[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
22
Part 300 to End
Revised as of April 1, 2002
Foreign Relations
Containing a codification of documents of general
applicability and future effect
As of April 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area
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Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
Title 22:
Chapter III--Peace Corps 3
Chapter IV--International Joint Commission, United
States and Canada 95
Chapter V--Broadcasting Board of Governors 105
Chapter VII--Overseas Private Investment Corporation 227
Chapter IX--Foreign Service Grievance Board
Regulations 271
Chapter X--Inter-American Foundation 287
Chapter XI--International Boundary and Water
Commission, United States and Mexico, United States
Section 329
Chapter XII--United States International Development
Cooperation Agency 377
Chapter XIV--Foreign Service Labor Relations Board;
Federal Labor Relations Authority; General Counsel
of the Federal Labor Relations Authority; and the
Foreign Service Impasse Disputes Panel 397
Chapter XV--African Development Foundation 451
Chapter XVI--Japan-United States Friendship
Commission 495
Chapter XVII--United States Institute of Peace 505
[[Page iv]]
Finding Aids:
Table of CFR Titles and Chapters........................ 517
Alphabetical List of Agencies Appearing in the CFR...... 535
Redesignation Table..................................... 545
List of CFR Sections Affected........................... 547
[[Page v]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 301.1 refers
to title 22, part 301,
section 1.
----------------------------
[[Page vi]]
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, April 1, 2002), 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
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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 vii]]
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.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
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 Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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.
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.
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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, Weekly Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
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free). E-mail, gpoaccess@gpo.gov.
[[Page viii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2002.
[[Page ix]]
THIS TITLE
Title 22--Foreign Relations is composed of two volumes. The first
volume, Parts 1 to 299 contains Chapter I--Department of State
regulations and Chapter II--Agency for International Development
regulations. The second volume, Part 300 to End is composed of Chapter
III--Peace Corps; Chapter IV--International Joint Commission, United
States and Canada; Chapter V--Broadcasting Board of Governors; Chapter
VII--Overseas Private Investment Corporation; Chapter IX--Foreign
Service Grievance Board Regulations; Chapter X--Inter-American
Foundation; Chapter XI--International Boundary and Water Commission,
United States and Mexico, United States Section; Chapter XII--United
States International Development Cooperation Agency; Chapter XIV--
Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority; and
the Foreign Service Impasse Disputes Panel; Chapter XV--African
Development Foundation; Chapter XVI--Japan-United States Friendship
Commission; and Chapter XVII--United States Institute of Peace. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 2002.
Redesignation tables appear in the Finding Aids section of these
volumes.
[[Page x]]
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains part 300 to End)
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Part
chapter iii--Peace Corps.................................... 301
chapter iv--International Joint Commission, United States
and Canada................................................ 401
chapter v--Broadcasting Board of Governors.................. 501
chapter vii--Overseas Private Investment Corporation........ 705
chapter ix--Foreign Service Grievance Board Regulations..... 901
chapter x--Inter-American Foundation........................ 1001
chapter xi--International Boundary and Water Commission,
United States and Mexico, United States Section........... 1100
chapter xii--United States International Development
Cooperation Agency........................................ 1201
chapter xiv--Foreign Service Labor Relations Board; Federal
Labor Relations Authority; General Counsel of the Federal
Labor Relations Authority; and the Foreign Service Impasse
Disputes Panel............................................ 1411
chapter xv--African Development Foundation.................. 1500
chapter xvi--Japan-United States Friendship Commission...... 1600
chapter xvii--United States Institute of Peace.............. 1701
[[Page 2]]
Cross References: U.S. Customs Service, Department of the Treasury: See
Customs Duties, 19 CFR chapter I.
International Trade Administration, Department of Commerce: See
Commerce and Foreign Trade, 15 CFR chapter III.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR
chapter IV.
Immigration and Naturalization Service, Department of Justice: See
Aliens and Nationality, 8 CFR chapter I.
Taxation pursuant to treaties: See Internal Revenue, 26 CFR 1.894-1.
[[Page 3]]
CHAPTER III--PEACE CORPS
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Part Page
301 Public access to classified material........ 5
302 Organization................................ 5
303 Inspection and copying of records: Rules for
compliance with Freedom of Information
Act..................................... 8
304 Claims against Government under Federal Tort
Claims Act.............................. 18
305 Eligibility and standards for Peace Corps
volunteer service....................... 21
306 Volunteer discrimination complaint procedure 24
307 Peace Corps standards of conduct............ 24
308 Implementation of the Privacy Act of 1974... 38
309 Claims collection........................... 47
310 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 64
311 New restrictions on lobbying................ 82
[[Page 5]]
PART 301--PUBLIC ACCESS TO CLASSIFIED MATERIAL--Table of Contents
Sec.
301.1 Introduction.
301.2 Requests for mandatory declassification review.
301.3 Action on requests for declassification review.
Authority: E.O. 12356, 43 FR 14874 dated April 2, 1982.
Source: 49 FR 13692, Apr. 6, 1984, unless otherwise noted.
Sec. 301.1 Introduction.
The following regulations implement Executive Order 12356 and
provide guidance for members of the public desiring a review for
declassification of a document of the Peace Corps.
Sec. 301.2 Requests for mandatory declassification review.
(a) All information originally classified by the Peace Corps shall
be subject to review for declassification.
(b) Requests for review of such information for declassification
shall be in writing, addressed to the Peace Corps Director of Security,
Peace Corps, Washington, DC 20526, and reasonably describe the
information sought with sufficient specificity to enable its location
with a reasonable amount of effort. Only requests made by a United
States citizen or a permanent resident alien, a Federal agency or a
State or local government will be considered.
(c) Requests relating to information, either derivatively classified
by the Peace Corps or originally classified by another agency but in the
possession of the Peace Corps, shall be forwarded, together with a copy
of the record, to the originating agency. The transmittal may contain in
Peace Corps recommendation for action.
Sec. 301.3 Action on requests for declassification review.
(a) The Director of Security shall present each request for
declassification to the Peace Corps Classification Review Committee,
which shall consist of the Associate Director for International
Operations, the Associate Director for Management and the General
Counsel, or their designees, together with his or her recommendation for
action.
(b) Every effort will be made to complete action on each request
within 60 days of receipt thereof.
(c) Information shall be declassified or downgraded as soon as
national security considerations permit. If the Classification Review
Committee determines that the material for which review is requested no
longer requires this protection, it shall be declassified and made
available to the requester unless withholding is otherwise authorized by
law.
(d) If the Peace Corps Classification Review Committee determines
that requested information must remain classified, the requester shall
be given prompt notice of the decision and, if possible, a brief
explanation of why the information cannot be declassified.
(e) The Peace Corps may refuse to confirm or deny the existence or
non-existence of requested information whenever the fact of its
existence or non-existence is itself classified under E.O. 12356.
(f) A requester may appeal a refusal to declassify information to
the Director of the Peace Corps, or the Director's designee. Appeals
shall be in writing, addressed to the Director of the Peace Corps,
Washington, DC 20526, and shall briefly state the reasons why the
requester believes that the Peace Corps Classification Review Committee
decision is in error. Appeals must be submitted within 30 days after
receipt of notice of the Classification Review Committee decision. The
decision of the Peace Corps Director, or designee, will be based on the
entire record, and will be rendered in writing within 60 days after
receipt of an appeal. The decision of the Director or Director's
designee is the final Peace Corps action on a request.
PART 302--ORGANIZATION--Table of Contents
Sec.
302.1 Introduction.
302.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may
secure information, make submittals, or request, or obtain
decisions; and statements of the general course and
[[Page 6]]
methods by which its functions are channeled and determined.
302.3 Rules of procedure, description of forms available, the places at
which forms may be obtained, and instructions as to the scope
and content of all papers, reports, or examinations.
302.4 Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretation of
general applicability formulated and adopted by the agency.
Authority: Sec. 4, Pub. L. 87-239, Stat. 612 (22 U.S.C. 2503, as
amended); 5 U.S.C. 552; E.O. 12137, 44 FR 29023, 3 CFR, 1979 Comp., p.
389.
Source: 52 FR 47715, Dec. 16, 1987, unless otherwise noted.
Sec. 302.1 Introduction.
The regulations of this part are issued pursuant to section 3 of the
Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.
Sec. 302.2 Central and field organization, established places at which,
the officers from whom, and the methods whereby the public may secure information, make
submittals, or request, or obtain decisions; and statements of
the general course and methods by which its functions are
channeled and determined.
(a) The following are statements of the central and field
organization of the Peace Corps:
(1) Central Organization--(i) Director. As head of the Peace Corps,
the Director is responsible for all the activities of the agency. He or
she is assisted by a Deputy Director, a Chief of Staff, and the
following staff units:
(A) The Office of the General Counsel which provides legal advice
and assistance relating to Peace Corps programs and activities;
(B) The Office of Congressional Relations which serves as primary
informational contact between Congress and the Peace Corps, advising the
Director and other senior managers on governmental and legislative
affairs;
(C) The Office of Public Affairs which promotes awareness of the
Peace Corps, monitors agency news coverage and prepares/disseminates
national news releases and other information about the Peace Corps. The
Office also coordinates agency activities and maintains files relating
to graphic, photographic and audiovisual services and works closely with
the Advertising Council on placement on public service announcements;
(D) The office of Private Sector Relations/Development Education
which coordinates private sector support and participation in Peace
Corps activities;
(E) The Executive Secretariat which manages correspondence and other
documents on behalf of the Director.
(ii) Office of the Associate Director for International Operations
consists of the Regional Offices for Africa; Inter-America; and North
Africa, Near East, Asia and Pacific; and the Office of Training and
Program Support. The immediate office of the Associate Director includes
the Overseas Staff Training and the United Nations Volunteer Program
staff.
(A) The Regional offices are responsible for the negotiation,
establishment and operation of Peace Corps projects overseas and for the
training of Peace Corps Volunteers for such projects. They also provide,
on behalf of the Director, policy guidance and immediate supervision to
Peace Corps staff and operations overseas.
(B) The Office of Training and Program Support provides technical
assistance and policy direction in the development of effective program
and training strategies/designs, and coordinates a wide variety of
program and training services.
(iii) The Office of the Associate Director for Management consists
of the following offices:
A) The Office of Medical Services which provides medical screening
for applicants and health care services to Volunteers and in-country
staff.
(B) The Office of Special Services which provides personal and
administrative support to Peace Corps trainees and Volunteers, and their
families.
(C) The Office of Personnel Policy and Operations which provides
Agency personnel services.
(D) The Office of Financial Management which provides accounting,
contracting and budget operations.
(E) The Office of Planning and Policy Analysis which provides
support to the Agency in the areas of policy, planning, assessment and
management information.
[[Page 7]]
(F) The Office of Administrative Services which provides
administrative and logistical support to the Agency.
(G) The Office of Information Resources Management which manages the
Agency's information resources and central computer facility.
(H) The Office of Compliance which carries out Agency audit,
investigation, internal controls and equal opportunity functions.
(iv) The Office of the Associate Director for Volunteer Recruitment
and Selection consists of the following offices:
(A) The Office of Recruitment which directs the operational and
managerial aspects of headquarters and domestic field recruitment
activities in support of the recruitment of qualified Peace Corps
trainees.
(B) The Office of Placement which conducts final placement,
processing and orientation of Peace Corps applicants in preparation for
final selection and training.
(2) Domestic Field Organization
Regional Peace Corps Recruitment Offices: (i) Chicago Regional
Office, 175 West Jackson Boulevard, Room A-531, Chicago, Illinois 60604.
(Oversees Area Offices in Atlanta, Chicago, Detroit, Kansas City and
Minneapolis.)
(ii) New York Regional Office, 1515 Broadway, Room 3515, New York,
New York 10036. (Oversees Area Offices in Miami, Puerto Rico,
Washington, DC, Philadelphia, New York City and Boston.)
(iii) San Francisco Regional Office, 211 Main Street, Room 533, San
Francisco, California 94105. (Oversees Area Offices in San Francisco,
Seattle, Denver, Los Angeles, and Dallas.)
(3) Foreign Field Organization--(i) Africa Region.
Benin, Cotonou
Botswana, Gaborone
Burundi, Bujumbura
Cameroon, Yaounde
Central African Republic, Bangui
Chad, N'Djamena
Gabon, Libreville
The Gambia, Banjul
Ghana, Accra
Guinea, Conakry
Kenya, Nairobi
Lesotho, Maseru
Liberia, Monrovia
Malawi, Lilongwe
Mali, Bamako
Mauritania, Nouakchott
Niger, Niamey
Rwanda, Kigali
Senegal, Dakar
Sierra Leone, Freetown
Swaziland, Mbabane
Tanzania, Dar es Salaam
Zaire, Kinshasa
Togo, Lome
(ii) Inter-America Region
Belize, Belize City
Costa Rica, San Jose
Dominican Republic, Santo Domingo
Eastern Caribbean, Bridgetown, Barbados
Ecuador, Quito
Guatemala, Guatemala City
Haiti, Port-au-Prince
Hondurus, Tegucigalpa
Jamaica, Kingston
Paraguay, Asuncion
Turks and Caicos Islands (Santo Domingo, Dominican Republic)
(iii) North Africa, Near East Asia and Pacific Region
Cook Islands (Apia, Western Samoa)
Fiji, Suva
Federated States of Micronesia, Pohnpei
Kiribati (Honiara, Solomon Islands)
Marshall Islands, Majuro
Morocco, Rabat
Nepal, Kathmandu
Papua New Guinea, Port Moresby
Philippines, Manila
Republic of Palau (Pohnpei, F.S.M)
Seychelles, Victoria
Solomon Islands, Honiara
Sri Lanka, Colombo
Thailand, Bangkok
Tonga, Nuku'alofa
Tunisia, Tunis
Tuvalu (Suva, Fiji)
Western Samoa, Apia
Yemen Arab Republic, Sana's
(b) Any person desiring information concerning a matter handled by
the Peace Corps, or any persons desiring to make a submittal or request
in connection with such a matter, should communicate either orally or in
writing with the appropriate office. If the office receiving the
communications does not have jurisdiction to handle the matter, the
communication, if written, will be forwarded to the proper office, or,
if oral, the person will be advised how to proceed.
[[Page 8]]
Sec. 302.3 Rules of procedure, description of forms available, the places at which forms may be obtained, and instructions as to the scope and content of all
papers, reports, or examinations.
Forms regarding the following listed matters and instructions
relating thereto may be obtained upon application to the offices listed
below.
Application for Peace Corps, Office of Recruitment, Room P-301.
Volunteer Service, Peace Corps, 806 Connecticut Avenue NW.,
Washington, DC 20526, or the Peace Corps area recruitment offices listed
in Sec. 302.2(a)(2).
Sec. 302.4 Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability
formulated and adopted by the agency.
The Peace Corps regulations published under the provisions of the
Administrative Procedure Act are found in part 301 of title 22 of the
Code of Federal Regulations and the Federal Register. These regulations
are supplemented from time to time by amendments appearing initially in
the Federal Register.
PART 303--INSPECTION AND COPYING OF RECORDS: RULES FOR COMPLIANCE WITH FREEDOM OF INFORMATION ACT--Table of Contents
Sec.
303.1 Purpose.
303.2 Definitions.
303.3 Records generally available.
303.4 Availability of records.
303.5 Records which may be exempt from disclosure.
303.6 Manner of requesting records--appeals.
303.7 Authority to release and certify records.
303.8 Location of records.
303.9 Identification of records.
303.10 Schedule of fees.
Authority: 5 U.S.C. 552; Pub. L. 87-293 as amended (22 U.S.C. 2501
et seq.); Pub. L. 97-113, sec. 601; Pub. L. 99-570; E.O. 12137, May 16,
1979.
Source: 49 FR 28701, July 16, 1984, unless otherwise noted.
Sec. 303.1 Purpose.
The purpose of this part is to prescribe rules for the inspection
and copying of opinions, policy statements, staff manuals, instructions,
and other records of the Peace Corps pursuant to 5 U.S.C. 552.
Sec. 303.2 Definitions.
As used in this part, the following definitions shall apply:
(a) The Agency means Peace Corps.
(b) Records includes all books, papers, maps, photographs, films,
tapes, or other documentary material or copies thereof, regardless of
physical form or characteristics, made in or received by the Peace Corps
and preserved as evidence of its organization, functions, policies,
decisions, procedures, operations or other activities but does not
include books, magazines, or other materials acquired solely for library
purposes and available in the library of the agency.
(c) Identifiable means, in the context of a request for a record,
one which is reasonably described in a manner sufficient to permit the
location of the material requested.
(d) Unit means an office of the Agency headed by a senior official
who shall be responsible for making initial determinations of
availability of documents or records requested hereunder. The head of
any such Unit may delegate his or her responsibility hereunder to his or
her Deputy or some other official during any absence of such official.
At present, the units of the Agency for the purposes hereof consist of,
the Office of the Director; the Executive Secretariat; the Office of
Private Sector Development; the Office of Executive Talent Search; the
Office of General Counsel and Legislative Liaison; the Office of Public
Affairs; the Office of the Associate Director for Marketing,
Recruitment, Placement and Staging; the Office of the Associate Director
for International Operations; and the Office of the Associate Director
for Management.
Sec. 303.3 Records generally available.
The agency will make promptly available to any member of the public
the following documents:
[[Page 9]]
(a) All final opinions and orders made in the adjudication of cases.
(b) Statements of policy and interpretation adopted by the agency
which have not been published in the Federal Register.
(c) Administrative staff manuals and instructions to the staff which
affect a member of the public.
(d) A current index, which shall be updated at least quarterly,
covering so much of the foregoing materials as may have been issued,
adopted or promulgated after July 4, 1967, is maintained by the Agency
and copies of same or any portion thereof shall be furnished upon
request at a cost not to exceed the cost of duplication. The Agency
deems further publication of such index in the Federal Register both
unnecessary and impractical.
(e) To the extent necessary to prevent a clearly unwarranted
invasion of personal privacy, the Agency may delete identifying details
from materials furnished under this section.
(f) Brochures, flyers and other similar material shall be furnished
to the extent that same are available. Copies of any such brochures and
flyers which are out of print shall be furnished upon request at the
cost of duplication, provided, however, that in the event no copy
exists, the Agency shall not be responsible for reprinting the same.
(g) The Agency will not be required to create or compile selected
items from its file and records or to provide a requester with
statistical or other data unless such data has been compiled by the
Agency and is available in the form of a record in which event such
record shall be made available as provided in this part.
Sec. 303.4 Availability of records.
All records of the Peace Corps, in addition to those ordinarily
maintained and disseminated under Sec. 303.3 hereof, requested under 5
U.S.C. 552(a)(3) and reasonably described in any request therefore shall
be made promptly available upon request of any member of the public for
inspection or copying upon compliance with procedures established in
this part, except to the extent that a determination is made, in accord
with the procedures set forth herein, that a record is exempt from
disclosure, and should be withheld in the public interest. All
publications and other documents heretofore provided by the Peace Corps
in the normal course of business will continue to be made available upon
request to the appropriate unit of the Agency. No charge will be made
for such documents unless necessary by reason of the fact that such
document is no longer in print in which case the charge shall not exceed
the cost of duplication as set forth herein.
Sec. 303.5 Records which may be exempt from disclosure.
The following categories are examples of records maintained by the
Peace Corps which, under the provisions of 5 U.S.C. 552(b), may be
exempted from disclosure:
(a) Records required to be withheld under criteria established by an
Executive Order in the interest of national defense or foreign policy
and which are in fact properly classified pursuant to any such Executive
Order. Included in this category are records required by Executive Order
No. 12356, as amended, to be classified in the interest of national
defense or foreign policy.
(b) Records related solely to internal personnel rules and
practices. Included in this category are internal rules and regulations
relating to personnel management and operations which cannot be
disclosed to the public without substantial prejudice to the effective
performance of a significant function of the Agency.
(c) Records specifically exempted from disclosure by statute.
(d) Information of a commercial or financial nature including trade
secrets given in confidence. Included in this category are records
containing commercial or financial information obtained from any person
and customarily regarded as privileged and confidential by the person
from whom they were obtained.
(1) It is the policy of the Peace Corps not to release information
which is a trade secret, or commercial or financial information which
was obtained from a person and is privileged or confidential within the
meaning of 5 U.S.C. 552(b)(4). It is also the policy of the Peace Corps
to give submitters of
[[Page 10]]
information which may be exempt from disclosure under 5 U.S.C. 552(b)(4)
adequate opportunity to provide information at the administrative level
which may establish such exemption.
(2) A person submitting information to the Peace Corps, if
previously notified by the Peace Corps of his/her right to request
confidential treatment for information, must request that the
information be considered exempt from disclosure at the time of
submission. Failure to do so will be deemed an acknowledgment that the
submitter does not wish to claim exempt status.
(3) A person submitting information not covered by paragraph (d)(2)
of this section which is the subject of a Freedom of Information
Request, and which may be exempt from disclosure, shall be given prompt
written notification of such request, unless it can be established that
the information should not be disclosed, or that the information has
already been lawfully published or made available to the public. Such
notice must afford submitters at least ten working days in which to
object to the disclosure of any requested information.
(4) Each request for exemption from disclosure under 5 U.S.C.
552(b)(4) as a trade secret or privileged or confidential commercial or
financial information must:
(i) Specifically identify the exact material claimed to be
confidential.
(ii) State whether or not the information identified has ever been
released to a person not in a confidential relationship with the
submitter.
(iii) State the basis for submitter's belief that the information is
not commonly known or readily ascertainable by outside persons.
(iv) State how release of the information would cause harm to the
submitter's competitive position.
(5) The agency will not normally decide whether material received
with a request for exemption from disclosure under 5 U.S.C. 552(b)(4) is
entitled to be withheld unless a request for disclosure is made. Any
reasonably segregable portion of a record will be disclosed after
deletion of any portions determined to be exempt.
(6) The agency will give careful consideration to all specified
grounds for exemption prior to making its administrative determination
and, in all cases in which the determination is to disclose, provide the
submitter with a statement of the reasons why its disclosure objection
was not sustained. The Peace Corps will provide the submitter with at
lest ten days advance notice of the proposed release date of information
in cases in which an objection to disclosure has been rejected.
(7) The Peace Corps will notify the submitter promptly of any
instance in which a requester brings suit seeking to compel disclosure
of its information. Submitters should not request exemption from
disclosure unless they are prepared to assist the agency in the defense
of any judicial proceeeding brought to compel disclosure.
(e) Interagency or intra-agency memoranda or letters which would not
ordinarily be available by law to a party in litigation with the Agency.
Included in this category are memoranda, letters, interagency and intra-
agency communications and internal drafts, opinions and interpretations
prepared by staff or consultants and records of deliberations of staff,
ordinarily used in arriving at policy determinations and decisions.
(f) Personnel, medical and similar files. Included in this category
are personnel and medical information files of staff, volunteer
applicants, former and current trainees/volunteers, lists of names and
home addresses and other files or material containing private or
personal information, the disclosure of which would amount to a clearly
unwarranted invasion of the privacy of any person to whom the
information pertains.
(g) Investigatory records compiled for law enforcement purposes.
Included in this category are files compiled for the enforcement of all
laws, or prepared in connection with government litigation and
adjudicative proceedings; provided however, that such records shall be
made available to the extent that their production will not (1)
interfere with enforcement proceedings; (2) deprive a person of a right
to a fair trial or an impartial adjudication; (3) constitute an
unwarranted invasion of personal privacy; (4) disclose the identity of a
confidential source,
[[Page 11]]
and in the case of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential source; (5)
disclose investigative techniques and procedures; or (6) endanger the
life or physical safety of law enforcement personnel.
(h) In the event any document or record requested hereunder shall
contain material which is exempt from disclosure under this section, any
reasonably segregable portion of such record shall, notwithstanding such
fact, and to the extent feasible, be provided to any person requesting
same, after deletion of the portions which are exempt under this
section.
(i) Documents or records determined to be exempt from disclosure
hereunder may nonetheless be provided upon request in the event it is
determined that the provision of such document would not violate the
public interest or the right of any person to whom such information
might pertain, and that disclosure is not prohibited by law or executive
order.
Sec. 303.6 Manner of requesting records--appeals.
(a) Requests under the Freedom of Information Act (5 U.S.C. 552) for
access to Peace Corps records may be filed in person or by mail with the
Director of Administrative Services, Peace Corps, 806 Connecticut Avenue
NW., Washington, DC 20526. All requests and the envelope in which they
are sent must be plainly marked ``FOIA Request.'' Personal written
requests will be received from between 10 a.m. and 4 p.m., Monday
through Friday, except for official holidays. FOIA requests and appeals
shall be deemed received when actually received by the Director of
Administrative Services.
(b) Requested records which are reasonably described shall either be
made available within ten working days after receipt of any such request
or a written notice that the request cannot be complied with will be
provided to the person making such request within such ten day period.
Any such notice of inability to comply shall specify the reasons for
refusal and the right of the person making such request to appeal such
adverse determination. In the event a request for a record or document
is made to the Director of Administrative Services, and such office does
not have the requested material, the requester shall be immediately
notified.
(c) Upon receipt of a notice of failure to comply, a person making a
request for information, records, or documents may, within 15 calendar
days from the receipt of such notice, appeal such adverse determination
to the Director of the Peace Corps or designee. Such appeal shall be in
writing and shall specify the date upon which the notice of failure or
refusal to comply was received by the person making such request. The
Director or designee shall make a determination with respect to such
appeal within 20 working days after receipt of such appeal. Notice of
such determination shall be provided in writing to the person making the
request. If the original denial of the request for records is upheld in
whole or in part, such notice shall include notification of the right of
the person making such request to have judicial review of the denial and
appeal as provided under the Freedom of Information Act (5 U.S.C. 552).
(d) The time limits specified above for initial compliance, and
appeal from a refusal to comply, may be extended by the Agency upon
written notice to the person making the request. Such notice shall set
forth the reasons for such extension and the date upon which
determination is expected. Such extension may be applied at either the
initial stage or the appellate stage, or both, provided that the
aggregate of such extensions shall not exceed ten working days.
Circumstances justifying an extension will include the following:
(1) Time necessary to search and collect requested records from
segments of the Agency separate from the office processing the request;
(2) Time necessary to search, collect and appropriately examine a
voluminous number of records demanded in a single request; or
[[Page 12]]
(3) Time necessary for consultation with another agency having a
substantial interest in the determination of the request, or among two
or more components of the agency which have an interest in the subject
matter of the request.
(e) The time limits provided in this section are mandatory and a
person requesting records shall be deemed to have exhausted his or her
administrative remedies with respect to such request in the event the
Agency fails to comply within the said applicable time limit provisions
as extended in accord with this section. In unusual circumstances in
which additional time is necessary to collect and review the records
requested, the Act provides that a court of appropriate jurisdiction may
allow the agency additional time for such purpose. Alternatively, the
Agency and the person making such request may agree as to a reasonable
time for completion of Agency work upon such request.
(f) Any notification of denial of any request for records under this
subsection shall set forth the names and titles or positions of the
persons primarily responsible for the denial of such request.
(g) Upon receipt of a request for a record or document the Director
of the Office of Administrative Services will promptly make an initial
determination as to whether the request for the record reasonably
describes such record with sufficient specificity to detemine the unit
of the Agency to which such request should be referred. Upon making such
initial determination, he shall immediately refer such request to the
head of the unit concerned. Upon receipt of the request the head of the
unit shall promptly determine whether the description of the record
contained in the request is sufficient to permit its identification and
production.
(h) If the Director of Administrative Services or the head of the
unit concerned determines that the description contained in the request
is not sufficient to reasonably describe the record requested, the
requester shall be so advised and shall be permitted to amend the
request to provide any additional information which would better
identify the record. The requester shall be provided with appropriate
assistance from the head of the unit concerned, the Director of
Administrative Services or any member of their staffs. A request which
is amended in accord herewith shall be deemed to have been received by
the Agency on the date of receipt of the amended request.
(i) If the head of the unit concerned determines that the record
requested is reasonably described so as to permit its identification, he
or she shall make it available unless he or she determines, after
consultation with the General Counsel, that (1) the record is exempt
from disclosure and (2) it should be withheld in the public interest or
to protect the rights of persons to whom the information pertains. When
such a determination is made the requester shall be immediately notified
in writing as provided herein.
(j) Peace Corps offices overseas are not responsible for maintenance
of Freedom of Information Act indexes, documents, or records (other than
materials normally kept and maintained in such offices). FOIA requests
received by overseas employees are to be forwarded to the Director,
Office of Administrative Services, for processing. Such a request shall
be considered received when actually received by the Director of
Administrative Services.
(k) The Peace Corps maintains recruiting offices in many states.
These offices are not responsible for maintaining Freedom of Information
Act indexes, reading rooms, or other records or documents. Requests to
any Recruiting Office or Service Center Office for materials not given
out in the normal course of business shall be referred to the Director
of Administrative Services. The request shall be in writing and shall be
deemed received when actually received by the Director of Administrative
Services.
Sec. 303.7 Authority to release and certify records.
(a) Authority is hereby delegated to the Director of Administrative
Services, Office of Management, to furnish, pursuant to these
regulations, copies of records to any person entitled thereto, and upon
request to provide certified
[[Page 13]]
copies thereof for use in judicial proceedings or other official matters
as provided below.
(b) The Director of Administrative Services and his or her deputy,
are hereby designated to act as authentication officers. When both the
authentication officers are unavailable, any other persons within such
office designated by the Director of Administrative Services may act in
his or her place and stead. The authentication officer is hereby
authorized to sign and initial certificates of authentication for and in
the name of the Director of the Peace Corps. The form of authentication
shall be as follows:
Certificate of Authenticity
In testimony whereof, I --------------------, Director of the Peace
Corps, have hereunder caused my name to be subscribed by the
authentication officer of said agency at Washington, DC, this ------ day
of ------------, 19----.
________________________________________________________________________
Director of the Peace Corps.
By______________________________________________________________________
Authentication Officer, Peace Corps.
(c) The authentication officer is also hereby authorized to issue
such statements, certificates, or other documents as may be required in
connection with judicial proceedings or other official matters to show
that, after a thorough search of Peace Corps records, a requested record
has not been found. (See Rule 44(b) Federal Rules of Civil Procedure.)
Sec. 303.8 Location of records.
The Agency will maintain a central records room at its headquarters
in Washington, DC. The headquarters of the Peace Corps is presently
located at 806 Connecticut Avenue, NW., Washington, DC. The present
location of the central records room shall be the Paperwork and Records
Management Branch, the location of which may change from time to time.
The specific location of the records room may be determined by
requesting such information from the Director, Office of Administrative
Services.
Sec. 303.9 Identification of records.
(a) In order for the Agency to locate records and make them
available it is necessary that it be able to identify the specific
records sought. Persons wishing to inspect or secure copies of records
should therefore seek to describe and identify them as fully and as
accurately as possible. In cases where requests are submitted which are
not sufficient to permit identification, the officer receiving the
request will endeavor to assist the person seeking the records in
filling in necessary details.
(b) Among the kinds of information which a person seeking records
should try to provide in order to permit an identification of a record
are the following:
(1) The unit or program of the Agency which may be responsible for
or may have produced the record.
(2) The specific event or action, if any, and if known, to which the
record refers.
(3) The date of the record or the period to which it refers or
relates, if known.
(4) The type of record, such as an application, a contract, or a
report.
(5) Personnel of the office who may have prepared or have knowledge
of the record.
(6) Citation to newspapers or publications which are known to have
referred to the record.
Sec. 303.10 Schedule of fees.
(a) General. It is the policy of the Peace Corps to encourage the
widest possible distribution of information concerning programs under
its jurisdiction. To the extent practicable, this policy will be applied
under this part so as to permit requests for inspection or copies of
records to be met without substantial cost to the person making the
request. Search and reproduction charges will be made in accordance with
paragraph (c) of this section. On a case-by-case basis, the Peace Corps
will conduct a thorough review of all fee waiver requests and will grant
waivers of reductions in fees only in those cases in which the requester
establishes that the disclosure of the information will primarily
benefit the general public. The Agency shall charge fees that recoup the
full direct costs incurred. The most efficient and least costly methods
to comply with requests for documents made under the FOIA shall be used.
[[Page 14]]
When documents that would be responsive to a request are maintained for
distribution by agencies operating statutory-based fee schedule
programs, the Agency shall inform requesters of the steps necessary to
obtain records from those sources.
(b) Definitions. The Agency adopts the following definitions
contained in OMB's ``Uniform Freedom of Information Act Fee Schedule and
Guidelines,'' that relate to this section:
(1) The term direct costs means those expenditures which an agency
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing) documents to respond to an FOIA
request.
(2) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents.
(3) The term duplication refers to the process of making a copy of a
document necessary to respond to an FOIA request. Such copies can take
the form of paper copy, microform, audio-visual materials, or machine
readable documentation (e.g., magnetic tape or disk), among others.
(4) The term review refers to the process of examining documents
located in response to a request that is for a commercial use to
determine whether any portion of any document located is permitted to be
withheld. It also includes processing any documents for disclosure,
e.g., doing all that is necessary to excise them and otherwise prepare
them for release. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
(5) The term `commercial use' request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade or profit interests of the requester or the person
on whose behalf the request is made.
(6) The term educational institution refers to a preschool, a public
or private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(7) The term non-commercial scientific institution refers to an
institution that is not operated on a ``commercial'' basis as that term
is referenced in paragraph (b)(5) of this section and which is operated
solely for the purpose of conducting scientific research, the results of
which are not intended to promote any particular product or industry.
(8) The term representative of the news media refers to any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who made their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of freelance journalists, they
will be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the Agency will also look to
the past publication record of a requester in making a determination.
(c) Fees to be charged--(1) Manual searches for records. Whenever
feasible, the Agency will charge at the salary rate(s) (i.e. basic pay
plus 16 percent) of the employee(s) making the search. However, where a
homogeneous class of personnel is used exclusively (e.g., all
administrative/clerical, or all professional/executive), the Agency may
establish an average rate for the range of grades typically involved.
(2) Computer searches for records. The Agency will charge at the
actual direct cost of providing the service. This will
[[Page 15]]
include the cost of operating the central processing unit (CPU) for that
portion of operating time that is directly attributable to searching for
records responsive to an FOIA request and operator/programmer salary
apportionable to the search. When the Agency can establish a reasonable
Agency-wide average rate for CPU operating costs and operator/programmer
salaries involved in FOIA searches, it may do so and charge accordingly.
(3) Review of records. Only requesters who are seeking documents for
commercial use will be charged for time spent reviewing records to
determine whether they are exempt from mandatory disclosure. Charges
shall be assessed only for the initial review; i.e., the review
undertaken the first time the Agency analyzes the applicability of a
specific exemption to a particular record or portion of a record. The
Agency will not charge for review at the administrative appeal level of
an exemption already applied. However, if records or portions of records
withheld in full under an exemption which is subsequently determined not
to apply are reviewed again to determine the applicability of other
exemptions not previously considered, the cost for such a subsequent
review is properly assessable. Where a single class of reviewers is
typically involved in the review process, the Agency may establish a
reasonable Agency-wide average and charge accordingly.
(4) Duplication of records. The charge for paper copy reproduction
of documents as of the date of publication is three cents per page. This
charge represents the average Agency-wide direct cost of making such
copies, taking into account the salary of the operators as well as the
cost of the reproduction machinery. The rate shall be adjusted annually.
Current rates may be requested from the Director, Office of
Administrative Services. For copies prepared by computer, such as tapes
or printouts, the Agency will charge the actual cost, including operator
time, of production of the tape or printout. For other methods of
reproduction or duplication, the Agency will charge the actual direct
costs of producing the document or documents.
(5) Other charges. (i) The Agency shall recover the full cost of
certifying that records are true copies. The Agency will charge the
salary rate(s) (i.e. basic pay plus 16 percent) of the employee(s)
certifying the records.
(ii) The Agency shall recover the full cost of sending records by
special methods such as express mail, etc. The Agency shall not furnish
the records until payment for such service has been received by the
Agency. The Agency is not required to comply with requests for special
mailing services.
(6) Restrictions on assessing fees. (i) With the exception of
requesters seeking documents for a commercial use, the Agency will
provide the first 100 pages of duplication and the first two hours of
search time without charge. The Agency will not charge fees to any
requester, including commercial use requesters, if the cost of
collecting the fee would be equal to or greater than the fee itself.
Except for commercial use requesters, the Agency will not begin to
assess fees until after the free search and reproduction services have
been provided.
(ii) The elements to be considered in determining the ``cost of
collecting a fee,'' are the administrative costs to the Agency of
receiving and recording a requester's remittance, and processing the fee
for deposit in the Treasury Department's special account. The per-
transaction cost to the Treasury to handle such remittance will not be
considered in the Agency's determination.
(iii) For purposes of these restrictions on assessment of fees, the
word ``pages'' refers to paper copies of a standard agency size which
will normally be ``8\1/2\ x 11'' or ``11 by 14.''
(iv) The term search time in this context means manual search. To
apply this term to searches made by computer, the Agency will determine
the hourly cost of operating the central processing unit and the
operator's hourly salary plus 16 percent. When the cost of the search
(including the operator time and the cost of operating the computer to
process a request) equals the equivalent dollar amount of two hours of
the salary of the person performing the search, i.e., the operator, the
Agency will begin assessing charges for computer search.
[[Page 16]]
(d) Payment of Cost. (1) A request for documents must state that the
requester will pay any or all reasonably necessary costs, or costs up to
an amount specified in such request. If the head of the unit or the
Director of Administrative Services determines that the anticipated cost
for search and duplication of the records requested will be in excess of
$25, or in excess of the limit specified in the request, the Director of
Administrative Services shall advise the requester promptly after
receipt of the initial request. Such notification shall specify the
anticipated cost of search and reproduction of the records requested.
The requester may thereafter amend his or her request to specify fewer
documents or agree to accept the estimate of anticipated costs, in which
case the request shall be deemed received by the Agency upon the receipt
date of the requester's response. A requester may, prior to making a
request, ask for an estimate of cost from the Director of Administrative
Services who shall promptly respond to such request.
(2) Method of Payment. Payment shall be sent or delivered to the
Collections Officer, Accounting Division. Such payment must be by check
or money order payable to Peace Corps--FOIA. A receipt for fees shall be
provided upon request.
(e) Fees to be Charged--Categories of requesters. There are four
categories of FOIA requesters: Commercial use requesters; educational
and non-commercial scientific institutions; representatives of the news
media; and all other requesters. The Act prescribes specific levels of
fees for each of these categories:
(1) Commercial use requesters. The Agency will assess charges which
recover the full direct costs of searching for, reviewing for release,
and duplicating the records sought for commercial use. Commercial use
requesters are not entitled to two hours of free search time nor 100
free pages of reproduction of documents.
(2) Educational and non-commercial scientific institution
requesters. The Agency will provide documents to requesters in this
category for the cost of reproduction alone, excluding charges for the
first 100 pages. To be eligible for inclusion in this category,
requesters must show that the request is being made as authorized by and
under the auspices of a qualifying institution and that the records are
not sought for a commercial use, but are sought in furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a non-commercial scientific
institution) research.
(3) Requesters who are representatives of the news media. The Agency
will provide documents to requesters in this category for the cost of
reproduction alone excluding charges for the first 100 pages. To be
eligible for inclusion in this category, a requester must meet the
definition described in paragraph (b)(8) of this section, and his or her
request must not be made for a commercial use. In reference to this
class of requester, a request for records supporting the news
dissemination function of the requester shall not be considered to be a
request that is for a commercial use.
(4) All other requesters. Requesters who do not fit into any of the
categories above will be charged fees which recover the full direct cost
of searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time will be furnished without charge. Requests from
individuals for records about themselves filed in the Agency's systems
of records will continue to be treated under the fee provisions
published in the Agency's Privacy Act regulations (22 CFR part 308).
(f) Waiving or Reducing Fees--(1) General. The Agency will furnish
documents without charge or at reduced charges if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government and is not primarily in the commercial interest of the
requester. A requester may, in his or her original request, or
subsequently, ask for a fee waiver or that documents be furnished at a
reduced charge. A request for documents shall not be deemed to have been
received until a determination of the question of fee waiver or
reduction has been
[[Page 17]]
made, provided however, that such determination shall be made within
five working days from the receipt of a fee waiver request. A request
for waiver or reduction of fees shall specify the amount of reduction
requested and the reasons which cause the requester to feel that the
criteria for waiver or reduction of fees have been met.
(2) Procedures. (i) Upon receipt of a fee waiver or fee reduction
request the Director of Administrative Services will promptly determine
whether such request should be granted in whole or in part. The request
shall be reviewed in accordance with the following Statutory Freedom of
Information Act fee waiver criteria:
(A) Whether disclosure of the information ``is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Government''; and
(B) That disclosure of the information ``is not primarily in the
commercial interest of the requester.''
(ii) There are six general factors which are considered in
determining whether the statutory criteria for fee waiver have been met:
(A) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government'';
(B) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding'';
and
(D) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities;
(E) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(F) The primary interest in disclosure: Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.''
(iii) The decision to refuse to waive or reduce fees as requested
under paragraph (f)(1) of this section may be appealed to the Director
of the Peace Corps or such official as he or she may designate. Appeals
should contain as much information and documentation as possible to
support the request for a waiver or reduction of fees. The requester
will be notified within ten working days from the date of which the
Agency received the appeal.
(g) Administrative Actions to Improve Assessment and Collection of
Fees. The Agency shall ensure that procedures for assessing and
collecting fees are applied consistently and uniformly.
(1) Charging interest. The Agency will begin assessing interest
charges on an unpaid bill starting on the 31st day following the day on
which the billing was sent. The fact that the fee has been received by
the Agency, even if not processed, will suffice to stay the accrual of
interest. Interest will be at the rate prescribed in section 3717 of
title 31, United States Code, will accrue from the date of the billing.
(2) Charges for unsuccessful search. The Agency will assess charges
for time spent searching, even if the Agency fails to locate the records
or if records located are determined to be exempt from disclosure.
(3) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of a document or documents,
solely in order to avoid payment of fees. When the Agency reasonably
believes that a requester or, on rare occasions, a group of requesters
acting in concert, is attempting to break a request down into a series
of requests for the purpose of evading the assessment of fees, the
Agency may aggregate any such requests and charge accordingly. The
Agencies will not aggregate multiple requests on unrelated subjects from
one requester.
(4) Advance payments. (i) Advance payment, i.e., payment before work
is
[[Page 18]]
commenced or continued on a request are not required unless:
(A) The Agency estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then, the
Agency shall notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payment of FOIA fees, or require an advance payment of an
amount up to the full estimated charges in the case of requesters with
no history of payment; or
(B) Where a requester has previously failed to pay a fee charged in
a timely fashion (i.e. within 30 days of the date of the billing), the
Agency may require the requester to pay the full amount owed plus any
applicable interest as provided above, or to demonstrate that he has, in
fact, paid the fee, and to make an advance payment of the full amount of
the estimated fee before the Agency begins to process a new request or a
pending request from that requester.
(ii) When the Agency acts under paragraph (g)(4)(i) of this section,
the administrative time limits prescribed in subsection (a)(6) of the
FOIA (i.e., 10 working days from receipt of initial requests and 20
working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits) will begin only after the
Agency has received fee payments described above.
(5) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). The
Agency will follow those debt collection procedures published in 22 CFR
part 309 where appropriate, to encourage repayment.
[53 FR 8178, Mar. 14, 1988]
PART 304--CLAIMS AGAINST GOVERNMENT UNDER FEDERAL TORT CLAIMS ACT--Table of Contents
General Provisions
Sec.
304.1 Scope; definitions.
Procedures
304.2 Administrative claim; when presented; appropriate Peace Corps
Office.
304.3 Administrative claim; who may file.
304.4 Administrative claim; evidence and information to be submitted.
304.5 Investigations.
304.6 Claims investigation.
304.7 Authority to adjust, determine, compromise, and settle claims.
304.8 Limitations on authority.
304.9 Referral to Department of Justice.
304.10 Review of claim.
304.11 Final denial of claim.
304.12 Action on approved claim.
Authority: 28 U.S.C. 2672; 28 CFR 14.11; secs. 4 and 5(h), 75 Stat.
612, 22 U.S.C. 2503; E.O. 11041, as amended, 27 FR 7859, 3 CFR 1959-1963
Comp., page 623; sec. 2(6), State Department Delegation of Authority No.
85-11A, as amended.
Source: 34 FR 5840, Mar. 28, 1969, unless otherwise noted.
General Provisions
Sec. 304.1 Scope; definitions.
(a) This subpart applies to claims asserted under the Federal Tort
Claims Act, as amended, accruing on or after January 18, 1967, for money
damages against the United States for injury to or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of an officer or employee of the Peace Corps, a person serving
the Peace Corps under invitational travel orders, or a Peace Corps
Volunteer or trainee while acting within the scope of his office or
employment.
(b) This subpart is not applicable to claims arising in a foreign
country; it is applicable to claims arising in Puerto Rico and the
Virgin Islands.
(c) This subpart is issued subject to and consistent with applicable
regulations on administrative claims under the Federal Tort Claims Act
issued by the Attorney General (31 FR 16616; 28 CFR part 14).
(d) For the purposes of this subpart, the term ``General Counsel''
means the General Counsel of the Peace Corps or his designee.
Procedures
Sec. 304.2 Administrative claim; when presented; appropriate Peace Corps Office.
(a) For purposes of this subpart, a claim shall be deemed to have
been presented when the Peace Corps receives, at a place designated in
paragraph (b) of this section, an executed
[[Page 19]]
``Claim for Damages or Injury,'' Standard Form 95, or other written
notification of an incident, accompanied by a claim for money damages in
a sum certain for injury to or loss of property, for personal injury, or
for death alleged to have occurred by reason of the incident. A claim
which should have been presented to the Peace Crops, but which was
mistakenly addressed to or filed with another Federal agency, is deemed
to have been presented to the Peace Corps as of the date that the claim
is received by the Peace Corps. If a claim is mistakenly addressed to or
filed with the Peace Corps, the Peace Corps shall forthwith transfer it
to the appropriate Federal agency, if ascertainable, or return it to the
claimant.
(b) A claimant shall mail or deliver his claim to the General
Counsel, Peace Corps, 806 Connecticut Avenue NW., Washington, DC. 20525.
Sec. 304.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property, his duly authorized agent, or his legal
representative.
(b) A claim for personal injury may be presented by the injured
person, his duly authorized agent, or his legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or by any other person legally
entitled to assert such a claim in accordance with applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. Claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interests appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, he shall present with his
claim appropriate evidence that he has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his authority to present a claim on
behalf of the claimant.
Sec. 304.4 Administrative claim; evidence and information to be submitted.
(a) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by his attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed or designated by
the Peace Corps or another Federal agency. A copy of the report of the
examining physician shall be made available to the claimant upon the
claimant's written request provided that he has, upon request, furnished
the report referred to in the first sentence of this paragraph and has
made or agrees to make available to the Peace Corps any other
physician's report previously or thereafter made of the physical or
mental condition which is the subject matter of his claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his employer showing actual time lost from employment,
whether he is a full-or part-time employee, and wages or salary actually
lost;
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(b) Death. In support of a claim based on death, the claimant may be
required
[[Page 20]]
to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at the time of death,
including his monthly or yearly salary or earnings (if any), and the
duration of his last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of decedent's survivors, including identification of those survivors who
were dependent for support upon decedent at the time of his death.
(4) Degree of support afforded by decedent to each survivor
dependent upon him for support at the time of his death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information.
(1) Proof of ownership.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) Two or more itemized written estimates of the cost of such
repairs and any itemized receipt of payment for necessary repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 304.5 Investigations.
The Peace Corps may investigate, or the General Counsel may request
any other Federal agency to investigate, a claim filed under this
subpart.
Sec. 304.6 Claims investigation.
(a) When a claim has been filed with the Peace Corps, the General
Counsel will send a copy of the claim to the head of the office
concerned and ask him to designate one employee of that office who shall
act as, and who shall be referred to herein as, the Claims Investigating
Officer for that particular claim. The Claims Investigating Officer
shall, with the advice of the General Counsel, where necessary:
(1) Investigate as completely as is practicable the nature and
circumstances of the occurrence causing the loss or damage of the
claimant's property.
(2) Ascertain the extent of loss or damage to the claimant's
property.
(3) Assemble the necessary forms with required data contained
therein.
(4) Prepare a brief statement setting forth the facts relative to
the claim (in the case of motor vehicle accidents, facts should be
recorded on Standard Form 91-A), a statement whether the claim satisfies
the requirements of this subpart, and a recommendation as to the amount
to be paid in settlement of the claim.
(5) The head of the office concerned will be responsible for
assuring that all necessary forms, statements, and all supporting papers
have been procured for the file and will transmit the entire file to the
General Counsel.
Sec. 304.7 Authority to adjust, determine, compromise, and settle claims.
The authority to consider, ascertain adjust, determine, compromise,
and settle claims under section 2672 of title 28, United States Code,
and this subpart, subject to Sec. 304.8, has been retained by the
Director of the Peace Corps.
Sec. 304.8 Limitations on authority.
(a) An award, compromise, or settlement of a claim under section
2672 of
[[Page 21]]
title 28, United States Code, and this subpart in excess of $25,000 may
be effected only with the prior written approval of the Attorney General
or his designee. For the purpose of this paragraph, a principal claim
and any derivative or subrogated claim shall be treated as a single
claim.
(b) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when, in the opinion of the General Counsel:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party, and the Peace Corps is unable to adjust
the third party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when the Peace Corps is informed or is otherwise aware that the
United States or an officer, employee, agent, or cost-type contractor of
the United States is involved in litigation based on a claim arising out
of the same incident or transaction.
Sec. 304.9 Referral to Department of Justice.
When Department of Justice approval or consultation is required
under Sec. 304.8, the referral or request shall be transmitted to the
Department of Justice by the General Counsel pursuant to 28 CFR 14.7
(1968).
Sec. 304.10 Review of claim.
(a) Upon receipt of the claim file from the head of the office
concerned, the General Counsel will ascertain that all supporting papers
are contained in the file.
(b) After legal review and recommendation by the General Counsel,
the Director of the Peace Corps will make a written determination on the
claim.
Sec. 304.11 Final denial of claim.
The General Counsel will send notification of the final denial of an
administrative claim to the claimant, his attorney, or legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial and
shall include a statement that, if the claimant is dissatisfied with the
Peace Corps action, he may file suit in an appropriate U.S. District
Court not later than 6 months after the date of mailing of the
notification.
Sec. 304.12 Action on approved claim.
(a) Payment of a claim approved under this subpart is contingent on
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard
From 95; and (2) a ``Voucher for Payment,'' Standard Form 1145, as
appropriate. When a claimant is represented by an attorney, the voucher
for payment shall designate the claimant and his attorney as copayees,
and the check shall be delivered to the attorney, whose address shall
appear on the voucher.
(b) Acceptance by the claimant, his agent, or legal representative
of an award, compromise, or settlement made under section 2672 or 2677
of title 28, United States Code, is final and conclusive on the
claimant, his agent or legal representative, and any other person on
whose behalf or for whose benefit the claim has been presented, and
constitutes a complete release of any claim against the United States
and against any officer or employee of the Government whose act or
omission gave rise to the claim, by reason of the same subject matter.
PART 305--ELIGIBILITY AND STANDARDS FOR PEACE CORPS VOLUNTEER SERVICE--Table of Contents
Sec.
305.1 Purpose and general guideline.
305.2 Eligibility.
305.3 Background investigations.
305.4 Selection standards.
305.5 Procedures.
Authority: Sec. 4(b), 5(a) and 22, 75 Stat. 612, 22 U.S.C. 2504;
E.O. 12137, May 16, 1979, sec. 601, International Security and
Development Cooperation Act of 1981; 95 Stat. 1519 at
[[Page 22]]
1540, sec. 417(c)(1), Domestic Volunteer Service Act (42 U.S.C.
5057(c)(1)).
Source: 49 FR 38939, Oct. 2, 1984, unless otherwise noted.
Sec. 305.1 Purpose and general guideline.
This subpart states the requirements for eligibility for Peace Corps
Volunteer service and the factors considered in the assessment and
selection of eligible applicants for training and service. In selecting
individuals for Peace Corps Volunteer service under this subpart, as
required by section 5(a) of the Peace Corps Act, as amended, ``no
political test shall be required to be taken into consideration, nor
shall there be any discrimination against any person on account of race,
sex, creed, or color.'' Further, in accordance with section 417(c)(1) of
the Domestic Volunteer Service Act, as amended (42 U.S.C. 5057 (c)(1))
the nondiscrimination policies and authorities set forth in section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.) and the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), are also applicable
to the selection, placement, service and termination of Peace Corps
Volunteers.
Sec. 305.2 Eligibility.
In addition to those skills, personal attributes and aptitudes
required for available Volunteer assignments, the following are the
basic requirements that an applicant must satisfy in order to receive an
invitation to train for Peace Corps Volunteer service.
(a) Citizenship. The applicant must be a citizen of the United
States or have made arrangements satisfactory to the Office of
Marketing, Recruitment, Placement and Staging (MRPS) and the Office of
General Counsel (D/GC) to be naturalized prior to taking the oath
prescribed for enrollment as a Peace Corps Volunteer. (See section 5[a]
of the Peace Corps Act, as amended).
(b) Age. The applicant must be at least 18 years old.
(c) Medical status. The applicant must, with reasonable
accommodation, have the physical and mental capacity required of a
Volunteer to perform the essential functions of the Peace Corps
Volunteer assignment for which he or she is otherwise eligible, and be
able to complete an agreed upon tour of service, ordinarily two years,
without unreasonable disruption due to health problems. In determining
what is a reasonable accommodation, the Peace Corps may take into
account the adequacy of local medical facilities. In determining whether
an accommodation would impose an undue hardship on the operation of the
Peace Corps, factors to be considered include: (1) The overall size of
the Peace Corps program with respect to the number of employees and/or
Volunteers, size of budget, and size and composition of staff at post of
assignment, (2) the nature and cost of the accommodation, and (3) the
capacity of the host country agency to which the applicant would be
assigned to provide any special accommodation necessary for the
applicant to carry out the assignment.
(d) Legal status. The applicant must not be on parole or probation
to any court or have any court established or acknowledged financial or
other legal obligation which, in the opinion of D/GC and MRPS, cannot be
satisfied or postponed during the period of Peace Corps service.
(e) Intelligence background. In accordance with longstanding Peace
Corps policy, prior employment by any agency of the United States
Government, civilian or military, or division of such an agency, whose
exclusive or principle function is the performance of intelligence
activities; or engaging in intelligence activities or related work may
disqualify a person from eligibility for Peace Corps service. See
section 611 of the Peace Corps Manual.
(f) Marital status. (1) Ordinarily, if an applicant is married or
intends to marry prior to Peace Corps service, both husband and wife
must apply and qualify for assignment at the same location. Exceptions
to this rule will be considered by the Office of Volunteer Placement
(MRPS/P) under the following conditions:
(2)(i) Unaccompanied married applicant. In order to qualify for
consideration for Peace Corps service, a married applicant whose spouse
does not wish to accompany him/her overseas must provide the Office of
Placement (MRPS/P) with a notarized letter from
[[Page 23]]
the spouse acknowledging that he or she is aware of the applicant
spouse's intention to serve as a Peace Corps Volunteer for two years or
more and that any financial and legal obligations of the applicant to
his or her spouse can be met during the period of Peace Corps service.
In determining eligibility in such cases, MRPS/P will also consider
whether the service of one spouse without the accompaniment of the other
can reasonably be anticipated to disrupt the applicant spouse's service
overseas.
(ii) In addition to satisfying the above requirements, a married
applicant who is legally, or in fact, separated from his or her spouse,
must provide MRPS/P with copies of any agreements or other documentation
setting forth any legal and financial responsibilities which the parties
have to one another during any period of separation.
(3) Divorced applicants. Applicants who have been divorced must
provide MRPS/P with copies of all legal documents related to the
divorce.
(g) Dependents. Peace Corps has authority to provide benefits and
allowances for the dependent children of Peace Corps Volunteers who are
under the age of 18. However, applicants with dependent children under
the age of 18 will not be considered eligible for Peace Corps service
unless MRPS/P determines that the skills of the applicants are essential
to meet the requirements of a Volunteer project, and that qualified
applicants without minor dependents are not available to fill the
assignment.
(1) Procedures for placing volunteers with children. The placement
of any couple with dependent children must have the concurrence of the
appropriate Country and Regional Director.
(2) If the applicant has any dependents who will not accompany him
or her overseas, the applicant must satisfy MRPS/P and the General
Counsel that adequate arrangements have been made for the care and
support of the dependent during any period of training and Peace Corps
service; that such service will not adversely affect the relationship
between the applicant and dependent in such a way as to disrupt his or
her service; and that he or she is not using Peace Corps service to
escape responsibility for the welfare of any dependents under the age of
18.
(3) Married couples with more than two children or with children who
are below two years of age are not eligible for Peace Corps service
except in extraordinary circumstances as approved by the Director of the
Peace Corps or designee.
(h) Military service. Applicants with military or national guard
obligation must provide MRPS/P with a written statement from their
commanding officer that their presence will not be required by their
military unit for the duration of their Peace Corps service, except in
case of national emergency.
(i) Failure to disclose requested information. Failure to disclose,
and/or the misrepresentation of material information requested by the
Peace Corps regarding any of the above described standards of
eligibility may be grounds for disqualification or separation from Peace
Corps Volunteer service. (See section 284 of the Peace Corps Manual.)
Sec. 305.3 Background investigations.
Section 22 of the Peace Corps Act states that to ensure enrollment
of a Volunteer is consistent with the national interest, no applicant is
eligible for Peace Corps Volunteer service without a background
investigation. The Peace Corps requires that all applicants accepted for
training have as a minimum a National Agency Check. Information revealed
by the investigation may be grounds for disqualification from Peace
Corps service.
Sec. 305.4 Selection standards.
To qualify for selection for overseas service as a Peace Corps
Volunteer, applicants must demonstrate that they possess the following
personal attributes:
(a) Motivation. A sincere desire to carry out the goals of Peace
Corps service, and a commitment to serve a full term as a Volunteer.
(b) Productive competence. The intelligence and educational
background to meet the needs of the individual's assignment.
(c) Emotional maturity/adaptability. The maturity, flexibility, and
self-sufficiency to adapt successfully to life in
[[Page 24]]
another culture, and to interact and communicate with other people
regardless of cultural, social, and economic differences.
(d) Skills. By the end of training, in addition to the attributes
mentioned above, a Trainee must demonstrate competence in the following
areas:
(1) Language. The ability to communicate in the language of the
country of service with the fluency required to meet the needs of the
overseas assignment.
(2) Technical competence. Proficiency in the technical skills needed
to carry out the assignment.
(3) Knowledge. Adequate knowledge of the culture and history of the
country of assignment to ensure a successful adjustment to, and
acceptance by, the host country society. The Trainee must also have an
awareness of the history and government of the United States which
qualifies the individual to represent the United States abroad.
(e) Failure to meet standards. Failure to meet any of the selection
standards by the completion of training may be grounds for deselection
and disqualification from Peace Corps service.
Sec. 305.5 Procedures.
Procedures for filing, investigating, and determining allegations of
discrimination on the basis of race, color, national origin, religion,
age, sex, handicap or political affiliation in the application of any
provision of this part are contained in MS 293 (45 CFR part 1225).
PART 306--VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents
Cross Reference: ACTION regulations concerning the volunteer
discrimination complaint procedure, appearing in 45 CFR part 1225, are
applicable to Peace Corps volunteers. Part 1225 appears at 46 FR 1609,
Jan. 6, 1981.
PART 307--PEACE CORPS STANDARDS OF CONDUCT--Table of Contents
Subpart A--General
Sec.
307.735-101 Introduction.
307.735-102 Definitions.
Subpart B--General Conduct and Responsibilities of Employees
307.735-201 Proscribed actions--Executive Order 11222.
307.735-202 General conduct prejudicial to the Government.
307.735-203 Criminal statutory prohibitions: Conflict of interest.
Subpart C--Outside Employment, Activities, and Associations
307.735-301 In general.
307.735-302 Association with potential contractor prior to employment.
307.735-303 Association with Peace Corps contractor or potential
contractor while an employee.
307.735-304 Employment after leaving Peace Corps.
307.735-305 Employment with Peace Corps contractor.
307.735-306 Association with non-Peace Corps contractor while a Peace
Corps employee.
307.735-307 Gifts, entertainment, and favors.
307.735-308 Economic and financial activities of employees abroad.
307.735-309 Information.
307.735-310 Speeches and participation in conferences.
307.735-311 Partisan political activity.
307.735-312 Use of Government property.
307.735-313 Indebtedness.
307.735-314 Gambling, betting, and lotteries.
307.735-315 Discrimination.
307.735-316 Related statutes and regulations.
Subpart D--Procedures for Submission by Employees and Review of
Statements of Employment and Financial Interests
307.735-401 Submission of statements.
307.735-402 Review of statements.
Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR 1964-1965,
Supp. 306; 5 CFR part 735.
Source: 52 FR 30151, Aug. 13 1987, unless otherwise noted.
Subpart A--General
Sec. 307.735-101 Introduction.
(a) Section 735.101 of title 5 of the Code of Federal Regulations
requires each agency head to issue his or her agency regulations
regarding the ethical conduct and other responsibilities of all of its
employees. All employees are responsible for complying with
[[Page 25]]
these regulations. One of the main purposes of the regulations in this
part is to encourage individuals faced with questions involving
subjective judgment to seek counsel and guidance. The Designated Agency
Ethics Official (DAEO) and Deputy and Alternate DAEO in the Office of
General Counsel are designated to be the counselors for Peace Corps with
respect to these matters. They will provide authoritative advice and
guidance to any Peace Corps employee, former employee, or potential
employee who seeks it.
(b) The Peace Corps Committee on Conflict of Interest will review
and monitor the Agency's policies and procedures on conflict of
interest. The committee shall consist of the General Counsel, the
Associate Director for Management, the Director for Compliance, the
Director of Contracts, the Associate Director for International
Operations, and the Director's designee, who shall be a nonvoting
member. Committee membership is not delegable. The Designated and Deputy
Agency Ethics Officials shall act as advisors to the Committee and shall
record the Committee's decisions. The Committee, by majority vote, shall
have the authority to:
(1) Adopt the procedures necessary to insure the implementation of
and compliance with the conflict of interest regulations found at
Secs. 307.735-301 through 307.735-305.
(2) Issue interpretive opinions or clarifying statements on actual
or hypothetical situations involving the provisions of Secs. 307.735-301
through 307.735-305.
(3) Accept and review reports filed under Sec. 307.735-302(b).
(4) Grant specific relief from the provisions of Secs. 307.735-303
through 307.735-305 by a majority vote of the committee, if after due
consideration the committee finds that:
(i) No actual conflict of interest exists, and
(ii) The purpose of the rule would not be served by its strict
application, and
(iii) A substantial inequity would otherwise occur. In each such
case the committee shall issue a written decision setting forth its
findings as required above. The committee may make any exception subject
to such conditions and restrictions as it deems appropriate.
(c) Any violation of the regulations in this part may be cause for
remedial or disciplinary action. Remedial action may include changes in
assigned duties, disqualification for a particular assignment,
divestment of a conflicting interest, and other action as appropriate.
Violation of those provisions of the regulations in this part which
reflect legal prohibitions may also entail penalties provided by law.
(d) This part applies to all employees of Peace Corps. ``Employee''
as used in this part includes regular employees, Presidential
appointees, ``special Government employees,'' experts and consultants
whether employed on a full-time, part-time, or intermittent basis, and
Foreign Service National employees (FSNs).
Sec. 307.735-102 Definitions.
(a) Special Government employee as used herein means a person
appointed or employed to perform temporary duties for Peace Corps with
or without compensation, on a full-time, part-time, or intermittent
basis, for not to exceed 130 days during any period of 365 days.
(b) Regular Government employee as used herein means any officer or
employee other than a Special Government employee.
(c) Organization as used herein includes profit and non-profit
corporations, associations, partnerships, trusts, sole proprietorships,
foundations, individuals and foreign, State and local government units.
(d) Potential Contractor means any organization or individual that
has submitted a proposal, application, or otherwise indicated in writing
its intent to apply for or seek a specific contract or other agreement.
(e) Associated with means:
(1) That the person is a director of the organization or is a member
of a board or committee which exercises a recommending or supervisory
function in connection with a Peace Corps project;
(2) That the person serves as an employee, officer, owner, trustee,
partner, consultant, or paid advisor (general membership in an
organization is not
[[Page 26]]
included within the definition of ``associated with''; however, because
general membership in an organization doing business with the Peace
Corps can result in problems of the appearance of conflicts of interest,
each such general membership should be evaluated by the DAEO);
(3) That the person, his or her spouse, minor child, or other member
of his or her immediate household, owns, individually or collectively,
any voting shares of an organization;
(4) That the person, his or her spouse, minor child, or other member
of his or her immediate household, owns, individually or collectively,
either beneficially or as trustee, a financial interest in an
organization through stock, stock options, bonds, or other securities,
or obligations; or
(5) That a person has a continuing financial interest in an
organization, such as a bona fide pension plan, valued at $10,000 or
more, through an arrangement resulting from prior employment or business
or professional association; or
(6) That the person's spouse or other member of his or her immediate
household has a personal or nonpersonal services contract or is employed
by a Peace Corps contractor and assigned to a Peace Corps contract.
In accordance with the provisions of 18 U.S.C. 208(b) (1) and (2), the
DAEO may determine that a financial interest under (e)(3) or (4) of this
section is not so substantial as to affect the integrity of the
employee's services, or make a blanket determination by a general rule
published in the Federal Register that certain classes of holdings are
too remote or inconsequential to affect the integrity of the employee's
services.
The term associated with does not include an indirect interest, such
as ownership of shares in a diversified mutual fund, bank or insurance
company, which in turn owns an interest in an organization which has, or
is seeking or is under consideration for a contract or other agreement.
Such an ``indirect'' interest is hereby determined pursuant to 18 U.S.C.
208(b)(2) to be too remote to affect the integrity of the employee's
services.
Subpart B--General Conduct and Responsibilities of Employees
Sec. 307.735-201 Proscribed actions--Executive Order 11222.
As provided by the President in Executive Order No. 11222, whether
specifically prohibited by law or in the regulations in this part, no
U.S. regular or special Government employees shall take any action which
might result in, or create the appearance of:
(a) Using public office or employment for private gain, whether for
themselves or for another person, particularly one with whom they have
family, business, or financial ties.
(b) Giving preferential treatment to any person.
(c) Impeding Government efficiency or economy.
(d) Losing complete independence or impartiality.
(e) Making a Government decision outside official channels.
(f) Affecting adversely the confidence of the public in the
integrity of the Government.
(g) Using Government office or employment to coerce a person to
provide financial benefit to themselves or to other persons,
particularly anyone with whom they have family, business or financial
ties.
Sec. 307.735-202 General conduct prejudicial to the Government.
An employee may not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct prejudicial to the
Government (5 CFR 735.209).
Sec. 307.735-203 Criminal statutory prohibitions: Conflict of interest.
(a) Regular Government employees. Regular employees of the
Government are subject to the following major criminal prohibitions:
(1) They may not, except in the discharge of their official duties,
represent anyone else before a court or Government agency in a matter in
which the United States is a party or has an interest. This prohibition
applies to both paid and unpaid representation of another (18 U.S.C. 203
and 205).
[[Page 27]]
(2) They may not participate in their governmental capacity in any
matter in which they, their spouse, minor child, outside business
associate, or persons with whom they are negotiating for employment have
a financial interest (18 U.S.C. 208). This restriction shall not apply
if an employee advises the official responsible for appointment to his
or her position of the nature and circumstances of the matter, fully
discloses the financial interest, and receives in advance from the
appointing official a written determination that the interest is not so
substantial as to affect the integrity of the Peace Corps.
(3) They may not, after Government employment has ended, represent
anyone other than the United States in connection with a particular
matter in which the United States is a party or has an interest and in
which they participated personally and substantially for the Government
(18 U.S.C. 207).
(4) They may not for 2 years after their Government employment has
ended, represent anyone other than the United States in connection with
a matter in which the United States is a party or has an interest and
which was within the boundaries of their official responsibility during
their last year of Government service. This temporary restraint gives
way to the permanent restraint described in paragraph (a)(3) of this
section if the matter is one in which the employee participated
personally and substantially (18 U.S.C. 207).
(5) They may not receive any salary, or supplementation of their
Government salary, from a private source as compensation for services to
the Government (18 U.S.C. 209).
(b) Special Government employees. Special Government employees are
subject to the following major criminal prohibitions:
(1) They may not, except in the discharge of official duties,
represent anyone else before a court or Government agency in a matter in
which the United States is a party or has an interest and in which they
have at any time participated personally and substantially for the
Government (18 U.S.C. 203 and 205).
(2) They may not, except in the discharge of official duties,
represent anyone else in a matter pending before the agency they serve
unless they have served there no more than 60 days during the past 365.
They are bound by this restraint despite the fact that the matter is not
one in which they have ever participated personally and substantially
(18 U.S.C. 205). (See Sec. 307.735-303(b) for additional nonstatutory
Agency restrictions on a special employee representing any other person
or organization in a matter pending before the Agency.) The restrictions
described in paragraphs (b) (1) and (2) of this section apply to both
paid and unpaid representation of another.
(3) They may not participate in their governmental capacity in any
matter in which they, their spouse, minor child, outside business
associate, or persons with whom they are negotiating for employment have
a financial interest (18 U.S.C. 208).
(4) They may not, after their Government employment has ended,
represent anyone other than the United States in connection with a
particular matter in which the United States is a party or has an
interest and in which they participated personally and substantially for
the Government (18 U.S.C. 207).
(5) They may not, for 2 years after their Government employment has
ended, represent anyone other than the United States in connection with
a matter in which the United States is a party or has an interest and
which was within the boundaries of their official responsibility during
their last year of Government service. This temporary restraint gives
way to the permanent restriction described in paragraph (b)(4) of this
section if the matter is one in which they participated personally and
substantially (18 U.S.C. 207).
(c) Senior Employees. Employees in positions for which the basic
rate of pay is specified in subchapter II of chapter 53 of title 5,
United States Code (Executive Schedule Pay Rates), or a comparable or
greater rate of pay under other authority; and employees in positions
which involve significant decision-making or supervisory responsibility
for which the basic rate of pay is equal to or greater than the basic
rate of pay for GS-17 (FE-2), are Senior Employees.
[[Page 28]]
(1) Senior Employees are subject to the criminal conflict-of-
interest statutes at 18 U.S.C. 203, 205, 207 (a), (b), and (c), 208 and
209. Within 2 years after his or her employment has ceased, no Senior
Employee may knowingly represent or aid, counsel, advise, consult, or
assist in representing any other person (except the United States) by
personal presence at any formal or informal appearance before:
(i) Any department, agency, or court, or any officer or employee
thereof,
(ii) In connection with any judicial or other proceeding,
application, request for a ruling or other determination, contract,
claim, controversy, investigation, charge, accusation, or other
particular matter involving a specific party or parties in which the
United States or the District of Columbia is a party or has a direct and
substantial interest, and
(iii) In which he or she participated personally and substantially
as an officer or employee.
(2) Any Senior Employee, other than a special Government employee
who serves for less than 60 days in a calendar year, who, within one
year after his or her employment has ceased, knowingly acts as an agent
or attorney for, or otherwise represents, anyone other than the United
States in any formal or informal appearance before, or, with the intent
to influence, makes any oral or written communication on behalf of
anyone other than the United States, to
(i) The Peace Corps, or any of its officers or employees,
(ii) In connection with any judicial, rulemaking, or other
proceeding, application, request for a ruling or other determination,
contract, claim, controversy, investigation, charge, accusation, or
other particular matter, and
(iii) Which is pending before the Peace Corps or in which the Peace
Corps has a direct and substantial interest shall be fined not more than
$10,000, or imprisoned for not more than 2 years, or both.
Subpart C--Outside Employment, Activities, and Associations
Sec. 307.735-301 In general.
(a) There is no general prohibition against Peace Corps employees
holding outside employment, including teaching, lecturing, or writing,
but no employee may engage in outside employment or associations if they
might result in a conflict or an appearance of conflict between the
private interests of the employee and his or her official
responsibility. As provided in 5 CFR 735.203(a), incompatible activities
include, but are not limited to, acceptance of a fee or anything of
monetary value when acceptance may result in an actual or apparent
conflict of interest, and outside employment which tends to impair the
employee's mental or physical capacity to perform Government duties and
responsibilities in an acceptable manner. Any employee planning to
engage in outside employment shall so notify his or her supervisor and
the DAEO of the name of the proposed employer and the nature of the
proposed duties. The DAEO will acknowledge receipt of this information
to the employee and supervisor. If the DAEO believes that the
information raises a question of conflict of interest, the DAEO shall
submit the information for review and resolution to the Committee on
Conflict of Interest in accordance with Sec. 307.735-101.
(b) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for his or her services to
the Government (18 U.S.C. 209).
(c) An employee shall not have a direct or indirect financial
interest that conflicts substantially or appears to conflict
substantially with his or her Government duties and responsibilities.
Nor may an employee engage in, directly or indirectly, a financial
transaction as a result of or primarily relying on information obtained
through his or her Government employment.
[[Page 29]]
Sec. 307.735-302 Association with potential contractor prior to employment.
(a) No employee, or any person subject to his or her supervision,
may participate in the decision to award a contract to an organization
with which that employee has been associated in the past 2 years. When
an employee becomes aware that such an organization is under
consideration for or has applied for a contract with the Agency, the
employee shall notify his or her immediate supervisor in writing. The
supervisor shall take whatever steps are necessary to exclude the
employee from all aspects of the decision processes regarding the
contract or agreement.
(b) When the Director, Deputy Director, or an Associate Director
becomes aware that an organization with which he or she has been
associated in the past 2 years is under consideration for or has applied
for a contract with the Agency, he or she shall refrain from
participating in the decision process and immediately notify the
Director of the Office of Compliance, who shall select an independent
third party, not in any way connected or associated with the concerned
official. The third party shall participate in and review the decision
process to the extent he or she deems necessary to insure objectivity
and the absence of favoritism. Said third party shall preferably be a
person experienced in the area of government contracts. The third party
shall file a report in writing with the Committee on Conflict of
Interest stating his or her conclusions, observations, or objections, if
any, to the decision process concerning the contract or agreement, which
document shall be attached to and become a part of the official file.
Sec. 307.735-303 Association with Peace Corps contractor or potential contractor while an employee.
(a) No regular employee may be associated with any Peace Corps
contractor or potential contractor. Any organization that is associated
with a regular employee shall be suspended from consideration as a
contractor.
(b) No regular or special employee, except in his or her official
capacity as a Peace Corps employee, shall either participate in any way
on behalf of any organization in the preparation or development of a
contract proposal involving Peace Corps or represent any other
organization in a matter pending before Peace Corps. In the event that a
regular or special employee participates while an employee of Peace
Corps in any aspect of the development of a contract or agreement
proposal on behalf of an organization, or represents another
organization in a matter pending before Peace Corps, that organization
shall be suspended from consideration for the contract or other
agreement. If the employee's prohibited participation is discovered
after award of the contract, appropriate disciplinary action shall be
taken, including, but not limited to, the placement of a letter
describing the violation in the employee's official personnel file.
(c) No regular or special employee who, prior to his or her
employment at Peace Corps, participated in the development of a contract
or other agreement proposal on behalf of another organization, shall
participate as a Peace Corps employee in any aspect of the decision
process regarding that contract or other agreement, or, if the contract
or other agreement is awarded, in any oversight or management capacity
in relation to that contract or other agreement. In addition, any such
contract or other agreement shall only be awarded through a competitive
process. In the event a regular or special employee who participated in
the development of the contract or other agreement proposal prior to
being employed at Peace Corps does participate as a Peace Corps employee
in the decision process for such contract or other agreement, the
organization shall be suspended from consideration.
(d) If a special employee participates as an employee of Peace Corps
in any aspect of the development of a proposal, whether or not such
participation is minimal or substantial, any organization with which he
or she is associated shall be suspended from consideration for the
contract or other agreement.
(e) If an organization with which a special employee is associated
submits a proposal for a contract or other agreement, and the special
employee
[[Page 30]]
did not participate either as an employee of Peace Corps or an associate
of the organization in any aspect of the proposal or the application
therefor, the matter shall be referred to the Committee on Conflict of
Interest for determination. The Committee shall consider the following
factors and any others it deems relevant:
(1) The nature, length, and origin of the special employee's
relationship with the Agency, the nature and scope of the employee's
duties and responsibilities, the division or office to which the
employee is assigned, and whether the employee's duties are in any way
related to the proposed contract or other agreement.
(2) The nature, length, and type of the employee's relationship with
the organization, whether the employee's position involves policy making
or supervision of other employees and the relationship of the position
with the organization to the work to be performed under the proposed
contract or other agreement.
(3) Whether awarding the contract or other agreement to the
organization would result in the appearance of or the potential for a
conflict of interest.
(4) The process to be used in awarding the contract or other
agreement.
(f) If a special employee wishes to become or remain associated with
a Peace Corps contractor while he or she is an employee of Peace Corps,
subject to the restrictions (b) through (e) of Sec. 307.735-303, the
matter shall be referred to the Committee on Conflict of Interest for
determination. The Committee shall consider the following factors and
any others it deems relevant:
(1) The nature, length, and origin of the special employee's
relationship with the Agency, the nature and scope of the employee's
duties and responsibilities, the division or office to which the
employee is assigned, and whether the employee's duties are in any way
related to the contract or other agreement.
(2) The nature, length, and type of the employee's relationship with
the organization, whether the employee's position involves policymaking
or supervision of other employees and the relationship of the position
with the organization to the work to be performed under the proposed
contract or other agreement.
(3) Whether such a relationship would result in the appearance of or
the potential for a conflict of interest.
(g) Any suspension involving proposed contracts under this rule
shall be in accordance with procedures set forth in the applicable
Federal Acquisition Regulation, FAR 9.4.
Sec. 307.735-304 Employment after leaving Peace Corps.
(a) Employees may negotiate for prospective employment with non-
Federal Government organizations only when they have no duties as Peace
Corps employees which could affect that organization's interest, or
after they have disqualified themselves, on the written permission of
their supervisor, from such duties.
(b) For 1 year after leaving Peace Corps, no regular or special
employee may serve pursuant to a personal or nonpersonal services
contract or other agreement or accept employment with a Peace Corps
contractor for a position in which he or she would be working in any
activity supported in whole or in part by Peace Corps funds received
under a Peace Corps program which was within the boundaries of the
employee's official responsibility or in which he or she participated
personally while employed at Peace Corps. This 1-year ban shall not
apply to those overseas employees whose positions are converted to
personal services contracts at the convenience of the Peace Corps as
determined jointly by the Associate Directors for International
Operations and Management.
(c) If, within 1 year after leaving Peace Corps, an individual
accepts employment in violation of this rule, Peace Corps will disallow
the costs allocated under the contract or other agreement for that
position. In addition, a letter describing the violation will be placed
in the personnel files of the former employee and the requiring office
current or former staff member(s) responsible for issuing an individual
personal or non-personal services contract.
[[Page 31]]
Sec. 307.735-305 Employment with Peace Corps contractor.
An employee of a Peace Corps contractor who is compensated directly
or indirectly from Peace Corps funds will be ineligible to be
compensated under any personal or nonpersonal services contract with
this Agency which will result in the employee being paid twice for the
same time or product.
Sec. 307.735-306 Association with non-Peace Corps contractor while a Peace Corps employee.
(a) Teaching, lecturing, and writing--(1) Use of information. An
employee shall not, either for or without compensation, engage in
teaching, lecturing, or writing that is dependent on information
obtained as a result of his or her Government employment, except when
that information has been or on request will be made available to the
general public or when the agency head gives advance written
authorization for the use of nonpublic information on the basis that the
proposed use is in the public interest.
(2) Compensation. No employee may accept compensation or anything of
value for any lecture, discussion, writing, or appearance, the subject
matter of which is devoted substantially to the Peace Corps programs or
which draws substantially on official data or ideas which have not
become part of the body of public information.
(3) Clearance of publications. No employee may submit for
publication any writing, other than recruiting information, the contents
of which are devoted to the Peace Corps programs or to any other matter
which might be of official concern to the U.S. Government without in
advance clearing the writing with the Director of Public Affairs. Before
clearing any such writing, the Director of Public Affairs will consult
with the appropriate Peace Corps office.
(b) State and local government employment. Regular employees may not
hold office or engage in outside employment under a State or local
government except with prior approval of the General Counsel, Peace
Corps.
(c) All employees not required by Sec. 307.735-401 to report their
outside employment and financial interests shall inform their
supervisors of all outside paid and unpaid employment they hold or
accept.
(d) Employees in positions classified at the FP-1 or above levels
who intend to engage in outside employment shall notify the DAEO in
writing of the nature of their duties and the name and address of the
organization for which or the individual for whom they will work. The
notification will be made annually by June 30, with additions or
deletions submitted as they occur.
Sec. 307.735-307 Gifts, entertainment, and favors.
(a) From donors dealing with Peace Corps. (1) No regular or special
employees may solicit or accept, directly or indirectly, for themselves,
for any member of their family, or for any person with whom they have
business or financial ties, any gift, gratuity, favor, entertainment, or
loan or any other thing of value, from any individual or organization
which:
(i) Has, or is seeking to obtain, contractual or other business or
financial relations with Peace Corps;
(ii) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official responsibility;
(iii) It is any way attempting to affect the employee's exercise of
his or her official responsibility; or
(iv) Conducts operations or activities that are regulated by Peace
Corps.
(2) Paragraph (a)(1) of this section does not prohibit, even if the
donor has dealings with Peace Corps:
(i) Acceptance of things of value from parents, children, or spouse
if those relationships rather than the business of the donor is the
motivating factor for the gift;
(ii) Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of breakfast, luncheon, or
dinner meetings or other meetings;
(iii) Solicitation and acceptance of loans from banks or other
financial institutions to finance proper and usual activities of
employees, such as home mortgage loans, solicited and accepted on
customary terms;
(iv) Acceptance on behalf of minor dependents of fellowships,
scholarships,
[[Page 32]]
or educational loans awarded on the basis of merit and/or need;
(v) Acceptance of awards for meritorious public contribution or
achievement given by a charitable, religious, professional, social,
fraternal, nonprofit educational and recreational, public service, or
civic organization.
(3) Regular or special employees need not return unsolicited
advertising or promotional material, such as pens, pencils, note pads,
calendars, and other things of nominal intrinsic value.
(b) From other Peace Corps employees. No employees in superior
official positions may accept any gifts presented as contributions from
employees in lower grades. No employees shall solicit contributions from
other employees for a gift to an employee in a superior official
position, nor shall any employees make a donation as a gift to an
employee in a superior official position. However, this paragraph does
not prohibit a voluntary gift of nominal value or donation in a nominal
amount made on a special occasion such as marriage, illness, or
retirement.
(c) From foreign governments. No regular employee may solicit or,
without the consent of the Congress, receive any present, decoration,
emolument, pecuniary favor, office, title, or any other gift from any
foreign government. See 5 U.S.C. 7342; Executive Order 11320; and 22 CFR
part 3.
(d) Gifts to Peace Corps. Gifts to the United States or to Peace
Corps may be accepted in accordance with section 10(a)(4) of the Peace
Corps Act and Peace Corps Manual section 721.
(e) Reimbursement for expenses. Neither this section nor
Sec. 307.735-310(a) precludes an employee from receipt of bona fide
reimbursement, unless prohibited by law, for expenses of travel and such
other necessary subsistence as is compatible with this part and for
which no Government payment or reimbursement is made. An employee may
personally accept reimbursement from organizations that qualify for tax-
deductible contributions under section 501(c)(3) of the Internal Revenue
Code. However, this paragraph does not allow an employee to be
reimbursed, or payment to be made on his or her behalf, for excessive
personal living expenses, gifts, entertainment, or other personal
benefits. Nor does it allow an employee to receive non-Government
reimbursement of travel expenses for travel on official business under
Peace Corps orders; but rather, such reimbursement, if any, should be
made to Peace Corps and amounts received should be credited to its
appropriation. If an employee receives accommodations, goods, or
services in kind from a non-Government source, this item or items will
be treated as a donation to Peace Corps and an appropriate reduction
will be made in per diem or other travel expenses payable.
Sec. 307.735-308 Economic and financial activities of employees abroad.
(a) Prohibitions in any foreign country. A U.S. citizen employee
abroad is specifically prohibited from engaging in the activities listed
below in any foreign country:
(1) Speculation in currency exchange;
(2) Transactions at exchange rates differing from local legally
available rates, unless such transactions are duly authorized in advance
by the agency;
(3) Sales to unauthorized persons whether at cost or for a profit of
currency acquired at preferential rates through diplomatic or other
restricted arrangements;
(4) Transactions which entail the use, without official sanction, of
the diplomatic pouch;
(5) Transfers of funds on behalf of blocked nationals, or otherwise
in violation of U.S. foreign funds and assets control;
(6) Independent and unsanctioned private transactions which involve
an employee as an individual in violation of applicable control
regulations of foreign governments;
(7) Acting as an intermediary in the transfer of private funds for
persons in one country to persons in another country, including the
United States;
(8) Permitting use of one's official title in any private business
transactions or in advertisements for business purposes.
(b) Prohibitions in country of assignment. (1) A U.S. citizen
employee shall not transact or be interested in any business or engage
for profit in any profession or undertake other gainful
[[Page 33]]
employment in any country or countries to which he or she is assigned or
detailed in his or her own name or through the agency of any other
person.
(2) A U.S. citizen employee shall not invest in real estate or
mortgages on properties located in his or her country of assignment. The
purchase of a house and land for personal occupancy is not considered a
violation of this subparagraph.
(3) A U.S. citizen employee shall not invest money in bonds, shares,
or stocks of commercial concerns headquartered in his or her country of
assignment or conducting a substantial portion of business in such
country. Such investments, if made prior to knowledge of assignment or
detail to such country or countries, may be retained during such
assignment or detail.
(4) A U.S. citizen employee shall not sell or dispose of personal
property, including automobiles, at prices producing profits which
result primarily from import privileges derived from his or her official
status as an employee for the U.S. Government.
Sec. 307.735-309 Information.
(a) Release of information to the press. (1) Regular or special
employees shall not withhold information from the press or public unless
that information is classified or administratively controlled (limited
official use). All responses to requests for information from the press
should be referred to the Director of Public Affairs who will be
responsible for all releases. Regular and special employees should be
certain that information given to the press and public is accurate and
complete.
(2) Any questions as to the classification or administrative control
of information should be referred to the DAEO.
(3) No regular or special employee may record by electronic or other
device any telephone or other conversation, or listen in on any
telephone conversation without the consent of all parties thereto.
(b) Disclosure and misuse of inside information. No employee may,
directly or indirectly, disclose or use for his or her own benefit, or
for the private benefit of another, inside information as described in
paragraph (c) of this section. The use of such information by an
employee is restricted to the proper performance of his or her official
duties. The disclosure of such information is restricted to official
Peace Corps channels unless disclosure is authorized by the Director,
the Deputy Director, the General Counsel, or an Associate Director of
Peace Corps. In particular, no employee may:
(1) Engage in, directly or indirectly, a financial transaction as a
result of or primarily relying on such information; or
(2) Publish any book or article, or deliver any speech or lecture,
based on or using such information.
(c) Definition. The term inside information as used in this section
means, generally, information obtained under Government authority which
has not been made available to the general public and which could affect
the rights or interests of the Government or of a non Government
organization or person. Such information includes information about
Peace Corps operations or administration, and personnel which could
influence someone's dealing with Peace Corps.
(d) This section is not intended to discourage the disclosure
through proper channels of information which has been or should be made
public, or which is by law to be made available to the public. Also,
employees are encouraged to teach, lecture, and write, provided they do
so in accordance with the provisions of this section and Secs. 307.735-
301 and 307.735.306.
Sec. 307.735-310 Speeches and participation in conferences.
(a) Fees and expenses. (1) Although an employee may not accept a fee
for his or her own use or benefit for making a speech, delivering a
lecture, or participating in a discussion if the subject is Peace Corps
or Peace Corps programs or if such services are part of the employee's
official Peace Corps duties, the employee may suggest that the amount
otherwise payable as a fee or honorarium be contributed to Peace Corps
under the authority of section 10(a)(4) of the Peace Corps Act.
[[Page 34]]
(2) When a meeting, discussion, etc., to which paragraph (a)(1) of
this section refers takes place at a substantial distance from the
employee's home, he or she may accept reimbursement for the actual cost
of transportation and necessary subsistence, or expenses, but in no case
shall he or she receive any amount for personal benefit. Such
reimbursements shall be reported by the employee to his or her immediate
supervisors.
(3) An employee may accept fees for speeches, etc. dealing with
subjects other than Peace Corps or Peace Corps programs when no official
funds have been used in connection with his or her appearance and such
activities do not interfere with the efficient performance of his or her
duties.
(4) In order to avoid even the appearance of a conflict of interest,
whether or not a fee is offered should not be determinative of whether
an employee makes a speech or participates in a discussion if the
subject is Peace Corps or its programs, or if such services are part of
the employee's official duties.
(b) Racial segregation. No employee may participate for Peace Corps
in conferences or speak for Peace Corps before audiences where any
racial group has been segregated or excluded from the meeting, from any
of the facilities or conferences, or from membership in the organization
sponsoring the conference or meeting.
(1) When a request for Peace Corps speakers or participation is
received under circumstances where segregation may be practiced, the
Director of Public Affairs shall make specific inquiry as to the
practices of the organization before the request is filled.
(2) If the inviting organization shows a willingness to modify its
practices, Peace Corps will cooperate in such efforts.
(3) Exceptions to this paragraph may be made only by the Director,
Peace Corps and in his or her discretion.
Sec. 307.735-311 Partisan political activity.
(a) Prohibited activities. No employee may:
(1) Use his or her official authority or influence for the purpose
of interfering with an election or affecting the result thereof; or
(2) Take any active part in partisan political management or in
political campaigns, except as may be provided by or pursuant to
statute, 5 U.S.C. 7324.
(b) Intermittent employees. Persons employed on an irregular or
occasional basis are subject to paragraph (a) of this section only while
in active duty status and for the 24 hours of any day of actual
employment.
(c) Excepted activities. Paragraph (a) of this section does not
apply to:
(1) Nonpartisan campaigns and elections in which none of the
candidates is to be nominated by or elected as representing a national
or State political party, such as most school board elections; or
(2) Political activities connected with questions of public interest
which are not specifically identified with national or State political
parties, such as constitutional amendments, referenda, and the like (5
U.S.C. 7326).
(d) Excepted communities. Paragraph (a) of this section does not
apply to employees who are residents of certain communities. These
communities, which have been designated by the Office of Personnel
Policy and Operations (5 CFR 733.301), consist of a number of
communities in suburban Washington, DC, and a few communities elsewhere
in which a majority of the voters are Government employees. Employees
who are residents of the designated communities may be candidates for,
or campaign for others who are candidates for, local office if they or
the candidates for whom they are campaigning are running as independent
candidates. An employee may hold local office only in accordance with
Secs. 307.735-301 through 307.735-306 relating to outside employment and
associations.
(e) Special Government employees are subject to the statute for the
24 hours of each day or which they do any work for the Government.
(f) While regular employees may explain and support governmental
programs that have been enacted into law, in exercising their official
responsibilities they should not publicly support or oppose pending
legislation, except in testimony required by the Congress.
[[Page 35]]
Sec. 307.735-312 Use of Government property.
A regular or special employee shall not directly or indirectly use,
or allow the use of, Government property of any kind, including property
leased to the Government for other than officially approved activities.
All employees have a positive duty to protect and conserve Government
property, including equipment, supplies, and other property entrusted or
issued to them. By law, penalty envelopes may be used only for official
U.S. Government mail.
Sec. 307.735-313 Indebtedness.
Peace Corps considers the indebtedness of its employees to be a
matter of their own concern and will not function as a collection
agency. Nevertheless, a regular or special employee shall pay each just
financial obligation in a proper and timely manner, especially one
imposed by law such as Federal, State, or local taxes. For the purpose
of this section, a ``just financial obligation'' means one acknowledged
by the employee or reduced to judgment by a court, or one imposed by law
such as Federal, State or local taxes, and ``in a proper and timely
manner'' means in a manner which the agency determines does not, under
the circumstances, reflect adversely on the Government as his or her
employer. In the event of a dispute between an employee and an alleged
creditor, this section does not require Peace Corps to determine the
validity or amount of the disputed debt.
Sec. 307.735-314 Gambling, betting, and lotteries.
A regular or special employee shall not participate, while on
Government owned or leased property or while on duty for the Government
in any gambling activity, including the operation of a gambling device,
in conducting a lottery or pool, in a game for money or property, or in
selling or purchasing a numbers slip or ticket.
Sec. 307.735-315 Discrimination.
No regular or special employee may make inquiry concerning the race,
political affiliation, or religious beliefs of any employee or applicant
in connection with any personnel action and may not practice, threaten,
or promise any action against or in favor of an employee or applicant
for employment because of race, color, religion, sex, age, or national
origin and in the competitive service on the basis of politics, marital
status, or physical handicap.
Sec. 307.735-316 Related statutes and regulations.
Each employee should be aware of the following related statutes and
regulations:
(a) House Concurrent Resolution 175, 85th Congress, 2nd Session, 72A
Stat. B12, the ``Code of Ethics for Government Service.''
(b) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(c) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(d) The prohibition against accepting honoraria of more than $2,000
per speech, appearance, or article (2 U.S.C. 441i).
(e) 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).
(f) The provisions relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(g) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(h) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(i) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(j) The prohibitions against fraud or false statements in a
Government matter and filing false claims (18 U.S.C. 1001 and 287).
(k) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(l) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(m) 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.
[[Page 36]]
643); and (3) embezzlement of the money or property of another person in
the possession of an employee by reason of his or her employment (18
U.S.C. 654).
(n) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(o) The prohibitions against political activities in subchapter III
of chapter 73 of title 5, United States Code, and 18 U.S.C. 602, 603,
and 607.
(p) The prohibition against gifts to employees' superiors and the
acceptance thereof (5 U.S.C. 7351).
(q) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, which is specifically applicable to
special Government employees as well as to regular employees.
(r) The prohibition against accepting gifts from foreign governments
(5 U.S.C. 7342).
(s) 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).
(t) The prohibition against appointing or advocating the appointment
of a relative to a position within the Agency (5 U.S.C. 3110).
(u) The prohibition against postemployment conflicts of interest (18
U.S.C. 207).
Subpart D--Procedures for Submission by Employees and Review of
Statements of Employment and Financial Interests
Sec. 307.735-401 Submission of statements.
(a) Officials and employees occupying positions classified at the
FE-3 level and above are required by title II of the Ethics in
Government Act of 1978, as amended, title II of Pub. L. 95-521, to file
annual Executive Personnel Financial Disclosure Reports. They need not
also file the statement of employment and financial interests required
by the following provisions.
(b)(1) Regulations of the Office of Personnel Policy and Operations
(5 CFR part 735) require Peace Corps to adopt regulations providing for
the submission of statements of employment and financial interests from
certain regular employees and all special employees.
(2) All special employees and those regular employees occupying
positions described in paragraph (c) of this section shall complete
statements of employment and financial interests and submit them to the
DAEO not later than 5 days prior to entrance on duty. The Director of
Personnel Policy and Operations shall be responsible for supplying all
new employees with the necessary forms prior to their initial
employment, extensions, or reappointments.
(3) The initial statement of employment and financial interests
shall include information on organizations with which the employee was
associated during the 2 years prior to his or her employment by Peace
Corps, as well as information about current associations. Special
employees shall also indicate to the best of their knowledge which
organizations listed currently on their forms have contracts with or are
applying for contracts with the Peace Corps. If any information required
to be included on the statement, including holdings placed in trust, is
not known to an employee but is known to another person, he or she is
required to request that other person to submit information on his or
her behalf.
(4) Current employees shall file a statement on or before June 30
each year. The Director of Personnel Policy and Operations shall be
responsible for insuring that statements are distributed to all affected
employees. Notwithstanding the filing of the annual report required by
this paragraph each employee shall at all times avoid acquiring a
financial interest that could result, or taking an action that would
result, in a conflict of interest and a violation of the conflict-of-
interest provisions of section 208 of title 18, United States Code, or
the conflict-of-interest provisions of this part.
(5) In the case of temporary summer employees hired at FP-7 or
equivalent and below to perform duties other than those of an expert or
consultant, the reporting requirement will be waived. It may also be
waived by the Director of Personnel Policy and Operations
[[Page 37]]
with respect to other appointments, except as experts or consultants,
upon a finding that the duties of the position held by the special
Government employee are of a nature and at such a level of
responsibility that the reporting of employment and financial interests
is not necessary to protect the integrity of the Government.
(6) Regular or special employees are not required to submit in a
statement of employment and financial interests any information about
their connection with or interest in a professional society or a
charitable, religious, social, fraternal, recreational, public service,
civic, or political organization not conducted as a business enterprise.
For this purpose, any organizations doing work involving or potentially
involving contracts with the Government are considered business
enterprises and are required to be included in a regular or special
employee's statement of employment and financial interests.
(7) The statements of employment and financial interests required
are in addition, and not in substitution for or in derogation of, any
similar requirement imposed by law, order, or regulation. The submission
of a statement by an employee does not permit him or her or any other
person to participate in a matter in which his or her or other persons'
participation is prohibited by law, order, or regulations.
(8) A regular employee who believes that his or her position has
been improperly included under Peace Corps regulations as one requiring
the submission of a statement of employment and financial interests
shall be given an opportunity for review through Peace Corps' grievance
procedures to determine whether the position has been improperly
included.
(c) Statements shall be submitted by employees who are engaged in
any aspect of Government contracting or procurement activities
including, but not limited to, the planning, design, award, monitoring,
and evaluation of Peace Corps procurement of goods and services; and by
all special employees (expert and consultants).
Sec. 307.735-402 Review of statements.
(a) The DAEO shall review all statements and forward the names of
all listed organizations to the Director of Contracts. In addition, if
the information provided in the statement indicates on its face a real,
apparent, or potential conflict of interest under Secs. 307.735-301
through 307.735-305 of these standards, the DAEO will review the
situation with the particular employee. If the DAEO and the employee are
unable to resolve the conflict to the DAEO's satisfaction, or if the
employee wishes to request an exception to any of the above enumerated
rules, the case will be referred to the Committee on Conflict of
Interest. The Committee is authorized to recommend appropriate remedial
action to the Director, who is authorized to take such action as may
include, but is not limited to, changing assigned duties, requiring the
employee or special employee to divest himself of a conflicting
interest, taking disciplinary action, or disqualifying or accepting the
self-disqualification of the employee or special employee for a
particular assignment.
(b) The Contracts Division shall maintain a list of all the
organizations with which employees are or have been associated, as well
as a list of all current contractors with the Agency. The list of
organizations shall include the names of all employees associated with
the identified organizations. When names of organizations with which new
employees are or have been associated are submitted to the Contracts
Office, they shall be checked against the list of current contractors.
Similarly, before any new contracts are awarded, the names of the
potential contractors will be checked against the master list of
organizations with which employees are or have been associated. Any
real, apparent, or potential conflicts which come to light as a result
of these cross checks will be referred to the DAEO for review. The DAEO
will proceed as in paragraph (a) of this section, referring the matter
to the Committee on Conflict of Interest if necessary.
(c) Whenever an organization submits a proposal or application or
otherwise indicates in writing its intent to apply for or seek a
specific contract, the Peace Corps Contracts Division shall
[[Page 38]]
immediately forward a copy of the relevant sections of the Agency
standards of conduct to that organization.
(d) Whenever a regular or special employee begins or terminates his
or her employment with Peace Corps, the Office of Personnel Policy and
Operations shall provide that employee with a copy of the rules found in
Sec. 307.735-304 restricting a person's employment after leaving Peace
Corps. Personnel shall also notify the DAEO when an employee terminates.
One year after the date of termination the DAEO will instruct the
Contracts Office to remove from the master list any organizations with
which the terminated employee was associated unless other current
employees are associated with those organizations. Six years after the
date of termination the DAEO will destroy the statement of employment
and financial interests.
PART 308--IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents
Sec.
308.1 Purpose.
308.2 Policy.
308.3 Definitions.
308.4 Disclosure of records.
308.5 New uses of information.
308.6 Reports regarding changes in systems.
308.7 Use of social security account number in records systems.
[Reserved]
308.8 Rules of conduct.
308.9 Records systems--management and control.
308.10 Security of records systems--manual and automated.
308.11 Accounting for disclosure of records.
308.12 Contents of records systems.
308.13 Access to records.
308.14 Specific exemptions.
308.15 Identification of requesters.
308.16 Amendment of records and appeals with respect thereto.
308.17 Denial of access and appeals with respect thereto.
308.18 Fees.
Authority: 5 U.S.C. 552a.
Source: 50 FR 1844, Jan. 14, 1985, unless otherwise noted.
Sec. 308.1 Purpose.
The purpose of this part is to set forth the basic policies of the
Peace Corps governing the maintenance of systems of records containing
personal information as defined in the Privacy Act of 1974 (5 U.S.C.
552a). Records included in this part are those described in the
aforesaid Act and maintained by the Peace Corps and/or any component
thereof.
Sec. 308.2 Policy.
It is the policy of the Peace Corps to protect, preserve and defend
the right of privacy of any individual as to whom the agency maintains
personal information in any records system and to provide appropriate
and complete access to such records including adequate opportunity to
correct any errors in said records. It is further the policy of the
agency to maintain its records in such a fashion that the information
contained therein is and remains material and relevant to the purposes
for which it is collected in order to maintain its records with fairness
to the individuals who are the subject of such records.
Sec. 308.3 Definitions.
(a) Record means any document, collection, or grouping of
information about an individual maintained by the agency, including but
not limited to information regarding education, financial transactions,
medical history, criminal or employment history, or any other personal
information which contains the name or personal identification number,
symbol, photograph, or other identifying particular assigned to such
individual, such as a finger or voiceprint.
(b) System of Records means a group of any records under the control
of the agency from which information is retrieved by use of the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(c) Routine Use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.
(d) The term agency means the Peace Corps or any component thereof.
(e) The term individual means any citizen of the United States or an
alien lawfully admitted to permanent residence.
[[Page 39]]
(f) The term maintain includes the maintenance, collection, use or
dissemination of any record.
(g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as
amended from time to time.
Sec. 308.4 Disclosure of records.
The agency will not disclose any personal information from systems
of records it maintains to any individual other than the individual to
whom the record pertains, or to another agency, without the express
written consent of the individual to whom the record pertains, or his or
her agent or attorney, except in the following instances:
(a) To officers or employees of the Peace Corps having a need for
such record in the official performance of their duties.
(b) When required under the provisions of the Freedom of Information
Act (5 U.S.C. 552).
(c) For routine uses as published in the Federal Register.
(d) To the Bureau of the Census for uses pursuant to title 13.
(e) To an individual or agency having a proper need for such record
for statistical research provided that such record is transmitted in a
form which is not individually identifiable and that an appropriate
written statement is obtained from the person to whom the record is
transmitted stating the purpose for the request and a certification
under oath that the records will be used only for statistical purposes.
(f) To the National Archives of the United States as a record of
historical value under rules and regulations of the Archives or to the
Administrator of General Services or his designee to determine if it has
such value.
(g) To an agency or instrumentality of any governmental jurisdiction
within the control of the United States for civil or criminal law
enforcement activities, if the activity is authorized by law, and the
head of any such agency or instrumentality has made a written request
for such records specifying the particular portion desired and the law
enforcement activity for which the record is sought. Such a record may
also be disclosed by the agency to the law enforcement agency on its own
initiative in situations in which criminal conduct is suspected:
Provided, That such disclosure has been established as a routine use or
in situations in which the misconduct is directly related to the purpose
for which the record is maintained.
(h) In emergency situations upon a showing of compelling
circumstances affecting the health or safety of any individual provided
that after such disclosure, notification of such disclosure must be
promptly sent to the last known address of the individual to whom the
record pertains.
(i) To either House of Congress or to a subcommittee or committee
(joint or of either house) to the extent the subject matter falls within
their jurisdiction.
(j) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
(k) Pursuant to an order by the presiding judge of a court of
competent jurisdiction. If any record is disclosed under such compulsory
legal process and subsequently made public by the court which issued it,
the agency must make a reasonable effort to notify the individual to
whom the record pertains of such disclosure.
(l) To consumer reporting agencies as defined in 31 U.S.C.
3701(a)(3) in accordance with 31 U.S.C. 3711, and under contracts for
collection services as authorized in 31 U.S.C. 3718.
Sec. 308.5 New uses of information.
The agency shall publish in the Federal Register a notice of its
intention to establish a new or revised routine use of any system of
records maintained by it with an opportunity for public comments on such
use. Such notice shall contain the following:
(a) The name of the system of records for which the new or revised
routine use is to be established.
(b) The authority for maintaining the system of records.
(c) The categories of records maintained in the system.
(d) The purpose for which the record is to be maintained.
(e) The proposed routine use(s).
(f) The purpose of the routine use(s).
[[Page 40]]
(g) The categories of recipients of such use.
In the event of any request for an addition to the routine uses of the
systems which the agency maintains, such request may be sent to the
following officer: Director, Office of Administrative Services, Peace
Corps, 806 Connecticut Avenue, NW., Washington, DC 20526.
Sec. 308.6 Reports regarding changes in systems.
The agency shall provide to Congress and the Office of Management
and Budget advance notice of any proposal to establish or alter any
system of records as defined herein. This report will be submitted in
accord with guidelines provided by the Office of Management and Budget.
Sec. 308.7 Use of social security account number in records systems. [Reserved]
Sec. 308.8 Rules of conduct.
(a) The head of the agency shall assure that all persons involved in
the design, development, operation or maintenance of any systems of
records as defined herein are informed of all requirements necessary to
protect the privacy of individuals who are the subject of such records.
All employees shall be informed of all implications of the Act in this
area including the criminal penalties provided under the Act, and the
fact the agency may be subject to civil suit for failure to comply with
the provisions of the Privacy Act and these regulations.
(b) The head of the agency shall also ensure that all personnel
having access to records receive adequate training in the protection of
the security of personal records and that adequate and proper storage is
provided for all such records with sufficient security to assure the
privacy of such records.
Sec. 308.9 Records systems--management and control.
(a) The Director, Office of Administrative Services, shall have
overall control and supervision of the security of all records keeping
systems and shall be responsible for monitoring the security standards
set forth in these regulations.
(b) A designated official (System Manager) shall be named who shall
have management responsibility for each record system maintained by the
agency and who shall be responsible for providing protection and
accountability for such records at all times and for insuring that such
records are secured in appropriate containers wherever not in use or in
the direct control of authorized personnel.
Sec. 308.10 Security of records systems--manual and automated.
The head of the agency has the responsibility of maintaining
adequate technical, physical, and security safeguards to prevent
unauthorized disclosure or destruction of manual and automatic record
systems. These security safeguards shall apply to all systems in which
identifiable personal data are processed or maintained including all
reports and outputs from such systems which contain identifiable
personal information. Such safeguards must be sufficient to prevent
negligent, accidental, or unintentional disclosure, modification or
destruction of any personal records or data and must furthermore
minimize the extent technicians or knowledgeable persons could
improperly obtain access to modify or destroy such records or data and
shall further insure against such casual entry by unskilled persons
without official reasons for access to such records or data.
(a) Manual systems. (1) Records contained in records systems as
defined herein may be used, held or stored only where facilities are
adequate to prevent unauthorized access by persons within or without the
agency.
(2) All records systems when not under the personal control of the
employees authorized to use same must be stored in an appropriate metal
filing cabinet. Where appropriate, such cabinet shall have a three
position dial-type combination lock, and/or be equipped with a steel
lock bar secured by a GSA approved changeable combination padlock or in
some such other securely locked cabinet as may be approved by GSA for
the storage of such records. Certain systems are not of such
confidential nature that their disclosure would harm an individual who
[[Page 41]]
is the subject of such record. Records in this category shall be
maintained in steel cabinets without the necessity of combination locks.
(3) Access to and use of systems of records shall be permitted only
to persons whose official duties require such access within the agency,
for routine use as defined in Sec. 308.4 and in the Peace Corps'
published systems of records notices, or for such other uses as may be
provided herein.
(4) Other than for access within the agency to persons needing such
records in the performance of their official duties or routine uses as
defined herein and in the Peace Corps' systems of records notices or
such other uses as provided herein, access to records within systems of
records shall be permitted only to the individual to whom the record
pertains or upon his or her written request to a designated personal
representative.
(5) Access to areas where records systems are stored will be limited
to those persons whose official duties require work in such areas and
proper accounting of removal of any records from storage areas shall be
maintained at all times in the form directed by the Director,
Administrative Services.
(6) The agency shall assure that all persons whose official duties
require access to and use of records contained in records systems are
adequately trained to protect the security and privacy of such records.
(7) The disposal and destruction of records within records systems
shall be in accord with rules promulgated by the General Services
Administration.
(b) Automated systems. (1) Identifiable personal information may be
processed, stored or maintained by automatic data systems only where
facilities or conditions are adequate to prevent unauthorized access to
such systems in any form. Whenever such data contained in punch cards,
magnetic tapes or discs are not under the personal control of an
authorized person such information must be stored in a metal filing
cabinet having a built-in three position combination lock, a metal
filing cabinet equipped with a steel lock, a metal filing cabinet
equipped with a steel lock bar secured with a General Services
Administration (GSA) approved combination padlock, or in adequate
containers or in a secured room or in such other facility having greater
safeguards than those provided for herein.
(2) Access to and use of identifiable personal data associated with
automated data systems shall be limited to those persons whose official
duties require such access. Proper control of personal data in any form
associated with automated data systems shall be maintained at all times
including maintenance of accountability records showing disposition of
input and output documents.
(3) All persons whose official duties require access to processing
and maintenance of identifiable personal data and automated systems
shall be adequately trained in the security and privacy of personal
data.
(4) The disposal and disposition of identifiable personal data and
automated systems shall be carried on by shredding, burning or in the
case of tapes of discs, degaussing, in accord with any regulations now
or hereafter proposed by the GSA or other appropriate authority.
Sec. 308.11 Accounting for disclosure of records.
Each office maintaining a system of records shall keep a written
account of routine disclosures (see paragraphs (a) through (e) of this
section) for all records within such system in the form prescribed by
the Director, Office of Administrative Services. Disclosure made to
employees of the agency in the normal course of their official duties or
pursuant to the provisions of the Freedom of Information Act need not be
accounted for. Such written account shall contain the following:
(a) The date, nature, and purpose of each disclosure of a record to
any person or to another agency.
(b) The name and address of the person or agency to whom the
disclosure was made.
(c) Sufficient information to permit the construction of a listing
of all disclosures at appropriate periodic intervals.
(d) The justification or basis upon which any release was made
including any written documentation required
[[Page 42]]
when records are released for statistical or law enforcement purposes
under the provisions of subsection (b) of the Act.
(e) For the purpose of this part, the system of accounting for
disclosure is not a system of records under the definitions hereof and
no accounting need be maintained for the disclosure of accounting of
disclosures.
Sec. 308.12 Contents of records systems.
(a) The agency shall maintain in any records contained in any
records system hereunder only such information about an individual as is
accurate, relevant, and necessary to accomplish the purpose for which
the agency acquired the information as authorized by statute or
executive order.
(b) In situations in which the information may result in adverse
determinations about such individual's rights, benefits and privileges
under any Federal program, all information placed in records systems
shall, to the greatest extent practicable, be collected from the
individual to whom the record pertains.
(c) Each form or other document which an individual is expected to
complete in order to provide information for any records system shall
have appended thereto, or in the body of the document:
(1) An indication of the authority authorizing the solicitation of
the information and whether the provision of the information is
mandatory or voluntary.
(2) The purpose or purposes for which the information is intended to
be used.
(3) Routine uses which may be made of the information and published
pursuant to Sec. 308.7 of this regulation.
(4) The effect on the individual, if any, of not providing all or
part of the required or requested information.
(d) Records maintained in any system of records used by the agency
to make any determinatioin about any individual shall be maintained with
such accuracy, relevancy, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the making of any
determination about such individual: Provided, however, That the agency
shall not be required to update or keep current retired records.
(e) Before disseminating any record about an individual to any
person other than an agency as defined in 5 U.S.C. 552(e) or pursuant to
the provsions of the Freedom of Information Act (5 U.S.C. 552), the
agency shall make reasonable efforts to assure that such records are
accurate, complete, timely and relevant for agency purposes.
(f) Under no circumstances shall the agency maintain any record
about an individual with respect to or describing how such individual
exercises rights guaranteed by the first amendment of the Constitution
of the United States unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to
and within the scope of an authorized law enforcement activity.
(g) In the event any record is disclosed as a result of the order of
a presiding judge of a court of competent jurisdiction, the agency shall
make reasonable efforts to notify the individual whose record was so
disclosed after the process becomes a matter of public record.
Sec. 308.13 Access to records.
(a) The Director, Administrative Services, shall keep a current list
of systems of records maintained by the agency and published in
accordance with the provisions of these regulations.
(b) Individuals requesting access to any record the agency maintains
about him or her in a system of records shall be provided access to such
records. Such requests shall be submitted in writing by mail, or in
person during regular business hours, to the System Managers identified
in the specific system notices. Systems maintained at overseas and
dometic field offices may be addressed to the Country Director or
Regional Service Center Manager. If assistance is needed, the Director,
Office of Administrative Services, will provide agency addresses.
(c) Requests for records from more than one system of records shall
be directed to the Director, Office of Administrative Services, Peace
Crops, 806
[[Page 43]]
Connecticut Avenue, NW., Washington, DC 20526.
(d) Requests for access to or copies of records should contain, at a
minimum, identifying information needed to locate any given record and a
brief description of the item or items of information required. If the
individual wishes access to specific documents the request should
identify or describe as nearly as possible such documents.
(e) A record may be disclosed to a representative of the person to
whom a record relates who is authorized in writing to have access to the
record by the person to whom it relates.
(f) A request made in person will be promptly complied with if the
records sought are in the immediate custody of the Peace Corps. Mailed
or personal request for documents in storage which must be complied from
more than one location, or which are otherwise not immediately
available, will be acknowledge within ten working days, and the records
requested will be provided as promptly thereafter as possible.
(g) Medical or psychological records shall be disclosed to an
individual unless in the judgment of the agency, access to such records
might have an adverse effect upon such individual. When such
determination has been made, the agency may require that the information
be disclosed only to a physician chosen by the requesting individual.
Such physician shall have full authority to disclose all or any portion
of such record to the requesting individual in the exercise of his or
her professional judgment.
Sec. 308.14 Specific exemptions.
Records or portions of records in certain record systems specified
in paragraphs (a) through (c) of this section shall be exempt from
disclosure: Provided, however, That no such exemption shall apply to the
provisions of Sec. 308.12(a) (maintaining records with accuracy,
completeness, etc. as reasonably necessary for agency purposes);
Sec. 308.12(b) (collecting information directly from the individual to
whom it pertains); Sec. 308.12(c) (informing individuals asked to supply
information of the purposes for which it is collected and whether it is
mandatory); Sec. 308.12(g) (notifying the subjects of records disclosed
under compulsory court process); Sec. 308.16(d)(3) (informing prior
recipient of corrected or disputed records); Sec. 308.16(g) (civil
remedies). With the above exceptions the following material shall be
exempt from disclosure to the extent indicated:
(a) Material in any system of records considered classified and
exempt from disclosure under provisions of section 552(b)(1) of the
Freedom of Information Act. Agency systems of records now containing
such material are: Legal Files--Staff, Volunteers and Applicants;
Security Records Peace Corps Staff/Volunteers and ACTION staff.
(1) Authority: 5 U.S.C. 552a (k)(1)
(2) Reasons: To protect information classified in the interest of
national defense or foreign policy.
(b) Investigatory material compiled for the purposes of law
enforcement: Provided, however, That if any individual is denied any
right, privilege, or benefit that he or she would otherwise be entitled
to by Federal law, or for which he or she would otherwise be eligible,
as a result of the maintenance of such material, such material shall be
provided to such individual except to the extent necessary to protect
the identity of a source who furnished information to the government
under an express promise that his or her identity would be held in
confidence, or prior to the effective date of the Privacy Act of 1974,
under an implied promise of such confidentiality of the identity of such
source. Agency systems of records containing such investigatory material
are: Discrimination Complaint Files; Employee Occupational Injury and
Illness Reports; Legal Files--Staff, Volunteers and Applicants; Security
Records--Peace Corps Staff/Volunteers and ACTION Staff.
(1) Authority: 5 U.S.C. 552a(k)(2)
(2) Reasons: To protect the identity of sources to whom proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
(c) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualification
[[Page 44]]
for service as an employee or volunteer or for the obtaining of a
Federal contract or for access to classified information: Provided,
however, That such material shall be disclosed to the extent possible
without revealing the identity of a source who furnished information to
the government under an express promise of the confidentiality of his or
her identity or, prior to the effective date of the Privacy Act of 1974,
under an implied promise of such confidentiality of identity. Agency
systems of records containing such material are: Contractors and
Consultant Files; Discrimination Complaint Files; Legal Files--Staff,
Volunteers and Applicants; Personal Service Contract Records--Peace
Corps Staff/Volunteers and ACTION Staff; Staff Applicant and Personnel
Records; Talent Bank; Volunteer Applicant and Service Record Systems.
(1) Authority: 5 U.S.C. 552a(k)(5)
(2) Reasons: To ensure the frankness of information used to
determine whether Peace Corps Volunteers applicants and Peace Corps
Staff applicants are qualified for service with the agency.
(d) Records in the Office of Inspector General Investigative Files
and Records system of records are exempt from certain provisions to the
extent provided hereinafter.
(1) To the extent that the system of records pertains to the
enforcement of criminal laws, the Office of Inspector General
Investigative Files and Records system of records is exempt from all
sections of the Privacy Act (5 U.S.C. 552a) except the following
sections: (b) relating to conditions of disclosure; (c)(1) and (2)
relating to keeping and maintaining a disclosure accounting; (e)(4)(A)
through (F) relating to publishing a system notice setting the name,
location, categories of individuals and records, routine uses, and
policies regarding storage, retrievability, access controls, retention
and disposal of the records; (e)(6), (7), (9), (10), and (11) relating
to dissemination and maintenance of records and (i) relating to criminal
penalties. This system of records is also exempt from the provisions of
Sec. 308.11 through Sec. 308.17 to the extent that the provisions of
these sections conflict with this paragraph.
(i) Authority: 5 U.S.C. 552a(j)(2).
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigations, investigators, and witnesses.
(C) To protect the identity of Federal employees who furnish a
complaint or information to OIG, consistent with section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(D) To protect the confidentiality of non-Federal employee sources
of information.
(E) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement information systems.
(F) To prevent disclosure of law enforcement techniques and
procedures.
(G) To avoid endangering the life or physical safety of confidential
sources.
(2) To the extent that there may exist within this system of records
investigative files compiled for law enforcement purposes, other than
material within the scope of subsection (j)(2) of the Privacy Act, the
OIG Investigative Files and Records system of records is exempt from the
following sections of the Privacy Act: (c)(3) relating to access to the
disclosure accounting; (d) relating to access to records; (e)(1)
relating to the type of information maintained in the records; (e)(4)
(G), (H), and (I) relating to publishing the system notice information
as to agency procedures for access and amendment, and information as to
the categories of sources or records; and (f) relating to developing
agency rules for gaining access and making corrections. Provided,
however, That if any individual is denied any right, privilege, or
benefit that they would otherwise be entitled by Federal law, or for
which they would otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to such individual
except to the extent that the disclosure of such material would reveal
the identity of a source
[[Page 45]]
who furnished information to the Government under an express promise
that the identity of the source would be held in confidence, or, prior
to January 1, 1975, under an implied promise that the identity of the
source would be held in confidence. This system of records is also
exempt from the provisions of Sec. 308.11 through Sec. 308.17 to the
extent that the provisions of these sections conflict with this
paragraph.
(i) Authority: 5 U.S.C. 552a(k)(2)
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To protect investigatory material compiled for law enforcement
purposes.
(C) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigation, law enforcement personnel, and sources of information.
(D) To fulfill commitments made to protect the confidentiality of
sources.
(E) To protect the identity of Federal employees who furnish a
complaint or information to the OIG, consistent with Section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(F) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement systems.
(G) [Reserved]
(H) To prevent disclosure of law enforcement techniques and
procedures.
(I) To avoid endangering the life or physical safety of confidential
sources and law enforcement personnel.
[50 FR 1844, Jan. 14, 1985, as amended at 58 FR 39657, July 26, 1993]
Sec. 308.15 Identification of requesters.
The agency shall require reasonable identification of all
individuals who request access to records to assure that records are not
disclosed to persons not entitled to such access.
(a) In the event an individual requests disclosure in person, such
individual shall be required to show an identification card such as a
driver's license, etc., containing a photo and a sample signature of
such individual. Such individual may also be required to sign a
statement under oath as to his or her identity acknowledging that he or
she is aware of the penalties for improper disclosure under the
provisions of the Privacy Act of 1974.
(b) In the event that disclosure is requested by mail, the agency
may request such information as may be necessary to reasonably assure
that the individual making such request is properly identified. In
certain cases, the agency may require that a mail request be notarized
with an indication that the notary received an acknowledgment of
identity from the individual making such request.
(c) In the event an individual is unable to provide suitable
documentation or identification, the agency may require a signed
notarized statement asserting the identity of the individual and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000.
(d) In the event a requester wishes to be accompanied by another
person while reviewing his or her records, the agency may require a
written statement authorizing discussion of his or her records in the
presence of the accompanying representative or other persons.
Sec. 308.16 Amendment of records and appeals with respect thereto.
(a) In the event an individual desires to request an amendment of
his or her record, he or she may do so by submitting such written
request to the Director, Administrative Services, Peace Corps, 806
Connecticut Avenue, NW., Washington, DC 20526. The Director,
Administrative Services, shall provide assistance in preparing any
amendment upon request and a written acknowledgment of receipt of such
request within 10 working days after the receipt thereof from the
individual who requested the amendment. Such acknowledgment may, if
necessary, request any additional information needed to make a
determination with respect to such request. If the agency decides to
comply with the request within the 10 day period, no written
acknowledgment is necessary: Provided, however, That a certification of
the
[[Page 46]]
change shall be provided to such individual within such period.
(b) Promptly after acknowledgment of the receipt of a request for an
amendment the agency shall take one of the following actions:
(1) Make any corrections of any portion of the record which the
individual believes is not accurate, relevant, timely or complete.
(2) Inform the individual of its refusal to amend the record in
accord with the request together with the reason for such refusal and
the procedures established for requesting review of such refusal by the
head of the agency or his or her designee. Such notice shall include the
name and business address of the reviewing official.
(3) Refer the request to the agency that has control of and
maintains the record in those instances where the record requested
remains the property of the controlling agency and not of the Peace
Corps.
(c) In reviewing a request to amend the record the agency shall
assess the accuracy, relevance, timeliness and completeness of the
record with due and appropriate regard for fairness to the individual
about whom the record is maintained. In making such determination, the
agency shall consult criteria for determining record quality published
in pertinent chapters of the Federal Personnel Manual and to the extent
possible shall accord therewith.
(d) In the event the agency agrees with the individual's request to
amend such record it shall:
(1) Advise the individual in writing,
(2) Correct the record accordingly, and
(3) Advise all previous recipients of a record which was corrected
of the correction and its substance.
(e) In the event the agency, after an initial review of the request
to amend a record, disagrees with all or a portion of it, the agency
shall:
(1) Advise the individual of its refusal and the reasons therefore,
(2) Inform the individual that he or she may request further review
in accord with the provisions of these regulations, and
(3) Specify The name and address of the person to whom the request
should be directed.
(f) In the event an individual requester disagrees with the initial
agency determination, he or she may appeal such determination to the
Director of the Peace Corps or his or her designee. Such request for
review must be made within 30 days after receipt by the requester of the
initial refusal to amend.
(g) If after review the Director or designee refuses to amend the
record as requested he or she shall advise the individual requester of
such refusal and the reasons for same; of his or her right to file a
concise statement in the record of the reasons for disagreeing with the
decision of the agency; of the procedures for filing a statement of
disagreement and of the fact that such statement so filed will be made
available to anyone to whom the record is subsequently disclosed
together with a brief statement of the agency summarizing its reasons
for refusal, if the agency decides to place such brief statement in the
record. The agency shall have the authority to limit the length of any
statement to be filed, such limit to depend upon the record involved.
The agency shall also inform such individual that prior recipients of
the disputed record will be provided a copy of both statements of the
dispute to the extent that the accounting of disclosures has been
maintained and of the individual's right to seek judicial review of the
agency's refusal to amend the record.
(h) If after review the official determines that the record should
be amended in accordance with the individual's request, the agency shall
proceed as provided above in the event a request is granted upon initial
demand.
(i) Final agency determination of an individual's request for a
review shall be concluded with 30 working days from the date of receipt
of the review request: Provided, however, That the Director or designee
may determine that fair and equitable review cannot be made within that
time. If such circumstances occur, the individual shall be notified in
writing of the additional time required and of the approximate date on
which determination of the review is expected to be completed.
[[Page 47]]
Sec. 308.17 Denial of access and appeals with respect thereto.
In the event that the agency finds it necessary to deny any
individual access to a record about such individual pursuant to
provisions of the Privacy Act or of these regulations, a response to the
original request shall be made in writing within ten working days after
the date of such initial request. The denial shall specify the reasons
for such refusal or denial and advise the individual of the reasons
therefore, and of his or her right to an appeal within the agency and/or
judicial review under the provisions of the Act.
(a) In the event an individual desires to appeal any denial of
access, he or she may do so in writing by addressing such appeal to the
attention of the Director, Peace Corps, or designee identified in such
denial. Such appeal should be addressed to Director, Peace Corps, c/o
Office of Administrative Services, Room P-314, 806 Connecticut Avenue,
NW., Washington, DC 20526.
(b) The Director, or designee, shall review a request from a denial
of access and shall make a determination with respect to such appeal
within 30 days after receipt thereof. Notice of such determination shall
be provided to the individual making the request in writing. If such
appeal is denied in whole or in part, such notice shall include
notification of the right of the person making such request to have
judicial review of the denial as provided in the Act.
Sec. 308.18 Fees.
No fees shall be charged for search time or for any other time
expended by the agency to produce a record. Copies of records may be
charged for at the rate of 10 cents per page provided that one copy of
any record shall be provided free of charge.
PART 309--CLAIMS COLLECTION--Table of Contents
Subpart A--General Provisions
Sec.
309.1 General purpose.
309.2 Scope.
309.3 Definitions.
309.4 Interest, penalties, and administrative costs.
309.5 Designation.
Subpart B--Salary Offset
309.6 Purpose.
309.7 Scope.
309.8 Applicability of regulations.
309.9 Waiver requests and claims to the General Accounting Office.
309.10 Notice requirements before offset.
309.11 Review.
309.12 Certification.
309.13 Voluntary repayment agreements as an alternative to salary
offset.
309.14 Special review.
309.15 Notice of salary offset.
309.16 Procedures for salary offset.
309.17 Coordinating salary offset with other agencies.
309.18 Interest, penalties and administrative costs.
309.19 Refunds.
309.20 Request for the services of a hearing official from the creditor
agency.
309.21 Non-waiver of rights by payments.
Subpart C--Tax Refund Offset
309.22 Applicability and scope.
309.23 Past-due legally enforceable debt.
309.24 Definitions.
309.25 Peace Corps' participation in the IRS tax refund offset program.
309.26 Procedures.
309.27 Referral of debts for offset.
309.28 Notice requirements before offset.
Subpart D--Administrative Offset
309.29 Applicability and scope.
309.30 Definitions.
309.31 General.
309.32 Demand for payment--notice.
309.33 Debtor's failure to respond.
309.34 Agency review.
309.35 Hearing.
309.36 Written agreement for repayment.
309.37 Administrative offset procedures.
309.38 Civil and Foreign Service Retirement Fund.
309.39 Jeopardy procedure.
Subpart E--Use of Consumer Reporting Agencies and Referrals to
Collection Agencies
309.40 Use of consumer reporting agencies.
309.41 Referrals to collection agencies.
Subpart F--Compromise, Suspension or Termination and Referral of Claims
309.42 Compromise.
309.43 Suspending or terminating collection.
309.44 Referral of claims.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31
U.S.C. 3720A; 4 CFR parts 101-105; 5 CFR part 550; 26 CFR 301.6402-6T.
[[Page 48]]
Source: 58 FR 2978, Jan. 7, 1993, unless otherwise noted.
Subpart A--General Provisions
Sec. 309.1 General purpose.
This part prescribes the procedures to be used by the Peace Corps of
the United States (Peace Corps) in the collection of claims owed to
Peace Corps and to the United States.
Sec. 309.2 Scope.
(a) Applicability of Federal Claims Collection Standards (FCCS).
Except as set forth in this part or otherwise provided by law, Peace
Corps will conduct administrative actions to collect claims (including
offset, compromise, suspension, termination, disclosure and referral) in
accordance with the Federal Claims Collection Standards of the General
Accounting Office and the Department of Justice, 4 CFR parts 101 through
105.
(b) This part is not applicable to:
(1) Claims against any foreign country or any political subdivision
thereof, or any public international organization.
(2) Claims where the Peace Corps Director (or designee) determines
that the achievement of the purposes of the Peace Corps Act, as amended,
22 U.S.C. 2501 et seq., or any other provision of law administered by
the Peace Corps require a different course of action.
Sec. 309.3 Definitions.
As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
(a) Agency means:
(1) An Executive Agency as defined by section 105 of title 5, United
States Code, including the U.S. Postal Service and the U.S. Postal Rate
Commission;
(2) A military department as defined by section 102 of title 5,
United States Code.
(3) An agency or court of the judicial branch including a court as
defined in section 610 of title 28, United States Code, the District
Court for the Northern Mariana Islands and the Judicial Panel on
Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Certification means a written debt claim form received from a
creditor agency which requests the paying agency to offset the salary of
an employee.
(c) Consumer reporting agency means a reporting agency as defined in
31 U.S.C. 3701(a)(3).
(d) Creditor agency means the agency to which the debt is owed.
(e) The term debt and claim refers 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. A debtor's liability arising from a particular
contract or transaction shall be considered a single claim for purposes
of monetary ceilings of the FCCS.
(f) Delinquent debt means any debt which has not been paid by the
date specified by the Government in writing or in an applicable
contractual agreement for payment or which has not been satisfied in
accordance with a repayment agreement.
(g) 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. These
deductions are described in 5 CFR 581.105(b) through (f). These
deductions include, but are not limited to: Social Security
withholdings; Federal, State and local tax withholdings; retirement
contributions; and life insurance premiums.
(h) Employee means a current or former employee of the Peace Corps
or other agency, including a member of the Armed Forces or Reserve of
the Armed Forces of the United States.
(i) FCCS means the Federal Claims Collection Standards jointly
published by the Department of Justice and the General Accounting Office
at 4 CFR parts 101 through 105.
[[Page 49]]
(j) Hearing official means an individual responsible for conducting
any hearing with respect to the existence or amount of a debt claimed,
and rendering a decision on the basis of such hearing. Except in the
case of an administrative law judge, a hearing official may not be under
the supervision or control of the Peace Corps when the Peace Corps is
the creditor agency.
(k) Paying agency means the agency which employs the individual and
authorizes the payment of his or her current pay. In some cases, the
Peace Corps may be both the creditor and the paying agency.
(l) Notice of intent to offset or notice of intent means a written
notice from a creditor agency to an employee which alleges that the
employee owes a debt to the creditor agency and apprising the employee
of certain administrative rights.
(m) Notice of salary offset means a written notice from the paying
agency to an employee after a certification has been issued by a
creditor agency, informing the employee that salary offset will begin at
the next officially established pay interval.
(n) Payroll office means the payroll office in the paying agency
which is primarily responsible for the payroll records and the
coordination of pay matters with the appropriate personnel office with
respect to an employee.
(o) Salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deduction at one or more officially established
pay intervals from the current pay account of an employee, without the
employee's consent.
(p) Salary Offset Coordination Officer means an official designated
by the Director who is responsible for coordinating debt collection
activities for the Peace Corps.
(q) Waiver means the cancellation, remission, forgiveness, or
nonrecovery of a debt or debt related charge as permitted or required by
law.
Sec. 309.4 Interest, penalties, and administrative costs.
(a) Except as otherwise provided by statute, contract or excluded in
accordance with FCCS, Peace Corps will assess:
(1) Interest on unpaid claims in accordance with existing Treasury
rules and regulations, unless the agency determines that a higher rate
is necessary to protect the interests of the United States.
(2) Penalty charges at a rate of 6 percent a year on any portion of
a claim that is delinquent for more than 90 days.
(3) Administrative charges to cover the costs of processing and
handling the debt beyond the payment due date.
(b) Late payment charges shall be computed from the date of mailing
or hand delivery of the notice of the claim and interest requirements.
(c) When a debt is paid in partial or installment payments, amounts
received shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and then to
outstanding principal.
(d) Waiver. Peace Corps will consider waiver of interest, penalties
and/or administrative costs in accordance with the FCCS, 4 CFR
102.13(g).
Sec. 309.5 Designation.
The Chief Financial Officer and his or her delegates, or any person
discharging the functions presently vested in the Chief Financial
Officer, are designated to perform all the duties for which the Director
is responsible under the foregoing statutes and Joint Regulations:
Provided, however, That no compromise of a claim shall be effected or
collection action terminated except with the concurrence of the General
Counsel. No such concurrence shall be required with respect to the
compromise or termination of collection activity on any claim in which
the unpaid amount of the debt is $300 or less.
Subpart B--Salary Offset
Sec. 309.6 Purpose.
The purpose of the Debt Collection Act of 1982 (Pub. L. 97-365), is
to provide a comprehensive statutory approach to the collection of debts
due the United States Government. This subpart implements section 5
thereof which authorizes the collection of debts owed by Federal
employees to the Federal Government by means of
[[Page 50]]
salary offsets. No claim may be collected by salary offset if the debt
has been outstanding for more than 10 years after the agency's right to
collect the debt first accrued, unless facts material to the
Government's right to collect were not known and could not reasonably
have been known by the official or officials who were charged with the
responsibility for discovery and collection of such debts.
Sec. 309.7 Scope.
(a) This subpart provides Peace Corps' procedures for the collection
by salary offset of a Federal employee's pay to satisfy certain past due
debts owed the United States Government.
(b) This subpart applies to collections by the Peace Corps from:
(1) Federal employees who owe debts to the Peace Corps; and
(2) Employees of the Peace Corps who owe debts to other agencies.
(c) This subpart does 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.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) This subpart does not apply to any adjustment to pay arising out
of an employee's election of coverage or a change in coverage under a
Federal benefits program requiring periodic deductions from pay, if the
amount to be recovered was accumulated over four pay periods or less.
(e) Nothing in this subpart precludes the compromise, suspension, or
termination of collection actions where appropriate under the standards
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.;
4 CFR parts 101 through 105).
Sec. 309.8 Applicability of regulations.
The provisions of this subpart are to be followed in instances
where:
(a) The Peace Corps is owed a debt by an individual currently
employed by another agency;
(b) The Peace Corps is owed a debt by an individual who is a current
employee of the Peace Corps; or
(c) The Peace Corps currently employs an individual who owes a debt
to another Federal agency. Upon receipt of proper certification from the
creditor agency, the Peace Corps will offset the debtor-employee's
salary in accordance with these regulations.
Sec. 309.9 Waiver requests and claims to the General Accounting Office.
The provisions of this subpart do not preclude an employee from
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10
U.S.C. 2774, 32 U.S.C. 716, or in any way questioning the amount or
validity of a debt by submitting a subsequent claim to the General
Accounting Office in accordance with the procedures prescribed by the
General Accounting Office. This subpart also does not preclude an
employee from requesting a waiver pursuant to other statutory provisions
pertaining to the particular debts being collected.
Sec. 309.10 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency first provides the employee with written
notice that he/she owes a debt to the Federal Government at least 30
calendar days before salary offset is to be initiated. When Peace Corps
is the creditor agency this notice of intent to offset an employee's
salary shall be hand-delivered or sent by certified mail to the most
current address that is available. The written notice will state:
(1) That Peace Corps has reviewed the records relating to the claim
and has determined that a debt is owed, its origin and nature, and the
amount of the debt;
(2) The intention of Peace Corps to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
(3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
[[Page 51]]
(4) An explanation of the Peace Corps' policy concerning interest,
penalties and administrative costs, including a statement that such
assessments must be made unless excused in accordance with
Sec. 309.4(d);
(5) The employee's right to inspect and copy all records of the
Peace Corps pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
(6) The right to a hearing conducted by a hearing official (an
administrative law judge, or alternatively, a hearing official not under
the supervision or control of the Peace Corps) with respect to the
existence and amount of the debt claimed, or the repayment schedule
(i.e., the percentage of disposable pay to be deducted each pay period),
so long as a petition is filed by the employee as prescribed in
Sec. 309.11;
(7) If not previously provided, the opportunity (under terms
agreeable to the Peace Corps) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency
(4 CFR 102.2(e));
(8) The name, address and telephone number of an officer or employee
of the Peace Corps who may be contacted concerning procedures for
requesting a hearing;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a petition for hearing within 15
calendar days after delivery of the notice of intent to offset will stay
the commencement of collection proceedings;
(11) The name and address of the office to which the petition should
be sent;
(12) That the Peace Corps will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than 30 calendar days
from the date of delivery of the notice of debt, unless the employee
files a timely petition for a hearing;
(13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 calendar
days after the filing of the petition requesting the hearing, unless the
employee requests and the hearing official grants a delay in the
proceedings;
(14) That any knowingly false or frivolous statements,
representations or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under chapter 75 of 5
U.S.C., 5 CFR 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, Secs. 3729-3731 of title
31, United States Code, or any other applicable statutory authority; and
(iii) Criminal penalties under 18 U.S.C. sections 286, 287, 1001,
and 1002 or any other applicable authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
(17) That proceedings with respect to such debt are governed by
section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).
(b) The Peace Corps is not required to comply with paragraph (a) of
this section for any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits
program requiring periodic deductions from pay if the amount to be
recovered was accumulated over four pay periods or less.
Sec. 309.11 Review.
(a) Request for review. Except as provided in paragraph (b) of this
section, an employee who desires a review concerning the existence or
amount of the debt or the proposed offset schedule must send a request
to the office designated in the notice of intent. See Sec. 309.10(a)(8).
The request for review must be received by the designated office not
later than 15 calendar days after the date of delivery of the notice as
provided in Sec. 309.10(a). The request must be signed by the employee
and
[[Page 52]]
should identify and explain with reasonable specificity and brevity the
facts, evidence and witnesses which the employee believes support his or
her position. If the employee objects to the percentage of disposable
pay to be deducted from each check, the request should state the
objection and the reasons for it. The employee must also specify whether
an oral hearing or a review of the documentary evidence is requested. If
an oral hearing is desired, the request should explain why the matter
cannot be resolved by review of the documentary evidence alone.
(b) Failure to timely submit.
(1) If the employee files a petition for a review after the
expiration of the 15 calendar day period provided for in paragraph (a)
of this section, the designated office may accept the request if the
employee can show that the delay was the result of circumstances beyond
his or her control, or because of a failure to receive the notice of the
filing deadline (unless the employee has actual knowledge of the filing
deadline).
(2) An employee waives the right to a review, and will have his or
her disposable pay offset in accordance with Peace Corps' offset
schedule, if the employee fails to file a request for a hearing unless
such failure is excused as provided in paragraph (b)(1) of this section.
(3) If the employee fails to appear at an oral hearing of which he
or she was notified, unless the hearing official determines failure to
appear was due to circumstances beyond the employee's control, his or
her appeal will be decided on the basis of the documents then available
to the hearing official.
(c) Representation at the hearing. The creditor agency may be
represented by a representative of its choice. The employee may
represent himself or herself or may be represented by an individual of
his or her choice and at his or her expense.
(d) Review of Peace Corps records related to the debt.
(1) An employee who intends to inspect or copy creditor agency
records related to the debt in accordance with Sec. 309.10(a)(5), must
send a letter to the official designated in the notice of intent to
offset stating his or her intention. The letter must be sent within 15
calendar days after receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, copies of such records
shall be sent to the employee.
(e) Hearing official. Unless the Peace Corps appoints an
administrative law judge to conduct the hearing, the Peace Corps must
obtain a hearing official who is not under the supervision or control of
the Peace Corps.
(f) Obtaining the services of a hearing official when the Peace
Corps is the creditor agency.
(1) When the debtor is not a Peace Corps employee, and in the event
that the Peace Corps cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement, the Peace Corps may
contact an agent of the paying agency designated in appendix A to part
581 of title 5, Code of Federal Regulations or as otherwise designated
by the agency, and request a hearing official.
(2) When the debtor is a Peace Corps employee, the Peace Corps may
contact any agent of another agency designated in appendix A to part 581
of title 5, Code of Federal Regulations or otherwise designated by that
agency, to request a hearing official.
(g) Procedure. (1) If the employee requests a review, the hearing
official or administrative law judge shall notify the employee of the
form of the review to be provided. If an oral hearing is authorized, the
notice shall set forth the date, time and location of the hearing. If
the review will be on documentary evidence, the employee shall be
notified that he or she should submit arguments in writing to the
hearing official or administrative law judge by a specified date, after
which the record will be closed. This date shall give the employee
reasonable time (not less than 14 calendar days) to submit
documentation.
[[Page 53]]
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official or administrative law
judge determines that the matter cannot be resolved by review of
documentary evidence alone (e.g. when an issue of credibility or
veracity is involved). The hearing is not an adversarial adjudication,
and need not take the form of an evidentiary hearing. Oral hearings may
take the form of, but are not limited to:
(i) Informal conferences with the hearing official or administrative
law judge, in which the employee and agency representative will be given
full opportunity to present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(3) Paper review. If the hearing official or administrative law
judge determines that an oral hearing is not necessary, he or she will
make the determination based upon a review of the available written
record.
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who
testify in oral hearings will do so under oath or affirmation.
(h) Date of decision. The hearing official or administrative law
judge shall issue a written opinion stating his or her decision, based
upon documentary evidence and information developed at the hearing, as
soon as practicable after the hearing, but not later than 60 calendar
days after the date on which the petition was received by the creditor
agency, unless the employee requests a delay in the proceedings. In such
case the 60 day decision period shall be extended by the number of days
by which the hearing was postponed.
(i) Content of decision. The written decision shall include:
(1) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(2) The hearing official's findings, analysis and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(j) Failure to appear. In the absence of good cause shown (e.g.,
excused illness), an employee who fails to appear at a hearing shall be
deemed, for the purpose of this subpart, to admit the existence and
amount of the debt as described in the notice of intent. If the
representative of the creditor agency fails to appear, the hearing
official shall schedule a new hearing date upon the request of the
agency representative upon showing of good cause. Both parties shall be
given the time and place of the new hearing.
Sec. 309.12 Certification.
(a) The Peace Corps salary offset coordination officer shall provide
a certification to the paying agency in all cases where:
(1) The hearing official determines that a debt exists;
(2) The employee admits the existence and amount of the debt by
failing to request a review; or
(3) The employee admits the existence of the debt by failing to
appear at a hearing.
(b) The certification must be in writing and must state:
(1) That the employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Government's right to collect the debt first
accrued;
(4) That the Peace Corps' regulations have been approved by OPM
pursuant to 5 CFR part 550, subpart K;
(5) The amount and date of any lump sum payment;
(6) If the collection is to be made in installments, the number of
installments to be collected, the amount of each installment, and the
date of the first installment, if a date other than the next officially
established pay period is required; and
(7) The date the action was taken and that it was taken pursuant to
5 U.S.C. 5514.
Sec. 309.13 Voluntary repayment agreements as an alternative to salary offset.
(a) In response to a notice of intent, an employee may propose a
written
[[Page 54]]
agreement to repay the debt as an alternative to salary offset. Any
employee who wishes to repay a debt without salary offset shall submit
in writing a proposed agreement to repay the debt. The proposal shall
admit the existence of the debt and set forth a proposed repayment
schedule. Any proposal under this paragraph must be received by the
official designated in that notice within 15 calendar days after receipt
of the notice of intent.
(b) When the Peace Corps is the creditor agency, in response to a
timely proposal by the debtor the agency will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the agency's discretion to accept a repayment
agreement instead of proceeding by offset.
(c) If the Peace Corps decides that the proposed repayment agreement
is unacceptable, the employee will have 15 calendar days from the date
he or she received notice of the decision to file a petition for a
review.
(d) If the Peace Corps decides that the proposed repayment agreement
is acceptable, the alternative arrangement must be in writing and signed
by both the employee and a designated agency official.
Sec. 309.14 Special review.
(a) An employee subject to salary offset or a voluntary repayment
agreement, may at any time request a special review by the creditor
agency of the amount of the salary offset or voluntary payment, based on
materially changed circumstances such as, but not limited to,
catastrophic illness, divorce, death, or disability.
(b) In determining whether an offset would prevent the employee from
meeting essential subsistence expenses (costs for food, housing,
clothing, transportation and medical care), the employee shall submit a
detailed statement and supporting documents for the employee, his or her
spouse and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) If the employee requests a special review under this section,
the employee shall file an alternative proposed offset or payment
schedule and a statement, with supporting documents, showing why the
current salary offset or payments result in significant financial
hardship to the employee.
(d) The Peace Corps shall evaluate the statement and supporting
documents, and determine whether the original offset or repayment
schedule imposes significant financial hardship on the employee. The
Peace Corps shall notify the employee in writing of such determination,
including, if appropriate, a revised offset or payment schedule.
(e) If the special review results in a revised offset or repayment
schedule, the Peace Corps salary offset coordination officer shall
provide a new certification to the paying agency.
Sec. 309.15 Notice of salary offset.
(a) Upon receipt of proper certification of the creditor agency, the
Peace Corps payroll office will send the employee a written notice of
salary offset. Such notice shall, at a minimum:
(1) Contain a copy of the certification received from the creditor
agency; and
(2) Advise the employee that salary offset will be initiated at the
next officially established pay interval.
(b) The payroll office shall provide a copy of the notice to the
creditor agency and advise such agency of the dollar amount to be offset
and the pay period when the offset will begin.
Sec. 309.16 Procedures for salary offset.
(a) The Director (or designee) shall coordinate salary deductions
under this subpart.
(b) The payroll office shall determine the amount of the employee's
disposable pay and will implement the salary offset.
(c) Deductions shall begin within 3 official pay periods following
receipt by the payroll office of certification.
(d) Types of collection. (1) Lump-sum payment. If the amount of the
debt is equal to or less than 15 percent of disposable pay, such debt
generally will be collected in one lump-sum payment.
[[Page 55]]
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The size
and frequency of installment deductions will bear a reasonable relation
to the size of the debt and the employee's ability to pay. However, the
amount deducted from any period may 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) Lump-sum deductions from final check. A lump-sum deduction
exceeding the 15 percent of disposable pay limitation may be made from
any final salary payment pursuant to 31 U.S.C. 3716 in order to
liquidate the debt, whether the employee is being separated voluntarily
or involuntarily.
(4) Lump-sum deductions from other sources. Whenever an employee
subject to salary offset is separated from the Peace Corps, and the
balance of the debt cannot be liquidated by offset of the final salary
check, the Peace Corps, pursuant to 31 U.S.C. 3716, may offset any later
payments of any kind against the balance of the debt.
(e) Multiple debts. In instances where two or more creditor agencies
are seeking salary offsets, or where two or more debts are owed to a
single creditor agency, the payroll office may, at its discretion,
determine whether one or more debts should be offset simultaneously
within the 15 percent limitation.
(f) Precedence of debts owed to the Peace Corps. For Peace Corps
employees, debts owed to the agency generally take precedence over debts
owed to other agencies. In the event that a debt to the Peace Corps is
certified while an employee is subject to a salary offset to repay
another agency, the payroll office may decide whether to have that debt
repaid in full before collecting its claim or whether changes should be
made in the salary deduction being sent to the other agency. If debts
owed the Peace Corps can be collected in one pay period, the payroll
office may suspend the salary offset to the other agency for that pay
period in order to liquidate the Peace Corps' debt. When an employee
owes two or more debts, the best interests of the Government shall be
the primary consideration in the determination by the payroll office of
the order of the debt collection.
Sec. 309.17 Coordinating salary offset with other agencies.
(a) Responsibility of the Peace Corps as the creditor agency.
(1) The Director or Director's designee shall coordinate debt
collections and shall, as appropriate:
(i) Arrange for a hearing upon proper petition by a federal
employee; and
(ii) Prescribe such practices and procedures as may be necessary to
carry out the intent of this subpart.
(2) Designate a salary offset coordination officer who will be
responsible for:
(i) Ensuring that each notice of intent to offset is consistent with
the requirements of Sec. 309.10;
(ii) Ensuring that each certification of debt sent to a paying
agency is consistent with the requirements of Sec. 309.12;
(iii) Obtaining hearing officials from other agencies pursuant to
Sec. 309.11(f); and
(iv) Ensuring that hearings are properly scheduled.
(3) Request recovery from current paying agency. Upon completion of
the procedures established in these regulations and pursuant to 5 U.S.C.
5514, the Peace Corps must:
(i) Certify, in writing, that the employee owes the debt, the amount
and basis of the debt, the date on which payments are due, the date the
Government's right to collect the debt first accrued, and that the Peace
Corps' regulations implementing 5 U.S.C. 5514 have been approved by the
Office of Personnel Management;
(ii) Advise the paying agency of the actions taken under 5 U.S.C.
5514(a) and give the dates the actions were taken (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);
(iii) Except as otherwise provided in paragraph (a)(3) of this
section, submit a debt claim containing the information specified in
paragraphs (a)(3) (i)
[[Page 56]]
and (ii) of this section and an installment agreement (or other
instruction on the payment schedule), if applicable, to the employee's
paying agency;
(iv) If the employee is in the process of separating, the Peace
Corps must submit its debt claim to the employee's paying agency for
collection as provided in Sec. 309.16. The paying agency must certify
the total amount of its collection and notify the creditor agency and
the employee as provided in paragraph (b)(4) 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 complied
with. However, the Peace Corps must submit a properly certified claim to
the agency responsible for making such payments before the collection
can be made.
(v) If the employee is already separated and all payments due from
his or her former paying agency have been paid, the Peace Corps 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 (See 31 U.S.C. 3716 and 41 CFR 102.4).
(4) When an employee transfers to another paying agency, the Peace
Corps need not repeat the due process procedures described in 5 U.S.C.
5514 and this subpart to continue the collection. The Peace Corps must
review the debt upon receiving the former paying agency's notice of the
employee's transfer to make sure the collection is continued by the new
paying agency.
(b) Responsibility of the Peace Corps as the paying agency.
(1) Complete claim. When the Peace Corps receives a certified claim
from a creditor agency, deductions should be scheduled to begin at the
next officially established pay interval. The employee must receive
written notice that the Peace Corps has received a certified debt claim
from the creditor agency (including the amount) and written notice of
the date salary offset will begin and the amount of such deductions.
(2) Incomplete claim. When the Peace Corps receives an incomplete
certification of debt from a creditor agency, the Peace Corps must
return the debt claim with notice that procedures under 5 U.S.C. 5514
and this subpart must be followed and a properly certified debt claim
received before action will be taken to collect from the employee's
current pay account.
(3) Review. The Peace Corps is not authorized to review the merits
of the creditor agency's determination with respect to the amount or
validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If,
after the creditor agency has submitted the debt claim to the Peace
Corps, the employee transfers to another agency before the debt is
collected in full, the Peace Corps must certify the total amount
collected on the debt. One copy of the certification must be furnished
to the employee and one copy to the creditor agency along with notice of
the employee's transfer.
Sec. 309.18 Interest, penalties and administrative costs.
The Peace Corps shall assess interest, penalties and administrative
costs on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.
Sec. 309.19 Refunds.
(a) In instances where the Peace Corps is the creditor agency, it
shall promptly refund any amounts deducted under the authority of 5
U.S.C. 5514 when:
(1) The debt is waived or otherwise found not to be owed to the
United States; or
(2) An administrative or judicial order directs the Peace Corps to
make a refund.
(b) Unless required or permitted by law or contract, refunds under
this subpart shall not bear interest.
[[Page 57]]
Sec. 309.20 Request for the services of a hearing official from the creditor agency.
(a) The Peace Corps will provide a hearing official upon request of
the creditor agency when the debtor is employed by the Peace Corps and
the creditor agency cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement.
(b) The Peace Corps will provide a hearing official upon request of
a creditor agency when the debtor works for the creditor agency and that
agency cannot arrange for a hearing official.
(c) The salary offset coordination officer will appoint qualified
personnel to serve as hearing officials.
(d) Services rendered under this section will be provided on a fully
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31
U.S.C. 1535.
Sec. 309.21 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under this subpart 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 a written contract or law unless there are statutory or
contractual provisions to the contrary.
Subpart C--Tax Refund Offset
Sec. 309.22 Applicability and scope.
This subpart implements 31 U.S.C. 3720A which authorizes the
Internal Revenue Service (IRS) to reduce a tax refund by the amount of a
past-due legally enforceable debt owed to the United States.
Sec. 309.23 Past-due legally enforceable debt.
For purposes of this subpart, a past-due legally enforceable debt
referable to the IRS is a debt which is owed to the United States and:
(a) Except in the case of a judgment debt, has been delinquent for
at least 3 months and will not have been delinquent more than 10 years
at the time offset is made;
(b) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514;
(c) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the Peace Corps against
amounts payable to the debtor by the Peace Corps;
(d) With respect to which the Peace Corps has given the taxpayer at
least 60 days to present evidence that all or part of the debt is not
past-due or legally enforceable, has considered evidence presented by
such taxpayer, and determined that an amount of such debt is past-due
and legally enforceable;
(e) Has been disclosed by the Peace Corps to a consumer reporting
agency as authorized by 31 U.S.C. 3711(f), unless the consumer reporting
agency would be prohibited from reporting information concerning the
debt by reason of 15 U.S.C. 1681c, or unless the amount of the debt does
not exceed $100;
(f) Is at least $25; and
(g) With respect to which the Peace Corps has notified or has made a
reasonable attempt to notify the taxpayer that:
(1) The debt is past due, and
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any overpayment of tax. For the
purposes of paragraph (g) of this section, in order to make a reasonable
attempt to notify the debtor, Peace Corps must use such address for the
debtor as may be obtainable from IRS pursuant to section 6103(m)(2),
(m)(4), or (m)(5) of the Internal Revenue Code.
Sec. 309.24 Definitions.
For purpose of this subpart: Commissioner means the Commissioner of
the Internal Revenue Service.
Memorandum of Understanding (MOU or agreement) means the agreement
between the IRS and the Peace Corps which prescribes the specific
conditions the Peace Corps must meet before the IRS will accept
referrals for tax refund offsets.
[[Page 58]]
Sec. 309.25 Peace Corps' participation in the IRS tax refund offset program.
(a) The Peace Corps will provide information to the IRS within the
time frame prescribed by the Commissioner of the IRS to enable the
Commissioner to make a final determination as to the Peace Corps'
participation in the tax refund offset program. Such information will
include a description of:
(1) The size and age of the Peace Corps' inventory of delinquent
debts;
(2) The prior collection efforts that the inventory reflects; and
(3) The quality controls the Peace Corps maintains to assure that
any debt that may be submitted for tax refund offset will be valid and
enforceable.
(b) In accordance with the timetable specified by the Commissioner,
the Peace Corps will submit test magnetic media to the IRS, in such form
and containing such data as the IRS shall specify.
(c) The Peace Corps will provide the IRS with a telephone number
which the IRS may furnish to individuals whose refunds have been offset
to obtain information concerning the offset.
Sec. 309.26 Procedures.
(a) The Chief Financial Officer (or designee) shall be the point of
contact with the IRS for administrative matters regarding the offset
program.
(b) The Peace Corps shall ensure that:
(1) Only those past-due legally enforceable debts described in
Sec. 309.23 are forwarded to the IRS for offset; and
(2) The procedures prescribed in the MOU between the Peace Corps and
the IRS are followed in developing past-due debt information and
submitting the debts to the IRS.
(c) The Peace Corps shall submit a notification of a taxpayer's
liability for past-due legally enforceable debt to the IRS on magnetic
media as prescribed by the IRS. Such notification shall contain:
(1) The name and taxpayer identifying number (as defined in section
6109 of the Internal Revenue Code) of the individual who is responsible
for the debt;
(2) The dollar amount of such past-due and legally enforceable debt;
(3) The date on which the original debt became past due;
(4) A statement accompanying each magnetic tape certifying that,
with respect to each debt reported on the tape, all of the requirements
of eligibility of the debt for referral for the refund offset have been
satisfied. See Sec. 309.23.
(d) The Peace Corps shall promptly notify the IRS to correct data
submitted when the Peace Corps:
(1) Determines that an error has been made with respect to a debt
that has been referred;
(2) Receives or credits a payment on such debt; or
(3) Receives notification that the individual owing the debt has
filed for bankruptcy under title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged.
(e) When advising debtors of an intent to refer a debt to the IRS
for offset, the Peace Corps shall also advise the debtors of all
remedial actions available to defer or prevent the offset from taking
place.
Sec. 309.27 Referral of debts for offset.
(a) The Peace Corps shall refer to the IRS for collection by tax
refund offset, from refunds otherwise payable, only such past-due
legally enforceable debts owed to the Peace Corps:
(1) That are eligible for offset under the terms of 31 U.S.C. 3720A,
section 6402(d) of the Internal Revenue Code, 26 CFR 301.6402-6T and the
MOU; and
(2) That information will be provided for each such debt as is
required by the terms of the MOU.
(b) Such referrals shall be made by submitting to the IRS a magnetic
tape pursuant to Sec. 309.26(c), together with a written certification
that the conditions or requirements specified in 26 CFR 301.6402-6T and
the MOU have been satisfied with respect to each debt included in the
referral on such tape. The certification shall be in the form specified
in the MOU.
Sec. 309.28 Notice requirements before offset.
(a) The Peace Corps must notify, or make a reasonable attempt to
notify, the individual that:
(1) The debt is past due; and
[[Page 59]]
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any refund of overpayment of tax.
(b) The Peace Corps shall provide a mailing address for forwarding
any correspondence and a contact name and telephone number for any
questions.
(c) The Peace Corps shall give the individual debtor at least 60
days from the date of the notification to present evidence that all or
part of the debt is not past due or legally enforceable. The Peace Corps
shall consider the evidence presented by the individual and shall make a
determination whether any part of such debt is past due and legally
enforceable. For purposes of this subpart, evidence that collection of
the debt is affected by a bankruptcy proceeding involving the individual
shall bar referral of the debt to the IRS.
(d) Notification given to a debtor pursuant to paragraphs (a), (b),
and (c) of this section shall advise the debtor of how he or she may
present evidence to the Peace Corps that all or part of the debt is not
past due or legally enforceable. Such evidence may not be referred to,
or considered by, individuals who are not officials, employees, or
agents of the United States in making the determination required under
paragraph (c) of this section. Unless such evidence is directly
considered by an official or employee of the Peace Corps, and the
determination required under paragraph (c) of this section has been made
by an official or employee of the Peace Corps, any unresolved dispute
with the debtor as to whether all or part of the debt is past due or
legally enforceable must be referred to the Peace Corps for ultimate
administrative disposition, and the Peace Corps must directly notify the
debtor of its determination.
Subpart D--Administrative Offset
Sec. 309.29 Applicability and scope.
The provisions of this subpart apply to the collection of debts owed
to the United States arising from transactions with the Peace Corps.
Administrative offset is authorized under section 5 of the Federal
Claims Collection Act of 1966, as amended by the Debt Collection Act of
1982 (31 U.S.C. 3716). These regulations are consistent with the Federal
Claims Collection Standards on administrative offset issued jointly by
the Department of Justice and the General Accounting Office as set forth
in 4 CFR part 102.
Sec. 309.30 Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means
withholding money payable by the United States Government to, or held by
the Government for, a person to satisfy a debt the person owes the
Government.
(b) Person includes a natural person or persons, profit or nonprofit
corporation, partnership, association, trust, estate, consortium, or
other entity which is capable of owing a debt to the United States
Government except that agencies of the United States, or of any State or
local government shall be excluded.
Sec. 309.31 General.
(a) The Director of the Peace Corps (or designee) will determine the
feasibility of collection by administrative offset on a case-by-case
basis for each claim established. The Director (or designee) will
consider the following issues in making a determination to collect a
claim by administrative offset:
(1) Can administrative offset be accomplished?
(2) Is administrative offset practical and legal?
(3) Does administrative offset best serve and protect the interest
of the U.S. Government?
(4) Is administrative offset appropriate given the debtor's
financial condition?
(b) The Director (or designee) may initiate administrative offset
with regard to debts owed by a person to another agency of the United
States Government, upon receipt of a request from the head of another
agency or his or her designee, and a certification that the debt exists
and that the person has been afforded the necessary due process rights.
(c) The Director (or designee) may request another agency that holds
funds payable to a Peace Corps debtor to offset the debt against the
funds held and will provide certification that:
[[Page 60]]
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) No collection by administrative offset shall be made on any debt
that has been outstanding for more than 10 years unless facts material
to the Government's right to collect the debt were not known, and
reasonably could not have been known, by the official or officials
responsible for discovering the debt.
(e) Administrative offset under this subpart may not be initiated
against:
(1) A debt in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute;
(2) Debts owed by other agencies of the United States or by any
State or local Government; or
(3) Debts arising under the Internal Revenue Code of 1954; the
Social Security Act; or the tariff laws of the United States.
(f) The procedures for administrative offset in this subpart do not
apply to the offset of Federal salaries under 5 U.S.C. 5514.
Sec. 309.32 Demand for payment--notice.
(a) Whenever possible, the Peace Corps will seek written consent
from the debtor to initiate immediate collection before starting the
formal notification process.
(b) In cases where written agreement to collect cannot be obtained
from the debtor, a formal notification process shall be followed, 4 CFR
102.2. Prior to collecting a claim by administrative offset, the Peace
Corps shall send to the debtor, by certified or registered mail with
return receipt, written demands for payment in terms which inform the
debtor of the consequences of failure to cooperate. A total of 3
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 or the debtor's response
does not require rebuttal, or other pertinent information indicates that
additional written demands would be unnecessary. In determining the
timing of the demand letters, the Peace Corps should 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 1 year of the final determination of the
fact and the amount of the debt. When appropriate to protect the
Government's interests (for example, to prevent the statute of
limitations from expiring), written demand may be preceded by other
appropriate actions, including immediate referral for litigation.
(c) Before offset is made, a written notice will be sent to the
debtor. This notice will include:
(1) The nature and amount of the debt;
(2) The date when payment is due (not less than 30 days from the
date of mailing or hand delivery of the notice);
(3) The agency's intention to collect the debt by administrative
offset, including asking the assistance of other Federal agencies to
help in the offset whenever possible, if the debtor has not made payment
by the payment due date or has not made an arrangement for payment by
the payment due date;
(4) Any provision for interest, late payment penalties and
administrative charges, if payment is not received by the due date;
(5) The possible reporting of the claim to consumer reporting
agencies and the possibility that Peace Corps will forward the claim to
a collection agency;
(6) The right of the debtor to inspect and copy Peace Corps' records
related to the claim;
(7) The right of the debtor to request a review of the determination
of indebtedness and, in the circumstances described below, to request an
oral hearing from the Peace Corps;
(8) The right of the debtor to enter into a written agreement with
the agency to repay the debt in some other way; and
(9) In appropriate cases, the right of the debtor to request a
waiver.
(d) Claims for payment of travel advances and employee training
expenses require notification prior to administrative offset as
described in this section. Because no oral hearing is required, notice
of the right to a hearing need not be included in the notification.
[[Page 61]]
Sec. 309.33 Debtor's failure to respond.
If the debtor fails to respond to the notice described in
Sec. 309.32 (c) by the proposed effective date specified in the notice,
the Peace Corps may take further action under this part or the FCCS
under 4 CFR parts 101 through 105. Peace Corps may collect by
administrative offset if the debtor:
(a) Has not made payment by the payment due date;
(b) Has not requested a review of the claim within the agency as set
out in Sec. 309.34; or
(c) Has not made an arrangement for payment by the payment due date.
Sec. 309.34 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
the debt, or the terms of repayment. A request to review a disputed debt
must be submitted to the Peace Corps official who provided notification
within 30 calendar days of the receipt of the written notice described
in Sec. 309.32(c).
(b) The Peace Corps will provide a copy of the record to the debtor
and advise him/her to furnish available evidence to support his or her
position. Upon receipt of the evidence, the Peace Corps will review the
written record of indebtedness and inform the debtor of its findings.
(c) Pending the resolution of a dispute by the debtor, transactions
in any of the debtor's accounts maintained by the Peace Corps may be
temporarily suspended. Depending on the type of transaction the
suspension could preclude its payment, removal, or transfer, as well as
prevent the payment of interest or discount due thereon. Should the
dispute be resolved in the debtor's favor, the suspension will be
immediately lifted.
(d) During the review period, interest, penalties, and
administrative costs authorized under the Federal Claims Collection Act
of 1966, as amended, will continue to accrue.
Sec. 309.35 Hearing.
(a) A debtor will be provided a reasonable opportunity for an oral
hearing when:
(1)(i) By statute, consideration must be given to a request to waive
the indebtedness;
(ii) The debtor requests waiver of the indebtedness; and
(iii) The waiver determination rests on an issue of creditability or
veracity; or
(2) The debtor requests reconsideration and the Peace Corps
determines that the question of indebtedness cannot be resolved by
reviewing the documentary evidence.
(b) In cases where an oral hearing is provided to the debtor, the
Peace Corps will conduct the hearing, and provide the debtor with a
written decision.
Sec. 309.36 Written agreement for repayment.
If the debtor requests a repayment agreement in place of offset, the
Peace Corps has discretion and should use sound judgment to determine
whether to accept a repayment agreement in place of offset. If the debt
is delinquent and the debtor has not disputed its existence or amount,
the Peace Corps will not accept a repayment agreement in place of offset
unless the debtor is able to establish that offset would cause undue
financial hardship or be unjust. No repayment arrangement will be
considered unless the debtor submits a financial statement, executed
under penalty of perjury, reflecting the debtor's assets, liabilities,
income, and expenses. The financial statement must be submitted within
10 business days of the Peace Corps' request for the statement. At the
Peace Corps' option, a confess-judgment note or bond of indemnity with
surety may be required for installment agreements. Notwithstanding the
provisions of this section, any reduction or compromise of a claim will
be governed by 4 CFR part 103 and 31 CFR 5.3.
Sec. 309.37 Administrative offset procedures.
(a) If the debtor does not exercise the right to request a review
within the time specified in Sec. 309.34, or if as a result of the
review, it is determined that the debt is due and no written agreement
is executed, then administrative offset shall be ordered in accordance
with this subpart without further notice.
[[Page 62]]
(b) Travel advance. The Peace Corps will deduct outstanding advances
provided to Peace Corps travelers from other amounts owed the traveler
by the agency whenever possible and practicable. Monies owed by an
employee for outstanding travel advances which cannot be deducted from
other travel amounts due that employee, will be collected through salary
offset as described in subpart B of this part.
(c) Volunteer allowances. The Peace Corps may deduct through
administrative offset amounts owed the U.S. Government by Volunteers and
Trainees from the readjustment allowance account.
(1) Overseas posts will obtain written consent from Volunteers or
Trainees who are indebted to the agency upon close of service or
termination, to deduct amounts owed from their readjustment allowances.
Posts will immediately submit the written consent to Volunteer and Staff
Payroll Services Division (VSPS).
(2) In cases where written consent from indebted Volunteers or
Trainees cannot be obtained, overseas posts will immediately report the
documented debts to VSPS. VSPS may then initiate offset against the
readjustment allowance. Prior to offset action, VSPS will notify the
debtor Volunteer or Trainee of their rights as required in Sec. 309.32.
(d) Requests for offset to other Federal agencies. The Director or
his or her designee may request that a debt owed to the Peace Corps be
administratively offset against funds due and payable to a debtor by
another Federal agency. In requesting administrative offset, the Peace
Corps, as creditor, will certify in writing to the Federal agency
holding funds of the debtor;
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the Peace Corps has complied with the requirements of 31
U.S.C. 3716, its own administrative offset regulations and the
applicable provisions of 4 CFR part 102 with respect to providing the
debtor with due process.
(e) Requests for offset from other Federal agencies. Any Federal
agency may request that funds due and payable to its debtor by the Peace
Corps be administratively offset in order to collect a debt owed to such
Federal agency by the debtor. The Peace Corps shall initiate the
requested offset only upon:
(1) Receipt of written certification from the creditor agency:
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise of
administrative offset; and
(iv) That the agency has complied with its own administrative offset
regulations and with the applicable provisions of 4 CFR part 102,
including providing any required hearing or review.
(2) A determination by the Peace Corps that collection by offset
against funds payable by the Peace Corps would be in the best interest
of the United States as determined by the facts and circumstances of the
particular case, and that such offset would not otherwise be contrary to
law.
Sec. 309.38 Civil and Foreign Service Retirement Fund.
(a) Unless otherwise prohibited by law, Peace Corps may request that
monies that are due and payable to a debtor from the Civil Service
Retirement and Disability Fund, the Foreign Service Retirement Fund or
any other Federal retirement fund be administratively offset in
reasonable amounts in order to collect in one full payment or a minimal
number of payments, debts owed the United States by the debtor. Such
requests shall be made to the appropriate officials of the respective
fund servicing agency in accordance with such regulations as may be
prescribed by the Director of that agency. The requests for
administrative offset will certify in writing the following:
(1) The debtor owes the United States a debt and the amount of the
debt;
(2) The Peace Corps has complied with applicable regulations and
procedures;
(3) The Peace Corps has followed the requirements of the FCCS as
described in this subpart.
(b) Once Peace Corps decides to request 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
[[Page 63]]
the fund servicing agency may identify and flag the debtor's account in
anticipation of the time when the debtor requests or becomes eligible to
receive payments from the fund. This will satisfy any requirements that
offset will be initiated prior to expiration of the statute of
limitations.
(c) If Peace Corps collects part or all of the debt by other means
before deductions are made or completed pursuant to paragraph (a) of
this section, Peace Corps shall act promptly to modify or terminate its
request for offset.
(d) This section does not require or authorize the fund servicing
agency to review the merits of Peace Corps' determination relative to
the debt.
Sec. 309.39 Jeopardy procedure.
The Peace Corps may effect an administrative offset against a
payment to be made to the debtor prior to the completion of the
procedures required by Sec. 309.32(c) of this subpart if failure to take
the offset would substantially jeopardize the Peace Corps' ability to
collect the debt, and the time available before the payment is to be
made does not reasonably permit the completion of those procedures. Such
prior offset shall be promptly followed by the completion of those
procedures. Amounts recovered by offset but later found not to be owed
to the Peace Corps shall be promptly refunded.
Subpart E--Use of Consumer Reporting Agencies and Referrals to
Collection Agencies
Sec. 309.40 Use of consumer reporting agencies.
(a) The Peace Corps may report delinquent debts to consumer
reporting agencies (see 31 U.S.C. 3701(a)(3)). Sixty days prior to
release of information to a consumer reporting agency, the debtor shall
be notified, in writing, of the intent to disclose the existence of the
debt to a consumer reporting agency. Such notice of intent may be
separate correspondence or included in correspondence demanding direct
payment. The notice shall be in conformance with 31 U.S.C. 3711(f) and
the Federal Claims Collection Standards.
(b) The information that may be disclosed to the consumer reporting
agency is limited to:
(1) The debtor's name, address, social security number or taxpayer
identification number, and any other information necessary to establish
the identity of the individual;
(2) The amount, status, and history of the claim; and
(3) The Peace Corps program or activity under which the claim arose.
Sec. 309.41 Referrals to collection agencies.
(a) Peace Corps has authority to contract for collection services to
recover delinquent debts in accordance with 31 U.S.C. 3718(c) and the
FCCS (4 CFR 102.6).
(b) Peace Corps will use private collection agencies where it
determines that their use is in the best interest of the Government.
Where Peace Corps determines that there is a need to contract for
collection services, the contract will provide that:
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, and refer the matter to the Department of
Justice for litigation or to take any other action under this Part will
be retained by the Peace Corps;
(2) Contractors are 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 is required to strictly account for all amounts
collected;
(4) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable Peace Corps to
determine whether to pursue collection through litigation or to
terminate collection;
(5) The contractor must agree to provide any data in its files
relating to paragraphs (a) (1), (2) and (3) of section 105.2 of the
Federal Claims Collection Standards upon returning the account to Peace
Corps for subsequent referral to the Department of Justice for
litigation.
[[Page 64]]
(c) Peace Corps will not use a collection agency to collect a debt
owed by a current employed or retired Federal employee, if collection by
salary or annuity offset is available.
Subpart F--Compromise, Suspension or Termination and Referral of Claims
Sec. 309.42 Compromise.
Peace Corps may attempt to effect compromise in accordance with the
standards set forth in part 103 of the FCCS (4 CFR part 103).
Sec. 309.43 Suspending or terminating collection.
Suspension or termination of collection action shall be made in
accordance with the standards set forth in Part 104 of the FCCS (4 CFR
104)
Sec. 309.44 Referral of claims.
Claims on which an aggressive collection action has been taken and
which cannot be collected, compromised or on which collection action
cannot be suspended or terminated under parts 103 and 104 of the FCCS (4
CFR parts 103 and 104), shall be referred to the General Accounting
Office or the Department of Justice, as appropriate, in accordance with
the procedures set forth in part 105 of the FCCS (4 CFR part 105).
PART 310--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents
Subpart A--General
Sec.
310.100 Purpose.
310.105 Definitions.
310.110 Coverage.
310.115 Policy.
Subpart B--Effect of Action
310.200 Debarment or suspension.
310.205 Ineligible persons.
310.210 Voluntary exclusion.
310.215 Exception provision.
310.220 Continuation of covered transactions.
310.225 Failure to adhere to restrictions.
Subpart C--Debarment
310.300 General.
310.305 Causes for debarment.
310.310 Procedures.
310.311 Investigation and referral.
310.312 Notice of proposed debarment.
310.313 Opportunity to contest proposed debarment.
310.314 Debarring official's decision.
310.315 Settlement and voluntary exclusion.
310.320 Period of debarment.
310.325 Scope of debarment.
Subpart D--Suspension
310.400 General.
310.405 Causes for suspension.
310.410 Procedures.
310.411 Notice of suspension.
310.412 Opportunity to contest suspension.
310.413 Suspending official's decision.
310.415 Period of suspension.
310.420 Scope of suspension.
Subpart E--Responsibilities of GSA, Agency and Participants
310.500 GSA responsibilities.
310.505 Peace Corps responsibilities.
310.510 Participants' responsibilities.
Subpart F--Drug-Free Workplace Requirements (Grants)
310.600 Purpose.
310.605 Definitions.
310.610 Coverage.
310.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
310.620 Effect of violation.
310.625 Exception provision.
310.630 Certification requirements and procedures.
310.635 Reporting of and employee sanctions for convictions of criminal
drug offenses.
Appendix A to Part 310--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 310--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered
Transactions
Appendix C to Part 310--Certification Regarding Drug-Free Workplace
Requirements
Authority: E.O. 12549; Sec. 5151-5160 of the Drug-Free Workplace Act
of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.);
22 U.S.C. 2503.
Source: 54 FR 4722, 4734, Jan. 30, 1989, unless otherwise noted.
[[Page 65]]
Cross References: 1. For additional information, see related
documents published at 52 FR 20360, May 29, 1987; 53 FR 19160, May 26,
1988; 53 FR 34474, Sept. 6, 1988; and 60 FR 33036, June 26, 1995.
2. See also Office of Management and Budget notice published at 55
FR 21679, May 25, 1990.
Subpart A--General
Sec. 310.100 Purpose.
(a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the
guidelines promulgated by the Office of Management and Budget under
section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended
participants, participants declared ineligible (see definition of
``ineligible'' in Sec. 310.105), and participants who have voluntarily
excluded themselves from participation in covered transactions;
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR,
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec.
2455, 108 Stat. 3327) by--
(1) Providing for the inclusion in the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs all persons proposed for
debarment, debarred or suspended under the Federal Acquisition
Regulation, 48 CFR Part 9, subpart 9.4; persons against which
governmentwide exclusions have been entered under this part; and persons
determined to be ineligible; and
(2) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
[60 FR 33040, 33045, June 26, 1995]
Sec. 310.105 Definitions.
The following definitions apply to this part:
Adequate evidence. Information sufficient to support the reasonable
belief that a particular act or omission has occurred.
Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person controls or has the power to control both. Indicia of
control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities
and equipment, common use of employees, or a business entity organized
following the suspension or debarment of a person which has the same or
similar management, ownership, or principal employees as the suspended,
debarred, ineligible, or voluntarily excluded person.
Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
Civil judgment. The disposition of a civil action by any court of
competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability under
the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-12).
Conviction. A judgment or conviction of a criminal offense by any
court of
[[Page 66]]
competent jurisdiction, whether entered upon a verdict or a plea,
including a plea of nolo contendere.
Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ``debarred.''
Debarring official. An official authorized to impose debarment. The
debarring official is either:
(1) The agency head, or
(2) An official designated by the agency head.
Indictment. Indictment for a criminal offense. An information or
other filing by competent authority charging a criminal offense shall be
given the same effect as an indictment.
Ineligible. Excluded from participation in Federal nonprocurement
programs pursuant to a determination of ineligibility under statutory,
executive order, or regulatory authority, other than Executive Order
12549 and its agency implementing regulations; for example, excluded
pursuant to the Davis-Bacon Act and its implementing regulations, the
equal employment opportunity acts and executive orders, or the
environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State or local
government or quasi-governmental authority is a party. The term includes
appeals from such proceedings.
List of Parties Excluded from Federal Procurement and Nonprocurement
Programs. A list compiled, maintained and distributed by the General
Services Administration (GSA) containing the names and other information
about persons who have been debarred, suspended, or voluntarily excluded
under Executive Orders 12549 and 12689 and these regulations or 48 CFR
part 9, subpart 9.4, persons who have been proposed for debarment under
48 CFR part 9, subpart 9.4, and those persons who have been determined
to be ineligible.
Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have been
received by the addressee five days after being properly sent to the
last address known by the agency.
Participant. Any person who submits a proposal for, enters into, or
reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
Person. Any individual, corporation, partnership, association, unit
of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
Preponderance of the evidence. Proof by information that, compared
with that opposing it, leads to the conclusion that the fact at issue is
more probably true than not.
Principal. Officer, director, owner, partner, key employee, or other
person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(1) Principal investigators.
Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
Respondent. A person against whom a debarment or suspension action
has been initiated.
[[Page 67]]
State. Any of the 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 of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers that instrumentality to be an agency of the
State government.
Suspending official. An official authorized to impose suspension.
The suspending official is either:
(1) The agency head, or
(2) An official designated by the agency head.
Suspension. An action taken by a suspending official in accordance
with these regulations that immediately excludes a person from
participating in covered transactions for a temporary period, pending
completion of an investigation and such legal, debarment, or Program
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded
is ``suspended.''
Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
[54 FR 4722, 4734, Jan. 30, 1989, as amended at 60 FR 33041, 33045, June
26, 1995]
Sec. 310.110 Coverage.
(a) These regulations apply to all persons who have participated,
are currently participating or may reasonably be expected to participate
in transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ``covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: Grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to
[[Page 68]]
the individual's present responsibility (but benefits received in an
individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ``Effect of Action,'' Sec. 310.200, ``Debarment
or suspension,'' sets forth the consequences of a debarment or
suspension. Those consequences would obtain only with respect to
participants and principals in the covered transactions and activities
described in Sec. 310.110(a). Sections 310.325, ``Scope of debarment,''
and 310.420, ``Scope of suspension,'' govern the extent to which a
specific participant or organizational elements of a participant would
be automatically included within a debarment or suspension action, and
the conditions under which affiliates or persons associated with a
participant may also be brought within the scope of the action.
(c) Relationship to Federal procurement activities. In accordance
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment,
suspension, proposed debarment or other governmentwide exclusion
initiated under the Federal Acquisition Regulation (FAR) on or after
August 25, 1995 shall be recognized by and effective for Executive
Branch agencies and participants as an exclusion under this regulation.
Similarly, any debarment, suspension or other governmentwide exclusion
initiated under this regulation on or after August 25, 1995 shall be
recognized by and effective for those agencies as a debarment or
suspension under the FAR.
[54 FR 4722, 4734, Jan. 30, 1989, as amended at 60 FR 33041, 33045, June
26, 1995]
Sec. 310.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
Subpart B--Effect of Action
Sec. 310.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the Executive Branch of the Federal Government for the period
of their debarment, suspension, or the period they are proposed for
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall
enter into primary covered transactions with such excluded persons
during such period, except as permitted pursuant to Sec. 310.215.
(b) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see Sec. 310.110(a)(1)(ii)) for the period of
their exclusion.
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for--
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves
[[Page 69]]
mandatory), including deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
[60 FR 33041, 33045, June 26, 1995]
Sec. 310.205 Ineligible persons.
Persons who are ineligible, as defined in Sec. 310.105(i), are
excluded in accordance with the applicable statutory, executive order,
or regulatory authority.
Sec. 310.210 Voluntary exclusion.
Persons who accept voluntary exclusions under Sec. 310.315 are
excluded in accordance with the terms of their settlements. Peace Corps
shall, and participants may, contact the original action agency to
ascertain the extent of the exclusion.
Sec. 310.215 Exception provision.
Peace Corps may grant an exception permitting a debarred, suspended,
or voluntarily excluded person, or a person proposed for debarment under
48 CFR part 9, subpart 9.4, to participate in a particular covered
transaction upon a written determination by the agency head or an
authorized designee stating the reason(s) for deviating from the
Presidential policy established by Executive Order 12549 and
Sec. 310.200. However, in accordance with the President's stated
intention in the Executive Order, exceptions shall be granted only
infrequently. Exceptions shall be reported in accordance with
Sec. 310.505(a).
[60 FR 33041, 33045, June 26, 1995]
Sec. 310.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in
Sec. 310.215.
[60 FR 33041, 33045, June 26, 1995]
Sec. 310.225 Failure to adhere to restrictions.
(a) Except as permitted under Sec. 310.215 or Sec. 310.220, a
participant shall not knowingly do business under a covered transaction
with a person who is--
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered
transaction.
(b) Violation of the restriction under paragraph (a) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
(c) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded
[[Page 70]]
from the covered transaction (See appendix B of these regulations),
unless it knows that the certification is erroneous. An agency has the
burden of proof that a participant did knowingly do business with a
person that filed an erroneous certification.
[60 FR 33041, 33045, June 26, 1995]
Subpart C--Debarment
Sec. 310.300 General.
The debarring official may debar a person for any of the causes in
Sec. 310.305, using procedures established in Secs. 310.310 through
Sec. 310.314. The existence of a cause for debarment, however, does not
necessarily require that the person be debarred; the seriousness of the
person's acts or omissions and any mitigating factors shall be
considered in making any debarment decision.
Sec. 310.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
Secs. 310.300 through Sec. 310.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
March 1, 1989, the effective date of these regulations or a procurement
debarment by any Federal agency taken pursuant to 48 CFR subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in Sec. 310.215 or Sec. 310.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 310.315 or of any settlement of a
debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in Sec. 310.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
[54 FR 4722, 4734, Jan. 30, 1989, as amended at 54 FR 4950, 4955, Jan.
31, 1989]
Sec. 310.310 Procedures.
Peace Corps shall process debarment actions as informally as
practicable, consistent with the principles of fundamental fairness,
using the procedures in Secs. 310.311 through 310.314.
Sec. 310.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any
[[Page 71]]
source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
Sec. 310.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the
respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under Sec. 310.305 for proposing
debarment;
(d) Of the provisions of Secs. 310.311 through 310.314, and any
other Peace Corps procedures, if applicable, governing debarment
decisionmaking; and
(e) Of the potential effect of a debarment.
Sec. 310.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
Sec. 310.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c) (1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes
[[Page 72]]
the determination referred to in Sec. 310.215.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision not
to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
Sec. 310.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Peace Corps may, at
any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion
of the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
Sec. 310.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the
seriousness of the cause(s). If a suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
(1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements
of subpart F of this part (see 310.305(c)(5)), the period of debarment
shall not exceed five years.
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest.
However, a debarment may not be extended solely on the basis of the
facts and circumstances upon which the initial debarment action was
based. If debarment for an additional period is determined to be
necessary, the procedures of Secs. 310.311 through 310.314 shall be
followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such a
request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination or other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
[54 FR 4722, 4734, Jan. 30, 1989, as amended at 54 FR 4950, 4955, Jan.
31, 1989]
Sec. 310.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the
participant that is specifically named and given notice of the proposed
debarment and an opportunity to respond (see Secs. 310.311 through
310.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper
[[Page 73]]
conduct of a participant may be imputed to any officer, director,
shareholder, partner, employee, or other individual associated with the
participant who participated in, knew of, or had reason to know of the
participant's conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement or with the knowledge, approval, or
acquiescence of these participants. Acceptance of the benefits derived
from the conduct shall be evidence of such knowledge, approval, or
acquiescence.
Subpart D--Suspension
Sec. 310.400 General.
(a) The suspending official may suspend a person from any of the
causes in Sec. 310.405 using procedures established in Secs. 310.410
through 310.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in Sec. 310.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This assessment
should include an examination of basic documents such as grants,
cooperative agreements, loan authorizations, and contracts.
Sec. 310.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
Sec. 310.400 through Sec. 310.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in
Sec. 310.305(a); or
(2) That a cause for debarment under Sec. 310.305 may exist.
(b) Indictment shall constitute adequte evidence for purposes of
suspension actions.
Sec. 310.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Peace Corps shall process suspension
actions as informally as practicable, consistent with principles of
fundamental fairness, using the procedures in Sec. 310.411 through
Sec. 310.413.
Sec. 310.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further Federal Government
dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put
the respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under Sec. 310.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of Sec. 310.411 through Sec. 310.413 and any
other [Peace Corps] procedures, if applicable, governing suspension
decisionmaking; and
(g) Of the effect of the suspension.
Sec. 310.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to
[[Page 74]]
the suspension, respondent(s) shall be afforded an opportunity to appear
with a representative, submit documentary evidence, present witnesses,
and confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
Sec. 310.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see Sec. 310.320(c) for reasons for reducing the period or
scope of debarment) or may leave it in force. However, a decision to
modify or terminate the suspension shall be without prejudice to the
subsequent imposition of suspension by any other agency or debarment by
any agency. The decision shall be rendered in accordance with the
following provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specificially determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
Sec. 310.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the
completion of an investigation or ensuring legal, debarment, or Program
Fraud Civil Remedies Act proceedings, unless terminated sooner by the
suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice
of an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
Sec. 310.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see Sec. 310.325), except that the procedures of Secs. 310.410 through
310.413 shall be used in imposing a suspension.
[[Page 75]]
Subpart E--Responsibilities of GSA, Agency and Participants
Sec. 310.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
Sec. 310.505 Peace Corps responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspensions, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Peace Corps has granted exceptions under Sec. 310.215 permitting
participation by debarred, suspended, or voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in Sec. 310.500(b) and of
the exceptions granted under Sec. 310.215 within five working days after
taking such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
Sec. 310.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not
necessarily result in denial of participation. However, the
certification, and any additional information pertaining to the
certification submitted by the participant, shall be considered in the
administration of covered transactions.
(b) Certification by participants in lower tier covered
transactions. (1) Each participant shall require participants in lower
tier covered transactions to include the certification in appendix B to
this part for it and its principals in any proposal submitted in
connection with such lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligibility of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
[[Page 76]]
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Peace Corps if at any time the
participant learns that its certification was erroneous when submitted
or has become erroneous by reason of changed circumstances. Participants
in lower tier covered transactions shall provide the same updated notice
to the participant to which it submitted its proposal.
Subpart F--Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21694, May 25, 1990, unless otherwise noted.
Sec. 310.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that--
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5,
and 52.2.
Sec. 310.605 Definitions.
(a) Except as amended in this section, the definitions of
Sec. 310.105 apply to this subpart.
(b) For purposes of this subpart--
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work
done in connection with a specific grant at which employees of the
grantee are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged
in the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals,
[[Page 77]]
i.e., any benefit to veterans, their families, or survivors by virtue of
the service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the 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 of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers the instrumentality to be an agency of the
State government.
Sec. 310.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(c) The provisions of subparts A, B, C, D and E of this part apply
to matters covered by this subpart, except where specifically modified
by this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
Sec. 310.615 Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that--
(a) The grantee has made a false certification under Sec. 310.630;
(b) With respect to a grantee other than an individual--
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual--
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
Sec. 310.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
Sec. 310.615, and in accordance with applicable law, the grantee shall
be subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see Sec. 310.320(a)(2) of this
part).
Sec. 310.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
[[Page 78]]
Sec. 310.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.
Sec. 310.635 Reporting of and employee sanctions for convictions of criminal drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
[[Page 79]]
(i) Take appropriate personnel action against the employee, up to
and including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(Approved by the Office of Management and Budget under control number
0991-0002)
Appendix A to Part 310--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
4. The prospective primary participant shall provide immediate
written notice to the department or agency to which this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may
contact the department or agency to which this proposal is being
submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ``Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency
entering into this covered transaction, without modification, in all
lower tier covered transactions and in all solicitations for lower tier
covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
[[Page 80]]
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
Certification Regarding Debarment, Suspension, and Other Responsibility
Matters--Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal department
or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local)
terminated for cause or default.
(2) Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, 33045, June 26, 1995]
Appendix B to Part 310--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or had become erroneous by
reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meaning set out in the Definitions and Coverage
sections of rules implementing Executive Order 12549. You may contact
the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
``Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this
[[Page 81]]
clause. The knowledge and information of a participant is not required
to exceed that which is normally possessed by a prudent person in the
ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility an
Voluntary Exclusion--Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, 33045, June 26, 1995]
Appendix C to Part 310--Certification Regarding Drug-Free Workplace
Requirements
Instructions for Certification
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals,
need not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and, (iii)
Temporary personnel and consultants who are directly engaged in the
performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the grantee's
payroll; or employees of subrecipients or subcontractors in covered
workplaces).
Certification Regarding Drug-Free Workplace Requirements
Alternate I. (Grantees Other Than Individuals)
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
[[Page 82]]
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about--
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph
(a) that, as a condition of employment under the grant, the employee
will--
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the identification
number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted--
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s)
for the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Check [squ] if there are workplaces on file that are not identified
here.
Alternate II. (Grantees Who Are Individuals)
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
[55 FR 21688, 21694, May 25, 1990]
PART 311--NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A--General
Sec.
311.100 Conditions on use of funds.
311.105 Definitions.
311.110 Certification and disclosure.
Subpart B--Activities by Own Employees
311.200 Agency and legislative liaison.
311.205 Professional and technical services.
311.210 Reporting.
Subpart C--Activities by Other Than Own Employees
311.300 Professional and technical services.
Subpart D--Penalties and Enforcement
311.400 Penalties.
311.405 Penalty procedures.
311.410 Enforcement.
Subpart E--Exemptions
311.500 Secretary of Defense.
Subpart F--Agency Reports
311.600 Semi-annual compilation.
[[Page 83]]
311.605 Inspector General report.
Appendix A to Part 311--Certification Regarding Lobbying
Appendix B to Part 311--Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 22
U.S.C. 2503.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Source: 55 FR 6737, 6749, Feb. 26, 1990, unless otherwise noted.
Subpart A--General
Sec. 311.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 311.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
[[Page 84]]
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. 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, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance
[[Page 85]]
commitment, or loan guarantee commitment. An officer or employee who is
employed by such person for less than 130 working days within one year
immediately preceding the date of the submission that initiates agency
consideration of such person shall be considered to be regularly
employed as soon as he or she is employed by such person for 130 working
days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 311.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement, shall file a certification, and a
disclosure form, if required, to the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23,
[[Page 86]]
1989 effective date of these provisions, but not made before December
23, 1989, disclosure forms shall not be required at time of award or
commitment but shall be filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B--Activities by Own Employees
Sec. 311.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in
Sec. 311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 311.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in
Sec. 311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly
[[Page 87]]
and solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 311.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C--Activities by Other Than Own Employees
Sec. 311.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in
Sec. 311.100 (a), does not apply in the case of any reasonable payment
to a person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 311.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
or a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by
[[Page 88]]
law or regulation, and any other requirements in the actual award
documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D--Penalties and Enforcement
Sec. 311.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 311.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 311.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E--Exemptions
Sec. 311.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F--Agency Reports
Sec. 311.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
[[Page 89]]
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 311.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Appendix A to Part 311--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting
[[Page 90]]
to influence an officer or employee of any agency, a Member of Congress,
an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit
Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in accordance
with its instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
[[Page 91]]
Appendix B to Part 311--Disclosure Form to Report Lobbying
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[[Page 93]]
[GRAPHIC] [TIFF OMITTED] TC13OC91.002
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CHAPTER IV--INTERNATIONAL
JOINT COMMISSION,
UNITED STATES AND CANADA
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Part Page
401 Rules of procedure.......................... 97
[[Page 97]]
PART 401--RULES OF PROCEDURE--Table of Contents
Subpart A--General
Sec.
401.1 Definitions.
401.2 Chairmen.
401.3 Permanent offices.
401.4 Duties of secretaries.
401.5 Meetings.
401.6 Service of documents.
401.7 Conduct of hearings.
401.8 Decision by the whole Commission.
401.9 Suspension or amendment of rules.
401.10 General rule.
401.11 Availability of records.
Subpart B--Applications
401.12 Presentation to Commission.
401.13 Copies required.
401.14 Authorization by Government.
401.15 Notice of publication.
401.16 Statement in response
401.17 Statement in reply.
401.18 Supplemental or amended applications and statements.
401.19 Reducing or extending time and dispensing with statements.
401.20 Interested persons and counsel.
401.21 Consultation.
401.22 Attendance of witnesses and production of documents.
401.23 Hearings.
401.24 Expenses of proceedings.
401.25 Government brief regarding navigable waters.
Subpart C--References
401.26 Presentation to Commission.
401.27 Notice and publication.
401.28 Advisory boards.
401.29 Hearings.
401.30 Proceedings under Article X.
Authority: Art. XII, 36 Stat. 2453.
Source: 30 FR 3379, Mar. 13, 1965, unless otherwise noted.
Subpart A--General
Sec. 401.1 Definitions.
(a) In the construction of the regulations in this part, unless the
context otherwise requires, words importing the singular number shall
include the plural and words importing the plural number shall include
the singular; and,
(b) Applicant means the Government or person on whose behalf on
application is presented to the Commission in accordance with
Sec. 401.12;
(c) Government means the Government of Canada or the Government of
the United States of America;
(d) Person includes Province, State, department or agency of a
Province or State, municipality, individual, partnership, corporation
and association, but does not include the Government of Canada or the
Government of the United States of America;
(e) Oath includes affirmation;
(f) Reference means the document by which a question or matter of
difference is referred to the Commission pursuant to Article IX of the
Treaty;
(g) The Treaty means the Treaty between the United States of America
and His Majesty the King, dated the 11th day of January 1909;
(h) Canadian section consists of the commissioners appointed by Her
Majesty on the recommendation of the Governor in Council of Canada;
(i) United States section consists of the Commissioners appointed by
the President of the United States.
Sec. 401.2 Chairmen.
(a) The commissioners of the United States section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the United States Section of the International Joint
Commission, and he shall act as chairman at all meetings of the
Commission held in the United States and in respect to all matters
required to be done in the United States by the chairman of the
Commission.
(b) The commissioners of the Canadian section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the Canadian Section of the International Joint Commission,
and he shall act as chairman at all meetings of the Commission held in
Canada and in respect to all matters required to be done in Canada by
the chairman of the Commission.
(c) In case it shall be impracticable for the chairman of either
section to act in any matter, the commissioner of such section who is
senior in order of appointment shall act in his stead.
Sec. 401.3 Permanent offices.
The permanent offices of the Commission shall be at Washington, in
the
[[Page 98]]
District of Columbia, and at Ottawa, in the Province of Ontario, and,
subject to the directions of the respective chairmen acting for their
respective sections, the secretaries of the United States and Canadian
sections of the Commission shall have full charge and control of said
offices, respectively.
Sec. 401.4 Duties of secretaries.
(a) The secretaries shall act as joint secretaries at all meetings
and hearings of the Commission. The secretary of the section of the
Commission of the country in which a meeting or hearing is held shall
prepare a record thereof and each secretary shall preserve an authentic
copy of the same in the permanent offices of the Commission.
(b) Each secretary shall receive and file all applications,
references and other papers properly presented to the Commission in any
proceeding instituted before it and shall number in numerical order all
such applications and references; the number given to an application or
reference shall be the primary file number for all papers relating to
such application or reference.
(c) Each secretary shall forward to the other for filing in the
office of the other copies of all official letters, documents, records
or other papers received by him or filed in his office, pertaining to
any proceeding before the Commission, to the end that there shall be on
file in each office either the original or a copy of all official
letters and other papers, relating to the said proceeding.
(d) Each secretary shall also forward to the other for filing in the
office of the other copies of any letters, documents or other papers
received by him or filed in his office which are deemed by him to be of
interest to the Commission.
Sec. 401.5 Meetings.
(a) Subject at all times to special call or direction by the two
Governments, meetings of the Commission shall be held at such times and
places in the United States and Canada as the Commission or the Chairman
may determine and in any event shall be held each year at Washington in
April and at Ottawa in October, beginning ordinarily on the first
Tuesday of the said months.
(b) If the Commission determines that a meeting shall be open to the
public, it shall give such advance notice to this effect as it considers
appropriate in the circumstances.
Sec. 401.6 Service of documents.
(a) Where the secretary is required by the regulations in this part
to give notice to any person, this shall be done by delivering or
mailing such notice to the person at the address for service that the
said person has furnished to the Commission, or if no such address has
been furnished, at the dwelling house or usual place of abode or usual
place of business of such person.
(b) Where the secretary is required by the regulations in this part
to give notice to a Government, this shall be done by delivering or
mailing such notice to the Secretary of State for External Affairs of
Canada or to the Secretary of State of the United States of America, as
the case may be.
(c) Service of any document pursuant to Sec. 401.22 shall be by
delivering a copy thereof to the person named therein, or by leaving the
same at the dwelling house or usual place of abode or usual place of
business of such person. The person serving the notice or request shall
furnish an affidavit to the secretary stating the time and place of such
service.
Sec. 401.7 Conduct of hearings.
Hearings may be conducted, testimony received and arguments thereon
heard by the whole Commission or by one or more Commissioners from each
section of the Commission, designated for that purpose by the respective
sections or the Chairman thereof.
Sec. 401.8 Decision by the whole Commission.
The whole Commission shall consider and determine any matter or
question which the Treaty or any other treaty or international
agreement, either in terms or by implication, requires or makes it the
duty of the Commission to determine. For the purposes of this section
and Sec. 401.7, ``the whole Commission'' means all of the commissioners
appointed pursuant to Article VII of the Treaty whose terms of office
have not expired and who are not prevented
[[Page 99]]
by serious illness or other circumstances beyond their control from
carrying out their functions as commissioners. In no event shall a
decision be made without the concurrence of at least four commissioners.
Sec. 401.9 Suspension or amendment of rules.
The commission may suspend, repeal, or amend all or any of the rules
of procedure at any time, with the concurrence of at least four
commissioners. Both Governments shall be informed forthwith of any such
action.
Sec. 401.10 General rule.
The Commission may, at any time, adopt any procedure which it deems
expedient and necessary to carry out the true intent and meaning of the
Treaty.
Sec. 401.11 Availability of records.
(a) The following items in the official records of the Commission
shall be available for public information at the permanent offices of
the Commission.
Applications.
References.
Public Notices.
Press Releases.
Statements in Response.
Statements in Reply.
Records of hearings, including exhibits filed.
Brief and formal Statements submitted at hearings or at other times.
(b) Decisions rendered and orders issued by the Commission and
formal opinions of any of the Commissioners with relation thereto, shall
be available similarly for public information after duplicate originals
of the decisions or orders have been transmitted to and filed with the
Governments pursuant to Article XI of the Treaty.
(c) Copies of reports submitted to one or both of the Governments
pursuant to the Treaty shall be available similarly for public
information only with the consent of the Government or Governments to
whom the reports are addressed.
(d) Reports, letters, memoranda and other communications addressed
to the Commissions, by boards or committees created by or at the request
of the Commission, are privileged and shall become available for public
information only in accordance with a decision of the Commission to that
effect.
(e) Except as provided in the preceding paragraphs of this section,
records of deliberations, and documents, letters, memoranda and
communications of every nature and kind in the official records of the
Commission, whether addressed to or by the Commission, commissioners,
secretaries, advisers or any of them, are privileged and shall become
available for public information only in accordance with a decision of
the Commission to that effect.
(f) A copy of any document, report, record or other paper which
under this section is available for public information may be furnished
to any person upon payment of any cost involved in its reproduction.
Subpart B--Applications
Sec. 401.12 Presentation to Commission.
(a) Where one or the other of the Governments on its own initiative
seeks the approval of the commission for the use, obstruction or
diversion of waters with respect to which under Articles III or IV of
the Treaty the approval of the Commission is required, it shall present
to the Commission an application setting forth as fully as may be
necessary for the information of the Commission the facts upon which the
application is based and the nature of the order of approval desired.
(b) Where a person seeks the approval of the Commission for the use,
obstruction or diversion of waters with respect to which under Articles
III or IV of the Treaty the approval of the Commission is required, he
shall prepare an application to the Commission and forward it to the
Government within whose jurisdiction such use, obstruction or diversion
is to be made, with the request that the said application be transmitted
to the Commission. If such Government transmits the application to the
Commission with a request that it take appropriate action thereon, the
same shall be filed by the Commission in the same manner as an
application presented in accordance with paragraph (a) of this section.
Transmittal of the application to the Commission shall not be construed
as authorization
[[Page 100]]
by the Government of the use, obstruction or diversion proposed by the
applicant. All applications by persons shall conform, as to their
contents, to the requirements of paragraph (a) of this section.
(c) Where the Commission has issued an Order approving a particular
use, obstruction or diversion, in which it has specifically retained
jurisdiction over the subject matter of an application and has reserved
the right to make further orders relating thereto, any Government or
person entitled to request the issuance of such further order may
present to the Commission a request, setting forth the facts upon which
it is based and the nature of the further order desired. On receipt of
the request, the Commission shall proceed in accordance with the terms
of the Order in which the Commission specifically retained jurisdiction.
In each case the secretaries shall notify both Governments and invite
their comments before the request is complied with.
Sec. 401.13 Copies required.
(a) Subject to paragraph (c) of this section, two duplicate
originals and fifty copies of the application and of any supplemental
application, statement in response, supplemental statement in response,
statement in reply and supplemental statement in reply shall be
delivered to either secretary. On receipt of such documents, the
secretary shall forthwith send one duplicate original and twenty-five
copies to the other secretary.
(b) Subject to paragraph (c) of this section, two copies of such
drawings, profiles, plans or survey, maps and specifications as may be
necessary to illustrate clearly the matter of the application shall be
delivered to either secretary and he shall send one copy forthwith to
the other secretary.
(c) Notwithstanding paragraphs (a) and (b) of this section, such
additional copies of the documents mentioned therein as may be requested
by the Commission shall be provided forthwith.
Sec. 401.14 Authorization by Government.
(a) Where the use, obstruction or diversion of waters for which the
Commission's approval is sought has been authorized by or on behalf of a
Government or by or on behalf of a State or Province or other competent
authority, two copies of such authorization and of any plans approved
incidental thereto shall accompany the application when it is presented
to the Commission in accordance with Sec. 401.12.
(b) Where such a use, obstruction or diversion of waters is
authorized by or on behalf of a Government or by or on behalf of a State
or Province or other competent authority after an application has been
presented to the Commission in accordance with Sec. 401.12, the
applicant shall deliver forthwith to the Commission two copies of such
authorization and of any plans approved incidental thereto.
Sec. 401.15 Notice of publication.
(a) As soon as practicable after an application is presented or
transmitted in accordance with Sec. 401.12, the secretary of the section
of the Commission appointed by the other Government shall send a copy of
the application to such Government.
(b) Except as otherwise provided pursuant to Sec. 401.19, the
secretaries, as soon as practicable after the application is received,
shall cause a notice to be published in the Canada Gazette and the
Federal Register and once each week for three successive weeks in two
newspapers, published one in each country and circulated in or near the
localities which, in the opinion of the Commission, are most likely to
be affected by the proposed use, obstruction or diversion. Subject to
paragraph (c) of this section, the notice shall state that the
application has been received, the nature and locality of the proposed
use, obstruction or diversion, the time within which any person
interested may present a statement in response to the Commission and
that the Commission will hold a hearing or hearings at which all persons
interested are entitled to be heard with respect thereto.
(c) If the Commission so directs, the notice referred to in
paragraph (b) of this section, appropriately modified, may be combined
with the notice of hearing referred to in Sec. 401.24 and published
accordingly.
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