place of the meeting and the persons present,
which statement shall be retained by the agency. For each such meeting
or portion thereof there also shall be maintained a complete transcript
or electronic recording of the proceedings, except that for meetings
closed pursuant to Sec. 1209.05(a) the Board may, in lieu of a
transcript or electronic recording, maintain a set of minutes fully and
accurately summarizing any action taken, the reason therefor and views
thereof, documents considered, and the members' vote on each roll call
vote.
(b) The agency shall maintain a complete verbatim transcript, a
complete electronic recording, or a complete set of minutes for each
meeting or portion thereof closed to public observation, for a period of
at least one year after the close of the agency proceeding of which the
meeting was a part, but in no event for a period of less than two years
after such meeting.
(c) The agency shall make promptly available to the public copies of
transcripts, electronic recordings or minutes maintained as provided in
paragraphs (a) and (b) of this section, except to the extent the items
therein contain information which the agency determines may be withheld
pursuant to the provisions of 5 U.S.C. 552b(c).
(d) Upon request in accordance with the provisions of this paragraph
and except to the extent they contain information which the agency
determines may be withheld pursuant to the provisions of 5 U.S.C.
552b(c), copies of transcripts or minutes, or transcriptions of
electronic recordings including the identification of speakers, shall be
furnished subject to the payment of duplication costs in accordance with
the schedule of fees set forth in Sec. 1208.06 of the Board's Rules,
and the actual cost of transcription. Requests for copies of transcripts
or minutes, or transcriptions of electronic recordings of Board meetings
shall be directed to the Chief of Staff, National Mediation Board,
Washington, DC 20572. Such requests shall reasonably identify the
records sought and include a statement that whatever costs are involved
in furnishing the records will be acceptable or, alternatively, that
costs will be acceptable up to a specified amount. The Board may
determine to require prepayment of such costs.
[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]
Sec. 1209.09 Requests for records under Freedom of Information Act.
Requests to review or obtain copies of agency records other than
notices or records prepared under this part may be pursued in accordance
with the Freedom of Information Act (5 U.S.C. 552). Part 1208 of the
Board's Rules addresses the requisite procedures under that Act.
Sec. 1209.10 Capacity of public observers.
The public may attend open Board meetings for the sole purpose of
observation. Observers may not participate in meetings unless expressly
invited or otherwise interfere with the conduct and disposition of
agency business. When a portion of a meeting is closed to the public,
observers will leave the meeting room upon request to enable discussion
of the exempt matter therein under consideration.
PARTS 1210 1299 [RESERVED]
[[Page 33]]
CHAPTER XII--FEDERAL MEDIATION AND CONCILIATION SERVICE
--------------------------------------------------------------------
Part Page
1400 Standards of conduct, responsibilities, and
discipline.............................. 35
1401 Public information.......................... 37
1402 Procedures of the Service................... 49
1403 Functions and duties........................ 50
1404 Arbitration services........................ 51
1405 Part-time employment........................ 58
1410 Privacy..................................... 60
1420 Federal Mediation and Conciliation Service--
assistance in the health care industry.. 63
1425 Mediation assistance in the Federal Service. 66
1430 Federal Mediation and Conciliation Service
advisory committees..................... 69
1440 Arbitration of pesticide data disputes...... 73
1450 Collections of claims owed the United States 81
1470 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 94
1471 Governmentwide debarment and suspension
(nonprocurement)........................ 122
1472 Governmentwide requirements for drug-free
workplace (financial assistance)........ 144
1473-1499
[Reserved]
[[Page 35]]
PART 1400_STANDARDS OF CONDUCT, RESPONSIBILITIES, AND
DISCIPLINE--Table of Contents
Subpart A_General
Sec.
1400.735-3 Advice and counseling service.
Subpart B_Employees: Ethical and Other Conduct and Responsibilities
1400.735-19 Influencing Members of Congress.
1400.735-20 Code of Professional Conduct for FMCS Mediators.
1400.735-21 Miscellaneous statutory provisions.
Subpart F_Disciplinary Actions and Penalties
1400.735-60 Disciplinary actions.
1400.735-61 Notice to and appeal of employee.
Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104.
Source: 33 FR 5765, Apr. 13, 1968, unless otherwise noted.
Subpart A_General
Sec. 1400.735-3 Advice and counseling service.
The Director will designate a counselor for the Service on all
matters relating to the conduct and responsibilities of employees, and
special Government employees, under the Executive order. The counselor
is responsible for providing individual employees with interpretations
on questions of conflicts of interest, and other matters covered by this
part. (Due to the small size of the Federal Mediation and Conciliation
Service, it is unrealistic to designate deputy counselors, and
therefore, all questions concerning matters covered in this part should
be directed to the one counselor appointed by the Director.)
Subpart B_Employees: Ethical and Other Conduct and Responsibilities
Sec. 1400.735-19 Influencing Members of Congress.
No money appropriated to the Service shall be used by any employee
of the Service to pay for any personal service, printed or written
matter, or other devices intended to influence any Member of Congress
regarding any legislation or appropriation before the Congress.
Sec. 1400.735-20 Code of Professional Conduct for FMCS Mediators.
The Federal Mediation and Conciliation Service has a Code of
Professional Conduct for FMCS Mediators. Mediators in the Federal
Mediation and Conciliation Service are required to conduct themselves in
accordance with the responsibilities outlined therein.
[88 FR 4728, Jan. 25, 2023]
Sec. 1400.735-21 Miscellaneous statutory provisions.
Each employee shall acquaint himself with the statutes that relate
to his ethical and other conduct as an employee of the Federal Mediation
and Conciliation Service and of the Government. The attention of all
employees is directed to the following statutory provisions and to the
accompanying chart of penalties and statutory references:
(a) House Concurrent Resolution 175, 85th Congress, 2d session, 72
Stat. B12, the ``Code of Ethics for Government Service.''
(b) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(e) The prohibition against the employment of a member of a
Communist organization (50 U.S.C. 784).
(f) The prohibitions against (1) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of
confidential information (18 U.S.C. 1905).
(g) The provisions relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a (c)).
[[Page 36]]
(i) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination of
personnel action in connection with Government employment (18 U.S.C.
1917).
(k) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(n) The prohibitions against (1) embezzlement of Government money or
property (18 U.S.C. 641); (2) failing to account for public money (18
U.S.C. 643); and (3) embezzlement of the money or property of another
person in the possession of an employee by reason of his employment (18
U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in subchapter III
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(q) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(r) Penalties: The following table, copied from the Federal
Personnel Manual, lists maximum penalties for some of the more serious
offenses.
------------------------------------------------------------------------
Statute and
Prohibition United States Maximum penalty
Code
------------------------------------------------------------------------
A-1. Gifts to official 5 U.S.C. 7351.... Removal.
superiors.
A-2. Conflicts of interest:
a. Receiving compensation in 18 U.S.C. 203.... $10,000 fine; 2 years
relation to claims imprisonment or
contracts, etc. both; and removal.
b. Prosecuting claims 18 U.S.C. 205.... $10,000 fine; 2 years
against and other matters imprisonment or
affecting the Government. both.
c. Prosecuting claims 18 U.S.C. 207.... $10,000 fine; 2 years
involving matters connected imprisonment or
with former duties-- both.
disqualification of
partners.
d. Interested persons acting 18 U.S.C. 208.... $10,000 fine; 2 years
as Government agents. imprisonment or
both.
e. Salaries from other than 18 U.S.C. 209.... $5,000 fine; 1 year
Government sources. imprisonment or
both.
A-3. Lobbying with 18 U.S.C. 1913... $500 fine; 1 year
appropriated funds. imprisonment or
both; and removal.
A-4. Denial of rights to 5 U.S.C. 7102.... No specific penalty
petition Congress. provided.
A-5. Failure to make return or 18 U.S.C. 2075... $1,000 fine.
report.
A-6. Disloyalty and striking.. 5 U.S.C. 7311; 18 $1,000 fine, 1 year
U.S.C. 1918. and a day
imprisonment or
both; and removal.
A-7. Employment of member of 50 U.S.C. 784 et $10,000 fine; 5 years
proscribed communist seq. imprisonment or
organization. both; and removal.
A-8. Disclosure of classified 18 U.S.C. 798; 50 $10,000 fine; 10
information. U.S.C. 783. years imprisonment
or both; and
removal.
A-9. Disclosure of 18 U.S.C. 1905... $1,000 fine; 1 year
confidential information. imprisonment or
both; and removal.
A-10. Habitual use of 5 U.S.C. 7352.... Removal.
intoxicants to excess.
A-11. Misuse of Government 31 U.S.C. 638a(c) Removal.
vehicles.
A-12. Misuse of franking 18 U.S.C. 1719... $300 fine.
privilege.
A-13. Deceit in examinations 5 U.S.C. 1917.... $1,000 fine; 1 year
and personnel actions. imprisonment or
both.
A-14. Fraud and false 18 U.S.C. 1001... $10,000 fine; 5 years
statements. imprisonment or
both.
A-15. Unlawful mutilating or 18 U.S.C. 2071(b) $2,000 fine; 3 years
destroying public records. imprisonment or
both; and removal.
A-16. Bribery and graft:
a. Bribery of public 18 U.S.C. 201.... $20,000 fine or three
officials. times the money or
thing received,
whichever is
greater; 15 years
imprisonment or
both; and removal.
b. Acceptance or 18 U.S.C. 211.... $1,000 fine; 1 year
solicitation to obtain imprisonment or
appointive office. both.
A-17. Counterfeiting and 18 U.S.C. 508.... $5,000 fine; 10 years
forgery of transportation imprisonment or
requests. both.
A-18. Embezzlement and theft:
a. Taking money, property, 18 U.S.C. 641.... $10,000 fine; 10
or records. years imprisonment
or both.
b. Failure to render 18 U.S.C. 643.... Fine equal to amount
accounts for public money. embezzled;
imprisonment not
more than 10 years
or both.
c. Wrongfully converting 18 U.S.C. 654.... Same as penalty
property of another. immediately above.
[[Page 37]]
A-19. Taking or using papers 18 U.S.C. 285.... $5,000 fine; 5 years
related to claims. imprisonment or
both.
------------------------------------------------------------------------
Subpart F_Disciplinary Actions and Penalties
Sec. 1400.735-60 Disciplinary actions.
The Service shall take prompt disciplinary action against an
employee committing prohibited activity, or whose conduct is prejudicial
to the best interests of the Service, or of a nature to bring discredit
to it. There are four major types of disciplinary action possible,
following the above proceedings.
(a) Reprimand. An official reprimand usually shall be issued to an
employee or special Government employee for a first offense which is not
serious.
(b) Suspension. Under Civil Service and Federal Mediation and
Conciliation Service regulations, an employee or special Government
employee may be suspended without pay during the course of an
investigation of alleged criminal, infamous, dishonest, immoral, or
notoriously disgraceful conduct. Also, an employee may be suspended
without pay for a definite period of time because of some offense of a
less serious nature for which more drastic action is not justified.
(c) Demotion. When such action will ``promote the efficiency of the
Service,'' an employee or special Government employee may be demoted
because of some offense for which more drastic action is not justified.
(d) Separation. The Service is responsible for the prompt dismissal
of unsatisfactory, incompetent, or unfit employees. Separation
(dismissal or removal) can be the penalty for a single breach of conduct
that is extremely serious in nature.
Sec. 1400.735-61 Notice to and appeal of employee.
The Director of Administrative Management will prepare charges and
institute proceedings, which in all cases will be in accordance with
Civil Service procedures for disciplinary actions against status
employees. Such proceedings will include notification to the employee of
his appeal rights.
PART 1401_PUBLIC INFORMATION--Table of Contents
Subpart A_Information in Response to Subpoenas
Sec.
1401.1 Purpose and scope.
1401.2 Productions of records or testimony by FMCS employees.
1401.3 Procedure in the event of a demand for production, disclosure, or
testimony.
Subpart B_Production or Disclosure of Information
1401.20 Purpose and scope.
1401.21 Proactive disclosures and other disclosure requirements.
1401.22 Requirements for making requests.
1401.23 Responsibility for responding to requests.
1401.24 Timing of responses to requests.
1401.25 Responses to requests.
1401.26 Confidential commercial information (``CCI'').
1401.27 Appeals.
1401.28 Preservation of records.
1401.29 Fees.
1401.30 Other rights and services.
Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.
Source: 40 FR 8169, Feb. 26, 1975, unless otherwise noted.
Subpart A_Information in Response to Subpoenas
Sec. 1401.1 Purpose and scope.
This subpart contains the regulations of the Service concerning
procedures to be followed when a subpoena, order, or other demand of a
court or other authority is issued for the production or disclosure of
(a) any material contained in the files of the Service; (b) any
information relating to material contained in the files of the Service;
or (c) any information or material acquired by any person as a part of
the performance of his official duties or because of his official
status, while such person was an employee of the Service.
[[Page 38]]
Sec. 1401.2 Production of records or testimony by FMCS employees.
(a) Public policy and the successful effectuation of the Federal
Mediation and Conciliation Service's mission require that commissioners
and employees maintain a reputation for impartiality and integrity.
Labor and management or other interested parties participating in
mediation efforts must have the assurance and confidence that
information disclosed to commissioners and other employees of the
Service will not subsequently be divulged, voluntarily or because of
compulsion, unless authorized by the Director of the Service.
(b) No officer, employee, or other person officially connected in
any capacity with the Service, currently or formerly shall, in response
to a subpoena, subpoena duces tecum, or other judicial or administrative
order, produce any material contained in the files of the Service,
disclose any information acquired as part of the performance of his
official duties or because of his official status, or testify on behalf
of any party to any matter pending in any judicial, arbitral or
administrative proceeding, without the prior approval of the Director.
Sec. 1401.3 Procedure in the event of a demand for production,
disclosure, or testimony.
(a) Any request for records of the Service, whether it be by letter,
by subpoena duces tecum or by any other written demand, shall be handled
pursuant to the procedures established in subpart B of this part, and
shall comply with the rules governing public disclosure.
(b) Whenever any subpoena or subpoena duces tecum calling for
production of records or testimony as described above shall have been
served upon any officer, employee or other person as noted in Sec.
1401.2(b), he will, unless notified otherwise appear in answer thereto,
and unless otherwise expressly directed by the Director, respectfully
decline to produce or present such records or to give such testimony, by
reason of the prohibitions of this section, and shall state that the
production of the record(s) involved will be handled by the procedures
established in this part.
Subpart B_Production or Disclosure of Information
Source: 86 FR 53543, Sept. 28, 2021, unless otherwise noted.
Sec. 1401.20 Purpose and scope.
This subpart contains the rules that the Federal Mediation and
Conciliation Service (``FMCS'' or ``the Agency'') follows in processing
requests for records under the Freedom of Information Act (``FOIA''), 5
U.S.C. 552. The regulations in this subpart should be read in
conjunction with the text of the FOIA and the Uniform Freedom of
Information Act Fee Schedule and Guidelines published by the Office of
Management and Budget (``OMB Guidelines''). Requests made by individuals
for records about themselves under the Privacy Act of 1974, 5 U.S.C.
552a, are processed in accordance with Privacy Act criteria as well as
under this subpart.
Sec. 1401.21 Proactive disclosures and other disclosure requirements.
(a) The FMCS will make available for public inspection in an
electronic format on the Agency's website any record that has been
requested 3 or more times. The Agency has a FOIA Public Liaison who can
assist individuals in locating records particular to an agency. The FMCS
FOIA Public Liaison's contact information is available on the FMCS FOIA
web page (www.fmcs.gov/foia).
(b) The FMCS will withhold information under FOIA only if the Agency
``reasonably foresees'' that disclosure would harm an interest protected
by an exemption or as otherwise allowed by law.
(c) Partial disclosures are appropriate for use by the FMCS when
full disclosure is inappropriate or impossible. If a record contains
both disclosable and exempt information, the exempt information will be
redacted and the remaining record will be disclosed unless the two are
so inextricably intertwined that it is not possible to separate them.
Records disclosed in part shall be marked or annotated to show both the
amount and the
[[Page 39]]
location of the information redacted and the applicable exemption.
(d) All existing FMCS records are subject to disposition according
to Agency record retention schedules and the General Records Schedules
promulgated by the National Archives and Records Administration.
Sec. 1401.22 Requirements for making requests.
(a) General information. (1) A requester can submit requests through
one of the following ways: Submitting a request through the public
portal on the FMCS FOIA website; sending an electronic request to the
Office of General Counsel, [email protected]; or writing directly to the
FMCS FOIA office at 250 E Street SW, Washington, DC 20427. Any
additional requirements for submitting a request to the Agency are
listed in paragraphs (a)(2) and (3) of this section and in the submitted
form available by selecting ``FOIA'' at the bottom of the FMCS website
www.fmcs.gov/foia.
(2) A requester who is making a request for records about the
requester must comply with the verification of identity requirements as
determined by the FMCS to include providing documentation and completing
a verification of identity form.
(3) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or by
submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, the Agency can require a requester to supply additional
information, if necessary, to verify that a particular individual has
consented to disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable agency personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may help the Agency
identify the requested records, such as the date, title or name, author,
recipient, subject matter of the record, case number, file designation,
or reference number. Before submitting requests, requesters may contact
the Agency's FOIA Public Liaison, as identified at www.fmcs.gov/foia, to
discuss the records they seek and to receive assistance in describing
the records. If after receiving a request the FMCS determines that it
does not reasonably describe the records sought, the FMCS will inform
the requester what additional information is needed or why the request
is otherwise insufficient. If a request does not reasonably describe the
records sought, the FMCS's response to the request may be delayed.
(c) Format for requests. Requests may specify the preferred form or
format (including electronic formats) for the records. The FMCS will
accommodate the request if the record is readily reproducible in that
form or format.
(d) Content of requests. Requesters must provide contact
information, such as their full name, organization, phone number, email
address, and/or mailing address, to assist the Agency in communicating
with them and providing released records.
Sec. 1401.23 Responsibility for responding to requests.
(a) In general. Where the FMCS first receives a request for a record
and maintains that record, it is responsible for responding to the
request. In determining which records are responsive to a request, the
Agency ordinarily will include only records in its possession as of the
date that it begins its search. If any other date is used, the Agency
must inform the requester of that date. If the FMCS uses any other date
due to needing to clarify the request or obtain a fee agreement, it must
inform the requester of that date. A record that is excluded from the
requirements of the FOIA, pursuant to 5 U.S.C. 552(c), is not considered
responsive to a request.
(b) Authority to grant or deny requests. The Director of FMCS or
designee is authorized to grant or to deny any requests for records that
are maintained by the Agency.
[[Page 40]]
(c) Consultation, referral, and coordination. When reviewing records
in response to a request, the Agency will determine whether another
agency of the Federal Government is better able to determine whether the
record is exempt from disclosure under the FOIA. As to any such record,
the Agency must proceed in one of the following ways:
(1) Consultation. When records originated with the agency processing
the request but contain information of interest to another agency or
other Federal Government office, the FMCS will generally consult with
that other entity prior to making a release determination.
(2) Referral. (i) Ordinarily, when the FMCS is the originating
agency, it is presumed to be in the best position to make the disclosure
determination. When the FMCS believes that a different agency is best
able to determine whether to disclose the record, the FMCS typically
will request the other agency make the final response to the requester.
(ii) Whenever the FMCS refers any part of the responsibility for
responding to a request to another agency, it will document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral, informing the requester of the name(s) of the
agency to which the record was referred, including that agency's FOIA
contact information.
(3) Coordination. The standard referral procedure in paragraph
(c)(2) of this section will not be followed where disclosure of the
identity of the agency to which the referral would be made could harm an
interest protected by an applicable exemption, such as the exemptions
that protect personal privacy or national security interests. In such
instances, FMCS would coordinate with the originating agency to seek its
views on whether the records should be exempt from disclosure. FMCS will
issue the final response to the requester.
(d) Classified information. On receipt of any request involving
classified information, the FMCS will determine whether the information
is currently and properly classified in accordance with applicable
classification rules. Whenever a request involves a record containing
information that has been classified or may be appropriate for
classification by another agency under any applicable executive order
concerning the classification of records, FMCS must refer the
responsibility for responding to the request regarding that information
to the agency that classified the information, or that should consider
the information for classification. Whenever the FMCS's record contains
information that has been derivatively classified (for example, when it
contains information classified by another agency), the FMCS must refer
the responsibility for responding to that portion of the request to the
agency that classified the underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the FMCS will be handled
according to the date that the first agency received the perfected FOIA
request.
Sec. 1401.24 Timing of responses to requests.
(a) In general. The FMCS ordinarily will respond to requests
according to their order of receipt. A request may be made directly to
the FMCS by referring to procedures described on www.fmcs.gov or by
email to [email protected].
(b) Timing of response. The obligation to respond to a request for
records arises on the first business day when the request is received by
the Office of General Counsel.
(c) Multi-track processing. FMCS designates a specific track for
requests that are granted expedited processing, in accordance with the
standards set forth in paragraph (e) of this section. FMCS may also
designate additional processing tracks that distinguish between simple
and more complex requests based on the estimated amount of work or time
needed to process the request. Among the factors an agency may consider
are the number of records requested, the number of pages involved in
processing the request, and the need for consultations or referrals.
FMCS must advise requesters of the track into which their request falls
and, when appropriate, should offer the
[[Page 41]]
requesters an opportunity to narrow or modify their request so that it
can be placed in a different processing track.
(d) Unusual circumstances. Whenever the FMCS cannot meet the
statutory time limit for processing a request because of ``unusual
circumstances,'' as defined in the FOIA, and the FMCS extends the time
limit on that basis, the FMCS must, before expiration of the 20-day
response period, notify the requester in writing of the unusual
circumstances involved and of the date by which the Agency estimates it
will complete processing of the request. Where the extension exceeds 10
working days, the FMCS will provide the requester with an opportunity to
modify the request or arrange an alternative time period for processing
the original or modified request. The FMCS will make available its
designated FOIA contact or its FOIA Public Liaison for this purpose. The
name and contact information for the FMCS's FOIA Public Liaison is
available at www.fmcs.gov by selecting FOIA at the bottom of the screen.
FMCS will also alert requesters to the availability of the Office of
Government Information Services to provide dispute resolution services.
Whenever the FMCS extends the time limits by more than ten additional
working days, the FMCS must notify the requester of the right to seek
dispute resolution services from the Office of the Government
Information Services (OGIS).
(e) Aggregating requests. To satisfy unusual circumstances under the
FOIA, agencies may aggregate requests in cases where it reasonably
appears that multiple requests, submitted either by a requester or by a
group of requesters acting in concert, constitute a single request that
would otherwise involve unusual circumstances. Agencies cannot aggregate
multiple requests that involve unrelated matters.
(f) Expedited processing. (1) The Agency will process requests and
appeals on an expedited basis whenever it is determined that they
involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information.
(2) A request for expedited processing may be made at any time. When
making a request for expedited processing of an administrative appeal,
the request should be submitted to the FMCS's Office of the Director via
[email protected] or through the online portal located at www.fmcs.gov/foia.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (c) of this section, a requester who is not a full-time
member of the news media must establish that the requester is a person
whose primary professional activity or occupation is information
dissemination, though it need not be the requester's sole occupation.
Such a requester also must establish a particular urgency to inform the
public about the government activity involved in the request--one that
extends beyond the public's right to know about government activity
generally. The existence of numerous articles published on a given
subject can be helpful in establishing the requirement that there be an
``urgency to inform'' the public on the topic. As a matter of
administrative discretion, the FMCS may waive the formal certification
requirement in this paragraph (f)(3).
(4) The FMCS must notify the requester within 10 calendar days of
the receipt of a request for expedited processing of its decision
whether to grant or deny expedited processing. If expedited processing
is granted, the request must be given priority, placed in the processing
track for expedited requests, and must be processed as soon as
practicable. If a request for expedited processing is denied, the FMCS
must act on any appeal of that decision expeditiously.
Sec. 1401.25 Responses to requests.
(a) In general. To the extent practicable, the FMCS will communicate
electronically with requesters.
[[Page 42]]
(b) Acknowledgments of requests. The FMCS will acknowledge a request
in writing and assign it an individualized tracking number if it will
take longer than 10 working days to process.
(c) Estimated dates of completion and interim responses. Upon
request, the Agency will provide an estimated date by which it expects
to provide a response to the requester. If a request involves a
voluminous amount of material, or searches in multiple locations, the
FMCS may provide interim responses, releasing the records on a rolling
basis.
(d) Grants of requests (fees). Once the Agency determines it will
grant a request in full or in part, it will notify the requester in
writing. The Agency will also inform the requester of any fees charged
under Sec. 1401.30 and will disclose the requested records to the
requester promptly upon payment of any applicable fees. The Agency will
inform the requester of the availability of its FOIA Public Liaison to
offer assistance.
(e) Adverse determinations of requests. If the Agency makes an
adverse determination denying a request in any respect, it must notify
the requester of that determination in writing. Adverse determinations,
or denials of requests, include decisions that: The requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject to
the FOIA; the requested record does not exist, cannot be located, or has
been destroyed; or the requested record is not readily reproducible in
the form or format sought by the requester. Adverse determinations also
include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(f) Content of denial. The denial must be signed by the head of the
Agency or designee and must include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the Agency in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed in
part or if providing an estimate would harm an interest protected by an
applicable exemption;
(4) A statement that the denial may be appealed under Sec. 1401.27,
and a description of the appeal requirements; and
(5) A statement notifying the requester of the assistance available
from the Agency's FOIA Public Liaison, and the dispute resolution
services offered by Office of Government Information Services.
(g) Markings on released documents. Records disclosed in part must
be marked clearly to show the amount of information redacted and the
exemption under which the redaction was made unless doing so would harm
an interest protected by an applicable exemption. The location of the
information redacted must also be indicated on the record, if
technically feasible.
(h) Use of record exclusions. (1) In the event the FMCS identifies
records that may be subject to exclusion from the requirements of the
FOIA pursuant to 5 U.S.C. 552(c), the Agency will confer with Department
of Justice, Office of Information Policy (OIP), to obtain approval to
apply the exclusion.
(2) In the event the FMCS applies an exclusion, it will maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.
Sec. 1401.26 Confidential commercial information (``CCI'').
(a) Definitions. For purposes of this section:
Confidential commercial information means information obtained by
the FMCS from a submitter that may be protected from disclosure under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
[[Page 43]]
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(c) When notice to submitters is required. (1) The FMCS will
promptly notify the submitter in writing whenever such confidential
commercial information is requested under the FOIA and the Agency
determines that it may be required to disclose the information,
provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The FMCS has a reason to believe that the requested information
may be protected from disclosure under Exemption 4, but has not yet made
that determination.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, the Agency may post or publish a notice in a place
or manner reasonably likely to inform the submitters of the proposed
disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Agency determines that the information is exempt under the
FOIA, or the information has been lawfully published or has been
officially made available to the public;
(2) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(3) The designation made by the submitter appears obviously
frivolous.
(e) Opportunity to object to disclosure. (1) The FMCS must specify a
reasonable time period within which the submitter must respond to the
notice referenced in paragraph (c) of this section.
(2) If a submitter has any objections to disclosure, it should
provide the Agency a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In order to rely on Exemption 4 as the basis for
nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is privileged or confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. The FMCS is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(f) Analysis of objections. The Agency must consider a submitter's
objections and specific grounds for nondisclosure in deciding whether to
disclose the requested information.
(g) Notice of intent to disclose. Whenever the FMCS decides to
disclose information over the objection of a submitter, it must provide
the submitter written notice, which must include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the Agency intends to release them; and
(3) A specified disclosure date, which must be within a reasonable
time after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial information,
the Agency must promptly notify the submitter.
(i) Requester notification. The Agency must notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
[[Page 44]]
Sec. 1401.27 Appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the Agency's Deputy Director, FOIA Appeal,
Federal Mediation and Conciliation Service, 250 E Street SW, Washington,
DC 20427; [email protected]. Requesters can submit appeals by mail, email,
or via the online portal at www.fmcs.gov/foia. The requester must make
the appeal in writing, clearly identifying the grounds therefore and
providing any supporting documentation. To be considered timely it must
be postmarked or, in the case of electronic submissions, transmitted
within 90 calendar days after the date of the response. The appeal
should clearly identify the determination that is being appealed and the
assigned request number, if known. To facilitate handling, the requester
should mark both the appeal letter and envelope, or subject line of the
electronic transmission, ``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. An appeal ordinarily will not be
adjudicated if the request becomes a matter of FOIA litigation.
(c) Decisions on appeals. The Deputy Director of the FMCS or
designee will provide a decision on an appeal. A decision that upholds
the FMCS's determination in whole or in part must contain a statement
that identifies the reasons for the affirmance, including any FOIA
exemptions applied. The decision must provide the requester with
notification of the statutory right to file a lawsuit and will inform
the requester of the dispute resolution services offered by the OGIS as
a non-exclusive alternative to litigation. If the decision is remanded
or modified on appeal, the Deputy Director will notify the requester of
that determination in writing. The Office of General Counsel will then
further process the request in accordance with that appeal determination
and will respond directly to the requester. Alternatively, the Deputy
Director may decide to modify the decision and decide the appeal on its
merits in a single step.
(d) Engaging in dispute resolution services provided by OGIS.
Dispute resolution is a voluntary process. If the Agency agrees to
participate in the dispute resolution services provided by OGIS, the
Deputy Director or designee will participate on behalf of the FMCS.
(e) When appeal is required. Before seeking review by a court of the
Agency's adverse determination, a requester generally must first submit
a timely administrative appeal.
Sec. 1401.28 Preservation of records.
The FMCS must preserve all correspondence pertaining to the requests
that it receives under this subpart, as well as copies of all requested
records, until final disposition of the ``request'' case: No sooner than
91 days after the final response is sent to the requester to allow for a
timely appeal. The Agency must not dispose of or destroy records while
they are the subject of a pending request, appeal, or lawsuit under the
FOIA.
Sec. 1401.29 Fees.
(a) In general. (1) The FMCS will charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. For purposes of assessing fees, the FOIA
establishes three categories of requesters:
(i) Commercial use requesters;
(ii) Non-commercial scientific or educational institutions or news
media requesters; and
(iii) All other requesters.
(2) Different fees are assessed depending on the category.
Requesters may seek a fee waiver. The Agency will consider requests for
fee waivers in accordance with the requirements in subsection (k) of the
FOIA. To resolve any fee issues that arise under this section, the FMCS
may contact a requester for additional information. The Agency is to
conduct searches, review, and duplication in an efficient and cost-
effective manner. The FMCS ordinarily will collect all applicable fees
before sending copies of records to a requester. Requesters must pay
fees by check or money order made payable to the Treasury of the United
States, or by another method as determined by the Agency.
(b) Definitions. For purposes of this section:
Commercial use request is a request that asks for information for a
use or a
[[Page 45]]
purpose that furthers a commercial, trade, or profit interest, which can
include furthering those interests through litigation. The FMCS's
decision to place a requester in the commercial use category will be
made on a case-by-case basis based on the requester's intended use of
the information. The Agency will notify requesters of their placement in
this category.
Direct costs are those expenses that an agency incurs in searching
for and duplicating (and, in the case of commercial use requests,
reviewing) records in order to respond to a FOIA request. For example,
direct costs include the salary of the employee performing the work
(i.e., the basic rate of pay for the employee, plus 16 percent of that
rate to cover benefits) and the cost of operating electronic equipment,
such as photocopiers and scanners. Direct costs do not include overhead
expenses such as the costs of space, and of heating or lighting a
facility.
Duplication is reproducing a copy of a record, or of the information
contained in it, necessary to respond to a FOIA request. Copies can take
the form of paper, audiovisual materials, or electronic records, among
others.
Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with the requester's role at the
educational institution. The FMCS may seek verification from the
requester that the request is in furtherance of scholarly research and
will advise requesters of their placement in this category.
Noncommercial scientific institution is an institution that is not
operated on a ``commercial'' basis, as defined in this paragraph (b) and
that is operated solely for the purpose of conducting scientific
research the results of which are not intended to promote any particular
product or industry. A requester in this category must show that the
request is authorized by and is made under the auspices of a qualifying
institution and that the records are sought to further scientific
research and are not for a commercial use. The FMCS will advise
requesters of their placement in this category.
Representative of the news media is any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast news to the public at large
and publishers of periodicals that disseminate news and make their
products available through a variety of means to the general public,
including news organizations that disseminate solely on the internet. A
request for records supporting the news-dissemination function of the
requester will not be considered to be for a commercial use. Freelance
journalists who demonstrate a solid basis for expecting publication
through a news media entity will be considered as a representative of
the news media. A publishing contract would provide the clearest
evidence that publication is expected. However, the Agency can also
consider a requester's past publication record in making this
determination. The Agency will advise requesters of their placement in
this category.
Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time spent
both obtaining and considering any formal objection to disclosure made
by a confidential commercial information submitter under Sec. 1401.26,
but it does not include time spent resolving general legal or policy
issues regarding the application of exemptions.
Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within
[[Page 46]]
records and the reasonable efforts expended to locate and retrieve
information from electronic records.
(c) Charging fees. In responding to FOIA requests, the Agency will
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided in paragraphs (c)(1) through (3) of this section already
account for the direct costs associated with a given fee type, the FMCS
will not add any additional costs to charges calculated under this
section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. The FMCS will charge search fees
for all other requesters, subject to the restrictions of paragraph (d)
of this section. The Agency may properly charge for time spent searching
even if it does not locate any responsive records or if the Agency
determines that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require new
programming, the fees will be charged as follows:
(A) The Agency will charge the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. The Agency will notify the
requester of the costs associated with creating such a program, and the
requester must agree to pay the associated costs before the costs may be
incurred.
(B) For requests that require the retrieval of records stored by the
Agency at a Federal records center operated by the National Archives and
Records Administration (NARA), the Agency will charge additional costs
in accordance with the Transactional Billing Rate Schedule established
by NARA.
(2) Duplication. The FMCS will charge duplication fees to all
requesters, subject to the restrictions of paragraph (d) of this
section. The Agency must honor a requester's preference for receiving a
record in a particular form or format where the Agency can readily
reproduce it in the form or format requested. Where photocopies are
supplied, the Agency will provide one copy per request at cost ($0.05
per page). For copies of records produced on tapes, disks, or other
media, the FMCS will charge the direct costs of producing the copy,
including operator time. Where paper documents must be scanned in order
to comply with a requester's preference to receive the records in an
electronic format, the requester must also pay the direct costs
associated with scanning those materials. For other forms of
duplication, the Agency will charge the direct costs.
(3) Review. The Agency will charge review fees to requesters who
make commercial use requests. Review fees will be assessed in connection
with the initial review of the record, i.e., the review conducted to
determine whether an exemption applies to a particular record or portion
of a record. No charge will be made for review at the administrative
appeal stage of exemptions applied at the initial review stage. However,
if a particular exemption is deemed to no longer apply, any costs
associated with the Agency's re-review of the records in order to
consider the use of other exemptions may be assessed as review fees.
Review fees will be charged at the same rates as those charged for a
search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) When the FMCS determines that
a requester is an educational institution, non-commercial scientific
institution, or representative of the news media, and the records are
not sought for commercial use, it will not charge search fees.
(2) FMCS cannot charge fees:
(i) If the Agency fails to comply with the FOIA's time limits in
which to respond to a request, it may not charge search fees or, in the
instances of requests from requesters described in paragraph (d)(1) of
this section, may not charge duplication fees, except as described in
paragraphs (d)(2)(ii) through (iv) of this section.
(ii) If the Agency has determined that unusual circumstances as
defined by the FOIA apply and the Agency provided timely written notice
to the requester in accordance with the FOIA, a failure to comply with
the time limit
[[Page 47]]
shall be excused for an additional 10 days.
(iii) If the Agency has determined that unusual circumstances, as
defined by the FOIA, apply and more than 5,000 pages are necessary to
respond to the request, the Agency may charge search fees or, in the
case of requesters described in paragraph (d)(1) of this section, may
charge duplication fees, if the following steps are taken. The Agency
must have provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA, and the Agency must have
discussed with the requester via written mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the requester
could effectively limit the scope of the request in accordance with 5.
U.S.C. 552(a)(6), (B)(ii). If the exception in this paragraph
(d)(2)(iii) is satisfied, the Agency may charge all applicable fees
incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances exist
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use, the
FMCS will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.00.
(e) Notice of anticipated fees in excess of $25.00. (1) When the
FMCS determines or estimates that the fees to be assessed in accordance
with this section will exceed $25.00, the Agency must notify the
requester of the actual or estimated amount of the fees, including a
breakdown of the fees for search, review, or duplication, unless the
requester has indicated a willingness to pay fees as high as those
anticipated. If only a portion of the fee can be estimated readily, the
Agency will advise the requester accordingly. If the request is for
noncommercial use, the notice will specify that the requester is
entitled to the statutory entitlements of 100 pages of duplication at no
charge and, if the requester is charged search fees, two hours of search
time at no charge, and the notice will advise the requester whether
those entitlements have been provided.
(2) If the Agency notifies the requester that the actual or
estimated fees are in excess of $25.00, the request will not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees the requester is willing to pay, or in
the case of a noncommercial use requester who has not yet been provided
with the requester's statutory entitlements, designates that the
requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing and must, when applicable, designate an exact dollar amount
the requester is willing to pay. The FMCS is not required to accept
payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Agency estimates that the total fee
will exceed that amount, the Agency will toll the processing of the
request when it notifies the requester of the estimated fees in excess
of the amount the requester has indicated a willingness to pay. The
Agency will inquire whether the requester wishes to revise the amount of
fees the requester is willing to pay or modify the request. Once the
requester responds, the time to respond will resume from where it was at
the date of the notification.
(4) The FMCS will make available its FOIA Public Liaison or other
FOIA professional to assist any requester in reformulating a request to
meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide
special services, if the Agency chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
[[Page 48]]
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same document,
or sending records by means other than first class mail.
(g) Charging interest. The Agency may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the billing date until payment is
received by the Agency. The Agency will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended,
and its administrative procedures, including the use of consumer
reporting agencies, collection agencies, and offset (see 29 CFR part
1450).
(h) Aggregating requests. When the FMCS reasonably believes that a
requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the Agency may aggregate those requests and charge
accordingly. The Agency may presume that multiple requests of this type
made within a 30-day period have been made in order to avoid fees. For
requests separated by a longer period, the Agency will aggregate them
only where there is a reasonable basis for determining that aggregation
is warranted in view of all the circumstances involved. Multiple
requests involving unrelated matters cannot be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraph (i)(2) or (3) of this section, the Agency cannot require the
requester to make an advance payment before work on a request starts or
continues. Payment owed for work already completed (i.e., payment before
copies are sent to a requester) is not an advance payment.
(2) When the Agency determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. The Agency may
elect to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to the Agency within 30 calendar days of the billing
date, the Agency may require that the requester pay the full amount due,
plus any applicable interest on that prior request, and the Agency may
require that the requester make an advance payment of the full amount of
any anticipated fee before the Agency begins to process a new request or
continues to process a pending request or any pending appeal. Where the
Agency has a reasonable basis to believe that a requester has
misrepresented the requester's identity in order to avoid paying
outstanding fees, it may require that the requester provide proof of
identity.
(4) In cases in which the Agency requires advance payment, the
request will not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after the date of
the Agency's fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. In instances where records responsive to a request are
subject to a statutorily-based fee schedule program, the Agency must
inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters may
seek a waiver of fees by submitting a written application demonstrating
how disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(2) The Agency must furnish records responsive to a request without
charge
[[Page 49]]
or at a reduced rate when it determines, based on all available
information, that the factors described in paragraphs (k)(2)(i) through
(iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information is likely to contribute
significantly to public understanding of those operations or activities.
This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure of
information that already is in the public domain, in either the same or
a substantially identical form, would not be meaningfully informative if
nothing new would be added to the public's understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. The FMCS will presume that a representative of the news
media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, the Agency will consider the following criteria:
(A) The FMCS must identify whether the requester has any commercial
interest that would be furthered by the requested disclosure. A
commercial interest includes any commercial, trade, or profit interest.
Requesters must be given an opportunity to provide explanatory
information regarding this consideration.
(B) If there is an identified commercial interest, the Agency must
determine whether that is the primary interest furthered by the request.
A waiver or reduction of fees is justified when the requirements of
paragraphs (k)(2)(i) and (ii) of this section are satisfied and any
commercial interest is not the primary interest furthered by the
request. The Agency ordinarily will presume that when a news media
requester has satisfied paragraphs (k)(2)(i) and (ii), the request is
not primarily in the commercial interest of the requester. Disclosure to
data brokers or others who merely compile and market government
information for direct economic return will not be presumed to primarily
serve the public interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver must be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Agency and should address the
criteria referenced in paragraphs (k)(1) and (2) of this section. A
requester may submit a fee waiver request at a later time so long as the
underlying record request is pending or on administrative appeal. When a
requester who has committed to pay fees subsequently asks for a waiver
of those fees and that waiver is denied, the requester must pay any
costs incurred up to the date the fee waiver request was received.
Sec. 1401.30 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
PART 1402_PROCEDURES OF THE SERVICE--Table of Contents
Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203,
61 Stat. 153; 5 U.S.C. 552, 29 U.S.C. 172, 173.
Sec. 1402.1 Notice of dispute.
The notice of dispute filed with the Federal Mediation and
Conciliation Service pursuant to the provisions of section 8(d)(3), of
the Labor-Management Relations Act, 1947, as amended,
[[Page 50]]
shall be submitted electronically via a platform provided by FMCS. If
electronic submission creates an undue hardship, the filer may contact
the FMCS Notice Processing office to explain the circumstances and
receive assistance. The Form F-7, for use by the parties in filing a
notice of dispute, has been prepared by the Service.
[86 FR 50855, Sept. 13, 2021]
PART 1403_FUNCTIONS AND DUTIES--Table of Contents
Sec.
1403.1 Definitions.
1403.2 Policies of the Federal Mediation and Conciliation Service.
1403.3 Obtaining data on labor-management disputes.
1403.4 Assignment of mediators.
1403.5 Relations with State and local mediation agencies.
Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203,
61 Stat. 153; 29 U.S.C. 172, 5 U.S.C. 552, 29 U.S.C. 173.
Source: 32 FR 9813, July 6, 1967, unless otherwise noted.
Sec. 1403.1 Definitions.
As used in this part, unless the context clearly indicates
otherwise;
(a) The term commerce means trade, traffic, commerce,
transportation, or communication among the several States, or between
the District of Columbia or any Territory of the United States and any
State or other Territory, or between any foreign country and any State,
Territory, or the District of Columbia, or within the District of
Columbia, or any Territory, or between points in the same State but
through any other State or any Territory or the District of Columbia or
any foreign country.
(b) The term affecting commerce means in commerce, or burdening or
obstructing commerce or the free flow of commerce, or having led or
tending to lead to a labor-management dispute burdening or obstructing
commerce or the free flow of commerce.
(c) The term labor union or labor organization means any
organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
(d) The term State or other conciliation services means the official
and accredited mediation and conciliation establishments of State and
local governments, which are wholly or partially supported by public
funds.
(e) The term proffer its services, as applied to the functions and
duties of the Federal Mediation and Conciliation Service, means to make
mediation services and facilities available either on its own motion or
upon the request of one or more of the parties to a dispute.
Sec. 1403.2 Policies of the Federal Mediation and Conciliation Service.
It is the policy of the Federal Mediation and Conciliation Service:
(a) To facilitate and promote the settlement of labor-management
disputes through collective bargaining by encouraging labor and
management to resolve differences through their own resources.
(b) To encourage the States to provide facilities for fostering
better labor-management relations and for resolving disputes.
(c) To proffer its services in labor-management disputes in any
industry affecting commerce, except as to any matter which is subject to
the provisions of the Railway Labor Act, as amended, either upon its own
motion or upon the request of one or more of the parties to the dispute,
whenever in its judgment such dispute threatens to cause a substantial
interruption to commerce.
(d) To refrain from proffering its services:
(1) In labor-management disputes affecting intrastate commerce
exclusively,
(2) In labor-management disputes having a minor effect on interstate
commerce, if State or other conciliation services are available to the
parties, or
(3) In a labor-management dispute when a substantial question of
representation has been raised, or to continue to make its facilities
available
[[Page 51]]
when a substantial question of representation is raised during the
negotiations.
(e) To proffer its services in any labor-management dispute directly
involving Government procurement contracts necessary to the national
defense, or in disputes which imperil or threaten to imperil the
national health or safety.
(f) To proffer its services to the parties in grievance disputes
arising over the application or interpretation of an existing
collective-bargaining agreement only as a last resort and in exceptional
cases.
Sec. 1403.3 Obtaining data on labor-management disputes.
When the existence of a labor-management dispute comes to the
attention of the Federal Service upon a request for mediation service
from one or more parties to the dispute, through notification under the
provisions of section 8(d)(3), title I of the Labor-Management Relations
Act, 1947, or otherwise, the Federal Service will examine the
information to determine if the Service should proffer its services
under its policies. If sufficient data on which to base a determination
is not at hand, the Federal Service will inquire into the circumstances
surrounding the case. Such inquiry will be conducted for fact-finding
purposes only and is not to be interpreted as the Federal Service
proffering its services.
Sec. 1403.4 Assignment of mediators.
The Federal Service will assign one or more mediators to each labor-
management dispute in which it has been determined that its services
should proffered.
Sec. 1403.5 Relations with State and local mediation agencies.
(a) If under State or local law a State or local mediation agency
must offer its facilities in a labor-management dispute in which the
Federal Service is proffering its services, the interests of such
agencies will be recognized and their co-operation will be encouraged in
order that all efforts may be made to prevent or to effectively minimize
industrial strife.
(b) If, in a labor-management dispute there is reasonable doubt that
the dispute threatens to cause a substantial interruption to commerce or
that there is more than a minor effect upon interstate commerce, and
State or other conciliation services are available to the parties, the
regional director of the Federal Service will endeavor to work out
suitable arrangements with the State or other conciliation or mediation
agency for mediation of the dispute. Decisions in such cases will take
into consideration the desires of the parties, the effectiveness and
availability of the respective facilities, and the public welfare,
health, and safety.
(c) If requested by a State or local mediation agency or the chief
executive of a State or local government, the Federal Service may make
its services available in a labor-management dispute which would have
only a minor effect upon interstate commerce when, in the judgment of
the Federal Service, the effect of the dispute upon commerce or the
public welfare, health, or safety justifies making available its
mediation facilities.
PART 1404_ARBITRATION SERVICES--Table of Contents
Subpart A_Arbitration Policy; Administration of Roster
Sec.
1404.1 Scope and authority.
1404.2 Policy.
1404.3 Administrative responsibilities.
Subpart B_Roster of Arbitrators; Admission and Retention
1404.4 Roster and status of members.
1404.5 Listing on the Roster, criteria for listing and removal,
procedure for removal.
1404.6 Inactive status.
1404.7 Listing fee.
Subpart C_Procedures for Arbitration Services
1404.8 Freedom of choice.
1404.9 Procedures for requesting arbitration lists and panels.
1404.10 Arbitrability.
1404.11 Nomination of arbitrators.
1404.12 Selection by parties and appointment of arbitrators.
1404.13 Conduct of hearings.
1404.14 Decision and award.
[[Page 52]]
1404.15 Fees and charges of arbitrators.
1404.16 Reports and biographical sketches.
Subpart D_Expedited Arbitration
1404.17 Policy.
1404.18 Procedures for requesting expedited panels.
1404.19 Arbitration process.
Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.
Source: 84 FR 16206, Apr. 18, 2019, unless otherwise noted.
Subpart A_Arbitration Policy; Administration of Roster
Sec. 1404.1 Scope and authority.
This chapter is issued by the Federal Mediation and Conciliation
Service (FMCS) under Title II of the Labor Management Relations Act of
1947 (Pub. L. 80-101) as amended. It applies to all arbitrators listed
on the FMCS Roster of Arbitrators (the Roster), to all applicants for
listing on the Roster, and to all persons or parties seeking to obtain
from FMCS either names or panels of names of arbitrators listed on the
Roster in connection with disputes that are to be submitted to
arbitration or fact-finding.
Sec. 1404.2 Policy.
The labor policy of the United States promotes and encourages the
use of voluntary arbitration to resolve disputes over the interpretation
or application of collective bargaining agreements. Voluntary
arbitration and fact-finding are important features of constructive
employment relations as alternatives to economic strife.
Sec. 1404.3 Administrative responsibilities.
(a) Director. The Director of FMCS has responsibility for all
aspects of FMCS arbitration activities and is the final agency authority
on all questions concerning the Roster and FMCS arbitration procedures.
(b) Office of Arbitration. The Office of Arbitration (OA) maintains
the Roster; administers subpart C of this part (Procedures for
Arbitration Services); assists, promotes, and cooperates in the
establishment of programs for training and developing new arbitrators;
and provides names or panels of names of listed arbitrators to parties
requesting them.
(c) Arbitrator Review Board. The Arbitrator Review Board (Board)
shall consist of a chair and members appointed by the Director who shall
serve at the Director's pleasure. The Board shall be composed entirely
of full-time officers or employees of the Federal Government and shall
establish procedures for carrying out its duties.
(1) Duties of the Board. The Board shall:
(i) Review the qualifications of all applicants for listing on the
Roster, interpreting and applying the criteria set forth in Sec.
1404.5;
(ii) Review the status of all persons whose continued eligibility
for listing on the Roster has been questioned under Sec. 1404.5;
(iii) Recommend to the Director the acceptance or rejection of
applicants for listing on the Roster, or the withdrawal of listing on
the Roster for any of the reasons set forth in this part;
(iv) At the request of the Director, or upon its own volition,
review arbitration policies and procedures, including all regulations
and written guidance regarding the use of Roster arbitrators, and make
recommendations regarding such policies and procedures to the Director.
(2) [Reserved]
Subpart B_Roster of Arbitrators; Admission and Retention
Sec. 1404.4 Roster and status of members.
(a) The Roster. FMCS shall maintain a Roster of labor arbitrators
consisting of persons who meet the criteria for listing contained in
Sec. 1404.5 and who remain in good standing.
(b) Adherence to standards and requirements. Persons listed on the
Roster shall comply with FMCS rules and regulations pertaining to
arbitration and with such guidelines and procedures as may be issued by
OA pursuant to subpart C of this part. Arbitrators shall conform to the
ethical standards and procedures set forth in the Code of Professional
Responsibility for Arbitrators
[[Page 53]]
of Labor Management Disputes, as approved by the National Academy of
Arbitrators, FMCS, and the American Arbitration Association (``the
Code'').
(c) Status of arbitrators. Persons who are listed on the Roster and
are selected or appointed to hear arbitration matters or to serve as
factfinders do not become employees of the Federal Government by virtue
of their selection or appointment. Following selection or appointment,
the arbitrator's relationship is solely with the parties to the dispute,
except that arbitrators are subject to certain reporting requirements
and to standards of conduct as set forth in this part.
(d) Rights of persons listed on the Roster. No person shall have any
right to be listed or to remain listed on the Roster. FMCS retains its
authority and responsibility to assure that the needs of the parties
using its services are served. To accomplish this purpose, FMCS may
establish procedures for the preparation of panels or the appointment of
arbitrators or factfinders that include consideration of such factors as
background and experience, availability, acceptability, geographical
location, and the expressed preferences of the parties.
Sec. 1404.5 Listing on the Roster, criteria for listing and
removal, procedure for removal.
Persons seeking to be listed on the Roster must complete and submit
an application available online at https://www.fmcs.gov/services/
arbitration/information-joining-arbitrator-roster/. Upon receipt of an
executed application, OA will review the application, ensure that it is
complete, make such inquiries as are necessary, and submit the
application to the Board. The Board will review the completed
application under the criteria in paragraphs (a), (b) and (c) of this
section, and will forward to the FMCS Director, or Director's designee,
its recommendation as to whether or not the applicant meets the criteria
for listing on the Roster. The Director shall make all final decisions
as to whether an applicant may be listed on the Roster. Each applicant
shall be notified in writing of the Director's decision and the reasons
therefore.
(a) General criteria. (1) Applicants will be listed on the Roster
upon a determination that he or she:
(i) Is experienced, competent, and acceptable in decision-making
roles in the resolution of labor relations disputes; or
(ii) Has extensive and recent experience in relevant positions in
collective bargaining; and
(iii) Is capable of conducting an orderly hearing, can analyze
testimony and exhibits and can prepare clear and concise findings and
awards within reasonable time limits.
(iv) For applicants who are governmental employees, the following
criteria shall also apply:
(A) Federal employees. These applicants must provide OA with written
permission from their employer to work as an arbitrator. Federal
employees will not be assigned to panels involving the Federal
Government.
(B) Governmental employees other than Federal. These applicants must
provide OA with written permission from their employer to work as an
arbitrator as well as a statement of the jurisdiction(s) in which the
applicant is permitted to do this work.
(2) FMCS may identify certain positions relating to collective
bargaining that will substitute for the General Criteria. FMCS may also
identify periodic educational requirements for remaining on the Roster.
(b) Proof of qualification. Unless waived under exceptional
circumstances wholly in the discretion of the Director, applicants must:
(1) Submit five recent labor arbitration awards that are final and
binding, and prepared by the applicant while serving as an impartial
arbitrator of record selected by mutual agreement of the parties to
labor relations disputes arising under collective bargaining agreements,
or by direct designation by an administrative agency, or
(2) Successfully complete the FMCS labor arbitrator training course
and either submit one award as described above or complete an
apprenticeship that meets specifications that FMCS may, in its
discretion, provide. Applicants must also submit information
[[Page 54]]
demonstrating extensive and recent experience in collective bargaining,
including at least the position or title held, duties or
responsibilities, the name and location of the company or organization,
and the dates of employment.
(c) Advocacy. Any person who at the time of application is an
advocate, as defined in paragraph (c)(1) of this section, must agree to
cease such activity before being recommended for listing on the Roster
by the Board. Except in the case of persons listed on the Roster as
advocates before November 17, 1976, any person who did not divulge his
or her advocacy at the time of listing or who becomes an advocate while
listed on the Roster and who did not request to be placed on inactive
status pursuant to Sec. 1404.6 prior to becoming an advocate, shall be
recommended for removal by the Board after the fact of advocacy is
revealed.
(1) Definition of advocacy. (i) An advocate is a person who
represents employers, labor organizations, or individuals as an
employee, attorney, or consultant, in matters of labor relations or
employment relations, including but not limited to the subjects of union
representation and recognition matters, collective bargaining,
arbitration, unfair labor practices, equal employment opportunity, and
other areas generally recognized as constituting labor or employment
relations. The definition includes representatives of employers or
employees in individual cases or controversies involving worker's
compensation, occupational health or safety, minimum wage, or other
labor standards matters.
(ii) This definition of advocate also includes a person who is
directly or indirectly associated with an advocate in a business or
professional relationship as, for example, partners or employees of a
law firm. Individuals engaged only in joint education or training or
other non-adversarial activities will not be deemed to be advocates.
(2) [Reserved]
(d) Removal from the Roster. Removal from the Roster shall be by
decision of the Director of FMCS based upon the recommendations of the
Board or upon the Director's own initiative. The Board may recommend for
removal, and the Director may remove, any arbitrator listed on the
Roster for violation of this part or of the Code. FMCS will provide to
the affected arbitrator written notice of removal from the Roster.
Complaints about arbitrators should be in writing and sent to the
Director of OA. The complaint should cite any specific section(s) of the
Code or the FMCS rule the arbitrator has allegedly violated. The
following criteria shall be a basis for the Board to recommend and/or
the Director to initiate an arbitrator's removal from the Roster:
(1) No longer meets the criteria for admission;
(2) Has become an advocate as defined in paragraph (c) of this
section;
(3) Has been repeatedly or flagrantly in violation of one or more
provisions of this part;
(4) Has refused to make reasonable and periodic reports in a timely
manner to FMCS, as required in subpart C of this part, concerning
activities pertaining to arbitration;
(5) Has been the subject of a complaint by a party who uses FMCS
services, or engages in conduct inappropriate for an arbitrator which
otherwise comes to the attention of FMCS, and the Board, after
appropriate inquiry, concludes that cause for removal has been shown; or
(6) Has been in an inactive status pursuant to Sec. 1404.6 for
longer than two years and has not paid the annual listing fee.
(e) Procedure for removal. Prior to any recommendation by the Board
to remove an arbitrator from the Roster, the Board shall conduct an
inquiry into the facts of any such recommended removal. When the Board
recommends removal of an arbitrator, it shall send the arbitrator a
written notice. This notice shall inform the arbitrator of the Board's
recommendation and the basis for it, and that he or she has 60 days from
the date of such notice to submit a written response or information
showing why the arbitrator should not be removed. When the Director
removes an arbitrator from the Roster, he or she shall inform the
arbitrator of this in writing, stating the effective date of the removal
and the length of
[[Page 55]]
time of the removal if it is not indefinite. An arbitrator so removed
may seek reinstatement to the Roster by making written application to
the Director no earlier than two years after the effective date of his
or her removal.
(f) Suspension. The Director of OA may suspend, for a period not to
exceed 180 days, any arbitrator listed on the Roster based on any of the
criteria in paragraph (d) of this section. Arbitrators shall be promptly
notified of a suspension. The arbitrator may appeal a suspension to the
Board, which shall make a recommendation to the Director of FMCS. The
decision of the Director of FMCS shall constitute the final action of
the agency.
Sec. 1404.6 Inactive status.
(a) An arbitrator on the Roster who continues to meet the criteria
for listing on the Roster may request that he or she be put in an
inactive status on a temporary basis.
(b) Arbitrators whose schedules do not permit cases to be heard
within six months of assignment must make themselves inactive
temporarily until their caseload permits the earlier scheduling of
cases.
(c) An arbitrator can remain on inactive status without paying any
annual listing fee for a period of two years. If an arbitrator is on
inactive status for longer than two (2) years, the arbitrator will be
removed from the Roster unless the arbitrator pays the annual listing
fee.
Sec. 1404.7 Listing fee.
All arbitrators will be required to pay an annual fee for listing on
the Roster, as set forth in the appendix to this part.
Subpart C_Procedures for Arbitration Services
Sec. 1404.8 Freedom of choice.
Nothing contained in this part should be construed to limit the
rights of parties who use FMCS arbitration services to jointly select
any arbitrator or arbitration procedure acceptable to them. Once a
request is made to OA, all parties are subject to the procedures
contained in this part.
Sec. 1404.9 Procedures for requesting arbitration lists and panels.
(a) The OA has been delegated the responsibility for administering
all requests for labor arbitration services. Requests must be made
online at fmcs.gov/services/arbitration/requesting-a-panel/, or via
email attaching a completed Form R-43 addressed to [email protected].
(b) Upon request, OA will refer a randomly selected panel of seven
arbitrators to parties to an agreement to arbitrate or engage in fact-
finding, or where labor arbitration or fact-finding may be provided by
statute. A biographical sketch will be provided for each member of the
panel. This sketch states the background, qualifications, experience,
and all fees as furnished to OA by the arbitrator. The parties are
encouraged to make joint requests. However, a panel request, whether
joint or unilateral, will be honored. Requests for a panel of other than
seven (7) names, for a direct appointment of an arbitrator, and/or for
special qualifications or other service will not be honored unless
jointly submitted or authorized by both parties pursuant to mutual
agreement. The issuance of a panel--in response to either joint or
unilateral request--is nothing more than a response to a request.
Neither issuance of a panel nor appointment of an arbitrator signifies
the adoption of any position by FMCS regarding the status of an
arbitration agreement, arbitrability of any dispute, or the terms of the
parties' contract.
(c) FMCS has no power to:
(1) Compel parties to appear before an arbitrator;
(2) Enforce an agreement to arbitrate;
(3) Compel parties to arbitrate any issue;
(4) Influence, alter, or set aside decisions of arbitrators on the
Roster; or
(5) Compel, deny, or modify payment of compensation to an
arbitrator.
(d) OA may decline to submit a panel or to make an appointment of an
arbitrator if the request submitted is overly burdensome or otherwise
impracticable. OA, in such circumstances, may refer the parties to an
FMCS mediator to help in the design of an alternative
[[Page 56]]
solution. OA may also decline to service any request from a party based
on the party's prior non-payment of arbitrator fees or other behavior
that constrains the spirit or operation of the arbitration process.
(e) Panel requests that contain certain special requirements not
found among the selections online, cannot be processed via the agency's
internet system; instead, parties must submit the pdf version of the R-
43 form via email to OA and specify the additional requirements agreed
to by both parties.
(f) As an alternative to a panel of arbitrators, OA will, upon
written request, submit a list of arbitrators and their biographical
sketches from a designated geographical area; the parties may then
select and deal directly with an arbitrator of their choice, with no
further involvement of FMCS with the parties or the arbitrator, and no
assigned case number. The parties may also request FMCS to make a direct
appointment of their selection. In such a situation, a case number will
be assigned.
(g) OA will charge a fee for all requests for lists, panels, and
other major services. Payments for these services must be received with
the request for services before the service is delivered and may be paid
by either labor or management or both. A schedule of fees is listed in
the appendix to this part.
Sec. 1404.10 Arbitrability.
OA will not decide the merits of a claim by either party that a
dispute is not subject to arbitration.
Sec. 1404.11 Nominations of arbitrators.
(a) All panels submitted to the parties by OA, and all letters
issued by OA making a direct appointment, will have an assigned FMCS
case number. All future communications with OA should refer to this case
number.
(b) OA will provide a randomly selected panel of arbitrators located
in geographical areas in proximity of the hearing site, as specified in
the request. The parties may jointly request special qualification of
arbitrators experienced in certain issues or industries or that possess
certain backgrounds, or a panel with no geographic restrictions within
the U.S. OA has no obligation to put an individual on any given panel or
on a minimum number of panels in any fixed period. If at any time both
parties request that a name or names be included, or omitted, from a
panel, such name or names will be included, or omitted, unless the
number of names is excessive. These inclusions/exclusions may not
discriminate against anyone because of age, race, color, gender,
national origin, disability, genetic information, or religion.
(c) If the parties do not agree on an arbitrator from the first
panel, OA will furnish up to five additional panels to the parties upon
joint request, or upon a unilateral request if authorized by the
applicable collective bargaining agreement, and payment of additional
fees.
Sec. 1404.12 Selection by parties and appointment of arbitrators.
(a) After receiving a panel of names, the parties must notify OA of
their selection of an arbitrator or of the decision not to proceed with
arbitration. Upon notification of the selection of an arbitrator, OA
will make a formal appointment of the arbitrator. The arbitrator, upon
notification of appointment, shall communicate with the parties within
14 days to arrange for preliminary matters, such as the date and place
of hearing. Should an arbitrator be notified directly by the parties
that he or she has been selected, the arbitrator must promptly notify OA
of the selection. The arbitrator must provide OA with the FMCS case
number and other pertinent information for OA to make an appointment. A
pattern of failure by an arbitrator to notify FMCS of a selection in an
FMCS case may result in suspension or removal from the Roster. If the
parties settle a case prior to the hearing, the parties must inform the
arbitrator as well as OA. Consistent failure to follow these procedures
may lead to a denial of future OA services.
(b) Where the parties' collective bargaining agreement permits each
party to separately notify OA of its ranked order of preference, or is
silent on the manner of selecting arbitrators, FMCS will ask each party
to advise OA of its
[[Page 57]]
order of preference by numbering each name on the panel and submitting
the numbered list in writing to OA. Upon receiving the rank order from
one party, OA will notify the other party that it has fourteen (14) days
in which to submit its selections. Where both parties respond, the name
that has the lowest combined number will be appointed. If the other
party fails to respond, the first party's choice will be honored.
(c) OA will make a direct appointment of an arbitrator only upon
joint request or as otherwise provided by this part.
Sec. 1404.13 Conduct of hearings.
All proceedings conducted by the arbitrators shall conform to the
contractual obligations of the parties, and to the Code. The arbitrator
shall comply with Sec. 1404.4(b). The conduct of the arbitration
proceeding is under the arbitrator's jurisdiction and control, and the
arbitrator's decision shall be based upon the evidence and testimony
presented at the hearing or otherwise incorporated in the record of the
proceeding. The arbitrator may, unless prohibited by law, proceed in the
absence of any party who, after due notice, fails to be present or to
obtain a postponement. An award rendered in an ex parte proceeding of
this nature must be based upon evidence presented to the arbitrator.
Sec. 1404.14 Decision and award.
(a) Arbitrators shall make awards no later than 60 days from the
date of the closing of the record, unless otherwise agreed upon by the
parties or specified by the collective bargaining agreement or law.
However, failure to meet the 60-day deadline will not invalidate the
process or award. A failure to render timely awards reflects upon the
performance of an arbitrator and may lead to removal from the FMCS
Roster.
(b) The parties should inform OA whenever a decision is delayed. The
arbitrator shall promptly notify OA if and when the arbitrator:
(1) Cannot schedule or hear a case, and/or render a decision
promptly and in accordance with time limits established in this part, or
(2) Learns a dispute has been settled by the parties prior to the
decision.
(c) Within 15 days after an award and/or final invoice has been
submitted to the parties, the arbitrator shall submit an online
Arbitrator's Report and Fee Statement (Form R-19) to OA showing a
breakdown of the fee and expense charges.
(d) While FMCS encourages the publication of arbitration awards,
arbitrators must not publicize awards without the express consent of the
parties in conformance with the Code.
Sec. 1404.15 Fees and charges of arbitrators.
(a) Fees to parties. Prior to appointment, the parties should be
aware of all significant aspects of the bases for an arbitrator's fees
and expenses. Each arbitrator's biographical sketch shall include a
statement of the bases for the arbitrator's fees and expenses, which
shall conform to this part and the Code. The parties and the arbitrator
shall be bound by the arbitrator's statement of the bases for fees and
expenses in the biographical sketch for two years from the date of
appointment unless they mutually agree otherwise in writing. Arbitrators
listed on the Roster may change the bases for their fees and expenses
for future appointments if they provide them in writing to OA at least
30 days in advance.
(b) Two or more addresses. Arbitrators with more than one business
address must bill the parties for expenses from the least expensive
business address to the hearing site.
(c) Additional administrative fee. In cases involving unusual
amounts of time and expense relative to the pre-hearing and post-hearing
administration of a particular case, the arbitrator may charge an
administrative fee. This fee shall be disclosed to the parties as soon
as it is foreseeable by the arbitrator.
(d) Fee disputes. When a party believes the arbitrator has not
followed the requirements of this Part, it should promptly notify OA,
which may bring any complaint concerning the fees charged by an
arbitrator to the attention of the Board for consideration. Complaints
by arbitrators concerning
[[Page 58]]
non-payment of fees by a party may lead to the denial of services or
other actions by OA.
Sec. 1404.16 Reports and biographical sketches.
(a) Arbitrators listed on the Roster shall execute and return all
documents, forms and reports required by OA and be responsible for
updating their account and bio information online, including changes of
address, telephone number, and availability. They must also furnish to
OA the contact information for a person they know well whom OA may
contact if unable to reach the arbitrator, and who has agreed to contact
OA if the arbitrator has become incapacitated or deceased. Arbitrators
must contact OA directly when they engage, or are accused of engaging,
in any business or other connection or relationship involving labor or
employment relations and/or which creates or gives the appearance of
advocacy as defined in Sec. 1404.5(c)(1).
(b) OA reserves the right to decide and approve the format and
content of biographical sketches.
Subpart D_Expedited Arbitration
Sec. 1404.17 Policy.
In an effort to reduce the time and expense of some grievance
arbitrations, FMCS offers expedited procedures where the parties agree
on a streamlined process with short deadlines. Parties may also agree on
their own procedures if it is practicable for FMCS.
Sec. 1404.18 Procedures for requesting expedited panels.
(a) With the exception of the specific changes noted in this
Subpart, all FMCS rules and regulations governing its arbitration
services shall apply to Expedited Arbitration.
(b) Upon receipt of a joint Request for Arbitration Panel (Form R-
43) indicating that both parties desire expedited services, OA will
refer a panel of arbitrators which shall be valid for up to 30 days.
Only one panel will be submitted per case. If the parties are unable to
mutually agree upon an arbitrator or if prioritized selections are not
received from both parties within 30 days, OA will make a direct
appointment of an arbitrator not on the original panel.
(c) If the parties mutually select an arbitrator, but the arbitrator
is not available, the parties may select a second name from the same
panel or OA will make a direct appointment of another arbitrator not
listed on the original panel.
Sec. 1404.19 Arbitration process.
(a) Once notified of the expedited case appointment by OA, the
arbitrator must contact the parties within seven (7) calendar days.
(b) The parties and the arbitrator must attempt to schedule a
hearing within 30 days of the appointment date.
(c) Absent mutual agreement, all hearings will be concluded within
one day. No transcripts of the proceedings will be made and the filing
of post-hearing briefs will not be allowed.
(d) All awards must be completed within seven (7) working days from
the hearing. These awards are expected to be brief and concise, and to
not require extensive written opinion or research time.
PART 1405_PART-TIME EMPLOYMENT--Table of Contents
Subpart A_General
Sec.
1405.1 Purpose.
1405.2 Policy.
1405.3 Definition.
1405.4 Applicability.
Subpart B_Part-time Employment Program
1405.6 Program coordination.
1405.7 Goals and timetables.
1405.8 Reporting.
1405.9 Part-time employment practices.
1405.10 Effect on employment ceilings.
1405.11 Effect on employee benefits.
Authority: Pub. L. 95-437, Federal Employees Part-time Career
Employment Act of 1978.
Source: 47 FR 15779, Apr. 13, 1982, unless otherwise noted.
Subpart A_General
Sec. 1405.1 Purpose.
These regulations implement Public Law 95-437, the Federal Employees
[[Page 59]]
Part-time Career Employment Act of 1978, by establishing a continuing
program in the Federal Mediation and Conciliation Service (FMCS) to
provide career part-time employment opportunities.
Sec. 1405.2 Policy.
It is the policy of FMCS to provide career part-time employment
opportunities in positions through GS-16 (or equivalent) subject to
agency resources and mission requirements.
Sec. 1405.3 Definition.
Part-time career employment means regularly scheduled work of from
16 to 32 hours per week performed by employees in competitive or
excepted appointments in tenure groups I or II.
Sec. 1405.4 Applicability.
The regulations cover permanent positions which are deemed by
management to be appropriately structured on a part-time basis. The
regulations do not apply to positions at GS-16 (or equivalent) and
above.
Subpart B_Part-time Employment Program
Sec. 1405.6 Program coordination.
The Director of Personnel is designated the FMCS Part-time
Employment Coordinator with responsibility for:
(a) Consulting in the part-time employment program with the Director
of Equal Employment Opportunity, Federal Women's Program Coordinator,
Handicapped Program Coordinator, representatives of employee unions, and
other interested parties;
(b) Responding to requests for advice and assistance on part-time
employment within the agency;
(c) Maintaining liaison with groups interested in promoting part-
time employment opportunities;
(d) Monitoring the agency's part-time employment efforts; and
preparing reports on part-time employment for transmittal to OPM and the
Congress.
Sec. 1405.7 Goals and timetables.
On an annual basis, as part of the manpower and budget process,
management will set goals for establishing part-time positions to part-
time along with a timetable setting forth interim and final deadlines
for achieving the goals. Decisions on part-time employment will be based
on such factors as agency mission, occupational mix, workload
fluctuations, affirmative actions, geographic dispersion, effect on
providing services to the public, and employee interest in part-time
employment.
Sec. 1405.8 Reporting.
FMCS will report as required by regulations to the Office of
Personnel Management on the part-time employment program. The program
will be reviewed through internal personnel management evaluations.
Sec. 1405.9 Part-time employment practices.
FMCS will review positions which become vacant for the feasibility
of utilizing part-time career appointments. Part-time positions will be
advertised in vacancy announcements. Agency employees may request and
receive consideration to switch from full-time to part-time schedules.
The request should be addressed through the supervisor to the Director
of Personnel listing any and all reasons for the request. The Director
of Personnel, with input from all affected management officials, will
decide whether or not to grant the request. Any employee requesting a
change from full-time to part-time employment will be advised of effects
on pay and fringe benefits by the Director of Personnel.
Sec. 1405.10 Effect on employment ceilings.
Effective October 1, 1980, part-time employees will be counted on
the basis of the fractional part of the 40-hour week actually worked.
For example two employees each working twenty hours a week will count as
one employee.
[[Page 60]]
Sec. 1405.11 Effect on employee benefits.
Career part-time employees are entitled to coverage under the
Federal Employees Group Life Insurance and Federal Employees Health
Benefits Programs. The Government contribution for health insurance of
eligible part-time employees will be prorated on the basis of the
fraction of a full-time schedule worked.
PART 1410_PRIVACY--Table of Contents
Sec.
1410.1 Purpose and scope.
1410.2 Definitions.
1410.3 Individual access requests.
1410.4 Requirements for identification of individuals making requests.
1410.5 Special procedures: Medical records.
1410.6 Requests for correction or amendment of records.
1410.7 Agency review of refusal to amend a record.
1410.8 Notation of dispute.
1410.9 Fees.
1410.10 Penalties.
1410.11 Standards of review.
1410.12 Specific exemptions.
Authority: Privacy Act 1974, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C.
552a).
Source: 40 FR 47418, Oct. 8, 1975, unless otherwise noted.
Sec. 1410.1 Purpose and scope.
(a) The purpose of this part is to set forth rules to inform the
public about information maintained by the Federal Mediation and
Conciliation Service about individuals, to inform those individuals how
they may gain access to and correct or amend information about
themselves, and to exempt disclosure of identity of confidential sources
of certain records.
(b) [Reserved]
Sec. 1410.2 Definitions.
For the purposes of this part, unless otherwise required by the
context--
(a) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(b) Maintain means maintain, collect, use or disseminate.
(c) Record means any item, collection or grouping of information
about an individual that is maintained by the Federal Mediation and
Conciliation Service including, but not limited to, his education,
financial transactions, medical history, and criminal or employment
history, that contains his name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print, or a photograph.
(d) System of records means a group of any records under the control
of Federal Mediation and Conciliation Service from which information is
retrieved by the name of the individual or by some identifying
particular assigned to the individual.
Sec. 1410.3 Individual access requests.
(a) Individuals who desire to know whether the agency maintains a
system of records containing records pertaining to him may submit a
written request to the Director of Administration, Federal Mediation and
Conciliation Service, Washington, DC 20427. The request must include the
name and address of the requestor. The Director of Administration, or
his designated representative, will advise the requestor in writing
within 10 working days whether the records are so maintained and the
general category of records maintained within the system.
(b) Any individual who desires to inspect or receive copies of any
record maintained within the system concerning him shall submit a
written request to the Director of Administration, Federal Mediation and
Conciliation Service, Washington, DC 20427, reasonably identifying the
records sought to be inspected or copied.
(c) The individual seeking access to his record may also have
another person accompanying him during his review of the records. If the
requestor desires another person to accompany him during the inspection,
the requestor must sign a statement, to be furnished to the Service
representative at the time of the inspection authorizing such other
person to accompany him. Except as required under the Freedom of
Information Act, permitted as a routine use as published in the agency's
annual notice, or for internal agency use, disclosure of records will
only be made to the individual to whom the record pertains, unless
written consent is obtained from that individual. The Director of
Administration will verify
[[Page 61]]
the signature of the individual requesting or consenting to the
disclosure of a record prior to the disclosure thereof to any other
person by a comparison of signatures, if the request or consent is not
executed within the presence of a designated Service representative.
(d) The Director of Administration or his designated representative
will advise the requestor in writing within 10 working days of receipt
of the request whether, to what extent, and approximately when and where
access shall be granted. Within 30 days of receipt of the request, the
records will be made available for review at the FMCS National Office in
Washington, DC, or one of the Regional Offices. The following is a list
of the Regional Office locations:
1. Eastern Region:
Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room
2937, New York, NY 10278.
Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands,
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of
Maryland; and Brooke and Hancock Counties of West Virginia.
2. Central Region:
Address: Insurance Exchange Building, Room 1641, 175 W. Jackson
Street, Chicago, IL 60604.
Consist of: Illinois (except counties listed under the Southern
Region); Indiana (except counties listed under Southern Region);
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio
(except counties listed under the Southern Region).
3. Southern Region:
Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
Consists of: Virginia, Maryland (except counties listed under the
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia;
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except
for those counties listed for the Western Region); Illinois (in counties
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond,
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White,
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham,
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin,
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer,
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland,
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton,
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford,
Cherokee, and Ottawa); West Virginia (except counties listed under the
Central Region); and the Canal Zone.
4. Western Region:
Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San
Francisco, CA 94133.
Consists of: California; Nevada; Arizona; New Mexico; El Paso and
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington;
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa;
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer,
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess,
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston,
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte,
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass,
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake
Island.
[40 FR 47418, Oct. 8, 1975, as amended at 47 FR 10530, Mar. 11, 1982]
Sec. 1410.4 Requirements for identification of individuals making requests.
Satisfactory identification (i.e., employ identification number,
current address, and verification of signature) must be provided to FMCS
prior to review of the record. The requestor will be provided the
opportunity to review the records during normal business hours.
Sec. 1410.5 Special procedures: Medical records.
(a) If medical records are requested for inspection which, in the
opinion of the Director of Administration, may be harmful to the
requestor if personally inspected by him, such records will be furnished
only to a licensed physician, designated to receive such records by the
requestor. Prior to such disclosure, the requestor must furnish a signed
written authorization to the Service to make such disclosure and the
physician must furnish a written request to the Director of
Administration for the physician's receipt of such records.
(b) Verification of the requestor's signature will be accomplished
by a comparison of signatures if such authorization is not executed
within the presence of a Service representative.
[[Page 62]]
Sec. 1410.6 Requests for correction or amendment of records.
(a) If the individual disagrees with the information in the record,
he may request that the record be amended by addition or deletion. Such
a request must be in writing and directed to the Director of
Administration, Federal Mediation and Conciliation Service, Washington,
DC, 20427. The request must also specifically outline the amendment
sought. The Director of Administration or his designated representative
will acknowledge receipt of the request within 10 working days from the
date of receipt of such request. Under normal circumstances, not later
than 30 days after receipt of the request for amendments, the Director
of Administration will either:
(1) Amend the record and notify the requestor in a written letter of
determination to what extent the record is amended; or
(2) If the amendment or correction is denied in whole or in part,
notify the requestor in a written letter of determination the reason for
denial and the requestor's right to request review by the Deputy
National Director.
(b) Routine requests of arbitrators maintained on the Service's
roster of arbitrators to amend records for such matters as address,
experience, fees charged, may be made in writing to the Director of
Arbitration Services, Washington, DC, 20427. If such routine requests
are not granted or involve other types of amendments, then the procedure
to be followed is that which includes a request in writing to the
Director of Administration.
Sec. 1410.7 Agency review of refusal to amend a record.
(a) The requestor may appeal any determination of the Director of
Administration not to amend a record by submitting a written request for
review of refusal to amend a record to the Deputy National Director,
Washington, DC 20427. Such a request shall indicate the specific
corrections or amendments sought. Not later than 30 days from receipt of
a request for review (unless such period is extended by the National
Director for good cause shown), the Deputy National Director will
complete such a review and make a final determination on the request,
and shall advise the requestor in a written letter of determination
whether, and to what extent the correction or amendment will be made. If
the correction or amendment is denied, in whole or in part, the letter
of determination will specify the reasons for such denial.
(b) If the Deputy National Director makes a final determination not
to amend the record, the individual may provide to the Service a concise
written statement explaining the reasons for disagreement with the
refusal.
(c) In addition, the individual may file a civil action in the U.S.
District Court to seek an order compelling the Service to amend the
record as requested.
Sec. 1410.8 Notation of dispute.
After an individual has filed a statement of disagreement as
described in Sec. 1410.7(b), any disclosure of the contested records
must contain a notation of the dispute. In addition, a copy of the
individual's statement will be provided to the person or agency to whom
the disputed record is disclosed. The Service may also, but it is not
required to, provide a statement reflecting the agency's reasons for not
making the requested amendments.
Sec. 1410.9 Fees.
Upon request, the Service will provide a photostatic copy of the
records to the individual to whom they pertain. There will be a charge
of $.10 per page.
Sec. 1410.10 Penalties.
Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Service under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.
Sec. 1410.11 Standards of review.
Upon a request for inspection of records or a determination on a
request for amendment, the Director of Administration, his designated
representative, or the Deputy National Director will review the
pertinent records and discard any material in them that is not:
[[Page 63]]
(a) Relevant and necessary to accomplish a statutory purpose or a
purpose not authorized by executive order.
(b) Accurate, relevant, timely, and complete, to assure fairness to
the individual.
Sec. 1410.12 Specific exemptions.
With regard to Agency Internal Personnel Records and Arbitrator
Personal Data Files, separately described in the system notices, such
records will be exempted from section (d) of the Act as follows:
Investigatory material maintained solely for the purposes of
determining an individual's qualification, eligibility, or suitability
for employment in the Federal civilian service, Federal contracts, or
access to classified information, but only to the extent that disclosure
of such material would reveal the identity of the source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence.
In order to obtain accurate information pertaining to employee or
arbitrator eligibility, the nondisclosure of the identity of such a
confidential source is essential.
PART 1420_FEDERAL MEDIATION AND CONCILIATION SERVICE_ASSISTANCE IN
THE HEALTH CARE INDUSTRY--Table of Contents
Sec.
1420.1 Functions of the Service in health care industry bargaining under
the Labor-Management Relations Act, as amended (hereinafter
``the Act'').
1420.2-1420.4 [Reserved]
1420.5 Optional input of parties to Board of Inquiry selection.
1420.6-1420.7 [Reserved]
1420.8 FMCS deferral to parties' own private factfinding procedures.
1420.9 FMCS deferral to parties' own private interest arbitration
procedures.
Authority: Secs. 8(d), 201, 203, 204, and 213 of the Labor
Management Relations Act, as amended in 1974 (29 U.S.C. 158(d), 171,
173, 174 and 183).
Source: 44 FR 42683, July 20, 1979, unless otherwise noted.
Sec. 1420.1 Functions of the Service in health care industry bargaining
under the Labor-Management Relations Act, as amended (hereinafter ``the Act'').
(a) Dispute mediation. Whenever a collective bargaining dispute
involves employees of a health care institution, either party to such
collective bargaining must give certain statutory notices to the Federal
Mediation and Conciliation Service (hereinafter ``the Service'') before
resorting to strike or lockout and before terminating or modifying any
existing collective bargaining agreement. Thereafter, the Service will
promptly communicate with the parties and use its best efforts, by
mediation and conciliation, to bring them to agreement. The parties
shall participate fully and promptly in such meetings as may be called
by the Service for the purpose of aiding in a settlement of the dispute.
(29 U.S.C. 158(d) and 158(g).).
(b) Boards of inquiry. If, in the opinion of the Director of the
Service a threatened or actual strike or lockout affecting a health care
institution will substantially interrupt the delivery of health care in
the locality concerned, the Director may establish within certain
statutory time periods an impartial Board of Inquiry. The Board of
Inquiry will investigate the issues involved in the dispute and make a
written report, containing the findings of fact and the Board's non-
binding recommendations for settling the dispute, to the parties within
15 days after the establishment of such a Board. (29 U.S.C. 183.)
Sec. Sec. 1420.2-1420.4 [Reserved]
Sec. 1420.5 Optional input of parties to Board of Inquiry selection.
The Act gives the Director of the Service the authority to select
the individual(s) who will serve as the Board of Inquiry if the Director
decides to establish a Board of Inquiry in a particular health care
industry bargaining dispute (29 U.S.C. 183). If the parties to
collective bargaining involving a health care institution(s) desire to
have some input to the Service's selection of an individual(s) to serve
as a Board of Inquiry (hereinafter ``BoI''),
[[Page 64]]
they may jointly exercise the following optional procedure:
(a) At any time at least 90 days prior to the expiration date of a
collective bargaining agreement in a contract renewal dispute, or at any
time prior to the notice required under clause (B) of section 8(d) of
the Act (29 U.S.C. 158(d)) in an initial contract dispute, the
employer(s) and the union(s) in the dispute may jointly submit to the
Service a list of arbitrators or other impartial individuals who would
be acceptable BoI members both to the employer(s) and to the union(s).
Such list submission must identify the dispute(s) involved and must
include addresses and telephone numbers of the individuals listed and
any information available to the parties as to current and past
employment of the individuals listed. The parties may jointly rank the
individuals in order of preference if they desire to do so.
(b) The Service will make every effort to select any BoI that might
be appointed from that jointly submitted list. However, the Service
cannot promise that it will select a BoI from such list. The chances of
the Service finding one or more individuals on such list available to
serve as the BoI will be increased if the list contains a sufficiently
large number of names and if it is submitted at as early a date as
possible. Nevertheless, the parties can even preselect and submit
jointly to the Service one specific individual if that individual agrees
to be available for the particular BoI time period. Again the Service
will not be bound to appoint that individual, but will be receptive to
such a submission by the parties.
(c) The jointly submitted list may be worked out and agreed to by
(1) A particular set of parties in contemplation of a particular
upcoming negotiation dispute between them, or (2) a particular set of
parties for use in all future disputes between that set of parties, or
(3) a group of various health care institutions and unions in a certain
community or geographic area for use in all disputes between any two or
more of those parties.
(d) Submission or receipt of any such list will not in any way
constitute an admission of the appropriateness of appointment of a BoI
nor an expression of the desirability of a BoI by any party or by the
Service.
(e) This joint submission procedure is a purely optional one to
provide the parties with an opportunity to have input into the selection
of a BoI if they so desire.
(f) Such jointly submitted lists should be sent jointly by the
employer(s) and the union(s) to the appropriate regional office of the
Service. The regional offices of the Service are as follows:
1. Eastern Region:
Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room
2937, New York, NY 10278.
Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands,
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of
Maryland; and Brooke and Hancock Counties of West Virginia.
2. Central Region:
Address: Insurance Exchange Building, Room 1641, 175 W. Jackson
Street, Chicago, IL 60604.
Consist of: Illinois (except counties listed under the Southern
Region); Indiana (except counties listed under Southern Region);
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio
(except counties listed under the Southern Region).
3. Southern Region:
Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
Consists of: Virginia, Maryland (except counties listed under the
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia;
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except
for those counties listed for the Western Region); Illinois (in counties
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond,
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White,
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham,
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin,
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer,
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland,
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton,
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford,
Cherokee, and Ottawa); West Virginia (except counties listed under the
Central Region); and the Canal Zone.
[[Page 65]]
4. Western Region:
Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San
Francisco, CA 94133.
Consists of: California; Nevada; Arizona; New Mexico; El Paso and
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington;
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa;
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer,
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess,
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston,
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte,
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass,
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake
Island.
[44 FR 42683, July 20, 1979, as amended at 47 FR 10530, Mar. 11, 1982]
Sec. Sec. 1420.6-1420.7 [Reserved]
Sec. 1420.8 FMCS deferral to parties' own private factfinding procedures.
(a) The Service will defer to the parties' own privately agreed to
factfinding procedure and decline to appoint a Board of Inquiry (BoI) as
long as the parties' own procedure meets certain conditions so as to
satisfy the Service's responsibilities under the Act. The Service will
decline to appoint a BoI and leave the selection and appointment of a
factfinder to the parties to a dispute if both the parties have agreed
in writing to their own factfinding procedure which meets the following
conditions:
(1) The factfinding procedure must be invoked automatically at a
specified time (for example, at contract expiration if no agreement is
reached).
(2) It must provide a fixed and determinate method for selecting the
impartial factfinder(s).
(3) It must provide that there can be no strike or lockout and no
changes in conditions of employment (except by mutual agreement) prior
to or during the factfinding procedure and for a period of at least
seven days after the factfinding is completed.
(4) It must provide that the factfinder(s) will make a written
report to the parties, containing the findings of fact and the
recommendations of the factfinder(s) for settling the dispute, a copy of
which is sent to the Service. The parties to a dispute who have agreed
to such a factfinding procedure should jointly submit a copy of such
agreed upon procedure to the appropriate regional office of the Service
at as early a date as possible, but in any event prior to the
appointment of a BoI by the Service. See Sec. 1420.5(f) for the
addresses of the regional offices.
(b) Since the Service does not appoint the factfinder under
paragraph (a) of this section, the Service cannot pay for such
factfinder. In this respect, such deferral by the Service to the
parties' own factfinding procedure is different from the use of
stipulation agreements between the parties which give to the Service the
authority to select and appoint a factfinder at a later date than the
date by which a BoI would have to be appointed under the Act. Under such
stipulation agreements by which the parties give the Service authority
to appoint a factfinder at a later date, the Service can pay for the
factfinder. However, in the deferral to the parties' own factfinding
procedure, the parties choose their own factfinder and they pay for the
factfinder.
Sec. 1420.9 FMCS deferral to parties' own private interest arbitration procedures.
(a) The Service will defer to the parties' own privately agreed to
interest arbitration procedure and decline to appoint a Board of Inquiry
(BoI) as long as the parties' own procedure meets certain conditions so
as to satisfy the Service's responsibilities under the Act. The Service
will decline to appoint BoI if the parties to a dispute have agreed in
writing to their own interest arbitration procedure which meets the
following conditions:
(1) The interest arbitration procedure must provide that there can
be no strike or lockout and no changes in conditions of employment
(except by mutual agreement) during the contract negotiation covered by
the interest arbitration procedure and the period of any subsequent
interest arbitration proceedings.
(2) It must provide that the award of the arbitrator(s) under the
interest arbitration procedure is final and binding on both parties.
[[Page 66]]
(3) It must provide a fixed and determinate method for selecting the
impartial interest arbitrator(s).
(4) The interest arbitration procedure must provide for a written
award by the interest arbitrator(s).
(b) The parties to a dispute who have agreed to such an interest
arbitration procedure should jointly submit a copy of their agreed upon
procedure to the appropriate regional office of the Service at as early
a date as possible, but in any event prior to the appointment of BoI by
the Service. See Sec. 1420.5(f) for the addresses of regional offices.
These new regulations are a part of the Service's overall approach to
implementing the health care amendments of 1974 in a manner consistent
with the Congressional intent of promoting peaceful settlements of labor
disputes at our vital health care facilities. The Service will work with
the parties in every way possible to be flexible and to tailor its
approach so as to accommodate the needs of the parties in the interest
of settling the dispute. This was the motivating principle behind these
new regulations which permit input by the parties to the Board of
Inquiry selection and allow the parties to set up their own factfinding
or arbitration procedures in lieu of the Board of Inquiry procedure. We
encourage the parties, both unions and management, to take advantage of
these and other options and to work with the Service to tailor their
approach and procedures to fit the needs of their bargaining situations.
PART 1425_MEDIATION ASSISTANCE IN THE FEDERAL SERVICE--Table of Contents
Sec.
1425.1 Definitions.
1425.2 Notice to the Service of agreement negotiations.
1425.3 Functions of the Service under title VII of the Civil Service
Reform Act.
1425.4 Duty of parties.
1425.5 Referral to FSIP.
1425.6 Use of third-party mediation assistance.
Authority: 5 U.S.C. 581(8), 7119, 7134.
Source: 45 FR 62798, Sept. 22, 1980, unless otherwise noted.
Sec. 1425.1 Definitions.
As used in this part:
(a) The Service means Federal Mediation and Conciliation Service.
(b) Party or Parties means (1) any appropriate activity, facility,
geographical subdivision, or combination thereof, of an agency as that
term is defined in 5 U.S.C. 7103(3), or (2) a labor organization as that
term is defined in 5 U.S.C. 7103(4).
(c) Third-party mediation assistance means mediation by persons
other than FMCS commissioners.
(d) Provide its services means to make the services and facilities
of the Service available either on its own motion or upon the special
request of one or both of the parties.
Sec. 1425.2 Notice to the Service of agreement negotiations.
(a) In order that the Service may provide assistance to the parties,
the party initiating negotiations shall file a notice with the FMCS
Notice Processing Unit, 2100 K Street, N.W., Washington, D.C. 20427, at
least 30 days prior to the expiration or modification date of an
existing agreement, or 30 days prior to the reopener date of an existing
agreement. In the case of an initial agreement the notice shall be filed
within 30 days after commencing negotiations.
(b) Parties engaging in mid-term or impact and/or implementation
bargaining are encouraged to send a notice to FMCS if assistance is
desired. Such notice may be sent by either party or may be submitted
jointly. In regard to such notices a brief listing should be general in
nature e.g., smoking policies, or Alternative Work Schedules (AWS).
(c) Parties requesting grievance mediation must send a request
signed by both the union and the agency involved. Receipt of such
request does not commit FMCS to provide its services. FMCS has the
discretion to determine whether or not to perform grievance mediation,
as such service may not be appropriate in all cases.
(d) The guidelines for FMCS grievance mediation are:
(1) The parties shall submit a joint request, signed by both parties
requesting FMCS assistance. The parties agree
[[Page 67]]
that grievance mediation is a supplement to, and not a substitute for,
the steps of the contractual grievance procedure.
(2) The grievant is entitled to be present at the grievance
mediation conference.
(3) Any times limits in the parties labor agreement must be waived
to permit the grievance to proceed to arbitration should mediation be
unsuccessful.
(4) Proceedings before the mediator will be informal and rules of
evidence do not apply. No record, stenographic or tape recordings of the
meetings will be made. The mediators notes are confidential and content
shall not be revealed.
(5) The mediator shall conduct the mediation conference utilizing
all of the customary techniques associated with mediation including the
use of separate caucuses.
(6) The mediator had no authority to compel resolution of the
grievance.
(7) In the event that no settlement is reached during the mediation
conference, the mediator may provide the parties either in separate or
joint session with an oral advisory opinion.
(8) If either party does not accept an advisory opinion, the matter
may then proceed to arbitration in the manner form provided in their
collective bargaining agreement. Such arbitration hearings will be held
as if the grievance mediation effort had not taken place. Nothing said
or done by the parties or the mediator during the grievance mediation
session can be used during arbitration proceedings.
(9) When the parties choose the FMCS grievance mediation procedure,
they have agreed to abide by these guidelines established by FMCS, and
it is understood that the parties and the grievant shall hold FMCS and
the mediator appointed by the Service to conduct the mediation
conference harmless of any claim of damages arising from the mediation
process.
[[Page 68]]
[GRAPHIC] [TIFF OMITTED] TR10JA95.000
Instructions
Complete this form, please follow these instructions.
In item 1. Check the block and give the date if this is for an
existing agreement or reopener. The FLRA Certification number should be
provided if available. If not known, please leave this item blank.
Absence of this number will not impede processing of the Form.
In item 2. If other assistance in bargaining is requested please
specify: e.g.; impact and
[[Page 69]]
implementation bargaining (I&I) and/or mid-term bargaining and provide a
brief listing of issues, e.g. Smoking, Alternative Work Schedules (AWS),
ground rules, office moves, or if desired, add attached list. This is
only if such issues are known at time of filing.
In item 3. Please specify the issues to be considered for grievance
mediation. Please refer to FMCS guidelines for processing these
requests. Please make certain that both parties sign this request!
In item 4. List the name of the agency, as follows: The Department,
and the subdivision or component. For example: U.S. Dept. of Labor, BLS,
or U.S. Dept. of Army, Aberdeen Proving Ground, or Illinois National
Guard, Springfield Chapter. If an independent agency is involved, list
the agency, e.g. Federal Deposit Insurance Corp. (FDIC) and any
subdivision or component, if appropriate.
In item 5. List the name of the union and its subdivision or
component as follows: e.g. Federal Employees Union, Local 23 or
Government Workers Union, Western Joint Council.
In item 6. Provide the area where the negotiation or mediation will
most likely take place, with zip code, e.g., Washington, D.C. 20427. The
zip code is important because our cases are routed by computer through
zip code, and mediators are assigned on that basis.
In item 7. Only the approximate number of employees in the
bargaining unit and establishment are requested. The establishment is
the entity referred to in item 4 as name of subdivision or component, if
any.
In item 8. The filing need only be sent by one party unless it is a
request for grievance mediation. (See item 9.)
In item 9. Please give the title of the official, phone number,
address, and zip code.
In item 10. Both labor and management signatures are required for
grievance mediation requests.
Notice
Send original to F.M.C.S.
Send one copy to opposite party.
Retain one copy for party filing notice.
[60 FR 2509, Jan. 10, 1995]
Sec. 1425.3 Functions of the Service under title VII of the Civil Service
Reform Act.
(a) The service may provide its assistance in any negotiation
dispute when earnest efforts by the parties to reach agreement through
direct negotiation have failed to resolve the dispute. When the
existence of a negotiation dispute comes to the attention of the Service
through a specific request for mediation from one or both of the
parties, through notification under the provisions of Sec. 1425.2, or
otherwise, the Service will examine the information concerning the
dispute and if, in its opinion, the need for mediation exists, the
Service will use its best efforts to assist the parties to reach
agreement.
(b) The Service may, at the outset of negotiations or at any time in
the dispute, set time limits on its participation. If no settlement of
the dispute is reached by the expiration of the time limits, the Service
may make suggestions for settlement to the parties. If suggestions for
settlement made by the Service are not accepted by the parties within
time limits set by the Service, the matter may be referred to the
Federal Services Impasses Panel (FSIP).
Sec. 1425.4 Duty of parties.
It shall be the duty of the parties to participate fully and
promptly in any meetings arranged by the Service for the purpose of
assisting in the settlement of a negotiation dispute.
Sec. 1425.5 Referral to FSIP.
If the mediation process has been completed and the parties are at a
negotiation impasse, the Service or the parties may request
consideration of the matter by the Federal Services Impasses Panel. The
Service shall not refer a case to FSIP until the mediation process has
been exhausted and the parties are at a negotiation impasse.
Sec. 1425.6 Use of third-party mediation assistance.
If the parties should mutually agree to third-party mediation
assistance other than that of the Service, both parties shall
immediately inform the Service in writing of this agreement. Such
written communication shall be filed with the regional director of the
region in which the negotiation is scheduled, and shall state what
alternate assistance the parties have agreed to use.
PART 1430_FEDERAL MEDIATION AND CONCILIATION SERVICE ADVISORY
COMMITTEES--Table of Contents
Sec.
1430.1 Scope and purpose.
[[Page 70]]
1430.2 Definitions.
1430.3 Establishment of advisory committees.
1430.4 Filing of advisory committee charter.
1430.5 Termination of advisory committees.
1430.6 Renewal of advisory committees.
1430.7 Application of the Freedom of Information Act to advisory
committee functions.
1430.8 Advisory committee meetings.
1430.9 Agency management of advisory committees.
Authority: Pub. L. 92-463, 86 Stat. 770 (5 U.S.C. App.).
Source: 39 FR 9433, Mar. 11, 1974, unless otherwise noted.
Sec. 1430.1 Scope and purpose.
(a) This part contains the Federal Mediation and Conciliation
Service's regulations implementing section 8(a) of the Federal Advisory
Committee Act (Pub. L. 92-463, 86 Stat. 770, (5 U.S.C. App.)), which
requires each agency head to establish uniform guidelines and management
controls for the advisory committees. These regulations supplement the
Government-wide guidelines issued jointly by the Office of Management
and Budget and the Department of Justice, and should be read in
conjunction with them.
(b) The regulations provided under this part do not apply to
statutorily created or established advisory committees of the Service,
to the extent that such statutes have specific provisions different from
those promulgated herein.
Sec. 1430.2 Definitions.
For the purposes of this part:
(a) The term Act means the Federal Advisory Committee Act;
(b) The term advisory committee means any committee, board,
commission, counsel, conference, panel, task force, or other similar
group, or any subgroup or subcommittee thereof which is:
(1) Established by statute or reorganization, plan, or
(2) Established or utilized by the President, or
(3) Established or utilized by one or more agencies or officers of
the Federal Government in the interest of obtaining advice or
recommendations for the President or one or more agencies of the Federal
Government, except that such term excludes:
(i) The Advisory Commission on Intergovernmental Relations;
(ii) The Commission on Government Procurement; and
(iii) Any committee which is composed wholly of full-time officers
or employees of the Federal Government.
(c) The term agency has the same meaning as in 5 U.S.C. 552(1);
(d) The term committee management officer means the Federal
Mediation and Conciliation Service employee or his delegee, officially
designated to perform the advisory committee management functions
delineated in this part;
(e) The term Service means the Federal Mediation and Conciliation
Service;
(f) The term OMB means the Office of Management and Budget;
(g) The term Director means the Director of the Federal Mediation
and Conciliation Service;
(h) The term secretariat means the OMB Committee Management
Secretariat.
Sec. 1430.3 Establishment of advisory committees.
(a) Guidelines for establishing advisory committees. The guidelines
in establishing advisory committees are as follows:
(1) No advisory committee shall be established if its functions are
being or could be performed by an agency or an existing committee;
(2) The purpose of the advisory committee shall be clearly defined;
(3) The membership of the advisory committee shall be fairly
balanced in terms of the points of view represented and the committee's
functions;
(4) There shall be appropriate safeguards to assure that an advisory
committee's advice and recommendations will not be inappropriately
influenced by any special interests; and
(5) At least once a year, a report shall be prepared for each
advisory committee, describing the committee's membership, functions,
and actions.
(b) Advisory committees established by the Service not pursuant to
specific statutory authority. (1) Advisory committees
[[Page 71]]
established by the Service not pursuant to specific statutory authority
may be created by the Director after consultation with the secretariat.
(2) When the Director determines that such an advisory committee
needs to be established, he shall notify the secretariat of his
determination and shall inform the secretariat of the nature and purpose
of the committee, the reasons why the committee is needed, and the
inability of any existing agency or committee to perform the committee's
functions.
(3) After the secretariat has determined that establishment of such
a committee is in conformance with the Act and has so informed the
Director, the Director shall prepare a certification of the committee,
stating the committee's nature and purpose, and that it is established
in the public interest. That certification shall be published in the
Federal Register.
(c) Advisory committees created pursuant to Presidential directive.
Advisory committees established by Presidential directive are those
created pursuant to Executive Order, executive memorandum, or
reorganization plan. The Director shall create such committees in
accordance with the provisions of the Presidential directive and shall
follow the provisions of this part, to the extent they are not
inconsistent with the directive.
(d) Advisory committees created pursuant to specific statutory
authority. The Director shall create advisory committees established
pursuant to specific statutory authority in accordance with the
provisions of the statute and shall follow the provisions of this part,
to the extent they are not inconsistent with the statute: Provided,
however, That the Director need not utilize the procedures described in
paragraph (b) of this section.
(e) Advisory committees established by persons outside the Federal
Government, but utilized by the Service to obtain advice or opinion. In
utilizing such committees, the Director shall follow the provisions of
this part and the requirements of the Act. Such committees, to the
extent they are utilized by the Service, shall be considered, for the
purposes of this part, to be advisory committees established by the
Service.
Sec. 1430.4 Filing of advisory committee charter.
(a) Filing charter with Director. Before an advisory committee takes
any action or conducts any business, a charter shall be filed with the
Director, the standing committees of Congress with legislative
jurisdiction over the Service, and the Library of Congress. Except for a
committee in existence on the effective date of the Act, or when
authorized by statute, Presidential directive, or by the secretariat,
such charter shall be filed no earlier than 30 days after publication of
the committee's certification in the Federal Register.
(b) Charter information. A charter shall contain the following
information:
(1) The committee's official designation;
(2) The committee's objectives and scope of activity;
(3) The period of time necessary for the committee to carry out its
purposes;
(4) The agency or official to whom the advisory committee reports;
(5) The agency responsible for providing necessary support;
(6) A description of the committee's duties;
(7) The estimated number and frequency of committee meetings;
(8) The estimated annual operating costs in dollars and man-years;
(9) The committee's termination date, if less than two years; and
(10) The date the charter is filed.
(c) Preparation and filing of initial charter. Responsibility for
preparation of the initial committee charter shall be with the head of
the appropriate program within the Service, in cooperation with the
committee management officer. The Director of Administration shall have
responsibility for assuring the appropriate filings of such charters.
Sec. 1430.5 Termination of advisory committees.
(a) All nonstatutory advisory committees including those authorized,
but not specifically created by statute, shall terminate no later than 2
years after their charters have been filed, unless renewed as provided
in Sec. 1430.6.
[[Page 72]]
(b) The charter of any committee in existence on the date the Act
became effective (January 5, 1973) shall terminate no later than January
5, 1975, unless renewed, as provided in Sec. 1430.6.
(c) Advisory committees specifically created by statute shall
terminate as provided in the establishing statute.
Sec. 1430.6 Renewal of advisory committees.
(a) Renewal of advisory committees not created pursuant to specific
statutory authority.
(1) The Director may renew an advisory committee not created
pursuant to specific statutory authority after consultation with the
secretariat.
(2) When the Director determines that such an advisory committee
should be renewed, he shall so advise the secretariat within 60 days
prior to the committee's termination date and shall state the reasons
for his determination.
(3) Upon concurrence of the secretariat, the Director shall publish
notice of the renewal in the Federal Register and cause a new charter to
be prepared and filed in accordance with the provisions of Sec. 1430.3.
(b) Renewal of advisory committees established pursuant to specific
statutory authority. The Director may renew advisory committees
established pursuant to specific statutory authority through the filing
of a new charter at appropriate 2-year intervals.
(c) No advisory committee shall take any action or conduct any
business during the period of time between its termination date and the
filing of its renewal charter.
Sec. 1430.7 Application of the Freedom of Information Act to advisory
committee functions.
(a) Subject to 5 U.S.C. 552, the records, reports, transcripts,
minutes, appendices, working papers, drafts, studies, agenda, and other
documents which are made available to or are prepared for or by an
advisory committee shall be available to the public.
(b) Advisory committee meeting conducted in accordance with Sec.
1430.7 may be closed to the public when discussing a matter that is of a
5 U.S.C. 552(b) nature, whether or not the discussion centers on a
written document.
(c) No record, report, or other document prepared for or by an
advisory committee may be withheld from the public unless the Office of
the General Counsel determines that the document is properly within the
exemptions of 5 U.S.C. 552(b). No committee meeting, or portion thereof,
may be closed to the public unless the Office of the General Counsel
determines in writing, prior to publication of the meeting in the
Federal Register that such a closing is within the exemptions of 5
U.S.C. 552(b).
Sec. 1430.8 Advisory committee meetings.
(a) Initiation of meetings. (1) Committee meetings may be called by:
(i) The Director or the head of the office most directly concerned
with the committee's activities;
(ii) The agency officer referred to in paragraph (a)(1)(i) of this
section, and the committee chairman, jointly; or
(iii) The committee chairman, with the advance approval of the
officer referred to in paragraph (a)(1)(i) of this section.
(2) The Service's committee management officer shall be promptly
informed that a meeting has been called.
(b) Agenda. Committee meetings shall be based on agenda approved by
the officer referred to in paragraph (a)(1) of this section. Such agenda
shall note those items which may involve matters which have been
determined by the Office of the General Counsel as coming within the
exemptions to the Freedom of Information Act, 5 U.S.C. 552(b).
(c) Notice of meetings. (1) Notice of advisory committee meetings
shall be published in the Federal Register at least 7 days before the
date of the meeting, irrespective of whether a particular meeting will
be open to the public. Notice to interested persons shall also be
provided in such other reasonable ways as are appropriate under the
circumstances, such as press release or letter. Responsibility for
preparation of Federal Register and other appropriate notice shall be
with the officer referred to in paragraph (a)(1) of this section.
[[Page 73]]
(2) Notice in the Federal Register shall state all pertinent
information related to a meeting and shall be published at least 7 days
prior to a meeting.
(d) Presence of agency officer or employee at meetings. No committee
shall meet without the presence of the officer referred to in paragraph
(a)(1) of this section, or his delegate. At his option the officer or
employee may elect to chair the meeting.
(e) Minutes. Detailed minutes shall be kept of all committee
meetings and shall be certified by the chairman of the advisory
committee as being accurate.
(f) Adjournment. The officer or employee referred to in paragraph
(a)(1) of this section may adjourn a meeting at any time he determines
it in the public interest to do so.
(g) Public access to committee meetings. All advisory committee
meetings shall be open to the public, except when the Office of the
General Counsel determines, in writing, and states his reasons therefor
prior to Federal Register notice, that a meeting or any part thereof, is
concerned with matters related to the exemptions provided in the Freedom
of Information Act, 5 U.S.C. 552(b). In such instances, those portions
of a committee meeting which come within the section 552(b) exemptions
may be closed to the public.
(h) Public participation in committee procedures. Interested persons
shall be permitted to file statements with advisory committees. Subject
to reasonable committee procedures, interested persons may also be
permitted to make oral statements on matters germane to the subjects
under consideration at the committee meeting.
Sec. 1430.9 Agency management of advisory committees.
Consistent with the other provisions of this part, the Service's
advisory committee management officer shall:
(a) Exercise control and supervision over the establishment,
procedures, and accomplishments of advisory committees established by
the Service;
(b) Assemble and maintain the reports, records, and other papers of
advisory committees, during their existence;
(c) Carry out, with the concurrence of the Office of the General
Counsel, the provisions of the Freedom of Information Act, as those
provisions apply to advisory committees;
(d) Have available for public inspection and copying all pertinent
documents of advisory committees which are within the purview of the
Freedom of Information Act; and
(e) When transcripts have been made of advisory committee meetings,
provide for such transcripts to be made available to the public at
actual cost of duplication, except where prohibited by contractual
agreements entered into prior to January 5, 1973, the effective date of
the Federal Advisory Committee Act.
PART 1440_ARBITRATION OF PESTICIDE DATA DISPUTES--Table of Contents
Sec.
1440.1 Arbitration of pesticide data disputes.
Appendix to Part 1440--FIFRA Arbitration Rules
Authority: Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 136 et seq.), as amended, Pub. L. 95-396, 92 Stat. 819.
Source: 45 FR 55395, Aug. 19, 1980, unless otherwise noted.
Sec. 1440.1 Arbitration of pesticide data disputes.
(a) Persons requesting the appointment of an arbitrator under
section 3(c)(1)(D)(ii) and section 3(c)(2)(B)(iii) of the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136, as amended),
shall send such requests in writing to the appropriate American
Arbitration Association Regional Office. Such requests must include the
names, addresses, and telephone numbers of the parties to the dispute;
issue(s) in dispute, the amount in dollars or any other remedy sought;
sufficient facts to show that the statutory waiting period has passed,
and the appropriate fee provided in the Fee Schedule.
(b) For the purpose of compliance with the Federal Insecticide,
Fungicide, and Rodenticide Act (hereinafter ``the Act''), the roster of
arbitrators maintained by the Federal Mediation and Conciliation Service
shall be
[[Page 74]]
the roster of commercial arbitrators maintained by the American
Arbitration Association. Under this Act, arbitrators will be appointed
from that roster. The fees of the American Arbitration Association shall
apply, and the procedure and rules of the Federal Mediation and
Conciliation Service, applicable to arbitration proceedings under the
Act, shall be the FIFRA arbitration rules of the American Arbitration
Association, which are hereby made a part of this regulation.
Sec. Appendix to Part 1440--FIFRA Arbitration Rules
Section 1
These rules shall apply as published in the Federal Register unless
modified by FMCS.
Sec. 2. Definitions
For the purpose of these Rules of Procedure the terms are defined as
follows:
(1) AAA means the American Arbitration Association.
(2) Act or FIFRA means the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. 136 et seq.
(3) EPA means the United States Environmental Protection Agency.
(4) Arbitrator(s) means the person or persons appointed to the
tribunal constituted by the parties for the settlement of their dispute
under these Rules.
(5) Claimant means a person asserting a claim for compensation under
these Rules or filing a claim concerning joint development of data.
(6) Compulsory arbitration means arbitration invoked under the
mandatory provisions of section 3(c)(1)(d) or 3(c)(2)(B)(iii) of the
Act.
(7) Voluntary arbitration means arbitration voluntarily agreed to by
the parties to settle a dispute under section 3(c)(1)(d) or
3(c)(2)(B)(iii) of the Act.
(8) Director means Director, Registration Division, Office of
Pesticide Programs, Environmental Protection Agency, or any officer or
employee of the EPA to whom authority has been or may hereafter be
lawfully delegated to act in his stead.
(9) Administator means the AAA, its Tribunal Administrators or such
officers or committees as the AAA may direct.
(10) Roster means the Commercial Arbitration Roster of AAA.
(11) FMCS or Service means the Federal Mediation and Conciliation
Service.
(12) Party means claimant or respondent.
(13) Person means any individual, partnership, association,
corporation, or any organized group of persons, whether incorporated or
not.
(14) Respondent means the person against whom a claim is made under
section 3(c)(1)(D) or 3(c)(2)(B)(iii) of the Act.
Terms defined in the Act and not explicitly defined herein are used
herein with the meanings given in the Act.
Sec. 3. Initiation of Arbitration
(a) Under compulsory procedures of FIFRA. Upon the request of a
party qualified under FIFRA section 3(c)(1)(D) or 3(c)(2)(B)(iii) for
the appointment of an arbitrator, the Service will appoint an arbitrator
in accordance with 29 CFR 1440.1 (a) and these rules. Requests shall be
submitted in writing to the appropriate AAA Regional Office and must
include the names, addresses and telephone numbers of the parties to the
dispute; issues in dispute; the amount in dollars or any other remedy
sought; sufficient facts to show that the statutory waiting period has
passed; and the appropriate fee as provided in the Fee Schedule.
AAA shall give notice of filing of a request for arbitration to the
other party. If he so desires, the party upon whom the demand for
arbitration is made may file an answering statement in duplicate with
AAA within seven days after notice, in which event he shall
simultaneously send a copy of his answer to the other party. If a
monetary claim is made in the answer the appropriate fee provided in the
Fee Schedule shall be forwarded with the answer. If no answer is filed
within the stated time, it will be assumed that the claim is denied.
Failure to file an answer shall not operate to delay the arbitration.
(b) Under a Voluntary Submission. Parties to any existing dispute
may commence an arbitration under these Rules by filing at any AAA
Regional Office two (2) copies of a written agreement to arbitrate under
these Rules (Submission), signed by the parties. It shall contain a
statement of the matter in dispute, the amount of money involved, if
any, and the remedy sought, together with the appropriate administrative
fee as provided in the Fee Schedule.
Sec. 4. Fixing of Locale
The parties may mutually agree on the locale where the arbitration
is to be held. If the locale is not designated within seven days from
the date of filing the Demand or Submission the AAA shall have power to
determine the locale. Its decision shall be final and binding. If any
party requests that the hearing be held in a specific locale and the
other party files no objection thereto within seven days after notice of
the requests, the locale shall be the one requested.
[[Page 75]]
Sec. 5. Qualification of Arbitrator
Any Arbitrator appointed pursuant to these rules shall be neutral,
subject to disqualification for the reasons specified in section 11. If
the agreement of the parties names an Arbitrator or specifies any other
method of appointing an Arbitrator, or if the parties specifically agree
in writing, such Arbitrator shall not be subject to disqualification for
said reasons.
Sec. 6. Appointment From Panel
If the parties have not appointed an Arbitrator and have not
provided any other method of appointment, the Arbitrator shall be
appointed in the following manner. Immediately after the filing of the
Request or Submission, the AAA shall submit simultaneously to each party
to the dispute an identical list of names of persons chosen from the
Panel. Each party to the dispute shall have seven days from the mailing
date in which to cross off any names to which he objects, number the
remaining names indicating the order of his preference, and return the
list to the AAA. If a party does not return the list within the time
specified, all persons named therein shall be deemed acceptable. From
among the persons who have been approved on both lists, and in
accordance with the designated order of mutual preference, the AAA shall
invite the acceptance of an Arbitrator to serve, and the Service shall
appoint the Arbitrator. If the parties fail to agree upon any of the
persons named, or if acceptable Arbitrators are unable to act, or if for
any other reason the appointment cannot be made from the submitted
lists, the FMCS shall have the power to make the appointment from other
members of the Panel without the submission of any additional lists.
Sec. 7. Direct Appointment by Parties
If the agreement of the parties to a Submission names an Arbitrator
or specifies a method of appointment of an Arbitrator, that designation
or method shall be followed. The notice of appointment, with name and
address of such Arbitrator, shall be filed with the AAA by the
appointing party. Upon the request of any such appointing party, the AAA
shall submit a list of members from the Panel from which the party may,
if he so desires, make the appointment.
If the agreement specifies a period of time within which an
Arbitrator shall be appointed, and any party fails to make such
appointment within that period, the AAA shall make the appointment.
Sec. 8. Appointment of Neutral Arbitrator by Party Appointed Arbitrators
If the parties have appointed their Arbitrators or if either or both
of them have been appointed as provided in section 7, and have
authorized such Arbitrators to appoint a neutral Arbitrator within a
specified time and no appointment is made within such time or any agreed
extension thereof, the FMCS shall appoint a neutral Arbitrator who shall
act as Chairman.
If no period of time is specified for appointment of the neutral
Arbitrator and the parties do not make the appointment within seven days
from the date of the appointment of the last party-appointed Arbitrator,
the FMCS shall appoint such neutral Arbitrator, who shall act as
Chairman.
If the parties have agreed that their Arbitrators shall appoint the
neutral Arbitrator from the Panel, the AAA shall furnish to the party-
appointed Arbitrators, in the manner prescribed in section 6, a list
selected from the Panel, and the appointment of the neutral Arbitrator
shall be made as prescribed in such section.
Sec. 9. Number of Arbitrators
If the arbitration agreement does not specify the number of
Arbitrators, the dispute shall be heard and determined by one
Arbitrator, unless the AAA in its discretion, directs that a greater
number of Arbitrators be appointed.
Sec. 10. Notice to Arbitrator of His or Her Appointment
Notice of the appointment of the neutral Arbitrator, whether
appointed by the parties, by the AAA or FMCS shall be mailed to the
Arbitrator, together with a copy of these Rules, and the signed
acceptance of the Arbitrator shall be filed with AAA prior to the
opening of the first hearing.
Sec. 11. Disclosure and Challenge Procedure
A person appointed as neutral Arbitrator shall disclose to the AAA
any circumstances likely to affect his or her impartiality, including
any bias or any financial or personal interest in the result of the
arbitration or any past or present relationship with the parties or
their counsel. Upon receipt of such information from such Arbitrator or
other source, the AAA shall communicate such information to the parties,
and, if it deems it appropriate to do so, to the Arbitrator. Thereafter,
the AAA shall make a determination whether the Arbitrator should be
disqualified. The determination, however, may be appealed to FMCS. The
decision of FMCS shall be conclusive.
Sec. 12. Vacancies
If any Arbitrator should resign, die, withdraw, refuse, be
disqualified, or be unable to perform the duties of his office, AAA may,
on proof satisfactory to it, declare the office vacant. Either party to
a compulsory arbitration may request the FMCS to review a declaration of
disqualification. Vacancies
[[Page 76]]
shall be filled in accordance with the applicable provision of these
Rules and the matter shall be reheard unless the parties shall agree
otherwise.
Sec. 13. Commencement of Proceeding
(a) Within 60 days from receipt by the parties of notice of the
appointment of an arbitrator, the claimant shall file with AAA:
(1) If appropriate, a detailed statement as to the amount of
compensation claimed, the method of computing said amount, and terms of
payment, and a list of the test data deemed to be compensable, together
with a detailed justification therefore.
(2) A certification as to: (i) Whether any court or tribunal has
made determinations for payment by any other persons to claimant for use
of the same test data and, if so, identification of the persons against
whom the 3(c)(2)(B) determinations were issued and the application for
registration for which the test data was used; and (ii) whether any
other claims against any persons are pending in arbitration or in any
court for use of the same test data and, if so, an identification of the
persons against whom the claims are pending and the applications for
registration on which the claims are being made.
(3) A detailed statement of the matter in dispute under 3(c)(2)(B).
(b) Within 60 days of service of the documents referred to in
subsection (a) the respondent shall file a detailed statement of its
position as to the amount of compensation due, method of computation,
terms of payment, and list of data deemed to be compensable together
with a detailed justification therefore or a detailed statement of the
dispute under 3(c)(2)(5). To the extent any portion of the claimant's
statement of its claim is not denied or challenged by respondent, it
shall be deemed admitted.
(c) After respondent's statement is filed, the arbitrator may, upon
request by a party, request the Director to supplement the file with
additional information, including copies of relevant test data,
information contained in a relevant registration file, a statement as to
data requirements for registration, or any other information which the
arbitrator deems to be relevant. Upon request by a party or other
interested person, the arbitrator shall order protective measures to
safeguard and restrict access to confidential business information.
Sec. 14. Filing and Service
(a) All documents or papers required or authorized to be filed,
shall be filed with the AAA for transmittal to the arbitrator, except as
otherwise herein provided, and shall bear the caption of the case and
the docket number. At the same time that a party files documents or
papers with the AAA, the party shall serve upon all other parties copies
thereof, with a certificate of service on or attached to each document
or paper, including those filed with the arbitrator. If a party is
represented by counsel or other representative, service shall be made on
such representative. Service may be made personally or by regular mail,
and if made by mail shall be deemed complete on mailing. If filing is
accomplished by mail addressed to the AAA, filing shall be deemed timely
if the papers are postmarked on the due date.
(b) All orders, decisions, or other documents made or signed by the
arbitrator shall be served immediately upon all parties.
Sec. 15. Time
(a) In computing any period of time prescribed or allowed by these
rules, except as otherwise provided, the day of the act, event, or
default from which the designated period of time begins to run shall not
be included. Saturdays, Sundays and legal holidays shall be included in
computing the time allowed for the filing of any document or paper,
except that when such time expires on a Saturday, Sunday, or legal
holiday, such period shall be extended to include the next following
business day.
(b) When by these rules or by order of the arbitrators, an act is
required or allowed to be done at or within a specified time, the
arbitrator or AAA for cause shown may at any time in their discretion
(1) with or without motion or notice, order the period enlarged if
request therefore, which may be made ex parte, is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) on motion made after the expiration of the
specified period, permit the act to be done where the failure to act was
the result of excusable neglect or other good cause.
Sec. 16. Communication with Arbitrator and Serving of Notices
(a) There shall be no communication between the parties and a
neutral arbitrator other than at oral hearings. Any other oral or
written communications from the parties to the arbitrator shall be
directed to the AAA for transmittal to the arbitrator.
(b) Each party to an agreement which provides for arbitration under
these Rules shall be deemed to have consented that any papers, notices
or process necessary or proper for the initiation or continuation of an
arbitration under these Rules and for any court action in connection
therewith or for the entry of judgment on any award made thereunder may
be served upon such party by mail addressed to such party or his
attorney at his last known address or by personal service, within or
without the State wherein the arbitration is to be held (whether such
party be within or without the United States
[[Page 77]]
of America): Provided, That reasonable opportunity to be heard with
regard thereto has been granted such party.
Sec. 17. Time of Award
The award shall be made promptly by the arbitrator and, unless
otherwise agreed by the parties, or specified by law, no later than
thirty days from the date of closing the hearings, or if oral hearings
have been waived, from the date of transmitting the final statements and
proofs to the arbitrator.
Sec. 18. Appearances
(a) Parties may appear in person or by counsel or other
representative. Persons who appear as counsel or in a representative
capacity must conform to the standards of ethical conduct required of
practitioners before the courts of the United States.
(b) Any party to the proceeding who, after being duly notified and
without good cause being shown fails to appear at a prehearing
conference or fails to respond to correspondence, shall be deemed to
have waived his rights with respect thereto and shall be subject to such
orders or determinations with respect thereto as the arbitrator shall
make. The failure of a party to appear at a hearing shall constitute a
waiver of the right to present evidence at such hearing. Where either
party fails to appear at a hearing, the arbitrator shall require the
presentation by the present party of such evidence as he deems necessary
to prepare a decision in conformity with the requirements of the act.
(c) Any person having a direct interest in the arbitration is
entitled to attend hearings. The arbitrator shall otherwise have the
power to require the exclusion of any witness, other than a party or
other essential person, during the testimony of any other witness. It
shall be discretionary with the arbitrator to determine the propriety of
the attendance of any other person.
Sec. 19. Consolidation and Severance
(a) The AAA may with agreement of all parties consolidate any
matters at issue in two or more proceedings docketed under these Rules
of Procedure where there exist common parties, common questions of fact
and law, and where such consolidation would expedite or simplify
consideration of the issues. Consolidation may also be effected where
separate claims for use of the same test data are made against different
respondents. The arbitrator who presides over the consolidated
proceeding shall be chosen in accordance with section 3, supra.
(b) The arbitrator may, by motion or sua sponte, for good cause
shown order any proceeding severed with respect to some or all parties
or issues.
Sec. 20. Protection of Confidential Information
(a) The arbitrator shall make such orders as required to protect the
secrecy of confidential information or documents such as review in
camera.
(b) The arbitrator shall impose a sanction against any party who
violates an order issued under this section. Such sanction may include
an award against the offending party.
Sec. 21. Scheduling of Hearing
(a) After consideration of the convenience of the parties, the AAA
shall serve upon the parties a notice of hearing setting a time and
place for such hearing.
(b) Except for good cause shown, no request for postponement of a
hearing will be granted. Such request must be received in writing at
least a day in advance of the time set for the hearing. In case of
postponement, the hearing shall be rescheduled for a date as early as
circumstances will permit.
Sec. 22. Optional Accelerated Procedure
(a) In claims involving $25,000 or less, the parties may elect,
prior to commencement of hearing, to have the claim processed under an
expedited procedure. If no specific amount of claim is stated, a case
will be considered to fall within this rule if the amount which the
claimant represents in writing that it could recover as a result of any
arbitrator's decision favorable to it does not exceed $25,000. Upon such
election, a case shall then be processed under this rule unless the
respondent objects and shows good cause why the substantive nature of
the dispute requires processing under the regular procedures. In cases
proceeding under this rule, the parties have waived discovery and
briefs.
(b) The arbitrator shall schedule the dispute for hearing within
thirty (30) days of service of notice to the parties that the dispute
will be governed by this accelerated procedure, unless either party
requests that the case be submitted without hearing under section 19.
(c) Written decision by the arbitrators in cases proceeding under
this rule normally will be short and contain summary findings of fact
and conclusions only. The arbitrator shall render such decisions
promptly, but in no event later than thirty days after the dispute is
ready for decision.
Sec. 23. Discovery
(a) Either party may move for permission to serve written
interrogatories and requests for production of documents upon the
opposing party. The arbitrator shall grant such motion to the extent
that such interrogatories and requests are designed to produce relevant
evidence and only upon such terms as the arbitrator in his or her
discretion considers to be consistent with the objective of
[[Page 78]]
securing a just and inexpensive determination of the dispute without
unnecessary delay.
(b) Upon motion by either party, the arbitrator may order a
deposition upon a showing of good cause and a finding that the
deposition is designed to secure relevant and probative evidence which
(1) cannot be obtained by alternative means, or (2) may otherwise not be
preserved for presentation at hearing.
(c) If a party fails to comply with an order issued under this
section, the arbitrator shall draw inferences adverse to that party in
connection with the facts sought to be discovered.
(d) At least thirty days prior to the hearing, each party shall make
available to each other party the names of the expert and other
witnesses it intends to call, together with a detailed summary of their
expected testimony, and copies of all documents and exhibits which the
party intends to introduce into evidence. Thereafter, witnesses,
documents, or exhibits may be added and narrative summaries of expected
testimony amended only upon motion by a party for good cause shown.
Sec. 24. Prehearing Conference
(a) When it appears that such procedure will expedite the
proceeding, the arbitrator at any time prior to the commencement of the
hearing may request the parties and their counsel or other
representative to appear at a conference before him or her to consider:
(i) The possibility of settlement of the case;
(ii) The simplification of issues and stipulation of facts not
indispute;
(iii) The necessity or desirability of amending or supplementing
documents in the record;
(iv) The possibility of obtaining admissions or stipulations of fact
and of documents which will avoid unnecessary proof;
(v) The limitation of the number of expert or other witnesses;
(vi) The setting of a time and place for the hearing, giving
consideration to the convenience of all parties and to the public
interest; and
(vii) Any other matters as may expedite the disposition of the
proceeding.
(b) No transcript of any prehearing conference shall be made unless
ordered upon motion of a party or sua sponte by the arbitrator. In the
absence of a transcript, the arbitrator shall prepare and file a report
of the action taken at such conference. Such report shall incorporate
any written stipulations or agreements made by the parties, all rulings
upon matters considered at such conference, and appropriate orders
containing directions to the parties. Such report shall, as appropriate,
direct the subsequent course of the proceeding, unless modified by the
arbitrators on motion or sua sponte.
Sec. 25. Evidence
(a) The arbitrator shall admit all evidence which is relevant,
competent, material, not privileged, and not unduly repetitious. The
weight to be given evidence shall be determined by its reliability and
probative value.
(b) Except as otherwise provided in these Rules of Procedure or by
the arbitrator, witnesses shall be examined orally, under oath or
affirmation. Parties shall have the right to cross-examine a witness who
appears at the hearing provided that such cross-examination is not
unduly repetitious.
(c) Except where the arbitrator finds it impracticable, an original
and two copies of each exhibit shall be filed at the time the exhibit is
offered into evidence and a copy shall be furnished to each party. A
true copy of an exhibit may be substituted for the original.
(d) Official notice may be taken of any matter judicially noticed in
the Federal courts. The parties shall be given adequate opportunity to
show that such facts are erroneously noticed.
Sec. 26. Order of Proceedings
(a) Hearing shall be opened by the filing of the oath of the
arbitrator, and by the recording of the place, time and date of the
hearing, the presence of the arbitrator, parties, and counsel.
(b) The arbitrator may, at the beginning of the hearing, ask for
statements clarifying the issues involved. The claimant shall then
present his claim and proofs and his witnesses. The respondent shall
then present his response and proofs and his witnesses. The arbitrator
may in his descretion vary this procedure but he or she shall afford
full and equal opportunity to all parties for the presentation of any
material or relevant proofs.
Sec. 28. Burden of Presentation; Burden of Persuasion
The claimant shall have the burden of going forward to establish his
entitlement to an amount of compensation that respondent should pay for
use of the test data relied upon. Each matter of controversy shall be
decided by the arbitrator upon a preponderance of the evidence.
Sec. 29. Stenographic Record
Any party may request a stenographic record by making arrangements
for same through the AAA. If such transcript is agreed by the parties to
be, or in appropriate cases determined by the arbitrator to be, the
official record of the proceeding, it must be made available to the
arbitrator, and to the other party for inspection, at a time and place
determined by the arbitrator. The
[[Page 79]]
total cost of such a record shall be shared equally by those parties
that order copies.
Sec. 30. Filing of Briefs, Proposed Findings of Fact and Conclusions of
Law, and Proposed Order
Unless otherwise ordered by the arbitrator, each party may within
thirty days after delivery of the transcript of a hearing to the
arbitrator as provided in section 29, file with AAA and serve upon all
other parties a brief together with references to relevant exhibits and
the record. Within Fifteen days thereafter each party may file a reply
brief concerning matters contained in the opposing brief. Oral argument
may be had at the discretion of the arbitrator.
Sec. 31. Closing of Hearings
The Arbitrator shall inquire of all parties whether they have any
further proofs to offer or witnesses to be heard. Upon receiving
negative replies, the arbitrator shall declare the hearings closed and
the time and date shall be recorded. If briefs or other documents are to
be filed, the hearings shall be declared closed as of the final date set
by the arbitrator for filing with the AAA. The time limit within which
the Arbitrator is required to make the award shall commence to run, in
the absence of other agreement by the parties, upon the closing of the
hearings.
Sec. 32. Arbitrators' Decision
(a) The arbitrator shall as soon as practicable after the filing of
briefs evaluate the record and prepare and file a decision. The decision
shall contain findings of fact and conclusions regarding all issues in
dispute as well as reasons therefore.
(b) The decision shall contain a determination as to the
compensation, if any respondent must pay to claimant, or other remedy as
appropriate, the method of payment, and may fix such other terms and
conditions as may be reasonable under the circumstances, including the
furnishing of a bond or other guarantee of payment by the respondent to
the claimant.
Sec. 33. Reopening of Hearings
(a) The hearings may be reopened by the arbitrator on his or her own
motion, or upon application of a party at any time before the award is
made. If the reopening of the hearings would prevent the making of the
award within the specific time agreed upon by the parties in the
contract out of which the controversy has arisen, the matter may not be
reopened, unless the parties agree upon the extension of such time
limit. When no specific date is fixed, the arbitrator may reopen the
hearings, and the arbitrator shall have thirty days from the closing of
the reopened hearings within which to make an award.
(b) A motion to reopen a hearing to take further evidence, to rehear
or reargue any matter related to such proceeding, or to reconsider the
arbitrator's decision, must be made by motion in writing to the
arbitrator in accordance with these Rules of Procedure. Every such
motion must state the specific grounds upon which relief is sought.
(c) A motion to reopen a hearing for the purpose of taking further
evidence may be filed at any time prior to the issuance of the
arbitrator's decision. Such motion shall state briefly the nature and
purpose of the evidence to be adduced, shall show that such evidence is
not cumulative, and shall set forth a good reason why such evidence was
not adduced at a hearing.
(d) Motions to modify the arbitrator's decision shall be filed
within 30 days after the date of service of the decision. Such motion
must state specifically one of the following grounds for modification:
1. There was a miscalculation of figures or a mistake in the
description of any person, thing or property referred to in the award;
or
2. The arbitrators have awarded upon a matter not submitted to them
and the award may be corrected without affecting the merits of the
decision upon the issues submitted; or
3. The award is imperfect in a matter of form, not affecting the
merits of the controversy.
Sec. 34. Award Upon Settlement
If the parties settle their dispute during the course of the
arbitration, the arbitrator, upon their request, may set forth the terms
of the agreed settlement in an award.
Sec. 35. Delivery of Award to Parties
Parties shall accept as legal delivery of the award the placing of
the award or a true copy thereof in the mail by the AAA, addressed to
such party at his last known address or to his attorney, or personal
service of the award, or the filing of the award in any manner which may
be prescribed by law.
Sec. 36. Release of Documents for Judicial Proceedings
The AAA shall, upon the written request of a party, furnish to such
party, at his or her expense, certified facsimiles of any papers in the
AAA's possession that may be required in judicial proceedings relating
to the arbitration.
Sec. 37. Application to Court
(a) No judicial proceedings by a party relating to the subject
matter of the arbitration shall be deemed a waiver of the party's right
to arbitrate.
(b) Neither the AAA nor FMCS is a necessary party in judicial
proceedings relating to the arbitration.
[[Page 80]]
(c) Parties to these Rules shall be deemed to have consented that
judgment upon the arbitration award may be entered in any Federal or
State Court having jurisdiction thereof.
Sec. 38. Administrative Fees
As a nonprofit organization, the AAA shall prescribe an
administrative fee schedule and a refund schedule to compensate it for
the cost of providing administrative services. The schedule in effect at
the time of filing or the time of refund shall be applicable.
The administrative fees shall be advanced by the initiating party or
parties, subject to final appointment by the arbitrator in his award.
When a matter is withdrawn or settled, the refund shall be made in
accordance with the refund schedule.
The AAA, in the event of extreme hardship on the part of any party,
may defer or reduce the administrative fee.
Sec. 39. Fee When Oral Hearings Are Waived
Where all oral hearings are waived the Administrative Fee Schedule
shall apply.
Sec. 40. Expenses
The expenses of witnesses for either side shall be paid by the party
producing such witnesses.
The cost of the stenographic record, if any is made, and all
transcripts thereof, shall be prorated equally among all parties
ordering copies unless they shall otherwise agree and shall be paid for
by the responsible parties directly to the reporting agency.
All other expenses of the arbitration, including required traveling
and other expenses of the arbitrator and of AAA representatives, and the
expenses of any witness or the cost of any proofs produced at the direct
request of the arbitrator, shall be borne equally by the parties.
Sec. 41. Arbitrator's Fee
Any arrangement for the compensation of a neutral arbitrator shall
be made through the AAA and not directly by him or her with the parties.
Where parties cannot agree, AAA shall fix reasonable compensation.
Sec. 42. Deposits
The AAA may require the parties to deposit in advance such sums of
money as it deems necessary to defray the expense of the arbitration,
including the arbitrator's fee if any, and shall render an accounting to
the parties and return any unexpened balance.
Sec. 43. Interpretation and Application of Rules
The arbitrator shall interpret and apply these Rules insofar as they
relate to his or her powers and duties. When there is more than one
arbitrator and a difference arises among them concerning the meaning or
application of any such Rules, it shall be decided by a majority vote.
If that is unobtainable, either an arbitrator or a party may refer the
question to the AAA for decision. All other Rules shall be interpreted
and applied by the AAA. Either party may request that FMCS review any
decision of AAA on interpretation or application of these rules.
Administrative Fee Schedule
The administrative fee of the AAA is based upon the amount of each
claim and counterclaim as disclosed when the claim and counterclaim are
filed, and is due and payable at the time of filing.
------------------------------------------------------------------------
Amount of claim Fee
------------------------------------------------------------------------
Up to $25,000............................ $500.
$25,000 to $100,000...................... $600, plus 1% of excess over
$25,000.
$100,000 to $200,000..................... $1350, plus \1/2\% of excess
over $100,000.
$200,000 to $5,000,000................... $1850, plus \1/4\% of excess
over $200,000.
------------------------------------------------------------------------
Where the claim or counter claim exceeds $5 million, an appropriate
fee will be determined by the AAA.
When no amount can be stated at the time of filing, the
administrative fee is $500, subject to adjustment in accordance with the
above schedule as soon as an amount can be disclosed.
If there are more than two parties represented in the arbitration,
an additional 10% of the initiating fee will be due for each additional
represented party.
Other Service Charges--$50.00 payable by a party causing an
adjournment of any scheduled hearing;
$100 payable by a party causing a second or additional adjournment
of any scheduled hearing.
$25.00 payable by each party for each hearing after the first
hearing which is either clerked by the AAA or held in a hearing room
provided by the AAA.
Refund Schedule--If the AAA is notified that a case has been settled
or withdrawn before a list of Arbitrators has been sent out, all the
fees in excess of $500 will be refunded.
If the AAA is notified that a case has been settled or withdrawn
thereafter but before the due date for the return of the first list,
two-thirds of the fee in excess of $500.00 will be refunded.
If the AAA is notified that a case is settled or withdrawn
thereafter but at least 48 hours before the date and time set for the
first hearing, one-half of the fee in excess of $500 will be refunded.
[[Page 81]]
Regional Directors
Atlanta (30303), India Johnson--100 Peachtree Street, NW.
Boston (02108), Richard M. Reilly--294 Washington Street
Charlotte (28218), John A. Ramsey--3235 Eastway Drive, P.O. Box 18591
Chicago (60601), Charles H. Bridge, Jr.--180 N. La Salle Street
Cincinnati (45202), Philip S. Thompson--2308 Carew Tower
Cleveland (44114), Earle C. Brown--215 Euclid Avenue
Dallas (75201), Helmut O. Wolff--1607 Main Street
Detroit (48226), Mary A. Bedikian--1234 City National Bank Building
Garden City, NY (11530), Ellen Maltz-Brown--585 Stewart Avenue
Hartford (06103), J. Robert Haskell--37 Lewis Street
Los Angeles (90020), Jerrold L. Murase--443 Shatto Place
Miami (33129), Joseph A. Fiorillo--2250 SW. 3rd Avenue
Minneapolis (55402), Patricia A. Levin--1001 Foshay Tower
New Brunswick, NJ (08901), Richard Naimark--96 Bayard Street
New York (10020), Robert E. Meade--140 West 51st Street
Philadelphia (19102), Arthur R. Mehr--1520 Locust Street
Phoenix (85004), Paul A. Newnham--222 North Central Avenue
Pittsburgh (15222), John F. Schano--221 Gateway Four
San Diego (92101), John E. Scrivner--530 Broadway
San Francisco (94104), Charles A. Cooper--690 Market Street
Seattle (98104), Neal M. Blacker--810 Third Avenue
Syracuse (13203), Deborah A. Brown--731 James Street
Washington (20036), Garylee Cox--1730 Rhode Island Avenue, NW.
White Plains, NY (10601), John R. Dacey--34 South Broadway
PART 1450_COLLECTIONS OF CLAIMS OWED THE UNITED STATES--Table of Contents
Subpart A_General Provisions
Sec.
1450.1 Definitions.
1450.2 Exceptions.
1450.3 Use of procedures.
1450.4 Conformance to law and regulations.
1450.5 Other procedures.
1450.6 Informal action.
1450.7 Return of property.
1450.8 Omissions not a defense.
Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting
for Collection
1450.9 Demand for payment.
1450.10 Collection by administrative offset.
1450.11 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund.
1450.12 Collection in installments.
1450.13 Exploration of compromise.
1450.14 Suspending or termination collection action.
1450.15 Referrals to the Department of Justice or the General Accounting
Office.
1450.16 Use of consumer reporting agencies.
1450.17 Contracting for collection services.
Subpart C_Salary Offset
1450.18 Purpose.
1450.19 Scope.
1450.20 Definitions.
1450.21 Notification.
1450.22 Hearing.
1450.23 Deduction from pay.
1450.24 Liquidation from final check or recovery from other payment.
1450.25 Non-waiver of rights by payments.
1450.26 Refunds.
1450.27 Interest, penalties, and administrative costs.
1450.28 Recovery when paying agency is not creditor agency.
Subpart D_Interest, Penalties, and Administrative Costs
1450.29 Assessment.
1450.30 Exemptions.
1450.31 Other sanctions.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 4 CFR parts 101-105;
5 CFR part 550.
Source: 51 FR 24817, July 9, 1986, unless otherwise noted.
Subpart A_General Provisions
Sec. 1450.1 Definitions.
(a) The term agency means the Federal Mediation and Conciliation
Service (FMCS) or any other agency of the U.S. Government as stated at
Sec. 1450.20.
(b) The term agency head means the Director of the Federal Mediation
and Conciliation Service.
(c) The terms appropriate agency official or designee mean the
Director of the Financial Management Staff of FMCS, or such other
official as may be named in the future by the Director of FMCS.
[[Page 82]]
(d) The terms claim and debt are deemed synonymous and
interchangeable. They refer to an amount of money or property which has
been determined by an appropriate agency official to be owed to the
United States from any person, organization or entity, except another
Federal agency.
(e) A debt is considered delinquent if it has not been paid by the
date specified in the agency's written notification or applicable
contractual agreement, unless other satisfactory payment arrangements
have been made by that date, or if at any time thereafter the debtor
fails to satisfy obligations under a payment agreement with the agency.
(f) The term referral for litigation means referral to the
Department of justice for appropriate legal proceedings.
Sec. 1450.2 Exceptions.
(a) Claims arising from the audit of transportation accounts
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised,
terminated or settled in accordance with regulations published under the
authority of 31 U.S.C. 3726 (see 41 CFR part 101-41).
(b) Claims arising out of acquisition contracts subject to the
Federal Acquisition Regulations (FAR) shall be determined, collected,
compromised, terminated, or settled in accordance with those
regulations. (See 48 CFR part 32). If not otherwise provided for in the
FAR system, contract claims that have been the subject of a contracting
officer's final decision in accordance with section 6(a) of the Contract
Disputes Act of 1978 (41 U.S.C. 605)(a)), may be determined, collected,
compromised, terminated or settled under the provisions of this
regulation, except that no additional review of the debt shall be
granted beyond that provided by the contracting officer in accordance
with the provisions of section 6 of the Contract Disputes Act of 1978
(41 U.S.C. 605), and the amount of any interest, administrative charge,
or penalty charge shall be subject to the limitations, if any, contained
in the contract out of which the claim arose.
(c) Claims based in whole or in part on conduct in violation of the
antitrust laws, or in regard to which there is an indication of fraud,
presentation of a false claim, or misrepresentation on the part of the
debtor or any other party having an interest in the claim, shall be
referred to the Department of Justice (DOJ) as only the DOJ has
authority to compromise, suspend, or terminate collection action on such
claims.
(d) Tax claims are also excluded from the coverage of this
regulation.
Sec. 1450.3 Use of procedures.
Procedures authorized by this regulation (including, but not limited
to, disclosure to a consumer reporting agency, contracting for
collection services, administrative offset and salary offset) may be
used singly or in combination, so long as the requirements of applicable
law and regulation are satisfied.
Sec. 1450.4 Conformance to law and regulations.
The requirements of applicable law (31 U.S.C 3701-3719 and 5 U.S.C.
5514 as amended by Pub. L. 97-365, 96 Stat. 1749) have been implemented
in Governmentwide standards:
(a) The Regulations of the Office of Personnel Management (5 CFR
part 550),
(b) The Federal Claims Collection Standards issued jointly by the
General Accounting Office and the Department of Justice (4 CFR parts
101-105), and
(c) The procedures prescribed by the Office of Management and Budget
in Circular A-129 of May 9, 1985.
Not every item in the above described standards has been incorporated or
referenced in this regulation. To the extent, however, that
circumstances arise which are not covered by the terms stated in this
regulation, FMCS will proceed in any actions taken in accordance with
applicable requirements found in the sources referred to in paragraphs
(a), (b), and (c) of this section.
Sec. 1450.5 Other procedures.
Nothing contained in this regulation is intended to require FMCS to
duplicate administrative proceedings required by contract or other laws
or regulations.
[[Page 83]]
Sec. 1450.6 Informal action.
Nothing contained in this regulation is intended to preclude
utilization of informal administrative actions or remedies which may be
available.
Sec. 1450.7 Return of property.
Nothing contained in this regulation is intended to deter FMCS from
demanding the return of specific property or from demanding, the return
of the property or the payment of its value.
Sec. 1450.8 Omissions not a defense.
The failure of FMCS to comply with any provision in this regulation
shall not serve as a defense to the debt.
Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting
for Collection
Sec. 1450.9 Demand for payment.
Prior to making an administrative offset, demand for payment will be
made as stated below:
(a) Written demands shall be made promptly upon a debtor in terms
which inform the debtor of the consequences of failure to cooperate. A
total of three progressively stronger written demands at not more than
30-day intervals will normally be made unless a response to the first or
second demand indicates that a further demand would be futile and the
debtor's response does not require rebuttal. In determining the timing
of demand letters, FMCS will give due regard to the need to act promptly
so that, as a general rule, if necessary to refer the debt to the
Department of Justice for litigation, such referral can be made within
one year of the agency's final determination of the fact and the amount
of the debt. When necessary to protect the Government's interest (for
example, to prevent the statute of limitations, 28 U.S.C. 2415, from
expiring), written demand may be preceded by other appropriate actions
under this subpart including immediate referral for litigation.
(b) The initial demand letter will inform the debtor of:
(1) The basis for the indebtedness and the right of the debtor to
request review within the agency;
(2) The applicable standards for assessing interest, penalties, and
administrative costs (subpart D of this regulation) and
(3) The date by which payment is to be made, which normally should
be not more than 30 days from the date that the initial demand letter
was mailed or hand-delivered. FMCS will exercise care to insure that
demand letters are mailed or hand-delivered on the same day that they
are actually dated. Apart from this, there is no prescribed format for
the demand letters.
(c) As appropriate to the circumstances, FMCS may include either in
the initial demand letter or in subsequent letters, matters relating to
alternative methods of payment, policies with respect to use of consumer
reporting agencies and collection services, the agency's intentions with
respect to referral of the debt to the Department of Justice for
litigation, and, depending on applicable statutory authority, the
debtor's entitlement to consideration of waiver.
(d) FMCS will respond promptly to communications from the debtor,
within 30 days whenever feasible, and will advise debtor who dispute the
debt that they must furnish available evidence to support their
contentions.
(e) If, either prior to the initiations of, at any time during, or
after completion of the demand cycle, FMCS determines to pursue
administrative offset, then the requirements specified in Sec. Sec.
1450.10 and 1450.11, as applicable, will be met. The availability of
funds for offset and the agency determination to purse it release the
agency from the necessity of further compliance with paragraphs (a),
(b), and (c) of this section. If the agency has not already sent the
first demand letter, the agency's written notification of its intent to
offset must give the debtor the opportunity to make voluntary payment, a
requirement which will be satisfied by compliance with the notice
requirements of Sec. Sec. 1450.10 and 1450.11 as applicable.
Sec. 1450.10 Collection by administrative offset.
(a) Collection by administrative offset will be undertaken in
accordance with these regulations on all claims
[[Page 84]]
which are liquidated or certain in amount, in every instance in which
such collection is determined to be feasible and not otherwise
prohibited.
(1) For purposes of this section, the term ``administrative offset''
is the same as stated in 31 U.S.C. 3716(a)(1).
(2) Whether collection by administrative offset is feasible is a
determination to be made by the agency on a case-by-case basis, in the
exercise of sound discretion. FMCS will consider not only whether
administrative offset can be accomplished practically, but also whether
offset is best suited to further and protect all of the Government's
interests. In appropriate circumstances, FMCS may give due consideration
to the debtor's financial condition and is not required to use offset in
every instance in which there is an available source of funds. FMCS may
also consider whether offset would tend to substantially interfere with
or defeat the purposes of the program authorizing the payments against
which offset is contemplated. For example, under a grant program in
which payments are made in advance of the grantee's performance, offset
will normally be inappropriate. This concept generally does not apply,
however, where payment is in the form of reimbursement.
(b) Before the offset is made, a debtor shall be provided with the
following: Written notice of the nature and amount of the debt, and the
agency's intention to collect by offset; opportunity to inspect and copy
agency records pertaining to the debt; opportunity to obtain review
within the agency of the determination of indebtedness; and opportunity
to enter into a written agreement with the agency to repay the debt.
FMCS may also make requests for offset to other agencies holding funds
payable to the debtor, and process requests for offset that are received
from other agencies.
(1) FMCS will exercise sound judgment in determining whether to
accept a repayment agreement in lieu of offset. The determination will
weigh the Government's interest in collecting the debt against fairness
to the debtor. If the debt is delinquent and the debtor has not disputed
its existence or amount, FMCS will normally accept a repayment agreement
in lieu of offset only if the debtor is able to establish that offset
would result in undue financial hardship or would be against equity and
good conscience.
(2) In cases where the procedural requirements specified in
paragraph (b) of this section have previously been provided to the
debtor in connection with the same debt under Sec. 1450.9, or some
other regulatory or statutory authority, such as pursuant to a notice of
audit allowance, the agency is not required to duplicate those
requirements before taking administrative offset.
(3) FMCS may not initiate administrative offset to collect a debt
under 31 U.S.C. 3716 more than 10 years after the Government's right to
collect the debt first accrued, unless facts material to the
Government's right to collect the debt were not known and could not
reasonably have been known by the official or officials of the
Government who were charged with the responsibility to discover and
collect such debts. When the debt first accrued is to be determined
according to existing law, regarding the accrual of debts, such as 28
U.S.C. 2415.
(4) FMCS is not authorized by 31 U.S.C. 3716 to use administrative
offset with respect to:
(i) Debts owed by any State or local Governments;
(ii) Debts arising under or payments made under the Social Security
Act, the Internal Revenue Code of 1954, or the tariff laws of the United
States; or
(iii) Any case in which collection of the type of debt involved by
administrative offset is explicitly provided for or prohibited by
another statute. However, unless otherwise provided by contract or law,
debts or payments which are not subject to administrative offset under
31 U.S.C. 3716 may be collected by administrative offset under the
common law or other applicable statutory authority.
(5) FMCS may effect administrative offset against a payment to be
made to a debtor prior to completion of the procedures required by
paragraph (b) of this section if:
(i) Failure to take the offset would substantially prejudice the
Government's ability to collect the debt, and
[[Page 85]]
(ii) The time before the payment is to be made does not reasonably
permit the completion of those procedures.
Such prior offset must be promptly followed by the completion of those
procedures. Amounts recovered by offset but later found not to be owed
to the Government shall be promptly refunded.
(6) FMCS will obtain credit reports on delinquent accounts to
identify opportunities for administrative offset of amounts due to a
delinquent debtor when other collection techniques have been
unsuccessful.
(c) Type of hearing or review: (1) For purposes of this section,
whenever FMCS is required to provide a hearing or review within the
agency, the agency shall provide the debtor with a reasonable
opportunity for an oral hearing when:
(i) An applicable statute authorizes or requires the agency to
consider waiver of the indebtedness involved, the debtor requests waiver
of the indebtedness, and the waiver determination turns on an issue of
credibility or veracity; or
(ii) The debtor requests reconsideration of the debt and the agency
determines that the question of the indebtedness cannot be resolved by
review of the documentary evidence, for example, when the validity of
the debt turns on an issue of credibility or veracity.
Unless otherwise required by law, an oral hearing under this section is
not required to be a formal evidentiary-type hearing, although the FMCS
will carefully document all significant matters discussed at the
hearing.
(2) This section does not require an oral hearing with respect to
debt collection systems in which determinations of indebtedness or
waiver rarely involve issues of credibility or veracity and the agency
has determined that review of the written record is ordinarily an
adequate means to correct prior mistakes. In administering such a
system, the agency is not required to sift through all of the requests
received in order to accord oral hearings in those few cases which may
involve issues of credibility or veracity.
(3) In those cases where an oral hearing is not required by this
section, the agency will make its determination on the request for
waiver or reconsideration based upon a ``paper hearing'' that is, a
review of the written record.
(d) Appropriate use will be made of the cooperative efforts of other
agencies in effecting collection by administrative offset. Generally,
FMCS will not refuse to comply with requests from other agencies to
initiate administrative offset to collect debts owed to the United
States, unless the requesting agency has not complied with the
applicable provisions of these standards or the offset would be
otherwise contrary to law.
(e) Collection by offset against a judgment obtained by a debtor
against the United States shall be accomplished in accordance with 31
U.S.C. 3728.
(f) Whenever the creditor agency is not the agency which is
responsible for making the payment against which administrative offset
is sought, the latter agency shall not initiate the requested offset
until it has been provided by the creditor agency with an appropriate
written certification that the debtor owes a debt (including the amount)
and that full compliance with the provisions of this section has taken
place.
(g) When collecting multiple debts by administrative offset, FMCS
will apply the recovered amounts to those debts in accordance with the
best interests of the United States, as determined by the facts and
circumstances of the particular case, paying special attention to
applicable statutes of limitations.
Sec. 1450.11 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
(a) Unless otherwise prohibited by law, FMCS may request that moneys
which are due and payable to a debtor from the Civil Service Retirement
and Disability Fund be administratively offset in reasonable amounts in
order to collect in one full payment, or a minimal number of payments,
debts owed to the United States by the debtor. Such requests shall be
made to the appropriate officials of the Office of Personnel Management
in accordance with such regulations as may be prescribed by the Director
of that Office.
(b) When making a request for administrative offset under paragraph
(a)
[[Page 86]]
of this section, FMCS shall include a written certification that:
(1) The debtor owes the United States a debt, including the amount
of the debt;
(2) The FMCS has complied with the applicable statutes, regulations,
and procedures of the Office of Personnel Management; and
(3) The FMCS has complied with the requirements of Sec. 1450.10 of
this subpart, including any required hearing or review.
(c) Once FMCS decides to request adminstrative offset under
paragraph (a) of this section, it will make the request as soon as
practical after completion of the applicable procedures in order that
the Office of Personnel Management may identify and ``flag'' the
debtor's account in anticipation of the time when the debtor requests or
become eligible to receive payments from the Fund. This will satisfy any
requirement that offset be initiated prior to expiration of the
applicable statute of limitations. At such time as the debtor makes a
claim for payments from the Fund, if at least a year has elapsed since
the offset request was originally made, the debtor should be permitted
to offer a satisfactory payment plan in lieu of offset upon establishing
that changed financial circumstances would render the offset unjust.
(d) If FMCS collects part or all of the debt by other means before
deductions are made or completed pursuant to paragraph (a) of this
section, FMCS shall act promptly to modify or terminate its request for
offset under paragraph (a) of this section.
(e) This section does not require or authorize the Office of
Personnel Management to review the merits of the FMCS determination with
respect to the amount and validity of the debt, its determination as to
waiver under an applicable statute, or its determination to provide or
not provide a hearing.
Sec. 1450.12 Collection in installments.
(a) Whenever feasible, and except as otherwise provided by law,
debts owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation should be collected
in full in one lump sum. This is true whether the debt is being
collected by administrative offset or by another method, including
voluntary payment. However, if the debtor is financially unable to pay
the indebtedness in one lump sum, payment may be accepted in regular
installments. FMCS will obtain financial statements from debtors who
represent that they are unable to pay the debt in one lump sum. If FMCS
agrees to accept payment in regular installments it will obtain a
legally enforceable written agreement from the debtor which specifies
all of the terms of the arrangement and which contains a provision
accelerating the debt in the event the debtor defaults. The size and
frequency of installment payments should bear a reasonable relation to
the size of the debt and the debtor's ability to pay. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the Government's claim in not more than 3 years. Installment
payments of less than $50 per month will be accepted only if justifiable
on the grounds of financial hardship or some other reasonable cause.
(b) If the debtor owes more than one debt and designates how a
voluntary installment payment is to be applied as among those debts,
that designation must be followed. If the debtor does not designate the
application of the payment, FMCS will apply payments to various debts in
accordance with the best interests of the United States, as determined
by the facts and circumstances of the particular case, paying special
attention to applicable statutes of limitations.
Sec. 1450.13 Exploration of compromise.
FMCS may attempt to effect compromise, preferably during the course
of personal interviews, in accordance with the standards set forth in
part 103 of the Federal Claims Collection Standards (4 CFR part 103).
Sec. 1450.14 Suspending or termination collection action.
The suspension or termination of collection action shall be made in
accordance with the standards set forth in part 104 of the Federal
Claims Collection Standards (4 CFR part 104).
[[Page 87]]
Sec. 1450.15 Referrals to the Department of Justice or the General
Accounting Office.
Referrals to the Department of Justice or the General Accounting
Office shall be made in accordance with the standards set forth in part
105 of the Federal Claims Collection Standards (4 CFR part 105).
Sec. 1450.16 Use of consumer reporting agencies.
(a) The term individual means a natural person, and the term
``consumer reporting agency'' has the meaning provided in the Federal
Claims Collection Act, as amended, at 31 U.S.C. 3701(a)(3) or the Fair
Credit Reporting Act, at 15 U.S.C. 1681a(f).
(b) FMCS may disclose to a consumer reporting agency, from a system
of records, information that an individual is responsible for a claim
if--
(1) Notice required by section 5 U.S.C. 552(a)(e)(4) indicates that
information in the system may be disclosed to a consumer reporting
agency;
(2) The claim has been reviewed and it is decided that the claim is
valid and overdue;
(3) FMCS has notified the individual in writing--
(i) That payment of the claim is overdue;
(ii) That, within not less than 60 days after sending the notice,
FMCS intends to disclose to a consumer reporting agency that the
individual is responsible for that claim;
(iii) Of the specific information to be disclosed to the consumer
reporting agency; and
(iv) Of the rights the individual has to a complete explanation of
the claim, to dispute information in the records of the agency about the
claim, and to administrative appeal or review of the claim; and
(4) The individual has not--
(i) Repaid or agreed to repay the claim under a written repayment
plan that the individual has signed and the agency has agreed to; or
(ii) Filed for review of the claim under paragraph (g) of this
section;
(c) FMCS will also--(1) Disclose promptly, to each consumer
reporting agency to which the original disclosure was made, a
substantial change in the condition or amount of the claim;
(2) Verify or correct promptly information about the claim, on
request of a consumer reporting agency for verification of information
disclosed; and
(3) Get satisfactory assurances from each consumer reporting agency
that they are complying with all laws of the United States related to
providing consumer credit information; and assure that
(d) The information disclosed to the consumer reporting agency is
limited to (1) Information necessary to establish the identity of the
individual, including name, address, and taxpayer identification number;
(2) The amount, status, and history of the claim; and
(3) The agency or program under which the claim arose.
(e) All accounts in excess of $100 that have been delinquent more
than 31 days will normally be referred to a consumer reporting agency.
(f) Before disclosing information to a consumer reporting agency
FMCS shall take reasonable action to locate an individual for whom the
head of the agency does not have a current address to send the notice.
(g) Before disclosing information to a consumer reporting agency
FMCS shall provide, on request of an individual alleged by the agency to
be responsible for the claim, a review of the obligation of the
individual including an opportunity for reconsideration of the initial
decision on the claim.
(h) Under the same provisions as described above in this section,
FMCS may disclose to a credit reporting agency, information relating to
a debtor other than a natural person. Such commercial debt accounts are
not covered, however, by the Privacy Act.
Sec. 1450.17 Contracting for collection services.
(a) FMCS has authority to contract for collection services to
recover delinquent debts, provided that the following conditions are
satisfied;
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, and refer the
[[Page 88]]
matter for litigation is retained by the agency;
(2) The contractor shall be subject to the Privacy Act of 1974, as
amended to the extent specified in 5 U.S.C. 552a(m), and to applicable
Federal and State laws and regulations pertaining to debt collection
practices, such as the Fair Debt Collection Practices Act, 15 U.S.C.
1692;
(3) The contractor must be required to account strictly for all
amounts collected;
(4) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable FMCS to determine
whether to pursue collection through litigation or to terminate
collection efforts, and
(5) The contractor must agree to provide any data contained in its
files relating to paragraphs (a) (1), (2), and (3) of Sec. 105.2 of the
Federal Claims Collection Standards (4 CFR part 105) upon returning an
account to FMCS for subsequent referral to the Department of Justice for
litigation.
(b) Funding of collection service contracts: (1) FMCS may fund a
collection service contract on a fixed-fee basis, that is, payment of a
fixed fee determined without regard to the amount actually collected
under the contract. Payment of the fee under this type of contract must
be charged to available agency appropriations.
(2) FMCS may also fund a collection service contract on a
contingent-fee basis, that is, by including a provision in the contract
permitting the contractor to deduct its fee from amounts collected under
the contract. The fee should be based on a percentage of the amount
collected, consistent with prevailing commercial practice.
(3) FMCS may enter into a contract under paragraph (b)(1) of this
section only if and to the extent provided in advance in its
appropriation acts or other legislation, except that this requirement
does not apply to the use of a revolving fund authorized by statute.
(4) Except as authorized under paragraph (b)(2) of this section, or
unless the receipt qualifies as a refund to the appropriation, or unless
otherwise specifically provided by law, FMCS must deposit all amounts
recovered under collection service contracts (or by agency employees on
behalf of the agency) in the Treasury as miscellaneous receipts pursuant
to 31 U.S.C. 3302.
(c) FMCS will consider the use of collection agencies at any time
after the account is 61 days past due. In all cases accounts that are
six months or more past due shall be turned over to a collection agency
unless referred for litigation or unless arrangements have been made for
a workout procedure, or the agency has exercised its authority to write
off the debt pursuant to Sec. 1450.14.
(d) FMCS will generally not use a collection agency to collect a
delinquent debt owed by a currently employed or retired Federal
employee, if collection by salary or annuity offset is available.
Subpart C_Salary Offset
Sec. 1450.18 Purpose.
This subpart provides the standards to be followed by FMCS in
implementing 5 U.S.C. 5514 to recover a debt from the pay account of an
FMCS employee, and establishes procedural guidelines to recover debts
when the employee's creditor and paying agencies are not the same.
Sec. 1450.19 Scope.
(a) Coverage. This subpart applies to agencies and employees as
defined by Sec. 1450.20.
(b) Applicability. This subpart and 5 U.S.C. 5514 apply in
recovering certain debts by offset, except where the employee consents
to the recovery, from the current pay account of that employee. Because
it is an administrative offset, debt collection procedures for salary
offset which are not specified in U.S.C. 5514 and these regulations
should be consistent with the provisions of the Federal Claims
Collection Standards (4 CFR parts 101-105).
(1) Excluded debts or claims. The procedures contained in this
subpart do not apply to debts or claims arising under the Internal
Revenue Code of 1954 as amended (26 U.S.C. 1 et seq.), the Social
Security Act (42 U.S.C. 301 et seq.) or the tariff laws of the United
States, or to any case where collection of a debt
[[Page 89]]
by salary offset is explicitly provided for or prohibited by another
statute (e.g., travel advances in 5 U.S.C. 5705 and employee training
expenses in 5 U.S.C. 4108).
(2) Waiver requests and claims to the General Accounting Office.
This subpart does not preclude an employee from requesting waiver of a
salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C.
716, or in any way questioning the amount or validity of a debt by
submitting a subsequent claim to the General Accounting Office in
accordance with procedures prescribed by the General Accounting Office.
Similarly, in the case of other types of debts, it does not preclude an
employee from requesting waiver, if waiver is available under any
statutory provision pertaining to the particular debt being collected.
(c) Time limit. Under 4 CFR 102.3(b)(3), offset may not be initiated
more than 10 years after the Government's right to collect the debt
first accrued, unless an exception applies as stated in Sec.
102.3(b)(3).
Sec. 1450.20 Definitions.
For purposes of this subpart--
Agency means the Federal Mediation and Conciliation Service (FMCS)
or means any other agency of the U.S. Government as defined by section
105 of title 5 U.S.C., including the U.S. Postal Service, and the U.S.
Postal Rate Commission, a military department as defined by section 102
of title 5 U.S.C., an agency or court of the judicial branch, and an
agency of the legislative branch, including the U.S. Senate and the U.S.
House of Representatives.
Creditor agency means the agency to which the debt is owed.
Debt means an amount owed to the United States from sources which
include loans insured or guaranteed by the United States and all other
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interests, fines and forfeitures (except those arising under
the Uniform Code Military Justice), and all other similar sources.
Disposable pay means that part of current basic pay, special pay,
incentive pay, retired pay, retainer pay, or in the case of an employee
not entitled to basic pay, other authorized pay remaining after the
deduction of any amount required by law to be withheld. FMCS will
exclude deductions described in 5 CFR 581.105 (b) through (f) to
determine disposable pay subject to salary offset.
Employee means a current employee of FMCS or of another agency,
including a current member of the Armed Forces or a Reserve of the Armed
Forces
FCCS means the Federal Claims Collection Standards jointly published
by the Justice Department and the General Accounting Office at 4 CFR
parts 101-105.
Paying agency means the agency employing the individual and
authorizing the payment of his or her current pay.
Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deduction(s) at one or more officially established pay
intervals from the current pay account of an employee without his or her
consent.
Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C.
710, 5 U.S.C. 8346(b), or any other law.
Sec. 1450.21 Notification.
(a) Salary offset deductions shall not be made unless the Director
of the Financial Management Staff of FMCS, or such other official as may
be named in the future by the Director of FMCS, provides to the
employee--at least 30 days before any deduction--a written notice
stating at a minimum:
(1) The agency's determination that a debt is owed, including the
origin, nature, and amount of the debt;
(2) The agency's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deductions;
(4) An explanation of the agency's policy concerning interest,
penalties,
[[Page 90]]
and administrative costs (subpart D of this regulation), a statement
that such assessment must be made unless excused in accordance with the
FCCS;
(5) The employee's right to inspect and copy Government records
relating to the debt or, if the employee or his or her representative
cannot personnally inspect the records, to request and receive a copy of
such records;
(6) If not previously provided, the opportunity (under terms
agreeable to the agency) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be writing, signed by both the employee and the Director of the
Financial Management Staff of FMCS, and documented in agency files (4
CFR 102.11).
(7) The employee's right to a hearing conducted by an official
arranged by the agency (an administrative law judge or alternatively, a
hearing official not under the control of the head of the agency) if a
petition is filed as prescribed by Sec. 1450.22.
(8) The method and time period for petitioning for a hearing;
(9) That the timely filing of a petition for hearing will stay the
commencement of collection proceedings;
(10) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 days
after the filing of the petition requesting the hearing unless the
employee requests and the hearing official grants a delay in the
proceedings;
(11) That any knowingly false, misleading, or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under chapter 75 of title 5,
U.S.C., part 752 of title 5, CFR, or any other applicable status or
regulations;
(ii) Penalties under the False Claims Act sections 3729-3731 of
title 31, U.S.C., or any other applicable statutory authority; or
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of
title 18, U.S.C., or any other applicable statutory authority.
(12) Any other right and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made; and
(13) Unless there are applicable contractual or statutory provisions
to the contrary, that amounts paid on or deducted for the debt which are
later waived or found not owned to the United States will be promptly
refunded to the employee.
(b) Notifications under this section shall be hand delivered with a
record made of the date and time of delivery, or shall be mailed by
certified mail return receipt requested.
(c) No notification, hearing, written responses or final decisions
under this regulation are required of FMCS for any adjustment to pay
arising out of an employee's election of coverage under a Federal
benefit program requiring periodic deductions from pay, if the amount to
be recovered was accumulated over four pay periods or less.
Sec. 1450.22 Hearing.
(a) Petition for hearing. (1) A hearing may be requested by filing a
written petition with the Director, Financial Management Staff of FMCS,
or such other official as may be named in the future by the Director of
FMCS, stating why the employee believes the determination of the agency
concerning the existence or the amount of the debt is in error.
(2) The employee's petition must be signed by the employee and fully
identify and explain with reasonable specificity all the facts, evidence
and witnesses, if any, which the employee believes support his or her
position.
(3) The petition must be filed no later than fifteen (15) calendar
days from the date that the notification was hand delivered or the date
of delivery by certified mail, return receipt requested.
(4) If a petition is received after the fifteen (15) calendar day
deadline referred to above, FMCS will nevertheless accept the petition
if the employee can show that the delay was because of circumstances
beyond his or her control, or because of failure to receive notice of
the time limit (unless otherwise aware of it).
[[Page 91]]
(5) If a petition is not filed within the time limit specified in
paragraph (a)(3) of this section, and is not accepted pursuant to
paragraph (a)(4) of this section, the employee's right to hearing will
be considered waived, and salary offset will be implemented by FMCS.
(b) Type of hearing. (1) The form and content of the hearing will be
determined by the hearing official who shall be a person outside the
control or authority of FMCS. In determining the type of hearing, the
hearing officer will consider the nature and complexity of the
transaction giving rise to the debt. The hearing may be conducted as an
informal conference or interview, in which the agency and employee will
be given a full opportunity to present their respective positions, or as
a more formal proceeding involving the presentation of evidence,
arguments and written submissions.
(2) The employee may represent himself or herself, or may be
represented by an attorney.
(3) The hearing official shall maintain a summary record of the
hearing.
(4) The decision of the hearing officer will be in writing, and will
state:
(i) The facts purported to evidence the nature and origin of the
alleged debt;
(ii) The hearing official's analysis, findings, and conclusions, in
the light of the hearing, as to--
(A) The employee's and/or agency's grounds,
(B) The amount and validity of the alleged debt and,
(C) The repayment schedule, if applicable.
(5) The decision of the hearing official shall constitute the final
administrative decision of the agency.
Sec. 1450.23 Deduction from pay.
(a) Deduction by salary offset, from an employee's current
disposable pay, shall be subject to the following conditions:
(1) Ordinarily, debts to the United States should be collected in
full, in one lump-sum. This will be done when funds are available.
However, if funds are unavailable for payment in one lump sum, or if the
amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, collection will normally be made in
installments.
(2) The installments shall not exceed 15 percent of the disposable
pay from which the deduction is made, unless the employee has agreed in
writing to the deduction of a greater amount.
(3) Deduction will generally commence with the next full pay
interval (ordinarily the next biweekly pay period) following written
consent by the employee to salary offset, waiver of hearing, or the
decision issued by the hearing officer.
(4) Installment deductions must be made over a period not greater
than the anticipated period of employment except as provided in Sec.
1450.24.
Sec. 1450.24 Liquidation from final check or recovery from other payment.
(a) If the employee retires or resigns or if his or her employment
or period of active duty ends before collection of the debt is
completed, offset of the entire remaining balance on the debt may be
made from a final payment of any nature, including but not limited to,
final salary payment or lump-sum leave due to the employee as of the
date of separation.
(b) If the debt cannot be liquidated by offset from a final payment,
offset may be made from later payments of any kind due from the United
States, including, but not limited to, the Civil Service Retirement and
Disability Fund, pursuant to Sec. 1450.11 of this regulation.
Sec. 1450.25 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under 5 U.S.C. 5514 shall not be construed as a waiver
of any rights which the employee may have under 5 U.S.C. 5514 or any
other provision of contract or law, unless statutory or contractual
provisions provide to the contrary.
Sec. 1450.26 Refunds.
(a) Refunds shall promptly be made when--
(1) A debt is waived or otherwise found not owing to the United
States (unless expressly prohibited by statute or regulation); or
[[Page 92]]
(2) The employee's paying agency is directed by an administrative or
judicial order to refund amounts deducted from his or her current pay.
(b) Refunds do not bear interest unless required or permitted by law
or contract.
Sec. 1450.27 Interest, penalties, and administrative costs.
The assessment of interest, penalties and administrative costs shall
be in accordance with subpart D of this regulation.
Sec. 1450.28 Recovery when paying agency is not creditor agency.
(a) Responsibilities of creditor agency. Upon completion of the
procedures established under 5 U.S.C. 5514, the creditor agency must do
the following:
(1) The creditor agency must certify, in writing, that the employee
owes the debt, the amont and basis of the debt, the date on which
payment(s) is due, the date the Government's right to collect the debt
first accrued, and that the creditor agency's regulations implementing 5
U.S.C. 5514 have been approved by OPM.
(2) If the collection must be made in installments, the creditor
agency also must advise the paying agency of the number of installments
to be collected, the amount of each installment, and the commencing date
of the first installment (if a date other than the next officially
established pay period is required).
(3) Unless the employee has consented to the salary offset in
writing or signed a statement acknowledging receipt of the required
procedures, and the written consent or statement is forwarded to the
paying agency, the creditor agency also must advise the paying agency of
the action(s) taken under 5 U.S.C. 5514(b) and give the date(s) the
action(s) was taken.
(4) Except as otherwise provided in this paragraph, the creditor
agency must submit a debt claim containing the information specified in
paragraphs (a) (1) through (3) of this section and an installment
agreement (or other instruction on the payment schedule), if applicable
to the employee's paying agency.
(5) If the employee is in the process of separating, the creditor
agency must submit its claim to the employee's paying agency for
collection pursuant to Sec. 1450.24. The paying agency must certify the
total amount of its collection and provide copies to the creditor agency
and the employee as stated in paragraph (c)(1) of this section. If the
paying agency is aware that the employee is entitled to payments from
the Civil Service Retirement and Disability Fund, or other similar
payments, it must provide written notification to the agency responsible
for making such payments that the debtor owes a debt (including the
amount) and that the provisions of this section have been fully compiled
with. However, the creditor agency must submit a properly certified
claim to the agency responsible for making such payments before
collection can be made.
(6) If the employee is already separated and all payments from his
or her former paying agency have been paid, the creditor agency may
request, unless otherwise prohibited, that money due and payable to the
employee from the Civil Service Retirement and Disability Fund (5 CFR
831.1801 et seq.), or other similar funds, be administratively offset to
collect the debt. (31 U.S.C. 3716 and 102.4 FCCS.)
(b) Responsibilities of paying agency--(1) Complete claim. When the
paying agency receives a properly certified debt claim from a creditor
agency, deductions should be scheduled to begin prospectively at the
next officially established pay interval. The employee must receive
written notice that the paying agency has received a certified debt
claim from the creditor agency (including the amount) and written notice
of the date deductions from salary will commence and of the amount of
such deductions.
(2) Incomplete claim. When the paying agency receives an incomplete
debt claim from a creditor agency, the paying agency must return the
debt claim with a notice that procedures under 5 U.S.C. 5514 and this
subpart must be provided, and a properly certified debt claim received,
before action will be taken to collect from the employee's current pay
account.
[[Page 93]]
(3) Review. The paying agency is not required or authorized to
review the merits of the creditor agency's determination with respect to
the amount or validity of the debt certified by the creditor agency.
(c) Employees who transfer from one paying agency to another. (1)
If, after the creditor agency has submitted the debt claim to the
employee's paying agency, the employee transfers to a position served by
a different paying agency before the debt is collected in full, the
paying agency from which the employee separates must certify the total
amount of the collection made on the debt. One copy of the certification
must be furnished to the employee, another to the creditor agency along
with notice of employee's transfer. However, the creditor agency must
submit a properly certified claim to the new paying agency before
collection can be resumed.
(2) When an employee transfers to another paying agency, the
creditor agency need not repeat the due process procedures described by
5 U.S.C. 5514 and this subpart to resume the collection. However, the
creditor agency is responsible for reviewing the debt upon receiving the
former paying agency's notice of the employee's transfer to make sure
the collection is resumed by the new paying agency.
Subpart D_Interest, Penalties, and Administrative Costs
Sec. 1450.29 Assessment.
(a) Except as provided in paragraph (h) of this section, or Sec.
1450.30, FMCS shall assess interest, penalties and administrative costs
on debts owed to the United States pursuant to 31 U.S.C. 3717. Before
assessing these charges, FMCS will mail or hand-deliver a written notice
to the debtor. This notice shall include a statement of the agency's
requirements concerning these charges. (Sections 1450.9 and 1450.21).
(b) Interest shall accrue from the date on which notice of the debt
and the interest requirements is first mailed or hand-delivered to the
debtor, using the most current address that is available to the agency.
If FMCS should use an ``advance billing'' procedure--that is, if it
mails a bill before the debt is actually owed--it can include the
required interest notification in the advance billing, but interest may
not start to accrue before the debt is actually owed. FMCS will exercise
care to insure that the notices required by this section are dated and
mailed or hand-delivered on the same day.
(c) The rate of interest assessed shall be the rate of the current
value of funds to the United States Treasury (i.e., the Treasury tax and
loan account rate), as prescribed and published by the Secretary of the
Treasury in the Federal Register and the Treasury Fiscal Requirements
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C.
3717. FMCS may assess a higher rate of interest if it reasonably
determines that a higher rate is necessary to protect the interests of
the United States. The rate of interest, as initially assessed, shall
remain fixed for the duration of the indebtedness except that where a
debtor has defaulted on a repayment agreement and seeks to enter into a
new agreement, FMCS may set a new interest rate which reflects the
current value of funds to the Treasury at the time the new agreement is
executed. Interest will not be assessed on interest, penalties, or
administrative costs required by this section. However, if the debtor
defaults on a previous repayment agreement, charges which accrued but
were not collected under the defaulted agreement shall be added to the
principal to be paid under a new repayment agreement.
(d) FMCS shall assess against a debtor charges to cover
administrative costs incurred as a result of a delinquent debt--that is,
the additional costs incurred in processing and handling the debt
because it became delinquent. Calculation of administrative costs shall
be based upon actual costs incurred or upon cost analyses establishing
an average of actual additional costs incurred by the agency in
processing and handling claims against other debtors in similar stages
of delinquency. Administrative costs may include costs incurred in
obtaining a credit report or in using a private debt collector, to the
extent they are attributable to delinquency.
[[Page 94]]
(e) FMCS shall assess a penalty charge, not to exceed 6 percent a
year, on any portion of a debt that is delinquent for more than 90 days.
This charge need not be calculated until the 91st day of delinquency,
but shall accure from the date that the debt became delinquent.
(f) When a debt is paid in partial or installment payments, amounts
received by the agency shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and third to
outstanding principal.
(g) FMCS will waive the collection of interest on the debt or any
portion of the debt which is paid within 30 days after the date on which
interest began to accrue. FMCS may extend this 30-day period, on a case-
by-case basis, if it reasonably determines that such action is
appropriate. Also, FMCS may waive, in whole or in part, the collection
of interest, penalties, and/or administrative costs assessed under this
section under the criteria specified in part 103 of the Federal Claims
Collection Standards (4 CFR part 103) relating to the compromise of
claims (without regard to the amount of the debt), or if the agency
determines that collection of these charges would be against equity and
good conscience, or not in the best interests of the United States.
Waiver under the first sentence of this paragraph (g) is mandatory.
Under the second and third sentences, it may be exercised under the
following circumstances:
(1) Waiver of interest pending consideration of a request for
reconsideration, administrative review, or waiver of the underlying debt
under a permissive statute, and
(2) Waiver of interest where FMCS has accepted an installment plan,
there is no indication of fault or lack of good faith on the part of the
debtor, and the amount of interest is large enough in relation to the
size of the installments that the debtor can reasonably afford to pay,
that the debt will never be repaid.
(h) Where a mandatory waiver or review statute applies, interest and
related charges may not be assessed for those periods during which
collection action must be suspended under Sec. 104.2(c)(1) of the
Federal Claims Collection Standards (4 CFR part 104).
Sec. 1450.30 Exemptions.
(a) The provisions of 31 U.S.C. 3717 to not apply:
(1) To debts owed by any State or local government;
(2) To debts arising under contracts which were executed prior to,
and were in effect on (i.e., were not completed as of), October 25,
1982;
(3) To debts where an applicable statute, regulation required by
statute, loan agreement, or contract either prohibits such charges or
explicitly fixes the charges that apply to the debts arising under the
Social Security Act, the Internal Revenue Code of 1954, or the tariff
laws of the United States.
(b) However, FMCS is authorized to assess interest and related
charges on debts which are not subject to 31 U.S.C. 3717 to the extent
authorized under the common law or other applicable statutory authority.
Sec. 1450.31 Other sanctions.
The sanctions stated in this subpart are not intended to be
exclusive. Other sanctions which may be imposed by the Director of FMCS
include placement of the debtor's name on a list of debarred, suspended
or ineligible contractors or grantees; conversion of method of payment
under a grant from an advance payment method to a reimbursement method;
or revocation of a letter of credit. Notice will be given by FMCS to the
debtor regarding the imposition of such other sanctions.
PART 1470_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents
Subpart A_General
Sec.
1470.1 Purpose and scope of this part.
1470.2 Scope of subpart.
1470.3 Definitions.
1470.4 Applicability.
1470.5 Effect on other issuances.
1470.6 Additions and exceptions.
[[Page 95]]
Subpart B_Pre-Award Requirements
1470.10 Forms for applying for grants.
1470.11 State plans.
1470.12 Special grant or subgrant conditions for ``high-risk'' grantees.
Subpart C_Post-Award Requirements
Financial Administration
1470.20 Standards for financial management systems.
1470.21 Payment.
1470.22 Allowable costs.
1470.23 Period of availability of funds.
1470.24 Matching or cost sharing.
1470.25 Program income.
1470.26 Non-Federal audit.
Changes, Property, and Subawards
1470.30 Changes.
1470.31 Real property.
1470.32 Equipment.
1470.33 Supplies.
1470.34 Copyrights.
1470.35 Subawards to debarred and suspended parties.
1470.36 Procurement.
1470.37 Subgrants.
Reports, Records Retention, and Enforcement
1470.40 Monitoring and reporting program performance.
1470.41 Financial reporting.
1470.42 Retention and access requirements for records.
1470.43 Enforcement.
1470.44 Termination for convenience.
Subpart D_After-the-Grant Requirements
1470.50 Closeout.
1470.51 Later disallowances and adjustments.
1470.52 Collection of amounts due.
Subpart E--Entitlements [Reserved]
Authority: 29 U.S.C. 175a.
Source: 53 FR 8087, Mar. 11, 1988, unless otherwise noted.
Subpart A_General
Sec. 1470.1 Purpose and scope of this part.
This part establishes uniform administrative rules for Federal
grants and cooperative agreements and subawards to State, local and
Indian tribal governments.
Sec. 1470.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
Sec. 1470.3 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for: (1) Goods and other
tangible property received; (2) services performed by employees,
contractors, subgrantees, subcontractors, and other payees; and (3)
other amounts becoming owed under programs for which no current services
or performance is required, such as annuities, insurance claims, and
other benefit payments.
Accrued income means the sum of: (1) Earnings during a given period
from services performed by the grantee and goods and other tangible
property delivered to purchasers, and (2) amounts becoming owed to the
grantee for which no current services or performance is required by the
grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other charges
such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from programmatic
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means (1) with respect to a grant, the Federal
agency, and (2) with respect to a subgrant, the party that awarded the
subgrant.
[[Page 96]]
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for grant and
subgrant in this section and except where qualified by Federal) a
procurement contract under a grant or subgrant, and means a procurement
subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means: (1) For nonconstruction grants, the SF-269
``Financial Status Report'' (or other equivalent report); (2) for
construction grants, the SF-271 ``Outlay Report and Request for
Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat
688) certified by the Secretary of the Interior as eligible for the
special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which
is accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under State law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared on
a cash basis, outlays are the sum of actual cash disbursement for direct
charges for goods and services, the amount of indirect expense incurred,
the value of in-kind contributions applied, and the amount of cash
advances and payments made to contractors and subgrantees. For reports
prepared on an accrued expenditure basis, outlays are the sum of actual
cash disbursements, the amount of indirect expense incurred, the value
of inkind contributions applied, and
[[Page 97]]
the new increase (or decrease) in the amounts owed by the grantee for
goods and other property received, for services performed by employees,
contractors, subgrantees, subcontractors, and other payees, and other
amounts becoming owed under programs for which no current services or
performance are required, such as annuities, insurance claims, and other
benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost.
Real property means land, including land improvements, structures
and appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted--not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money, made under a grant by a grantee to
an eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of grant in this part.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than equipment
as defined in this part.
Suspension means depending on the context, either (1) temporary
withdrawal of the authority to obligate grant funds pending corrective
action by the grantee or subgrantee or a decision to terminate the
grant, or (2) an action taken by a suspending official in accordance
with agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. Termination does not include:
(1) Withdrawal of funds awarded on the basis of the grantee's
underestimate of the unobligated balance in a prior period;
(2) Withdrawal of the unobligated balance as of the expiration of a
grant;
(3) Refusal to extend a grant or award additional funds, to make a
competing or noncompeting continuation, renewal, extension, or
supplemental award; or
(4) Voiding of a grant upon determination that the award was
obtained fraudulently, or was otherwise illegal or invalid from
inception.
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligations for reports prepared on a cash basis mean
the amount of obligations incurred by the grantee that has not been
paid. For reports prepared on an accrued expenditure basis, they
represent the amount
[[Page 98]]
of obligations incurred by the grantee for which an outlay has not been
recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Sec. 1470.4 Applicability.
(a) General. Subparts A through D of this part apply to all grants
and subgrants to governments, except where inconsistent with Federal
statutes or with regulations authorized in accordance with the exception
provision of Sec. 1470.6, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under title V, subtitle D, chapter 2,
section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and part C of title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project
that is also supported by a grant listed in paragraph (a)(3) of this
section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat.
1809), for cash assistance, medical assistance, and supplemental
security income benefits to refugees and entrants and the administrative
costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per
Diem Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
Sec. 1470.4(a) (3) through (8) are subject to subpart E.
[[Page 99]]
Sec. 1470.5 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this part are superseded, except
to the extent they are required by statute, or authorized in accordance
with the exception provision in Sec. 1470.6.
Sec. 1470.6 Additions and exceptions.
(a) For classes of grants and grantees subject to this part, Federal
agencies may not impose additional administrative requirements except in
codified regulations published in the Federal Register.
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
Subpart B_Pre-Award Requirements
Sec. 1470.10 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies
for grants, and is not required to be applied by grantees in dealing
with applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental
organizations. (1) In applying for grants, applicants shall only use
standard application forms or those prescribed by the granting agency
with the approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
Sec. 1470.11 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ``Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to regulations
implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
[[Page 100]]
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
Sec. 1470.12 Special grant or subgrant conditions for ``high-risk'' grantees.
(a) A grantee or subgrantee may be considered ``high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management
standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the conditions/
restrictions imposed.
Subpart C_Post-Award Requirements
Financial Administration
Sec. 1470.20 Standards for financial management systems.
(a) A State must expand and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well as
its subgrantees and cost-type contractors, must be sufficient to--
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance with the financial reporting requirements of the grant or
subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must contain
information pertaining to grant or subgrant awards and authorizations,
obligations, unobligated balances, assets, liabilities, outlays or
expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard all
such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant
[[Page 101]]
or subgrant. Financial information must be related to performance or
productivity data, including the development of unit cost information
whenever appropriate or specifically required in the grant or subgrant
agreement. If unit cost data are required, estimates based on available
documentation will be accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When advances
are made by letter-of-credit or electronic transfer of funds methods,
the grantee must make drawdowns as close as possible to the time of
making disbursements. Grantees must monitor cash drawdowns by their
subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.