[Federal Register Volume 73, Number 182 (Thursday, September 18, 2008)]
[Rules and Regulations]
[Pages 54270-54278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21795]



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Part V





Election Assistance Commission





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11 CFR Parts 9409, 9411, and 9420



Testimony by Commission Employees Relating to Official Information and 
Production of Official Records in Legal Proceedings, Standards of 
Conduct for Commission Employees, and Nondiscrimination on the Basis of 
Handicap in Programs or Activities Conducted by the U.S. Election 
Assistance Commission; Final Rule

  Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / 
Rules and Regulations  

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ELECTION ASSISTANCE COMMISSION

11 CFR Parts 9409, 9411, and 9420

RIN 3265-AA01


Testimony by Commission Employees Relating to Official 
Information and Production of Official Records in Legal Proceedings, 
Standards of Conduct for Commission Employees, and Nondiscrimination on 
the Basis of Handicap in Programs or Activities Conducted by the U.S. 
Election Assistance Commission

AGENCY: United States Election Assistance Commission (EAC).

ACTION: Final rule.

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SUMMARY: The U.S. Election Assistance Commission is promulgating 
administrative regulations to implement standards of conduct for 
Commission employees, requirements on testimony by Commission employees 
and production of Commission records in legal proceedings, and 
requirements for nondiscrimination on the basis of handicap in programs 
or activities conducted by the Commission.

DATES: The rules promulgated today become effective September 18, 2008.

FOR FURTHER INFORMATION CONTACT: Tamar Nedzar, Attorney, U.S. Election 
Assistance Commission, 1225 New York Avenue, NW., Suite 1100, 
Washington, DC 20005. Telephone (202) 566-3100.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

    The following is an outline of the preamble.

I. Legal Basis for the Rulemaking
II. Discussion of the Rulemaking
III. Rulemaking Analyses and Notices

I. Legal Basis for the Rulemaking

    This rulemaking action is taken to establish administrative 
requirements necessary for the proper functioning of the Election 
Assistance Commission (EAC). The Office of Government Ethics, 
established by the Ethics in Government Act of 1978, which is 
responsible for exercising leadership in the federal government for the 
prevention of conflicts of interest and the fostering of high ethical 
standards for government employees, has promulgated regulations on the 
standards of conduct for federal government employees. The EAC, 
pursuant to 1 CFR 21.21, is cross referencing the Office of Government 
Ethics regulations in its own regulations in part 9411 of 11 CFR 
Chapter II to ensure that all employees of the EAC are aware of the 
standards of ethical conduct applicable to them as employees of the 
Commission. Similarly, the Office of Personnel Management, under the 
Hatch Act Reform Amendments of 1993, has promulgated regulations 
defining what political activities are permitted and prohibited for 
federal government employees. The EAC, pursuant to 1 CFR 21.21, is 
cross referencing the Office of Personnel Management regulations in its 
own regulations in part 9411 of 11 CFR Chapter II to ensure that all 
employees of the EAC are aware of the political activities permitted 
and prohibited to them as employees of the Commission.
    The U.S. Supreme Court, in United States ex rel Touhy v. Ragen, 340 
U.S. 462 (1951), established limits on the power of legal tribunals to 
require agencies of the federal government to produce official records 
or allow their employees to provide testimony relating to official 
information in connection with legal proceedings in which the federal 
agency is not a named party. The EAC is adopting regulations (sometimes 
referred to as ``Touhy'' procedures) in part 9409 of 11 CFR Chapter II 
to provide guidance for the internal operations of the Commission and 
to inform the public about Commission procedures concerning the service 
of process and responses to demands or requests for the production of 
official Commission documents or the testimony of Commission employees 
in proceedings in which the Commission is not a named party.
    Finally, in the Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Act of 1978, 29 U.S.C. 794, Congress 
provided that each federal agency shall promulgate such regulations as 
may be necessary to carry out the provisions of the act relating to 
nondiscrimination under federal grants and programs. The EAC is 
adopting regulations in part 9420 of 11 CFR Chapter II to prohibit 
discrimination on the basis of handicap in programs or activities 
conducted by the Commission.
    The EAC is promulgating 11 CFR parts 9409, 9411, and 9420 as final 
rules, under the exemption in 5 U.S.C. 553(b)(3)(a) for interpretive 
rules, general statements of policy, and rules of agency organization, 
procedure, or practice.

II. Discussion of the Rulemaking

    The United States Election Assistance Commission was created by 
Congress in the Help America Vote Act of 2002. The Commission's primary 
function is to serve as a national clearinghouse and resource for 
information on and procedures for federal elections. The EAC conducts 
studies on election administration and makes those studies available to 
the public. The EAC also has adopted Voluntary Voting System 
Guidelines; administers a voting system testing and certification 
program; allocates election-related federal funding to the States; and 
carries out administrative duties under the National Voter Registration 
Act of 1993 (the Motor Voter Law), including developing and maintaining 
a mail voter registration application form for elections to federal 
office.
    The rules being adopted address the internal administration of the 
EAC. By establishing standards of conduct for EAC personnel, rules 
governing when and how internal EAC documents may be released and EAC 
personnel may testify in legal matters in which the EAC is not a named 
party, and rules ensuring nondiscrimination on the basis of handicap in 
programs and activities conducted by the EAC, the Commission is 
satisfying the requirement in the Administrative Procedure Act, 5 
U.S.C. 552, that federal agencies publish in the Federal Register 
statements of the general course and method of how the agencies' 
functions are channeled and determined. In addition, the EAC is either 
adopting by cross reference or modeling the three sets of regulatory 
requirements it is adopting on regulations addressing the same topics 
previously adopted by other federal agencies. Thus, many of the 
provisions in these rules are identical to or closely resemble the 
requirements adopted by other federal agencies, and as such represent 
regulatory ``best practices'' on the topics of standards of conduct, 
``Touhy'' procedures, and nondiscrimination on the basis of handicap.
    Although not required by law, the EAC posted these regulations on 
its Web site for the period from August 5, 2008 to September 4, 2008. 
The EAC received no comments during that period. Accordingly, no 
changes were made to the regulations and they are being submitted to 
the Federal Register with the same content they contained when posted 
on the EAC's Web site.

III. Regulatory Analyses and Notices

Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 601 et 
seq.) generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any

[[Page 54271]]

other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small government jurisdictions. Because the rules adopted today are 
administrative in nature and exempt from notice and comment rulemaking 
under Sec.  553(b)(3)(a) of the Administrative Procedure Act, the EAC 
has concluded that a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532) requires each agency to assess the effects of its regulatory 
actions on State, local, and tribal governments and the private sector. 
Any agency promulgating a rule likely to result in a federal mandate 
requiring expenditures by a State, local, or tribal government or by 
the private sector of $120.7 million or more in any one year must 
prepare a written statement incorporating various assessments, 
estimates, and descriptions that are delineated in the Act. The EAC has 
determined that these administrative rules will create no unfunded 
mandates because they require no expenditures by a State, local, or 
tribal government and will not have an impact of $120.7 million or more 
in any one year.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
SBREFA, provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. If the rule meets the definition of a 
major rule, as defined in SBREFA, the Comptroller General must provide 
a report to Congress and the rule may not take effect until 60 days 
after it has been published in the Federal Register. The current action 
is a Final Rule that does not meet the definition of a major rule. The 
EAC is submitting the necessary rule report to the Congress and the 
Comptroller General of the United States.

National Environmental Policy Act

    The EAC analyzed these rules for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined that this action includes no circumstances that would have 
any effect on the quality of the environment. The rules pertain solely 
to the dissemination of information. Thus, these actions do not require 
an environmental assessment or an environmental impact statement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the EAC to consider the impact of paperwork and other information 
collection burdens imposed on the public. The regulations in part 9409 
and part 9411 pertain solely to the internal administration of the EAC. 
These rules do not impose any reporting or recordkeeping requirements. 
The regulations in part 9420 also pertain to internal administrative 
procedures, but may result in complaints filed with the EAC. The EAC 
anticipates that only a very small number of such complaints, if any, 
will be submitted on an annualized basis and the paperwork burden of 
such complaints will also be very small, amounting to fewer than eight 
hours per year.

Executive Order 12630 (Taking of Private Property)

    These rules would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights.''

Executive Order 12988 (Civil Justice Reform)

    These rules meet applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, ``Civil Justice Reform,'' to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing economically significant rules, which also 
concern an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, must include 
an evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a covered regulatory action an evaluation of its 
environmental health or safety effects on children. The EAC has 
determined that these rules are not covered regulatory actions as 
defined under Executive Order 13045. This determination is based upon 
the fact that these rules do not constitute an environmental health 
risk or safety risk that would disproportionately affect children.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on federal programs and activities do 
not apply to this rulemaking.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    The EAC has analyzed these rules under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' These rules are not a significant 
energy action within the meaning of section 4(b) of the Executive 
Order. They involve internal procedures of the EAC, are not 
economically significant, and will not have a significant adverse 
effect on the supply, distribution, or use of energy.

List of Subjects

11 CFR Part 9409

    Administrative practice and procedure, Courts, Government 
employees, Practice and procedure.

11 CFR Part 9411

    Administrative practice and procedure, Conduct standards, Conflict 
of interest, Government employees.

11 CFR Part 9420

    Administrative practice and procedure, Grants and administration, 
Individuals with disabilities, Nondiscrimination.

0
In consideration of the foregoing, EAC amends title 11, Code of Federal 
Regulations, Chapter II, as follows:
0
1. Add part 9409 to read as follows:

PART 9409--TESTIMONY BY COMMISSION EMPLOYEES RELATING TO OFFICIAL 
INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS

Sec.
9409.1 Purpose and scope.
9409.2 Applicability.
9409.3 Definitions.
9409.4 Production or disclosure prohibited unless approved by 
appropriate Commission official.
9409.5 Procedures for demand for testimony or production of 
documents.
9409.6 Service of subpoenas or requests.
9409.7 Factors to be considered by the General Counsel.
9409.8 Processing demands or requests.
9409.9 Final determination.
9409.10 Restrictions that apply to testimony.
9409.11 Restrictions that apply to released records.
9409.12 Procedure when a decision is not made prior to the time a 
response is required.

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9409.13 Procedures when the General Counsel directs an employee not 
to testify or provide documents.
9409.14 Fees.
9409.15 Penalties.

    Authority: 44 U.S.C. 3102.


Sec.  9409.1  Purpose and scope.

    (a) This part sets forth policies and procedures you must follow 
when you submit a demand or request to an employee of the United States 
Election Assistance Commission to produce official records and 
information, or provide testimony relating to official information, in 
connection with a legal proceeding. You must comply with these 
requirements when you request the release or disclosure of official 
records and information.
    (b) The Commission intends these provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving the Commission in 
controversial issues not related to its functions;
    (3) Maintain the Commission's impartiality among private litigants 
where the Commission is not a named party; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of the Commission.
    (c) In providing for these requirements, the Commission does not 
waive the sovereign immunity of the United States.
    (d) This part is intended only to provide guidance for the internal 
operations of the Commission and to inform the public about Commission 
procedures concerning the service of process and responses to demands 
or requests. The procedures specified in this part, or the failure of 
any Commission employee to follow the procedures specified in this 
part, are not intended to create, do not create, and may not be relied 
upon to create a right or benefit, substantive or procedural, 
enforceable at law by a party against the United States.


Sec.  9409.2  Applicability.

    (a) This part applies to demands and requests to employees for 
factual or expert testimony relating to official information, or for 
production of official records or information, in legal proceedings in 
which the Commission is not a named party. However, it does not apply 
to:
    (1) Demands upon or requests for a Commission employee to testify 
as to facts or events that are unrelated to his or her official duties 
or that are unrelated to the functions of the Commission;
    (2) Demands upon or requests for a former Commission employee to 
testify as to matters in which the former employee was not directly or 
materially involved while at the Commission;
    (3) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
    (4) Congressional demands and requests for testimony or records.


Sec.  9409.3  Definitions.

    As used in this part, the term--
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commission employee or employee means:
    (a) Any current or former officer or employee of the Commission;
    (b) Any other individual hired through contractual agreement by or 
on behalf of the Commission or who has performed or is performing 
services under an agreement for the Commission; and
    (c) Any individual who served or is serving in any consulting or 
advisory capacity to the Commission, whether formal or informal.
    (d) This definition does not include persons who are no longer 
employed by the Commission and who are retained or hired as expert 
witnesses or who agree to testify about general matters, matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment with the 
Commission.
    Demand means a subpoena, or an order or other command of a court or 
other competent authority, for the production, disclosure, or release 
of records or for the appearance and testimony of a Commission employee 
that is issued in a legal proceeding.
    General Counsel means the General Counsel of the Commission or a 
person to whom the General Counsel has delegated authority under this 
part.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    Records or official records and information means:
    (a) All documents and materials that are Commission records under 
the Freedom of Information Act (5 U.S.C. 552);
    (b) All other documents and materials contained in files of the 
Commission; and
    (c) All other information or materials acquired by a Commission 
employee in the performance of his or her official duties or because of 
his or her official status.
    Request means any informal request, by whatever method, for the 
production of records and information or for testimony that has not 
been ordered by a court or other competent authority.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.


Sec.  9409.4  Production or disclosure prohibited unless approved by 
appropriate Commission official.

    (a) No employee or former employee of the Commission shall, in 
response to a demand of a court or other authority, produce a record or 
disclose any information relating to any record of the Commission, or 
disclose any information or produce any material acquired as part of 
the performance of his official duties or because of his official 
status without the prior, written approval of the General Counsel of 
the Commission.
    (b) Any expert or opinion testimony by a former employee of the 
Commission shall be excepted from the requirements of this part where 
the testimony involves only general expertise gained while employed at 
the Commission.


Sec.  9409.5  Procedures for demand for testimony or production of 
documents.

    (a) A demand directed to the Commission for the testimony of a 
Commission employee or for the production of documents shall be served 
in accordance with the Federal Rules of Civil Procedure, Federal Rules 
of Criminal Procedure, or applicable State procedures and shall be 
directed to the General Counsel, U.S. Election Assistance Commission, 
1225 New York Avenue, NW., Suite 1100, Washington, DC 20005. Acceptance 
of a demand shall not constitute an admission or waiver with respect to 
jurisdiction, propriety of service, improper venue, or any other 
defense in law or equity available under the applicable laws or rules.
    (b) If a subpoena is served on the Commission or a Commission 
employee before submitting a written request and receiving a final 
determination, the Commission will oppose the subpoena on grounds that 
the request was not submitted in accordance with this part.
    (c) A written request must contain the following information:

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    (1) The caption of the legal proceeding, docket number, name and 
address of the court or other authority involved; and the procedural 
posture of the legal proceeding.
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
the need to maintain any confidentiality of the information and 
outweighs the burden on the Commission to produce the records or 
provide testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a Commission employee, such as a 
retained expert;
    (6) If testimony is requested, the intended use of the testimony, a 
general summary of the desired testimony, and a showing that no 
document could be provided and used in lieu of testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case;
    (9) An estimate of the amount of time that the requester and other 
parties will require of each Commission employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding; and
    (10) Whether travel by the Commission employee is required to 
provide the testimony; or, in lieu of in-person testimony, whether a 
deposition may be taken at the employee's duty station.
    (d) The Commission reserves the right to require additional 
information to complete a request where appropriate.
    (e) A request should be submitted at least 45 days before the date 
that records or testimony is required. Requests submitted in less than 
45 days before records or testimony is required must be accompanied by 
a written explanation stating the reasons for the late request and the 
reasons for expedited processing.
    (f) Failure to cooperate in good faith to enable the General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with a request.
    (g) Notification to the General Counsel:
    (1) Employees shall immediately refer all inquiries and demands 
made on the Commission to the General Counsel.
    (2) An employee who receives a subpoena shall immediately forward 
the subpoena to the General Counsel. The General Counsel will determine 
the manner in which to respond to the subpoena.


Sec.  9409.6  Service of subpoenas or requests.

    Subpoenas or requests for official records or information or 
testimony must be served on the General Counsel, U.S. Election 
Assistance Commission, 1225 New York Avenue, NW., Suite 1100, 
Washington, DC 20005.


Sec.  9409.7  Factors to be considered by the General Counsel.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the General 
Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) The Commission has an interest in the decision that may be 
rendered in the legal proceeding;
    (d) Allowing such testimony or production of records would assist 
or hinder the Commission in performing its statutory duties or use 
Commission resources where responding to the demand or request will 
interfere with the ability of Commission employees to do their work;
    (e) Allowing such testimony or production of records would be in 
the best interest of the Commission or the United States;
    (f) The records or testimony can be obtained from other sources;
    (g) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (h) Disclosure would violate a statute, Executive order or 
regulation;
    (i) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, otherwise protected information, or information 
which would otherwise be inappropriate for release;
    (j) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings, or compromise constitutional 
rights;
    (k) Disclosure would result in the Commission appearing to favor 
one litigant over another;
    (l) Disclosure relates to documents that were produced by another 
agency;
    (m) A substantial Government interest is implicated;
    (n) The demand or request is within the authority of the party 
making it; and
    (o) The demand or request is sufficiently specific to be answered.


Sec.  9409.8  Processing demands or requests.

    (a) After service of a demand or request to testify, the General 
Counsel will review the demand or request and, in accordance with the 
provisions of this part, determine whether, or under what conditions, 
to authorize the employee to testify on matters relating to official 
information and/or produce official records and information.
    (b) The Commission will process requests in the order in which they 
are received. Absent exigent or unusual circumstances, the Commission 
will respond within 45 days from the date a request is received. The 
time for response will depend upon the scope of the request.
    (c) The General Counsel may grant a waiver of any procedure 
described by this part where a waiver is considered necessary to 
promote a significant interest of the Commission or the United States 
or for other good cause.


Sec.  9409.9  Final determination.

    The General Counsel will make the final determination on demands 
and requests to employees for production of official records and 
information or testimony. All final determinations are within the sole 
discretion of the General Counsel. The General Counsel will notify the 
requester and the court or other authority of the final determination, 
the reasons for the grant or denial of the demand or request, and any 
conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of a Commission employee.


Sec.  9409.10  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of Commission employees including, for example, limiting 
the areas of testimony or requiring the requester and other parties to 
the legal proceeding to agree that the transcript of the testimony will 
be kept under seal or

[[Page 54274]]

will only be used or made available in the particular legal proceeding 
for which testimony was requested. The General Counsel may also require 
a copy of the transcript of testimony at the requester's expense.
    (b) The Commission may offer the employee's written declaration in 
lieu of testimony.
    (c) If authorized to testify under this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current Commission employee, testify as an expert or 
opinion witness with regard to any matter arising out of the employee's 
official duties or the functions of the Commission unless testimony is 
being given on behalf of the United States.


Sec.  9409.11  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure. The terms of the protective order or confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, the Commission may condition the release of official records 
and information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original Commission 
records may be presented for examination in response to a demand or 
request, but they are not to be presented as evidence or otherwise used 
in a manner by which they could lose their identity as official 
Commission records, nor are they to be marked or altered. In lieu of 
the original records, certified copies will be presented for 
evidentiary purposes (see 28 U.S.C. 1733).


Sec.  9409.12  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the General 
Counsel's decision is received, a U.S. attorney or a Commission 
attorney designated for the purpose shall appear with the employee or 
former employee of the Commission upon whom the demand has been made 
and shall furnish the court or other authority with a copy of the 
regulations contained in this part and inform the court or other 
authority that the demand has been, or is being, as the case may be, 
referred for the prompt consideration of the appropriate Commission 
official and shall respectfully request the court or authority to stay 
the demand pending receipt of the requested instructions.


Sec.  9409.13  Procedures when the General Counsel directs an employee 
not to testify or provide documents.

    (a) If the General Counsel determines that an employee or former 
employee should not comply with a subpoena or other request for 
testimony or the production of documents, the General Counsel will so 
inform the employee and the party who submitted the subpoena or made 
the request.
    (b) If, despite the determination of the General Counsel that 
testimony should not be given and/or documents not be produced, a court 
of competent jurisdiction or other appropriate authority orders the 
employee or former employee to testify and/or produce documents; the 
employee shall notify the General Counsel of such order.
    (1) If the General Counsel determines that no further legal review 
of, or challenge to, the order will be sought, the employee or former 
employee shall comply with the order.
    (2) If the General Counsel determines to challenge the order, or 
that further legal review is necessary, the employee or former employee 
should not comply with the order. Where necessary, the employee should 
appear at the time and place set forth in the subpoena. If legal 
counsel cannot appear on behalf of the employee, the employee should 
produce a copy of this part and respectfully inform the legal tribunal 
that he/she has been advised by counsel not to provide the requested 
testimony and/or produce documents. If the legal tribunal rules that 
the subpoena must be complied with, the employee shall respectfully 
decline to comply, citing this section and United States ex rel. Touhy 
v. Ragen, 340 U.S. 462 (1951).


Sec.  9409.14  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to the Commission.
    (b) Fees for records. Requesters will reimburse the Commission for 
the actual costs of time and resources spent searching, reviewing and 
duplicating records. Fees for producing records will include fees for 
searching, reviewing, and duplicating records, costs of attorney time 
spent in reviewing the demand or request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. The Commission will charge fees at the salary 
rate(s) (basic pay plus 16 percent) of employee time spent searching, 
reviewing, and duplicating records. Fees for duplication will be the 
same as those charged by the Commission for records disclosed under the 
Freedom of Information Act (11 CFR 9405), except that the Commission 
will charge for the actual costs for each page of duplication and will 
not provide the first 100 pages for free.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear. The fees will include cost of time spent by 
the witness to prepare for testimony, in travel, and for attendance in 
the legal proceeding.
    (d) Payment of fees. Witness fees shall be paid for current 
Commission employees and any records certification fees by submitting 
to the General Counsel a check or money order for the appropriate 
amount made payable to the Treasury of the United States. In the case 
of testimony by former Commission employees, applicable fees shall be 
paid directly to the former employee in accordance with 28 U.S.C. 1821 
or other applicable statutes.
    (e) Certification (authentication) of copies of records. The 
Commission may certify that records are true copies to facilitate their 
use as evidence. To obtain certification a request for certified copies 
shall be made to the Commission at least 45 days before the date the 
copies will be needed. The request should be sent to the General 
Counsel, U.S. Election Assistance Commission, 1225 New York Avenue, 
NW., Washington, DC 20005.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.


Sec.  9409.15  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by the Commission or as ordered by a Federal court after the 
Commission has had the opportunity to be heard, may face the penalties 
provided in 18 U.S.C. 641 and other

[[Page 54275]]

applicable laws. Former Commission employees are subject to the 
restrictions and penalties of 18 U.S.C. 207 and 216.
    (b) A current Commission employee who testifies or produces 
official records and information in violation of this part shall be 
subject to disciplinary action in addition to any penalties assessed 
under paragraph (a) of this section.

0
2. Add part 9411 to read as follows:

PART 9411--STANDARDS OF CONDUCT

    Authority: 5 CFR parts 2634 through 2638; 5 CFR part 2641; 5 CFR 
parts 734 and 735.


Sec.  9411.1  Cross-reference to executive branch-wide regulations.

    (a) Employees of the U.S. Election Assistance Commission are 
subject to the following standards of conduct and ethical requirements:
    (1) Executive Branch Financial Disclosure, Qualified Trusts, and 
Certificates of Divestiture as provided in 5 CFR part 2634;
    (2) Standards of Ethical Conduct for Employees of the Executive 
Branch as provided in 5 CFR part 2635;
    (3) Limitations on Outside Earned Income, Employment and 
Affiliations for Certain Noncareer Employees as provided in 5 CFR part 
2636;
    (4) Regulations Concerning Post-Employment Conflict of Interest as 
provided in 5 CFR part 2637;
    (5) Interpretation, Exemptions and Waiver Guidance Concerning 18 
U.S.C. 208 (Acts Affecting a Personal Financial Interest) as provided 
in 5 CFR part 2638;
    (6) Post-Employment Conflict of Interest Restrictions as provided 
in 5 CFR part 2641;
    (7) Political Activities of Federal Employees as provided in 5 CFR 
part 734; and
    (8) Employee Responsibilities and Conduct as provided in 5 CFR part 
735.
    (b) For purposes of this part, employee shall have the definition 
given to it by each standard of conduct or ethical requirement in 
paragraph (a) of this section.

0
3. Add part 9420 to read as follows:

PART 9420--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 
OR ACTIVITIES CONDUCTED BY THE U.S. ELECTION ASSISTANCE COMMISSION

Sec.
9420.1 Purpose and scope.
9420.2 Definitions.
9420.3 General prohibitions against discrimination.
9420.4 Program accessibility: Discrimination prohibited.
9420.5 Program accessibility: Existing facilities.
9420.6 Program accessibility: New construction and alterations.
9420.7 Communications.
9420.8 Compliance procedures.

    Authority: 29 U.S.C. 794.


Sec.  9420.1  Purpose and scope.

    This part sets forth the nondiscrimination policy of the U.S. 
Election Assistance Commission to prohibit discrimination on the basis 
of handicap in programs or activities conducted by the Commission.


Sec.  9420.2  Definitions.

    As used in this part, the term--
    Auxillary aids means services, including attendant services, or 
devices that enable handicapped persons, including those with impaired 
sensory, manual, or speaking skills to have an equal opportunity to 
participate in, and enjoy the benefits of, programs or activities 
conducted by the Commission. For example, auxiliary aids useful for 
disabled persons with impaired vision include readers, brailled 
materials, audio recordings, telecommunications devices and other 
similar services and devices. Auxiliary aids useful for disabled 
persons with impaired hearing include telephone handset amplifiers, 
telephones compatible with hearing aids, telecommunication devices for 
deaf persons (TDDs), interpreters, notetakers, written materials, and 
other similar services and devices.
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the complaintant's name 
and address and describes the Commission's actions in sufficient detail 
to inform the Commission of the nature and date of the alleged 
violation of section 504, as defined in this part. It shall be signed 
by the complainant or by someone authorized to do so on his or her 
behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property whether owned, leased 
or used on some other basis by the Commission.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such impairment, or is regarded as having such 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes:
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one of more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic; visual, speech, and hearing impairments; 
cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; 
cancer; heart disease; diabetes; mental retardation; emotional illness; 
and drug addition and alcoholism.
    (2) Major life activities include functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of or 
has been misclassified as having a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but is treated by the Commission as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward the impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition, but is treated by the Commission as having an impairment.
    Qualified handicapped person means (1) with respect to any 
Commission program or activity under which a person is required to 
perform services or to achieve a level of accomplishment, a handicapped 
person who, with reasonable accommodation, meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity; and
    (2) With respect to any other program or activity, a handicapped 
person who meets essential eligibility requirements

[[Page 54276]]

for participation in, or receipt of benefits from, that program or 
activity.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394), as amended by the Rehabilitation Act 
Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617) and the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Act of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, 
section 504 applies only to programs or activities conducted by the 
Commission and not to any federally assisted programs or activities 
that it administers.


Sec.  9420.3  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the Commission.
    (b)(1) The Commission, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangement, on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aids, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving aid, benefit, or service.
    (2) The Commission may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Commission may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration the 
purpose or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to handicapped 
persons.
    (4) The Commission may not, in determining the site or location of 
a facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the Commission; or
    (ii) Defeat or substantially impair the accomplishment of 
objectives of a program or activity with respect to handicapped 
persons.
    (5) The Commission, in selection of procurement contractors, may 
not use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The Commission may not administer a certification program in a 
manner that subjects qualified handicapped persons to discrimination on 
the basis of handicap, nor may the Commission establish requirements 
for the programs or activities of certified entities that subject 
qualified handicapped persons to discrimination on the basis of 
handicap. The programs or activities of entities that are certified by 
the Commission are not, themselves, covered by this part.
    (c) The exclusion of non-handicapped persons from the benefits of a 
program limited by Federal statute or Executive Order to handicapped 
persons or the exclusion of a specific class of handicapped persons 
from a program limited by Federal statute or Executive Order to a 
different class of handicapped persons is not prohibited by this part.
    (d) The Commission will administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
handicapped persons.


Sec.  9420.4  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in 11 CFR 9420.6 and 11 CFR 9420.7, no 
qualified handicapped person shall be denied the benefits of, be 
excluded from participation in, or otherwise be subjected to 
discrimination under any program or activity conducted by the 
Commission because its facilities are inaccessible to or unusable by 
handicapped persons.


Sec.  9420.5  Program accessibility: Existing facilities.

    (a) General. The Commission will operate each program or activity 
so that the program or activity, when viewed in its entirety, is 
readily accessible to and usable by handicapped persons. This paragraph 
does not--
    (1) Necessarily require the Commission to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) Require the Commission to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. 
The Commission has the burden of proving that compliance with 11 CFR 
9420.6(a) would result in such alterations or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the Commission after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action would result in such an 
alteration or such burdens, the Commission will take any other action 
that would not result in such an alteration or such a burden but would 
nevertheless ensure that handicapped person receive the benefits and 
services of the program or activity.
    (b) Methods. The Commission may comply with the requirements of 
this section through such means as redesign of equipment, reassignment 
of services to accessible buildings, assignment of aides to 
beneficiaries, home visits, delivery of services at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock, or any other methods 
that result in making its programs or activities readily accessible to 
and usable by handicapped persons. The Commission is not required to 
make structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Commission, in 
making alterations to existing buildings will meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended, 42 U.S.C. 4151-4157, and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Commission will give priority to 
those

[[Page 54277]]

methods that offer programs and activities to qualified handicapped 
persons in the most integrated setting appropriate.
    (c) Time period for compliance. The Commission shall comply with 
the obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes will be made within three years 
of the effective date of this part, but in any event as expeditiously 
as possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Commission will develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The plan will be developed with the assistance 
of interested persons, including handicapped persons and organizations 
representing handicapped persons. A copy of the transition plan will be 
made available for public inspection. The plan will, at a minimum--
    (1) Identify physical obstacles in the Commission's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period;
    (4) Indicate the official responsible for implementation of the 
plan; and
    (5) Identify the person or groups with whose assistance the plan 
was prepared.


Sec.  9420.6  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Commission shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of 
the Architectural Barriers Act, 42 U.S.C. 4151-4157 apply to buildings 
covered by this section.


Sec.  9420.7  Communications.

    (a) The Commission will take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The commission will furnish appropriate auxiliary aids when 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Commission.
    (i) In determining what type of auxiliary aid is necessary, the 
Commission will give primary consideration to the requests of the 
handicapped person.
    (ii) Where the Commission communicates with applicants and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TDDs) or equally effective telecommunication systems will be used.
    (b) The Commission will ensure that interested persons, including 
persons with impaired vision or hearing can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) To the extent that the Commission controls signage at its 
facilities, the Commission will provide signage at a primary entrance 
to each of its inaccessible facilities, directing users to a location 
at which they can obtain information about accessible facilities. To 
the extent practicable, the international symbol for accessibility 
shall be used at each primary entrance of an accessible facility.
    (d) The Commission will take appropriate steps to provide 
handicapped persons with information regarding their section 504 rights 
under the Commission's programs or activities.
    (e) This section does not require the Commission to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and 
administrative burdens. The Commission has the burden of proving that 
compliance with this section would result in such alterations or 
burdens. The decision that compliance would result in such alteration 
or burdens must be made by the Commission after considering all agency 
resources available for use in the funding and operation of the 
conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the Commission will take any other action that would 
not result in such an alteration or such a burden but would 
nevertheless ensure that, to the maximum extent possible, handicapped 
persons receive the benefits and services of the program or activity.


Sec.  9420.8  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the Commission.
    (b) The Commission will process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established in 29 CFR 1614.101 et seq. pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Rehabilitation Act Officer.
    (d)(1) Requirement to file complaint with the Rehabilitation Act 
Officer.
    (i) Any person who believes that he or she or any specific class of 
persons of which he or she is a member has been subjected to 
discrimination prohibited by this part may file a complaint with the 
Rehabilitation Act Officer.
    (ii) Any person who believes that a denial of his or her services 
will result or has resulted in discrimination prohibited by this part 
may file a complaint with the Rehabilitation Act Officer.
    (2) Timing of filing of complaint. All complete complaints must be 
filed within 180 days of the alleged act of discrimination. The 
Commission may extend this period for good cause.
    (3) Complaints filed under this part shall be addressed to the 
Rehabilitation Act Officer, U.S. Election Assistance Commission, 1225 
New York Avenue, NW., Suite 1100, Washington, DC 20005.
    (e) The Commission will notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), are not readily 
accessible and usable to handicapped persons.
    (f) Review of complaints.
    (1) The Commission will accept and investigate a complete complaint 
that is filed in accordance with paragraph (d) of this section and over 
which it has jurisdiction. The Rehabilitation Act Officer will notify 
the complainant and the respondent of receipt and acceptance of the 
complaint.
    (2) If the Rehabilitation Act Officer receives a complaint that is 
not complete, he or she will notify the complainant within 30 days of 
receipt of the incomplete complaint, that additional information is 
needed. If the complainant fails to complete the complaint within 30 
days of receipt of

[[Page 54278]]

this notice, the Rehabilitation Act Officer will dismiss the complaint 
without prejudice.
    (3) If the Rehabilitation Act Officer receives a complaint over 
which the Commission does not have jurisdiction, the Commission will 
promptly notify the complainant and will make reasonable efforts to 
refer the complaint to the appropriate government entity.
    (g) Within 180 days of receipt of a complete complaint for which it 
has jurisdiction, the Commission will notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law.
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt 
from the Commission of a letter required by Sec.  9420.9(g). The 
Commission may extend this time for good cause.
    (i) Timely appeals to the Commission shall be addressed to the 
Rehabilitation Act Officer, U.S. Election Assistance Commission, 1225 
New York Avenue, NW., Suite 1100, Washington, DC 20005.
    (j) The Commission will notify the complainant of the results of 
the appeal within 60 days of the receipt of the request. If the 
Commission determines it needs additional information from the 
complainant, it shall have 60 days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The Commission may extend the time limits in paragraphs (g) and 
(j) of this section for good cause.
    (l) The Commission may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated.

Thomas R. Wilkey,
Executive Director, U.S. Election Assistance Commission.
[FR Doc. E8-21795 Filed 9-17-08; 8:45 am]
BILLING CODE 6820-KF-P