December 30, 2002 CODE OF FEDERAL REGULATIONS 5 Part 1200 to End Revised as of January 1, 2003 Administrative Personnel Containing a codification of documents of general applicability and future effect As of January 1, 2003 With Ancillaries

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Administration

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 Table of Contents Page Explanation vii Title 5: Chapter II—Merit Systems Protection Board 5 Chapter III—Office of Management and Budget 99 Chapter V—The International Organizations Employees Loyalty Board 169 Chapter VI—Federal Retirement Thrift Investment Board 175 Chapter VIII—Office of Special Counsel 303 Chapter IX—Appalachian Regional Commission 319 Chapter XI—Armed Forces Retirement Home 323 Chapter XIV—Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses Panel 331 Chapter XV—Office of Administration, Executive Office of the President 429 Chapter XVI—Office of Government Ethics 449 Chapter XXI—Department of the Treasury 649 Chapter XXII—Federal Deposit Insurance Corporation 659 Chapter XXIII—Department of Energy 669 Chapter XXIV—Federal Energy Regulatory Commission 673 Chapter XXV—Department of the Interior 677 Chapter XXVI—Department of Defense 685 Chapter XXVIII—Department of Justice 691 Chapter XXIX—Federal Communications Commission 697 Chapter XXX—Farm Credit System Insurance Corporation 701 Chapter XXXI—Farm Credit Administration 707 Chapter XXXIII—Overseas Private Investment Corporation 713 Chapter XXXV—Office of Personnel Management 717 Chapter XL—Interstate Commerce Commission 721 Chapter XLI—Commodity Futures Trading Commission 725 Chapter XLII—Department of Labor 729 Chapter XLIII—National Science Foundation 735 Chapter XLV—Department of Health and Human Services 741 Chapter XLVI—Postal Rate Commission 751 Chapter XLVII—Federal Trade Commission 755 Chapter XLVIII—Nuclear Regulatory Commission 759 Chapter L—Department of Transportation 765 Chapter LII—Export-Import Bank of the United States 769 Chapter LIII—Department of Education 775 Chapter LIV—Environmental Protection Agency 779 Chapter LVII—General Services Administration 785 Chapter LVIII—Board of Governors of the Federal Reserve System 791 Chapter LIX—National Aeronautics and Space Administration 797 Chapter LX—United States Postal Service 803 Chapter LXI—National Labor Relations Board 807 Chapter LXII—Equal Employment Opportunity Commission 811 Chapter LXIII—Inter-American Foundation 815 Chapter LXV—Department of Housing and Urban Development 819 Chapter LXVI—National Archives and Records Administration 827 Chapter LXIX—Tennessee Valley Authority 831 Chapter LXXI—Consumer Product Safety Commission 835 Chapter LXXIII—Department of Agriculture 839 Chapter LXXIV—Federal Mine Safety and Health Review Commission 845 Chapter LXXVI—Federal Retirement Thrift Investment Board 849 Chapter LXXVII—Office of Management and Budget 853 Finding Aids: Table of CFR Titles and Chapters 859 Alphabetical List of Agencies Appearing in the CFR 877 List of CFR Sections Affected 887

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Title 5—Administrative Personnel is composed of three volumes. The parts in these volumes are arranged in the following order: parts 1-699, 700-1199 and part 1200-end. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2003.

CFRORDR.FRM <LRH>5 CFR Ch. II (1-1-03 Edition)</LRH> <RRH>Merit Systems Protection Board</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 5—Administrative Personnel</HD> <P>(This book contains part 1200 to End)</P> </TITLEHD> <CFRTOC> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Title 5 of the United States Code was revised and enacted into positive law by Pub. L. 89-554, Sept. 6, 1966. New citations for obsolete references to sections of 5 U.S.C. appearing in this volume may be found in a redesignation table under Title 5, Government Organization and Employees, United States Code.</P> </EDNOTE> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—Merit Systems Protection Board</SUBJECT> <PG>1200</PG> <SUBJECT> <E T="04">chapter iii</E>—Office of Management and Budget</SUBJECT> <PG>1300</PG> <SUBJECT> <E T="04">chapter v</E>—The International Organizations Employees Loyalty Board</SUBJECT> <PG>1501</PG> <SUBJECT> <E T="04">chapter vi</E>—Federal Retirement Thrift Investment Board</SUBJECT> <PG>1600</PG> <SUBJECT> <E T="04">chapter viii</E>—Office of Special Counsel</SUBJECT> <PG>1800</PG> <SUBJECT> <E T="04">chapter ix</E>—Appalachian Regional Commission</SUBJECT> <PG>1900</PG> <SUBJECT> <E T="04">chapter xi</E>—Armed Forces Retirement Home</SUBJECT> <PG>2100</PG> <SUBJECT> <E T="04">chapter xiv</E>—Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses Panel</SUBJECT> <PG>2411</PG> </CHAPTI> <APP>Appendix A to 5 CFR Chapter XIV—Current Addresses and Geographic Jurisdictions.</APP> <APP>Appendix B to 5 CFR Chapter XIV—Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority.</APP> <CHAPTI> <SUBJECT> <E T="04">chapter xv</E>—Office of Administration, Executive Office of the President</SUBJECT> <PG>2500</PG> <SUBJECT> <E T="04">chapter xvi</E>—Office of Government Ethics</SUBJECT> <PG>2600</PG> <SUBJECT> <E T="04">chapter xxi</E>—Department of the Treasury</SUBJECT> <PG>3101<PRTPAGE P="2"/> </PG> <SUBJECT> <E T="04">chapter xxii</E>—Federal Deposit Insurance Corporation</SUBJECT> <PG>3201</PG> <SUBJECT> <E T="04">chapter xxiii</E>—Department of Energy</SUBJECT> <PG>3301</PG> <SUBJECT> <E T="04">chapter xxiv</E>—Federal Energy Regulatory Commission</SUBJECT> <PG>3401</PG> <SUBJECT> <E T="04">chapter xxv</E>—Department of the Interior</SUBJECT> <PG>3501</PG> <SUBJECT> <E T="04">chapter xxvi</E>—Department of Defense</SUBJECT> <PG>3601</PG> <SUBJECT> <E T="04">chapter xxvii</E>—Department of Justice</SUBJECT> <PG>3801</PG> <SUBJECT> <E T="04">chapter xxix</E>—Federal Communications Commission</SUBJECT> <PG>3901</PG> <SUBJECT> <E T="04">chapter xxx</E>—Farm Credit System Insurance Corporation</SUBJECT> <PG>4001</PG> <SUBJECT> <E T="04">chapter xxxi</E>—Farm Credit Administration</SUBJECT> <PG>4101</PG> <SUBJECT> <E T="04">chapter xxxiii</E>—Overseas Private Investment Corporation</SUBJECT> <PG>4301</PG> <SUBJECT> <E T="04">chapter xxxv</E>—Office of Personnel Management</SUBJECT> <PG>4501</PG> <SUBJECT> <E T="04">chapter xl</E>—Interstate Commerce Commission</SUBJECT> <PG>5001</PG> <SUBJECT> <E T="04">chapter xli</E>—Commodity Futures Trading Commission</SUBJECT> <PG>5101</PG> <SUBJECT> <E T="04">chapter xlii</E>—Department of Labor</SUBJECT> <PG>5201</PG> <SUBJECT> <E T="04">chapter xliii</E>—National Science Foundation</SUBJECT> <PG>5301</PG> <SUBJECT> <E T="04">chapter xlv</E>—Department of Health and Human Services</SUBJECT> <PG>5501</PG> <SUBJECT> <E T="04">chapter xlvi</E>—Postal Rate Commission</SUBJECT> <PG>5601</PG> <SUBJECT> <E T="04">chapter xlvii</E>—Federal Trade Commission</SUBJECT> <PG>5701</PG> <SUBJECT> <E T="04">chapter xlviii</E>—Nuclear Regulatory Commission</SUBJECT> <PG>5801</PG> <SUBJECT> <E T="04">chapter l</E>—Department of Transportation</SUBJECT> <PG>6001</PG> <SUBJECT> <E T="04">chapter lii</E>—Export-Import Bank of the United States</SUBJECT> <PG>6201</PG> <SUBJECT> <E T="04">chapter liii</E>—Department of Education</SUBJECT> <PG>6301</PG> <SUBJECT> <E T="04">chapter liv</E>—Environmental Protection Agency</SUBJECT> <PG>6401</PG> <SUBJECT> <E T="04">chapter lvii</E>—General Services Administration</SUBJECT> <PG>6701</PG> <SUBJECT> <E T="04">chapter lviii</E>—Board of Governors of the Federal Reserve System</SUBJECT> <PG>6801</PG> <SUBJECT> <E T="04">chapter lix</E>—National Aeronautics and Space Administration</SUBJECT> <PG>6901</PG> <SUBJECT> <E T="04">chapter lx</E>—United States Postal Service</SUBJECT> <PG>7001</PG> <SUBJECT> <E T="04">chapter lxi</E>—National Labor Relations Board</SUBJECT> <PG>7101</PG> <SUBJECT> <E T="04">chapter lxii</E>—Equal Employment Opportunity Commission</SUBJECT> <PG>7201</PG> <SUBJECT> <E T="04">chapter lxiii</E>—Inter-American Foundation</SUBJECT> <PG>7301</PG> <SUBJECT> <E T="04">chapter lxv</E>—Department of Housing and Urban Development</SUBJECT> <PG>7501</PG> <SUBJECT> <E T="04">chapter lxvi</E>—National Archives and Records Administration</SUBJECT> <PG>7601<PRTPAGE P="3"/> </PG> <SUBJECT> <E T="04">chapter lxix</E>—Tennessee Valley Authority</SUBJECT> <PG>7901</PG> <SUBJECT> <E T="04">chapter lxxi</E>—Consumer Product Safety Commission</SUBJECT> <PG>8101</PG> <SUBJECT> <E T="04">chapter lxxiii</E>—Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture</SUBJECT> <PG>8301</PG> <SUBJECT> <E T="04">chapter lxxiv</E>—Federal Mine Safety and Health Review Commission</SUBJECT> <PG>8401</PG> <SUBJECT> <E T="04">chapter lxxvi</E>—Federal Retirement Thrift Investment Board</SUBJECT> <PG>8601</PG> <SUBJECT> <E T="04">chapter lxxvii</E>—Office of Management and Budget</SUBJECT> <PG>8701</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">CHAPTER II—MERIT SYSTEMS PROTECTION BOARD</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1200</PT> <SUBJECT>Board organization</SUBJECT> <PG>7</PG> <PT>1201</PT> <SUBJECT>Practices and procedures</SUBJECT> <PG>9</PG> <PT>1202</PT> <SUBJECT>Statutory Review Board</SUBJECT> <PG>60</PG> <PT>1203</PT> <SUBJECT>Procedures for review of rules and regulations of the Office of Personnel Management</SUBJECT> <PG>60</PG> <PT>1204</PT> <SUBJECT>Availability of official information</SUBJECT> <PG>64</PG> <PT>1205</PT> <SUBJECT>Privacy Act regulations</SUBJECT> <PG>71</PG> <PT>1206</PT> <SUBJECT>Open meetings</SUBJECT> <PG>74</PG> <PT>1207</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Merit Systems Protection Board</SUBJECT> <PG>77</PG> <PT>1208</PT> <SUBJECT>Practices and procedures for appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act</SUBJECT> <PG>83</PG> <PT>1209</PT> <SUBJECT>Practices and procedures for appeals and stay requests of personnel actions allegedly based on whistleblowing</SUBJECT> <PG>87</PG> <PT>1210</PT> <SUBJECT>Debt management</SUBJECT> <PG>92</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="7"/> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> <PART> <EAR>Pt. 1200</EAR> <HD SOURCE="HED">PART 1200—BOARD ORGANIZATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1200.1</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <SECTNO>1200.2</SECTNO> <SUBJECT>Board members and duties.</SUBJECT> <SECTNO>1200.3</SECTNO> <SUBJECT>How the Board members make decisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Offices of the Board</HD> <SECTNO>1200.10</SECTNO> <SUBJECT>Staff organization and functions.</SUBJECT> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 41747, Aug. 23, 1991, unless otherwise noted.</P> </SOURCE> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1201 <E T="03">et seq.</E> </P> </AUTH> <SECTION> <SECTNO>§ 1200.1</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <P>The Merit Systems Protection Board (the Board) is an independent Government agency that operates like a court. The Board was created to ensure that all Federal government agencies follow Federal merit systems practices. The Board does this by adjudicating Federal employee appeals of agency personnel actions, and by conducting special reviews and studies of Federal merit systems.</P> <CITA>[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.2</SECTNO> <SUBJECT>Board members and duties.</SUBJECT> <P>(a) The Board has three members whom the President appoints and the Senate confirms. Members of the Board serve seven-year terms.</P> <P>(b) The President appoints, with the Senate's consent, one member of the Board to serve as Chairman and chief executive officer of the Board. The President also appoints one member of the Board to serve as Vice Chairman. If the office of the Chairman is vacant or the Chairman cannot perform his or her duties, then the Vice Chairman performs the Chairman's duties. If both the Chairman and the Vice Chairman cannot perform their duties, then the remaining Board Member performs the Chairman's duties.</P> <CITA>[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1200.3</SECTNO> <SUBJECT>How the Board members make decisions.</SUBJECT> <P>(a) The three Board members make decisions in all cases by majority vote except in circumstances described in paragraphs (b) and (c) of this section or as otherwise provided by law.</P> <P>(b) When due to a vacancy, recusal or other reasons, the Board members are unable to decide any case by majority vote, the decision, recommendation or order under review shall be deemed the final decision or order of the Board. The Chairman of the Board may direct the issuance of an order consistent with this paragraph.</P> <P>(c) When due to a vacancy, recusal or other reasons, the Board members are unable to decide a matter in a case which does not involve a decision, recommendation or order, the Chairman may direct referral of the matter to an administrative judge or other official for final disposition.</P> <P>(d) Decisions and orders issued pursuant to paragraphs (b) and (c) of this section shall not be precedential.</P> <P>(e) This section applies only when at least two Board members are in office.</P> <CITA>[59 FR 39937, Aug. 5, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Offices of the Board</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204 (h) and (j).</P> </AUTH> <SECTION> <SECTNO>§ 1200.10</SECTNO> <SUBJECT>Staff organization and functions.</SUBJECT> <P>(a) The Board's headquarters staff is organized into the following offices and divisions:</P> <P>(1) Office of Regional Operations.</P> <P>(2) Office of the Administrative Law Judge.</P> <P>(3) Office of Appeals Counsel.</P> <P>(4) Office of the Clerk of the Board.</P> <P>(5) Office of the General Counsel.</P> <P>(6) Office of Policy and Evaluation.</P> <P>(7) Office of Equal Employment Opportunity.<PRTPAGE P="8"/> </P> <P>(8) Financial and Administrative Management Division.</P> <P>(9) Information Resources Management Division.</P> <P>(b) The principal functions of the Board's headquarters offices are as follows:</P> <P>(1) <E T="03">Office of Regional Operations.</E> The Director, Office of Regional Operations, manages the adjudicatory and administrative functions of the MSPB regional and field offices.</P> <P>(2) <E T="03">Office of the Administrative Law Judge.</E> The Administrative Law Judge hears Hatch Act cases, disciplinary action complaints brought by the Special Counsel, actions against administrative law judges, appeals of actions taken against MSPB employees, and other cases that the Board assigns.</P> <P>(3) <E T="03">Office of Appeals Counsel.</E> The Director, Office of Appeals Counsel, prepares proposed decisions that recommend appropriate action by the Board in petition for review cases, original jurisdiction cases, and other cases assigned by the Board.</P> <P>(4) <E T="03">Office of the Clerk of the Board.</E> The Clerk of the Board enters petitions for review and other headquarters cases onto the Board's docket and monitors their processing. The Clerk of the Board also does the following:</P> <P>(i) Serves as the Board's public information center, including providing information on the status of cases, distributing copies of Board decisions and publications, and operating the Board's Library and on-line information services;</P> <P>(ii) Manages the Board's records, reports, legal research, and correspondence control programs; and</P> <P>(iii) Answers requests under the Freedom of Information and Privacy Acts at the Board's headquarters, and answers other requests for information except those for which the Office of the General Counsel or the Office of Policy and Evaluation is responsible.</P> <P>(5) <E T="03">Office of the General Counsel.</E> The General Counsel provides legal advice to the Board and its headquarters and regional offices; represents the Board in court proceedings; prepares proposed decisions for the Board in cases that the Board assigns; coordinates legislative policy and performs legislative liaison; responds to requests for non-case related information from the White House, Congress, and the media; and plans and directs audits and investigations.</P> <P>(6) <E T="03">Office of Policy and Evaluation.</E> The Director, Policy and Evaluation, carries out the Board's statutory responsibility to conduct special reviews and studies of the civil service and other merit systems in the Executive Branch, as well as oversight reviews of the significant actions of the Office of Personnel Management. The office prepares the Board's reports of these reviews and studies, submits them to the President and the Congress, and makes them available to other interested individuals and organizations. The office is responsible for distributing the Board's reports and for responding to requests for information or briefings concerning them.</P> <P>(7) <E T="03">Office of Equal Employment Opportunity.</E> The Director, Office of Equal Employment Opportunity, manages the Board's equal employment programs.</P> <P>(8) <E T="03">Financial and Administrative Management Division.</E> The Financial and Administrative Management Division administers the budget, procurement, property management, physical security, and general services functions of the Board. It develops and coordinates internal management programs and projects, including review of internal controls agencywide. It performs certain personnel functions, including policy, training, drug testing, and the Employee Assistance Program. It also administers the agency's cross-servicing arrangements with the U.S. Department of Agriculture's National Finance Center for accounting, payroll, and personnel action processing services and with the U.S. Department of Agriculture's APHIS Business Services for most human resources management services.</P> <P>(9) <E T="03">Information Resources Management Division.</E> The Information Resources Management Division develops, implements, and maintains the Board's automated information systems.</P> <P>(c) <E T="03">Regional and Field Offices.</E> The Board has regional and field offices located throughout the country (See Appendix II to 5 CFR part 1201 for a list of the regional and field offices). Judges in the regional and field offices hear <PRTPAGE P="9"/>and decide initial appeals and other assigned cases as provided for in the Board's regulations.</P> <CITA>[62 FR 49589, Sept. 23, 1997, as amended at 64 FR 15916, Apr. 2, 1999]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1201</EAR> <HD SOURCE="HED">PART 1201—PRACTICES AND PROCEDURES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1201.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1201.2</SECTNO> <SUBJECT>Original jurisdiction.</SUBJECT> <SECTNO>1201.3</SECTNO> <SUBJECT>Appellate jurisdiction.</SUBJECT> <SECTNO>1201.4</SECTNO> <SUBJECT>General definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Appellate Cases</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>1201.11</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <SECTNO>1201.12</SECTNO> <SUBJECT>Revocation, amendment, or waiver of rules.</SUBJECT> <SECTNO>1201.13</SECTNO> <SUBJECT>Appeals by Board employees.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal of Agency Action; Pleadings</HD> <SECTNO>1201.21</SECTNO> <SUBJECT>Notice of appeal rights.</SUBJECT> <SECTNO>1201.22</SECTNO> <SUBJECT>Filing an appeal and responses to appeals.</SUBJECT> <SECTNO>1201.23</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>1201.24</SECTNO> <SUBJECT>Content of an appeal; right to hearing.</SUBJECT> <SECTNO>1201.25</SECTNO> <SUBJECT>Content of agency response.</SUBJECT> <SECTNO>1201.26</SECTNO> <SUBJECT>Number of pleadings, service, and response.</SUBJECT> <SECTNO>1201.27</SECTNO> <SUBJECT>Class appeals.</SUBJECT> <SECTNO>1201.28</SECTNO> <SUBJECT>Case suspension procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parties, Representatives, and Witnesses</HD> <SECTNO>1201.31</SECTNO> <SUBJECT>Representatives.</SUBJECT> <SECTNO>1201.32</SECTNO> <SUBJECT>Witnesses; right to representation.</SUBJECT> <SECTNO>1201.33</SECTNO> <SUBJECT>Federal witnesses.</SUBJECT> <SECTNO>1201.34</SECTNO> <SUBJECT>Intervenors and amicus curiae.</SUBJECT> <SECTNO>1201.35</SECTNO> <SUBJECT>Substituting parties.</SUBJECT> <SECTNO>1201.36</SECTNO> <SUBJECT>Consolidating and joining appeals.</SUBJECT> <SECTNO>1201.37</SECTNO> <SUBJECT>Witness fees.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Judges</HD> <SECTNO>1201.41</SECTNO> <SUBJECT>Judges.</SUBJECT> <SECTNO>1201.42</SECTNO> <SUBJECT>Disqualifying a judge.</SUBJECT> <SECTNO>1201.43</SECTNO> <SUBJECT>Sanctions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTNO>1201.51</SECTNO> <SUBJECT>Scheduling the hearing.</SUBJECT> <SECTNO>1201.52</SECTNO> <SUBJECT>Public hearings.</SUBJECT> <SECTNO>1201.53</SECTNO> <SUBJECT>Record of proceedings.</SUBJECT> <SECTNO>1201.55</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>1201.56</SECTNO> <SUBJECT>Burden and degree of proof; affirmative defenses.</SUBJECT> <SECTNO>1201.57</SECTNO> <SUBJECT>Order of hearing.</SUBJECT> <SECTNO>1201.58</SECTNO> <SUBJECT>Closing the record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence</HD> <SECTNO>1201.61</SECTNO> <SUBJECT>Exclusion of evidence and testimony.</SUBJECT> <SECTNO>1201.62</SECTNO> <SUBJECT>Producing prior statements.</SUBJECT> <SECTNO>1201.63</SECTNO> <SUBJECT>Stipulations.</SUBJECT> <SECTNO>1201.64</SECTNO> <SUBJECT>Official notice.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTNO>1201.71</SECTNO> <SUBJECT>Purpose of discovery.</SUBJECT> <SECTNO>1201.72</SECTNO> <SUBJECT>Explanation and scope of discovery.</SUBJECT> <SECTNO>1201.73</SECTNO> <SUBJECT>Discovery procedures.</SUBJECT> <SECTNO>1201.74</SECTNO> <SUBJECT>Orders for discovery.</SUBJECT> <SECTNO>1201.75</SECTNO> <SUBJECT>Taking depositions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Subpoenas</HD> <SECTNO>1201.81</SECTNO> <SUBJECT>Requests for subpoenas.</SUBJECT> <SECTNO>1201.82</SECTNO> <SUBJECT>Motions to quash subpoenas.</SUBJECT> <SECTNO>1201.83</SECTNO> <SUBJECT>Serving subpoenas.</SUBJECT> <SECTNO>1201.84</SECTNO> <SUBJECT>Proof of service.</SUBJECT> <SECTNO>1201.85</SECTNO> <SUBJECT>Enforcing subpoenas.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Interlocutory Appeals</HD> <SECTNO>1201.91</SECTNO> <SUBJECT>Explanation.</SUBJECT> <SECTNO>1201.92</SECTNO> <SUBJECT>Criteria for certifying interlocutory appeals.</SUBJECT> <SECTNO>1201.93</SECTNO> <SUBJECT>Procedures.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ex Parte Communications</HD> <SECTNO>1201.101</SECTNO> <SUBJECT>Explanation and definitions.</SUBJECT> <SECTNO>1201.102</SECTNO> <SUBJECT>Prohibition on ex parte communications.</SUBJECT> <SECTNO>1201.103</SECTNO> <SUBJECT>Placing communications in the record; sanctions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Final Decisions</HD> <SECTNO>1201.111</SECTNO> <SUBJECT>Initial decision by judge.</SUBJECT> <SECTNO>1201.112</SECTNO> <SUBJECT>Jurisdiction of judge.</SUBJECT> <SECTNO>1201.113</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Petitions for Review of Initial Decisions</HD> <SECTNO>1201.114</SECTNO> <SUBJECT>Filing petition and cross petition for review.</SUBJECT> <SECTNO>1201.115</SECTNO> <SUBJECT>Contents of petition for review.</SUBJECT> <SECTNO>1201.116</SECTNO> <SUBJECT>Appellant requests for enforcement of interim relief.</SUBJECT> <SECTNO>1201.117</SECTNO> <SUBJECT>Procedures for review or reopening.</SUBJECT> <SECTNO>1201.118</SECTNO> <SUBJECT>Board reopening of case and reconsideration of initial decision.</SUBJECT> <SECTNO>1201.119</SECTNO> <SUBJECT>OPM petition for reconsideration.</SUBJECT> <SECTNO>1201.120</SECTNO> <SUBJECT>Judicial review.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Original Jurisdiction Cases</HD> <HD SOURCE="HD1">GENERAL</HD> <SECTNO>1201.121</SECTNO> <SUBJECT>Scope of jurisdiction; application of subparts B, F, and H.</SUBJECT> <HD SOURCE="HD1">Special Counsel Disciplinary Actions</HD> <SECTNO>1201.122</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.123</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.124</SECTNO> <SUBJECT>Rights; answer to complaint.<PRTPAGE P="10"/> </SUBJECT> <SECTNO>1201.125</SECTNO> <SUBJECT>Administrative law judge.</SUBJECT> <SECTNO>1201.126</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <SECTNO>1201.127</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <HD SOURCE="HD1">Special Counsel Corrective Actions</HD> <SECTNO>1201.128</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.129</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.130</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <SECTNO>1201.131</SECTNO> <SUBJECT>Judge.</SUBJECT> <SECTNO>1201.132</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <SECTNO>1201.133</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <HD SOURCE="HD1">Special Counsel Requests for Stays</HD> <SECTNO>1201.134</SECTNO> <SUBJECT>Deciding official; filing stay request; serving documents on parties.</SUBJECT> <SECTNO>1201.135</SECTNO> <SUBJECT>Contents of stay request.</SUBJECT> <SECTNO>1201.136</SECTNO> <SUBJECT>Action on stay request.</SUBJECT> <HD SOURCE="HD1">Actions Against Administrative Law Judges</HD> <SECTNO>1201.137</SECTNO> <SUBJECT>Covered actions; filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.138</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>1201.139</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <SECTNO>1201.140</SECTNO> <SUBJECT>Judge; requirement for finding of good cause.</SUBJECT> <SECTNO>1201.141</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>1201.142</SECTNO> <SUBJECT>Actions filed by administrative law judges.</SUBJECT> <HD SOURCE="HD1">Removal From the Senior Executive Service</HD> <SECTNO>1201.143</SECTNO> <SUBJECT>Right to hearing; filing complaint; serving documents on parties.</SUBJECT> <SECTNO>1201.144</SECTNO> <SUBJECT>Hearing procedures; referring the record.</SUBJECT> <SECTNO>1201.145</SECTNO> <SUBJECT>No appeal.</SUBJECT> <HD SOURCE="HD1">Requests for Protective Orders</HD> <SECTNO>1201.146</SECTNO> <SUBJECT>Requests for protective orders by the Special Counsel.</SUBJECT> <SECTNO>1201.147</SECTNO> <SUBJECT>Requests for protective orders by persons other than the Special Counsel.</SUBJECT> <SECTNO>1201.148</SECTNO> <SUBJECT>Enforcement of protective orders.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Procedures for Cases Involving Allegations of Discrimination</HD> <SECTNO>1201.151</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <SECTNO>1201.152</SECTNO> <SUBJECT>Compliance with subpart B procedures.</SUBJECT> <SECTNO>1201.153</SECTNO> <SUBJECT>Contents of appeal.</SUBJECT> <SECTNO>1201.154</SECTNO> <SUBJECT>Time for filing appeal; closing record in cases involving grievance decisions.</SUBJECT> <SECTNO>1201.155</SECTNO> <SUBJECT>Remand of allegations of discrimination.</SUBJECT> <SECTNO>1201.156</SECTNO> <SUBJECT>Time for processing appeals involving allegations of discrimination.</SUBJECT> <SECTNO>1201.157</SECTNO> <SUBJECT>Notice of right to judicial review.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Review of Board Decision</HD> <SECTNO>1201.161</SECTNO> <SUBJECT>Action by the Equal Employment Opportunity Commission; judicial review.</SUBJECT> <SECTNO>1201.162</SECTNO> <SUBJECT>Board action on the Commission decision; judicial review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Panel</HD> <SECTNO>1201.171</SECTNO> <SUBJECT>Referral of case to Special Panel.</SUBJECT> <SECTNO>1201.172</SECTNO> <SUBJECT>Organization of Special Panel; designation of members.</SUBJECT> <SECTNO>1201.173</SECTNO> <SUBJECT>Practices and procedures of Special Panel.</SUBJECT> <SECTNO>1201.174</SECTNO> <SUBJECT>Enforcing the Special Panel decision.</SUBJECT> <SECTNO>1201.175</SECTNO> <SUBJECT>Judicial review of cases decided under 5 U.S.C. 7702.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Enforcement of Final Decisions and Orders</HD> <SECTNO>1201.181</SECTNO> <SUBJECT>Authority and explanation.</SUBJECT> <SECTNO>1201.182</SECTNO> <SUBJECT>Petition for enforcement.</SUBJECT> <SECTNO>1201.183</SECTNO> <SUBJECT>Procedures for processing petitions for enforcement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Savings Provisions</HD> <SECTNO>1201.191</SECTNO> <SUBJECT>Savings provisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable), Consequential Damages, and Compensatory Damages</HD> <SECTNO>1201.201</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <SECTNO>1201.202</SECTNO> <SUBJECT>Authority for awards.</SUBJECT> <SECTNO>1201.203</SECTNO> <SUBJECT>Proceedings for attorney fees.</SUBJECT> <SECTNO>1201.204</SECTNO> <SUBJECT>Proceedings for consequential damages and compensatory damages..</SUBJECT> <SECTNO>1201.205</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <APP>Appendix I to Part 1201—Merit Systems Protection Board Appeal Form</APP> <APP>Appendix II to Part 1201—Appropriate Regional or Field Office for Filing Appeals</APP> <APP>Appendix III to Part 1201—Approved Hearing Locations by Regional Office</APP> <APP>Appendix IV to Part 1201—Sample Declaration Under 28 U.S.C. 1746</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204 and 7701.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 53504, Dec. 29, 1989, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1201.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>The Board has two types of jurisdiction, original and appellate.</P> </SECTION> <SECTION> <SECTNO>§ 1201.2</SECTNO> <SUBJECT>Original jurisdiction.</SUBJECT> <P>The Board's original jurisdiction includes the following cases:<PRTPAGE P="11"/> </P> <P>(a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 1215, and 1216;</P> <P>(b) Requests, by persons removed from the Senior Executive Service for performance deficiencies, for informal hearings; and</P> <P>(c) Actions taken against administrative law judges under 5 U.S.C. 7521.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.3</SECTNO> <SUBJECT>Appellate jurisdiction.</SUBJECT> <P>(a) <E T="03">Generally.</E> The Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or regulation. These include appeals from the following actions:</P> <P>(1) Reduction in grade or removal for unacceptable performance (5 CFR part 432; 5 U.S.C. 4303(e));</P> <P>(2) Removal, reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service. (5 CFR part 752, subparts C and D; 5 U.S.C. 7512);</P> <P>(3) Removal, or suspension for more than 14 days, of a career appointee in the Senior Executive Service (5 CFR part 752, subparts E and F; 5 U.S.C. 7541-7543);</P> <P>(4) Reduction-in-force action affecting a career appointee in the Senior Executive Service (5 U.S.C. 3595);</P> <P>(5) Reconsideration decision sustaining a negative determination of competence for a general schedule employee (5 CFR 531.410; 5 U.S.C. 5335(c));</P> <P>(6) Determinations affecting the rights or interests of an individual or of the United States under the Civil Service Retirement System or the Federal Employees’ Retirement System (5 CFR parts 831, 839, 842, 844, and 846; 5 U.S.C. 8347(d)(1)-(2) and 8461 (e)(1); and 5 U.S.C. 8331 note, Federal Erroneous Retirement Coverage Corrections Act)</P> <P>(7) Disqualification of an employee or applicant because of a suitability determination (5 CFR 731.501);</P> <P>(8) Termination of employment during probation or the first year of a veterans readjustment appointment when:</P> <P>(i) The employee alleges discrimination because of partisan political reasons or marital status; <E T="03">or</E> </P> <P>(ii) The termination was based on conditions arising before appointment and the employee alleges that the action is procedurally improper (5 CFR 315.806, 38 U.S.C. 4214(b)(1)(E));</P> <P>(9) Termination of appointment during a managerial or supervisory probationary period when the employee alleges discrimination because of partisan political affiliation or marital status (5 CFR 315.908(b));</P> <P>(10) Separation, demotion, or furlough for more than 30 days, when the action was effected because of a reduction in force (5 CFR 351.901);</P> <P>(11) Furlough of a career appointee in the Senior Executive Service (5 CFR 359.805);</P> <P>(12) Failure to restore, improper restoration of, or failure to return following a leave of absence an employee or former employee of an agency in the executive branch (including the U.S. Postal Service and the Postal Rate Commission) following partial or full recovery from a compensable injury (5 CFR 353.304);</P> <P>(13) Employment of another applicant when the person who wishes to appeal to the Board is entitled to priority employment consideration after a reduction-in-force action, or after partial or full recovery from a compensable injury (5 CFR 302.501, 5 CFR 330.209);</P> <P>(14) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);</P> <P>(15) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209);</P> <P>(16) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313);</P> <P>(17) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707);</P> <P>(18) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807);</P> <P>(19) Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104);</P> <P>(20) Removal of a career appointee from the Senior Executive Service for <PRTPAGE P="12"/>failure to be recertified (5 U.S.C. 3592(a)(3), 5 CFR 359.304); and</P> <P>(21) Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (22 U.S.C. 4011).</P> <P>(b)(1) <E T="03">Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act.</E> Appeals filed under the Uniformed Services Employment and Reemployment Rights Act (Public Law 103-353), as amended, and the Veterans EmploymentOpportunities Act (Public Law 105-339) are governed by part 1208 of this title. The provisions of subparts A, B, C, and F of part 1201 apply to appeals governed by part 1208 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees apply to appeals governed by part 1208 of this title.</P> <P>(2) <E T="03">Appeals involving an allegation that the action was based on appellant's “whistleblowing.”</E> Appeals of actions appealable to the Board under any law, rule, or regulation, in which the appellant alleges that the action was taken because of the appellant's “whistleblowing” [a violation of the prohibited personnel practice described in 5 U.S.C. 2302(b)(8)), are governed by part 1209 of this title. The provisions of subparts B, C, E, F, and G of part 1201 apply to appeals and stay requests governed by part 1209 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.</P> <P>(c) <E T="03">Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures:</E> </P> <P>(1) For an employee covered by a collective bargaining agreement under 5 U.S.C. 7121, the negotiated grievance procedures contained in the agreement are the exclusive procedures for resolving any action that could otherwise be appealed to the Board, with the following exceptions:</P> <P>(i) An appealable action involving discrimination under 5 U.S.C. 2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or adverse action under 5 U.S.C. 7512, may be raised under the Board's appellate procedures, or under the negotiated grievance procedures, but not under both;</P> <P>(ii) An appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under not more than one of the following procedures:</P> <P>(A) The Board's appellate procedures;</P> <P>(B) The negotiated grievance procedures; or</P> <P>(C) The procedures for seeking corrective action from the Special Counsel under subchapters II and III of chapter 12 of title 5 of the United States Code.</P> <P>(iii) Except for actions involving discrimination under 5 U.S.C. 2302(b)(1) or any other prohibited personnel practice, any appealable action that is excluded from the application of the negotiated grievance procedures may be raised only under the Board's appellate procedures.</P> <P>(2) <E T="03">Choice of procedure.</E> When an employee has an option of pursuing an action under the Board's appeal procedures or under negotiated grievance procedures, the Board considers the choice between those procedures to have been made when the employee timely files an appeal with the Board or timely files a written grievance, whichever event occurs first. When an employee has the choice of pursuing an appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph (c)(1)(ii) of this section, the Board considers the choice among those procedures to have been made when the employee timely files an appeal with the Board, timely files a written grievance under the negotiated grievance procedure, or seeks corrective action from the Special Counsel by making an allegation under 5 U.S.C. 1214(a)(1), whichever event occurs first.</P> <P>(3) <E T="03">Review of discrimination grievances.</E> If an employee chooses the negotiated grievance procedure under paragraph (c)(2) of this section and alleges discrimination as described at 5 U.S.C. 2302(b)(1), then the employee, after having obtained a final decision under the negotiated grievance procedure, may ask the Board to review that final decision. The request must be filed with <PRTPAGE P="13"/>the Clerk of the Board in accordance with § 1201.154.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.4</SECTNO> <SUBJECT>General definitions.</SUBJECT> <P>(a) <E T="03">Judge.</E> Any person authorized by the Board to hold a hearing or to decide a case without a hearing, including an attorney-examiner, an administrative judge, an administrative law judge, the Board, or any member of the Board.</P> <P>(b) <E T="03">Pleading.</E> Written submission setting out claims, allegations, arguments, or evidence. Pleadings include briefs, motions, petitions, attachments, and responses.</P> <P>(c) <E T="03">Motion.</E> A request that a judge take a particular action.</P> <P>(d) <E T="03">Appropriate regional or field office.</E> The regional or field office of the Board that has jurisdiction over the area where the appellant's duty station was located when the agency took the action. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits, and appeals of adverse suitability determinations under 5 CFR part 731, must be filed with the regional or field office that has jurisdiction over the area where the appellant lives. Appendix II of these regulations lists the geographic areas over which each of the Board's regional and field offices has jurisdiction. Appeals, however, may be transferred from one regional or field office to another.</P> <P>(e) <E T="03">Party.</E> A person, an agency, or an intervenor, who is participating in a Board proceeding. This term applies to the Office of Personnel Management and to the Office of Special Counsel when those organizations are participating in a Board proceeding.</P> <P>(f) <E T="03">Appeal.</E> A request for review of an agency action.</P> <P>(g) <E T="03">Petition for review.</E> A request for review of an initial decision of a judge.</P> <P>(h) <E T="03">Day.</E> Calendar day.</P> <P>(i) <E T="03">Service.</E> The process of furnishing a copy of any pleading to Board officials, other parties, or both, either by mail, by facsimile, by personal delivery, or by commercial overnight delivery.</P> <P>(j) <E T="03">Date of service.</E> The date on which documents are served on other parties.</P> <P>(k) <E T="03">Certificate of Service.</E> A document certifying that a party has served copies of pleadings on the other parties.</P> <P>(l) <E T="03">Date of filing.</E> A document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial overnight delivery is the date the document was delivered to the commercial overnight delivery service.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Appellate Cases</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1201.11</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <P>The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in § 1201.13. The regulations in this subpart apply also to appellate proceedings and stay requests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board's policy that these rules will be applied in a manner that expedites the processing of each case, with due regard to the rights of all parties.</P> </SECTION> <SECTION> <SECTNO>§ 1201.12</SECTNO> <SUBJECT>Revocation, amendment, or waiver of rules.</SUBJECT> <P>The Board may revoke, amend, or waive any of these regulations. A judge may, for good cause shown, waive a Board regulation unless a statute requires application of the regulation. The judge must give notice of the waiver to all parties, but is not required to give the parties an opportunity to respond.</P> </SECTION> <SECTION> <PRTPAGE P="14"/> <SECTNO>§ 1201.13</SECTNO> <SUBJECT>Appeals by Board employees.</SUBJECT> <P>Appeals by Board employees will be filed with the Clerk of the Board and will be assigned to an administrative law judge for adjudication under this subchapter. The Board's policy is to insulate the adjudication of its own employees’ appeals from agency involvement as much as possible. Accordingly, the Board will not disturb initial decisions in those cases unless the party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge or a clear error of law. In addition, the Board, as a matter of policy, will not rule on any interlocutory appeals or motions to disqualify the administrative law judge assigned to those cases until the initial decision has been issued.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal of Agency Action; Pleadings</HD> <SECTION> <SECTNO>§ 1201.21</SECTNO> <SUBJECT>Notice of appeal rights.</SUBJECT> <P>When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following:</P> <P>(a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal;</P> <P>(b) A copy, or access to a copy, of the Board's regulations;</P> <P>(c) A copy of the appeal form in appendix I of this part; and</P> <P>(d) Notice of any right the employee has to file a grievance, including:</P> <P>(1) Whether the election of any applicable grievance procedure will result in waiver of the employee's right to file an appeal with the Board;</P> <P>(2) Whether both an appeal to the Board and a grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board; and</P> <P>(3) Whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.154(d).</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 25624, May 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.22</SECTNO> <SUBJECT>Filing an appeal and responses to appeals.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> Appeals, and responses to those appeals, must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this part.</P> <P>(b) <E T="03">Time of filing.</E> (1) Except as provided in paragraph (b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency's decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days—for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board's acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part.</P> <P>(2) The time limit prescribed by paragraph (b)(1) for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and ReemploymentRights Act (Public Law 103-353), as amended; see part 1208 of this title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Public Law 105-339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests.</P> <P>(c) <E T="03">Timeliness of appeals.</E> If a party does not submit an appeal within the time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The judge will provide the party an opportunity to show why the appeal should not be dismissed as untimely.<PRTPAGE P="15"/> </P> <P>(d) <E T="03">Method of filing.</E> Filing must be made with the appropriate Board office by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 59992, Nov. 6, 1997; 62 FR 66814, Dec. 22, 1997; 64 FR 27899, May 24, 1999; 64 FR 54508, Oct. 7, 1999; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.23</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>In computing the number of days allowed for filing a submission, the first day counted is the day after the event from which the time period begins to run. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>If an employee receives a decision notice that is effective on July 1, the 30-day period for filing an appeal starts to run on July 2. The filing ordinarily would be timely only if it is made by July 31. If July 31 is a Saturday, however, the last day for filing would be Monday, August 2.</P> </EXAMPLE> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.24</SECTNO> <SUBJECT>Content of an appeal; right to hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> Only an appellant, his or her designated representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form, but they must contain the following:</P> <P>(1) The name, address, and telephone number of the appellant, and the name and address of the agency that took the action;</P> <P>(2) A description of the action the agency took and its effective date;</P> <P>(3) A request for hearing if the appellant wants one;</P> <P>(4) A statement of the reasons why the appellant believes the agency action is wrong;</P> <P>(5) A statement of the action the appellant would like the judge to order;</P> <P>(6) The name, address, and telephone number of the appellant's representative, if the appellant has a representative;</P> <P>(7) The notice of the decision to take the action being appealed, along with any relevant documents;</P> <P>(8) A statement telling whether the appellant or anyone acting on his or her behalf has filed a grievance or a formal discrimination complaint with any agency regarding this matter; and</P> <P>(9) The signature of the appellant or, if the appellant has a representative, of the representative.</P> <P>(b) An appellant may raise a claim or defense not included in the appeal at any time before the end of the conference(s) held to define the issues in the case. An appellant may not raise a new claim or defense after that time, except for good cause shown. However, a claim or defense not included in the appeal may be excluded if a party shows that including it would result in undue prejudice.</P> <P>(c) <E T="03">Use of Board form.</E> An appellant may comply with paragraph (a) of this section, and with § 1201.31 of this part, by completing the form in Appendix I of this part.</P> <P>(d) <E T="03">Right to hearing.</E> Under 5 U.S.C. 7701, an appellant has a right to a hearing.</P> <P>(e) <E T="03">Timely request.</E> The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.</P> </SECTION> <SECTION> <SECTNO>§ 1201.25</SECTNO> <SUBJECT>Content of agency response.</SUBJECT> <P>The agency response to an appeal must contain the following:</P> <P>(a) The name of the appellant and of the agency whose action the appellant is appealing;</P> <P>(b) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action;</P> <P>(c) All documents contained in the agency record of the action;</P> <P>(d) Designation of and signature by the authorized agency representative; and</P> <P>(e) Any other documents or responses requested by the Board.</P> </SECTION> <SECTION> <PRTPAGE P="16"/> <SECTNO>§ 1201.26</SECTNO> <SUBJECT>Number of pleadings, service, and response.</SUBJECT> <P>(a) <E T="03">Number.</E> The appellant must file two copies of both the appeal and all attachments with the appropriate Board office.</P> <P>(b) <E T="03">Service—</E>(1) <E T="03">Service by the Board.</E> The appropriate office of the Board will mail a copy of the appeal to each party to the proceeding other than the appellant. It will attach to each copy a service list, consisting of a list of the names and addresses of the parties to the proceeding or their designated representatives.</P> <P>(2) <E T="03">Service by the parties.</E> The parties must serve on each other one copy of each pleading, as defined by § 1201.4(b), and all documents submitted with it, except for the initial appeal. They may do so by mail, by facsimile, by personal delivery, or by commercial overnight delivery to each party and to each representative. A certificate of service stating how and when service was made must accompany each pleading. The parties must notify the appropriate Board office and one another, in writing, of any changes in the names or addresses on the service list.</P> <P>(c) <E T="03">Paper size.</E> Pleadings and attachments must be filed on 8 1/2 by 11-inch paper, except for good cause shown. This requirement enables the Board to comply with standards established for U.S. courts.</P> <CITA>[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58 FR 36345, July 7, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.27</SECTNO> <SUBJECT>Class appeals.</SUBJECT> <P>(a) <E T="03">Appeal.</E> One or more employees may file an appeal as representatives of a class of employees. The judge will hear the case as a class appeal if he or she finds that a class appeal is the fairest and most efficient way to adjudicate the appeal and that the representative of the parties will adequately protect the interests of all parties. When a class appeal is filed, the time from the filing date until the judge issues his or her decision under paragraph (b) of this section is not counted in computing the time limit for individual members of the potential class to file individual appeals.</P> <P>(b) <E T="03">Procedure.</E> The judge will consider the appellant's request and any opposition to that request, and will issue an order within 30 days after the appeal is filed stating whether the appeal is to be heard as a class appeal. If the judge denies the request, the appellants affected by the decision may file individual appeals within 30 days after the date of receipt of the decision denying the request to be heard as a class appeal. Each individual appellant is responsible for either filing an individual appeal within the original time limit, or keeping informed of the status of a class appeal and, if the class appeal is denied, filing an individual appeal within the additional 35-day period.</P> <P>(c) <E T="03">Standards.</E> In determining whether it is appropriate to treat an appeal as a class action, the judge will be guided but not controlled by the applicable provisions of the Federal Rules of Civil Procedure.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.28</SECTNO> <SUBJECT>Case suspension procedures.</SUBJECT> <P>(a) <E T="03">Joint requests.</E> The parties may submit a joint request for additional time to pursue discovery or settlement. Upon receipt of such request, the judge will suspend processing of the case for a period up to 30 days. The judge will grant an extension of the suspension period for up to an additional 30 days upon a joint request from the parties for additional time.</P> <P>(b) <E T="03">Unilateral requests.</E> Either party may submit a unilateral request for additional time to pursue discovery as provided in this subpart. Unilateral requests for additional time may be granted at the discretion of the judge.</P> <P>(c) <E T="03">Time for filing requests.</E> The parties must file a joint request that the adjudication of the appeal be suspended within 45 days of the date of the acknowledgment order (or within 7 days of the appellant's receipt of the agency file, whichever date is later). A request for an additional 30-day suspension period must be made on or before the fifth day before the end of the first 30-day suspension period.</P> <P>(d) <E T="03">Untimely requests.</E> The judge may consider requests for initial suspensions that are filed after the time limit set forth in paragraph (c) of this section. Such requests for additional time <PRTPAGE P="17"/>(up to 30 days for initial suspensions and a 30-day extension, as provided in paragraph (a) of this section) may be granted at the discretion of the judge.</P> <P>(e) <E T="03">Early termination of suspension period.</E> The suspension period may be terminated prior to the end of the agreed upon period if the parties request the judge's assistance relative to discovery or settlement during the suspension period and the judge's involvement pursuant to that request is likely to be extensive.</P> <CITA>[67 FR 3811, Jan. 28, 2002, as amended at 67 FR 58962, Sept. 19, 2002]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parties, Representatives, and Witnesses</HD> <SECTION> <SECTNO>§ 1201.31</SECTNO> <SUBJECT>Representatives.</SUBJECT> <P>(a) A party to an appeal may be represented in any matter related to the appeal. The parties must designate their representatives, if any, in writing. Any change in representation, and any revocation of a designation of representative, also must be in writing. Notice of the change must be filed and served on the other parties in accordance with § 1201.26 of this part.</P> <P>(b) A party may choose any representative as long as that person is willing and available to serve. The other party or parties may challenge the designation, however, on the ground that it involves a conflict of interest or a conflict of position. Any party who challenges the designation must do so by filing a motion with the judge within 15 days after the date of service of the notice of designation. The judge will rule on the motion before considering the merits of the appeal. These procedures apply equally to each designation of representative, regardless of whether the representative was the first one designated by a party or a subsequently designated representative. If a representative is disqualified, the judge will give the party whose representative was disqualified a reasonable time to obtain another one.</P> <P>(c) The judge, on his or her own motion, may disqualify a party's representative on the grounds described in paragraph (b) of this section.</P> <P>(d)(1) A judge may exclude a party, a representative, or other person from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice.</P> <P>(2) When a judge determines that a person should be excluded from participation in a proceeding, the judge shall inform the person of this determination through issuance of an order to show cause why he or she should not be excluded. The show cause order shall be delivered to the person by the most expeditious means of delivery available, including issuance of an oral order on the record where the determination to exclude the person is made during a hearing. The person must respond to the judge's show cause order within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the order, unless the judge provides a different time limit, or forfeit the right to seek certification of a subsequent exclusion order as an interlocutory appeal to the Board under paragraph (d)(3) of this section.</P> <P>(3) When, after consideration of the person's response to the show cause order, or in the absence of a response to the show cause order, the judge determines that the person should be excluded from participation in the proceeding, the judge shall issue an order that documents the reasons for the exclusion. The person may obtain review of the judge's ruling by filing, within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the ruling, a motion that the ruling be certified to the Board as an interlocutory appeal. The judge shall certify an interlocutory appeal to the Board within one day (excluding Saturdays, Sundays, and Federal holidays) of receipt of such a motion. Only the provisions of this paragraph apply to interlocutory appeals of rulings excluding a person from a proceeding; the provisions of §§ 1201.91 through 1201.93 of this part shall not apply.</P> <P>(4) A proceeding will not be delayed because the judge excludes a person from the proceeding, except that:</P> <P>(i) Where the judge excludes a party's representative, the judge will give the party a reasonable time to obtain another representative; and</P> <P>(ii) Where the judge certifies an interlocutory appeal of an exclusion ruling to the Board, the judge or the <PRTPAGE P="18"/>Board may stay the proceeding <E T="03">sua sponte</E> or on the motion of a party for a stay of the proceeding.</P> <P>(5) The Board, when considering a petition for review of a judge's initial decision under subpart C of this part, will not be bound by any decision of the judge to exclude a person from the proceeding below.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 62 FR 66815, Dec. 22, 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.32</SECTNO> <SUBJECT>Witnesses; right to representation.</SUBJECT> <P>Witnesses have the right to be represented when testifying. The representative of a nonparty witness has no right to examine the witness at the hearing or otherwise participate in the development of testimony.</P> </SECTION> <SECTION> <SECTNO>§ 1201.33</SECTNO> <SUBJECT>Federal witnesses.</SUBJECT> <P>(a) Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate).</P> <P>(b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written request that the judge order the employing agency to provide such official time. The judge will act on such a request promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section.</P> <P>(c) An order obtained under paragraph (b) of this section may be enforced as provided under subpart F of this part.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.34</SECTNO> <SUBJECT>Intervenors and amicus curiae.</SUBJECT> <P>(a) <E T="03">Explanation of Intervention.</E> Intervenors are organizations or persons who want to participate in a proceeding because they believe the proceeding, or its outcome, may affect their rights or duties. Intervenors as a “matter of right” are those parties who have a statutory right to participate. “Permissive” intervenors are those parties who may be permitted to participate if the proceeding will affect them directly and if intervention is otherwise appropriate under law. A request to intervene may be made by motion filed with the judge.</P> <P>(b) <E T="03">Intervenors as a matter of right.</E> (1) The Director of the Office of Personnel Management may intervene as a matter of right under 5 U.S.C. 7701(d)(1). The motion to intervene must be filed at the earliest practicable time.</P> <P>(2)(i) Except as provided in paragraph (b)(2)(ii) of this section, the Special Counsel may intervene as a matter of right under 5 U.S.C. 1212(c). The motion to intervene must be filed at the earliest practicable time.</P> <P>(ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed.</P> <P>(c) <E T="03">Permissive intervenors.</E> (1) Any person, organization or agency may, by motion, ask the judge for permission to intervene. The motion must explain the reason why the person, organization or agency should be permitted to intervene.</P> <P>(2) A motion for permission to intervene will be granted where the requester will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may request permission to intervene. A judge's denial of a motion for permissive intervention may be appealed to the Board under § 1201.91 of this part.</P> <P>(d) <E T="03">Role of intervenors.</E> Intervenors have the same rights and duties as parties, with the following two exceptions:</P> <P>(1) Intervenors do not have an independent right to a hearing; and</P> <P>(2) Permissive intervenors may participate only on the issues affecting <PRTPAGE P="19"/>them. The judge is responsible for determining the issues on which permissive intervenors may participate.</P> <P>(e) <E T="03">Amicus curiae.</E> An amicus curiae is a person or organization that, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may, in the discretion of the judge, be granted permission to file an amicus curiae brief.</P> </SECTION> <SECTION> <SECTNO>§ 1201.35</SECTNO> <SUBJECT>Substituting parties.</SUBJECT> <P>(a) If an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. Substitution will not be permitted where the interests of the appellant have terminated because of the appellant's death or other disability.</P> <P>(b) The representative or proper party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown.</P> <P>(c) In the absence of a timely substitution of a party, the processing of the appeal may continue if the interests of the proper party will not be prejudiced.</P> </SECTION> <SECTION> <SECTNO>§ 1201.36</SECTNO> <SUBJECT>Consolidating and joining appeals.</SUBJECT> <P>(a) <E T="03">Explanation.</E> (1) Consolidation occurs when the appeals of two or more parties are united for consideration because they contain identical or similar issues. For example, individual appeals rising from a single reduction in force might be consolidated.</P> <P>(2) Joinder occurs when one person has filed two or more appeals and they are united for consideration. For example, a judge might join an appeal challenging a 30-day suspension with a pending appeal challenging a subsequent dismissal if the same appellant filed both appeals.</P> <P>(b) <E T="03">Action by judge.</E> A judge may consolidate or join cases on his or her own motion or on the motion of a party if doing so would:</P> <P>(1) Expedite processing of the cases; and</P> <P>(2) Not adversely affect the interests of the parties.</P> <P>(c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion.</P> </SECTION> <SECTION> <SECTNO>§ 1201.37</SECTNO> <SUBJECT>Witness fees.</SUBJECT> <P>(a) <E T="03">Federal employees.</E> Employees of a Federal agency or corporation testifying in any Board proceeding or making a statement for the record will be in official duty status and will not receive witness fees.</P> <P>(b) <E T="03">Other witnesses.</E> Other witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.</P> <P>(c) <E T="03">Payment of witness fees and travel costs.</E> The party requesting the presence of a witness must pay that witness’ fees. Those fees must be paid or offered to the witness at the time the subpoena is served, or, if the witness appears voluntarily, at the time of appearance. A Federal agency or corporation is not required to pay or offer witness fees in advance.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Judges</HD> <SECTION> <SECTNO>§ 1201.41</SECTNO> <SUBJECT>Judges.</SUBJECT> <P>(a) <E T="03">Exercise of authority.</E> Judges may exercise authority as provided in paragraphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.</P> <P>(b) <E T="03">Authority.</E> Judges will conduct fair and impartial hearings and will take all necessary action to avoid delay in all proceedings. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges’ powers include, but are not limited to, the authority to:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas under § 1201.81 of this part;</P> <P>(3) Rule on offers of proof and receive relevant evidence;</P> <P>(4) Rule on discovery motions under § 1201.73 of this part;</P> <P>(5) After notice to the parties, order a hearing on his or her own initiative if the judge determines that a hearing is necessary:<PRTPAGE P="20"/> </P> <P>(i) To resolve an important issue of credibility;</P> <P>(ii) To ensure that the record on significant issues is fully developed; or</P> <P>(iii) To otherwise ensure a fair and just adjudication of the case;</P> <P>(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;</P> <P>(7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part;</P> <P>(8) Rule on all motions, witness and exhibit lists, and proposed findings;</P> <P>(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;</P> <P>(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;</P> <P>(11) Impose sanctions as provided under § 1201.43 of this part;</P> <P>(12) Hold prehearing conferences for the settlement and simplification of issues;</P> <P>(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication;</P> <P>(14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F;</P> <P>(15) Issue initial decisions; and</P> <P>(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.</P> <P>(c) <E T="03">Settlement—</E>(1) <E T="03">Settlement discussion.</E> The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against <E T="03">ex parte</E> communications during settlement discussions, and they may agree to any limits on the waiver.</P> <P>(2) <E T="03">Agreement.</E> If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.</P> <P>(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.</P> <P>(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.42</SECTNO> <SUBJECT>Disqualifying a judge.</SUBJECT> <P>(a) If a judge considers himself or herself disqualified, he or she will withdraw from the case, state on the record the reasons for doing so, and immediately notify the Board of the withdrawal.</P> <P>(b) A party may file a motion asking the judge to withdraw on the basis of personal bias or other disqualification. This motion must be filed as soon as the party has reason to believe there is a basis for disqualification. The reasons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)</P> <P>(c) If the judge denies the motion, the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under § 1201.91 of this part. Failure to request certification is considered a waiver of the request for withdrawal.</P> </SECTION> <SECTION> <SECTNO>§ 1201.43</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), and (c) of this section.</P> <P>(a) <E T="03">Failure to comply with an order.</E> When a party fails to comply with an order, the judge may:</P> <P>(1) Draw an inference in favor of the requesting party with regard to the information sought;</P> <P>(2) Prohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information;<PRTPAGE P="21"/> </P> <P>(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and</P> <P>(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.</P> <P>(b) <E T="03">Failure to prosecute or defend appeal.</E> If a party fails to prosecute or defend an appeal, the judge may dismiss the appeal with prejudice or rule in favor of the appellant.</P> <P>(c) <E T="03">Failure to make timely filing.</E> The judge may refuse to consider any motion or other pleading that is not filed in a timely fashion in compliance with this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTION> <SECTNO>§ 1201.51</SECTNO> <SUBJECT>Scheduling the hearing.</SUBJECT> <P>(a) The hearing will be scheduled not earlier than 15 days after the date of the hearing notice unless the parties agree to an earlier date. The agency, upon request of the judge, must provide appropriate hearing space.</P> <P>(b) The judge may change the time, date, or place of the hearing, or suspend, adjourn, or continue the hearing. The change will not require the 15-day notice provided in paragraph (a) of this section.</P> <P>(c) Either party may file a motion for postponement of the hearing. The motion must be made in writing and must either be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must describe the reasons for the request. The judge will grant the request for postponement only upon a showing of good cause.</P> <P>(d) The Board has established certain approved hearing locations, which are published as a Notice in the <E T="04">Federal Register.</E> See appendix III. Parties, for good cause, may file motions requesting a different hearing location. Rulings on those motions will be based on a showing that a different location will be more advantageous to all parties and to the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1201.52</SECTNO> <SUBJECT>Public hearings.</SUBJECT> <P>Hearings are open to the public. The judge may order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge's decision. Any objections to the order will be made a part of the record.</P> </SECTION> <SECTION> <SECTNO>§ 1201.53</SECTNO> <SUBJECT>Record of proceedings.</SUBJECT> <P>(a) <E T="03">Preparation.</E> A word-for-word record of the hearing is made under the judge's guidance. It is kept in the Board's copy of the appeal file and it is the official record of the hearing. Only hearing tape recordings or written transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. When the judge assigned to the case tape records a hearing (for example, a telephonic hearing in a retirement appeal), the judge is the “official hearing reporter” under this section.</P> <P>(b) <E T="03">Copies</E>. When requested and when costs are paid, a copy of the official record of the hearing will be provided to a party. A party must send a request for a copy of a hearing tape recording or written transcript to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. A request for a copy of a hearing tape recording or written transcript sent by a non-party is controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests for hearing tape recordings or written transcripts under the Freedom of Information Act must be sent to the appropriate Regional Director, the Chief Administrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC.</P> <P>(c)<E T="03"> Exceptions to payment of costs.</E> A party may not have to pay for a hearing tape recording or written transcript if he has a good reason. If a party believes he has a good reason and the request is made before the judge issues and initial decision, the party must sent the request for an exception to the judge. If the request is made after the judge issues an initial decision, the request must be sent to the Clerk of the Board. The party must clearly state the reason for the request in an affidavit or sworn statement.</P> <P>(d) <E T="03">Corrections to written transcript.</E> Corrections to the official written <PRTPAGE P="22"/>transcript may be made on motion by a party or on the judge's own motion. Motions for corrections must be filed within 10 days after the receipt of a written transcript. Corrections of the official written transcript will be made only when substantive errors are found and only with the judge's approval.</P> <P>(e) <E T="03">Official record.</E> Exhibits, the official hearing record, if a hearing is held, all papers filed, and all orders and decisions of the judge and the Board, make up the official record of the case.</P> <CITA>[65 FR 19293, Apr. 11, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.55</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(a) <E T="03">Form.</E> All motions, except those made during a prehearing conference or a hearing, must be in writing. All motions must include a statement of the reasons supporting them. Written motions must be filed with the judge or the Board, as appropriate, and must be served upon all other parties in accordance with § 1201.26(b)(2) of this part. A party filing a motion for extension of time, a motion for postponement of a hearing, or any other procedural motion must first contact the other party to determine whether there is any objection to the motion, and must state in the motion whether the other party has an objection.</P> <P>(b) <E T="03">Objection.</E> Unless the judge provides otherwise, any objection to a written motion must be filed within 10 days from the date of service of the motion. Judges, in their discretion, may grant or deny motions for extensions of time to file pleadings without providing any opportunity to respond to the motions.</P> <P>(c) <E T="03">Motions for extension of time.</E> Motions for extension of time will be granted only on a showing of good cause.</P> <P>(d) <E T="03">Motions for protective orders.</E> A motion for an order under 5 U.S.C. 1204(e)(1)(B) to protect a witness or other individual from harassment must be filed as early in the proceeding as practicable. The party seeking a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. An agency, other than the Office of Special Counsel, may not request such an order with respect to an investigation by the Special Counsel during the Special Counsel's investigation. An order issued under this paragraph may be enforced in the same manner as provided under subpart F for Board final decisions and orders.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.56</SECTNO> <SUBJECT>Burden and degree of proof; affirmative defenses.</SUBJECT> <P>(a) <E T="03">Burden and degree of proof</E>—(1) <E T="03">Agency:</E> Under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in paragraph (b) of this section, the agency action must be sustained if:</P> <P>(i) It is brought under 5 U.S.C. 3592(a)(3), 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence; or</P> <P>(ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence.</P> <P>(2) <E T="03">Appellant.</E> The appellant has the burden of proof, by a preponderance of the evidence, with respect to:</P> <P>(i) Issues of jurisdiction;</P> <P>(ii) The timeliness of the appeal; and</P> <P>(iii) Affirmative defenses.</P> <FP>In appeals from reconsideration decisions of the Office of Personnel Management involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence, entitlement to the benefits. An appellant who has received an overpayment from the Civil Service Retirement and Disability Fund has the burden of proving, by substantial evidence, eligibility for waiver or adjustment.</FP> <P>(b) <E T="03">Affirmative defenses of the appellant.</E> Under 5 U.S.C. 7701(c)(2), the Board is required to overturn the action of the agency, even where the agency has met the evidentiary standard stated in paragraph (a) of this section, if the appellant:</P> <P>(1) Shows harmful error in the application of the agency's procedures in arriving at its decision;</P> <P>(2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or</P> <P>(3) Shows that the decision was not in accordance with law.</P> <P>(c) <E T="03">Definitions.</E> The following definitions apply to this part:<PRTPAGE P="23"/> </P> <P>(1) <E T="03">Substantial evidence.</E> The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is a lower standard of proof than preponderance of the evidence.</P> <P>(2) <E T="03">Preponderance of the evidence.</E> The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.</P> <P>(3) <E T="03">Harmful error.</E> Error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is upon the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.57</SECTNO> <SUBJECT>Order of hearing.</SUBJECT> <P>(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.</P> <P>(b) The appellant will proceed first at hearings convened on the issues of:</P> <P>(1) Jurisdiction;</P> <P>(2) Timeliness; or</P> <P>(3) Office of Personnel Management disallowance of retirement benefits, when the appellant applied for those benefits.</P> <P>(c) The judge may vary the normal order of presenting evidence.</P> </SECTION> <SECTION> <SECTNO>§ 1201.58</SECTNO> <SUBJECT>Closing the record.</SUBJECT> <P>(a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identified for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose.</P> <P>(b) If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties.</P> <P>(c) Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed. The judge will include in the record, however, any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence</HD> <SECTION> <SECTNO>§ 1201.61</SECTNO> <SUBJECT>Exclusion of evidence and testimony.</SUBJECT> <P>Any evidence and testimony that is offered in the hearing and excluded by the judge will be described, and that description will be made a part of the record.</P> </SECTION> <SECTION> <SECTNO>§ 1201.62</SECTNO> <SUBJECT>Producing prior statements.</SUBJECT> <P>After an individual has given evidence in a proceeding, any party may request a copy of any prior signed statement made by that individual that is relevant to the evidence given. If the party refuses to furnish the statement, the judge may exclude the evidence given.</P> </SECTION> <SECTION> <SECTNO>§ 1201.63</SECTNO> <SUBJECT>Stipulations.</SUBJECT> <P>The parties may stipulate to any matter of fact. The stipulation will satisfy a party's burden of proving the fact alleged.</P> </SECTION> <SECTION> <SECTNO>§ 1201.64</SECTNO> <SUBJECT>Official notice.</SUBJECT> <P>Official notice is the Board's or judge's recognition of certain facts without requiring evidence to be introduced establishing those facts. The judge, on his or her own motion or on the motion of a party, may take official notice of matters of common knowledge or matters that can be verified. The parties may be given an opportunity to object to the taking of official notice. The taking of official notice of any fact satisfies a party's burden of proving that fact.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTION> <SECTNO>§ 1201.71</SECTNO> <SUBJECT>Purpose of discovery.</SUBJECT> <P>Proceedings before the Board will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party's case. <PRTPAGE P="24"/>These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention.</P> </SECTION> <SECTION> <SECTNO>§ 1201.72</SECTNO> <SUBJECT>Explanation and scope of discovery.</SUBJECT> <P>(a) <E T="03">Explanation.</E> Discovery is the process, apart from the hearing, by which a party may obtain relevant information, including the identification of potential witnesses, from another person or a party, that the other person or party has not otherwise provided. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained to assist the parties in preparing and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. Those rules, however, are instructive rather than controlling.</P> <P>(b) <E T="03">Scope.</E> Discovery covers any nonprivileged matter that is relevant to the issues involved in the appeal, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Discovery requests that are directed to nonparties and nonparty Federal agencies and employees are limited to information that appears directly material to the issues involved in the appeal.</P> <P>(c) <E T="03">Methods.</E> Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written interrogatories, depositions, requests for production of documents or things for inspection or copying, and requests for admission.</P> </SECTION> <SECTION> <SECTNO>§ 1201.73</SECTNO> <SUBJECT>Discovery procedures.</SUBJECT> <P>(a) <E T="03">Discovery from a party.</E> A party seeking discovery from another party must start the process by serving a request for discovery on the representative of the other party or the party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in § 1201.73(d), and must specify the time and place of the taking of the deposition, if applicable.</P> <P>When a party directs a request for discovery to an officer or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer or employee as necessary in providing relevant information that is available to the agency.</P> <P>(b) <E T="03">Discovery from a nonparty, including a nonparty Federal agency.</E> Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly. If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of the particular information sought. If the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the Board will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any Board-approved discovery request and subpoena on the individual or entity, or for arranging for their service.</P> <P>(c) <E T="03">Responses to discovery requests.</E> (1) A party, or a Federal agency that is not a party, must answer a discovery request within the time provided under paragraph (d)(2) of this section, either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents <PRTPAGE P="25"/>available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection.</P> <P>(2) If a party fails or refuses to respond in full to a discovery request, or if a nonparty fails or refuses to respond in full to a Board-approved discovery order, the requesting party may file a motion to compel discovery. The requesting party must file the motion with the judge, and must serve a copy of the motion on the other party and on any nonparty entity or person from whom the discovery was sought. The motion must be accompanied by:</P> <P>(i) A copy of the original request and a statement showing that the information sought is relevant and material; and</P> <P>(ii) A copy of the response to the request (including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the statement. (See appendix IV.)</P> <P>(3) The other party and any other entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (d)(4) of this section.</P> <P>(d) <E T="03">Time limits.</E> (1) Parties who wish to make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.</P> <P>(2) A party or nonparty must file a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place.</P> <P>(3) Any motion to depose a nonparty (along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (d)(1) of this section or as the judge otherwise directs.</P> <P>(4) Any motion for an order to compel discovery must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel discovery must be filed with the judge within 10 days of the date of service of the motion.</P> <P>(5) Discovery must be completed within the time the judge designates.</P> </SECTION> <SECTION> <SECTNO>§ 1201.74</SECTNO> <SUBJECT>Orders for discovery.</SUBJECT> <P>(a) <E T="03">Motion for an order compelling discovery.</E> Motions for orders compelling discovery and motions for the appearance of nonparties must be filed with the judge in accordance with § 1201.73(c)(2) and (d)(4).</P> <P>(b) <E T="03">Content of order.</E> Any order issued will include, where appropriate:</P> <P>(1) A provision that the person to be deposed must be notified of the time and place of the deposition;</P> <P>(2) Any conditions or limits concerning the conduct or scope of the proceedings or the subject matter that may be necessary to prevent undue delay or to protect a party or other individual or entity from undue expense, embarrassment, or oppression;</P> <P>(3) Limits on the time for conducting depositions, answering written interrogatories, or producing documentary evidence; and</P> <P>(4) Other restrictions upon the discovery process that the judge sets.</P> <P>(c) <E T="03">Noncompliance.</E> The judge may impose sanctions under § 1201.43 of this part for failure to comply with an order compelling discovery.</P> </SECTION> <SECTION> <SECTNO>§ 1201.75</SECTNO> <SUBJECT>Taking depositions.</SUBJECT> <P>Depositions may be taken by any method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Subpoenas</HD> <SECTION> <SECTNO>§ 1201.81</SECTNO> <SUBJECT>Requests for subpoenas.</SUBJECT> <P>(a) <E T="03">Request.</E> Parties who wish to obtain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the <PRTPAGE P="26"/>production of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those subpoenas with the judge. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses.</P> <P>(b) <E T="03">Form.</E> Parties requesting subpoenas must file their requests, in writing, with the judge. Each request must identify specifically the books, papers, or testimony desired.</P> <P>(c) <E T="03">Relevance.</E> The request must be supported by a showing that the evidence sought is relevant and that the scope of the request is reasonable.</P> <P>(d) <E T="03">Rulings.</E> Any judge who does not have the authority to issue subpoenas will refer the request to an official with authority to rule on the request, with a recommendation for decision. The official to whom the request is referred will rule on the request promptly. Judges who have the authority to rule on these requests themselves will do so directly.</P> </SECTION> <SECTION> <SECTNO>§ 1201.82</SECTNO> <SUBJECT>Motions to quash subpoenas.</SUBJECT> <P>Any person to whom a subpoena is directed, or any party, may file a motion to quash or limit the subpoena. The motion must be filed with the judge, and it must include the reasons why compliance with the subpoena should not be required or the reasons why the subpoena's scope should be limited.</P> </SECTION> <SECTION> <SECTNO>§ 1201.83</SECTNO> <SUBJECT>Serving subpoenas.</SUBJECT> <P>(a) Any person who is at least 18 years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who requested the subpoena, and to whom the subpoena has been issued, is responsible for serving the subpoena.</P> <P>(b) A subpoena directed to an individual outside the territorial jurisdiction of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country.</P> </SECTION> <SECTION> <SECTNO>§ 1201.84</SECTNO> <SUBJECT>Proof of service.</SUBJECT> <P>The person who has served the subpoena must certify that he or she did so:</P> <P>(a) By delivering it to the witness in person,</P> <P>(b) By registered or certified mail, or</P> <P>(c) By delivering the subpoena to a responsible person (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended.</P> <FP>The document in which the party makes this certification also must include a statement that the prescribed fees have been paid or offered.</FP> </SECTION> <SECTION> <SECTNO>§ 1201.85</SECTNO> <SUBJECT>Enforcing subpoenas.</SUBJECT> <P>(a) If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge or make an oral motion for enforcement while on the record at a hearing. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. The Board, in accordance with 5 U.S.C. 1204(c), may then ask the appropriate United States district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country.</P> <P>(b) Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Interlocutory Appeals</HD> <SECTION> <SECTNO>§ 1201.91</SECTNO> <SUBJECT>Explanation.</SUBJECT> <P>An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she determines that the issue presented in it is of such importance to the proceeding <PRTPAGE P="27"/>that it requires the Board's immediate attention. Either party may make a motion for certification of an interlocutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board's decision.</P> </SECTION> <SECTION> <SECTNO>§ 1201.92</SECTNO> <SUBJECT>Criteria for certifying interlocutory appeals.</SUBJECT> <P>The judge will certify a ruling for review only if the record shows that:</P> <P>(a) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and</P> <P>(b) An immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.</P> </SECTION> <SECTION> <SECTNO>§ 1201.93</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(a) <E T="03">Motion for certification.</E> A party seeking the certification of an interlocutory appeal must file a motion for certification within 10 days of the date of the ruling to be appealed. The motion must be filed with the judge, and must state why certification is appropriate and what the Board should do and why. The opposing party may file objections within 10 days of the date of service of the motion, or within any other time period that the judge may designate.</P> <P>(b) <E T="03">Certification and review.</E> The judge will grant or deny a motion for certification within five days after receiving all pleadings or, if no response is filed, within 10 days after receiving the motion. If the judge grants the motion for certification, he or she will refer the record to the Board. If the judge denies the motion, the party that sought certification may raise the matter at issue in a petition for review filed after the initial decision is issued, in accordance with §§ 1201.113 and 1201.114 of this part.</P> <P>(c) <E T="03">Stay of hearing.</E> The judge has the authority to proceed with or to stay the hearing while an interlocutory appeal is pending with the Board. Despite this authority, however, the Board may stay a hearing on its own motion while an interlocutory appeal is pending with it.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ex Parte Communications</HD> <SECTION> <SECTNO>§ 1201.101</SECTNO> <SUBJECT>Explanation and definitions.</SUBJECT> <P>(a) <E T="03">Explanation.</E> An ex parte communication is an oral or written communication between a decision-making official of the Board and an interested party to a proceeding, when that communication is made without providing the other parties to the appeal with a chance to participate. Not all ex parte communications are prohibited. Those that involve the merits of the case, or those that violate rules requiring submissions to be in writing, are prohibited. Accordingly, interested parties may ask about such matters as the status of a case, when it will be heard, and methods of submitting evidence to the Board. Parties may not ask about matters such as what defense they should use or whether their evidence is adequate, and they may not make a submission orally if that submission is required to be made in writing.</P> <P>(b) <E T="03">Definitions for purposes of this section.</E> </P> <P>(1) <E T="03">Interested party</E> includes:</P> <P>(i) Any party or representative of a party involved in a proceeding before the Board; and</P> <P>(ii) Any other person who might be affected by the outcome of a proceeding before the Board.</P> <P>(2) <E T="03">Decision-making official</E> means any judge, officer or other employee of the Board designated to hear and decide cases.</P> </SECTION> <SECTION> <SECTNO>§ 1201.102</SECTNO> <SUBJECT>Prohibition on ex parte communications.</SUBJECT> <P>Except as otherwise provided in § 1201.41(c)(1) of this part, ex parte communications that concern the merits of any matter before the Board for adjudication, or that otherwise violate rules requiring written submissions, are prohibited from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter.</P> </SECTION> <SECTION> <PRTPAGE P="28"/> <SECTNO>§ 1201.103</SECTNO> <SUBJECT>Placing communications in the record; sanctions.</SUBJECT> <P>(a) Any communication made in violation of § 1201.102 of this part will be made a part of the record. If the communication was oral, a memorandum stating the substance of the discussion will be placed in the record.</P> <P>(b) If there has been a violation of § 1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a response.</P> <P>(c) The following sanctions are available:</P> <P>(1) <E T="03">Parties.</E> The offending party may be required to show why, in the interest of justice, the claim or motion should not be dismissed, denied, or otherwise adversely affected.</P> <P>(2) <E T="03">Board personnel.</E> Offending Board personnel will be treated in accordance with the Board's standards of conduct.</P> <P>(3) <E T="03">Other persons.</E> The Board may invoke appropriate sanctions against other offending parties.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Final Decisions</HD> <SECTION> <SECTNO>§ 1201.111</SECTNO> <SUBJECT>Initial decision by judge.</SUBJECT> <P>(a) The judge will prepare an initial decision after the record closes, and will serve that decision on the Clerk of the Board, on the Director of the Office of Personnel Management, and on all parties to the appeal, including named parties, permissive intervenors, and intervenors of right.</P> <P>(b) Each initial decision will contain:</P> <P>(1) Findings of fact and conclusions of law upon all the material issues of fact and law presented on the record;</P> <P>(2) The reasons or bases for those findings and conclusions;</P> <P>(3) An order making final disposition of the case, including appropriate relief;</P> <P>(4) A statement, if the appellant is the prevailing party, as to whether interim relief is provided effective upon the date of the decision, pending the outcome of any petition for review filed by another party under subpart C of this part;</P> <P>(5) The date upon which the decision will become final (a date that, for purposes of this section, is 35 days after issuance); and</P> <P>(6) A statement of any further process available, including, as appropriate, a petition for review under § 1201.114 of this part, a petition for enforcement under § 1201.182, a motion for attorney fees under § 1201.203, a motion to initiate an addendum proceeding for consequential damages or compensatory damages under § 1201.204, and a petition for judicial review.</P> <P>(c) <E T="03">Interim relief.</E> (1) Under 5 U.S.C. 7701(b)(2), if the appellant is the prevailing party, the initial decision will provide appropriate interim relief to the appellant effective upon the date of the initial decision and remaining in effect until the date of the final order of the Board on any petition for review, unless the judge determines that the granting of interim relief is not appropriate. The agency may decline to return the appellant to his or her place of employment if it determines that the return or presence of the appellant will be unduly disruptive to the work environment. However, pay and benefits must be provided.</P> <P>(2) An initial decision that orders interim relief shall include a section which will provide the appellant specific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the initial decision requires the agency to effect an appointment, the notice required by this section will so state, will specify the title and grade of the appointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant's return to or presence in the workplace would be unduly disruptive.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997; 63 FR 41179, Aug. 3, 1998; 64 FR 27900, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.112</SECTNO> <SUBJECT>Jurisdiction of judge.</SUBJECT> <P>(a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to:</P> <P>(1) Correct the transcript, when one is obtained;<PRTPAGE P="29"/> </P> <P>(2) Rule on motions for exception to the requirement that a party seeking a transcript must pay for it;</P> <P>(3) Rule on a request by the appellant for attorney fees, consequential damages, or compensatory damages under subpart H of this part;</P> <P>(4) Process any petition for enforcement filed under subpart F of this part;</P> <P>(5) Vacate an initial decision before that decision becomes final under § 1201.113 in order to accept a settlement agreement into the record.</P> <P>(b) Nothing is this section affects the time limits prescribed in § 1201.113 regarding the finality of an initial decision or the time allowed for filing a petition for review.</P> <CITA>[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.113</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> <P>The initial decision of the judge will become final 35 days after issuance. Initial decisions are not precedential.</P> <P>(a) <E T="03">Exceptions.</E> The initial decision will not become final if any party files a petition for review within the time limit for filing specified in § 1201.114 of this part, or if the Board reopens the case on its own motion.</P> <P>(b) <E T="03">Petition for review denied.</E> If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review.</P> <P>(c) <E T="03">Petition for review granted or case reopened.</E> If the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.</P> <P>(d) <E T="03">Extensions.</E> The Board may extend the time limit for filing a petition for good cause shown as specified in § 1201.114 of this part.</P> <P>(e) <E T="03">Exhaustion.</E> Administrative remedies are exhausted when a decision becomes final in accordance with this section.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Petitions for Review of Initial Decisions</HD> <SECTION> <SECTNO>§ 1201.114</SECTNO> <SUBJECT>Filing petition and cross petition for review.</SUBJECT> <P>(a) <E T="03">Who may file.</E> Any party to the proceeding, the Director of the Office of Personnel Management (OPM), or the Special Counsel may file a petition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under OPM's jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party's designated representative.</P> <P>(b) <E T="03">Cross petition for review.</E> If a party, the Director of OPM, or the Special Counsel files a timely petition for review, any other party, the Director of OPM, or the Special Counsel may file a timely cross petition for review. The Board normally will consider only issues raised in a timely filed petition for review or in a timely filed cross petition for review.</P> <P>(c) <E T="03">Place for filing.</E> A petition for review, cross petition for review, responses to those petitions, and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <P>(d) <E T="03">Time for filing.</E> Any petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition.</P> <P>(e) <E T="03">Extension of time to file.</E> The Board will grant a motion for extension of <PRTPAGE P="30"/>time to file a petition for review, a cross petition, or a response only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board before the date on which the petition or other pleading is due. The Board, in its discretion, may grant or deny those motions without providing the other parties the opportunity to comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must include a specific and detailed description of the circumstances alleged to constitute good cause, and it should be accompanied by any available documentation or other evidence supporting the matters asserted.</P> <P>(f) <E T="03">Late filings.</E> Any petition for review, cross petition for review, or response that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (e) of this section, or unless a motion for extension is pending before the Board. The motion must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must include:</P> <P>(1) The reasons for failing to request an extension before the deadline for the submission; and</P> <P>(2) A specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence.</P> <FP>Any response to the motion may be included in the response to the petition for review, the cross petition for review, or the response to the cross petition for review. The response will not extend the time provided by paragraph (d) of this section to file a cross petition for review or to respond to the petition or cross petition. In the absence of a motion, the Board may, in its discretion, determine on the basis of the existing record whether there was good cause for the untimely filing, or it may provide the party that submitted the document with an opportunity to show why it should not be dismissed or excluded as untimely.</FP> <P>(g) <E T="03">Intervention—</E>(1) <E T="03">By Director of OPM.</E> The Director of OPM may intervene in a case before the Board under the standards stated in 5 U.S.C. 7701(d). The notice of intervention is timely if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Director requests additional time for filing a brief on intervention, the Board may, in its discretion, grant the request. A party may file a response to the Director's brief within 15 days of the date of service of that brief. The Director must serve the notice of intervention and the brief on all parties.</P> <P>(2) <E T="03">By Special Counsel.</E> (i) Under 5 U.S.C. 1212(c), the Special Counsel may intervene as a matter of right, except as provided in paragraph (g)(2)(ii) of this section. The notice of intervention is timely if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Special Counsel requests additional time for filing a brief on intervention, the Board may, in its discretion, grant the request. A party may file a response to the Special Counsel's brief within 15 days of the date of service. The Special Counsel must serve the notice of intervention and the brief on all parties.</P> <P>(ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed.</P> <P>(3) <E T="03">Permissive intervenors.</E> Any person, organization or agency, by motion made in a petition for review, may ask for permission to intervene. The motion must state in detail the reasons why the person, organization or agency should be permitted to intervene. A motion for permission to intervene will be granted if the requester shows that he or she will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may ask for permission to intervene.<PRTPAGE P="31"/> </P> <P>(h) <E T="03">Service.</E> A party submitting a pleading must serve a copy of it on each party and on each representative as provided in § 1201.26(b)(2).</P> <P>(i) <E T="03">Closing the record.</E> The record closes on expiration of the period for filing the response to the petition for review, or to the cross petition for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 62 FR 59992, Nov. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.115</SECTNO> <SUBJECT>Contents of petition for review.</SUBJECT> <P>(a) The petition for review must state objections to the initial decision that are supported by references to applicable laws or regulations and by specific references to the record.</P> <P>(b)(1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).</P> <P>(2) If the appellant challenges the agency's certification of compliance with the interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant may respond to the agency's submission of evidence within 10 days after the date of service of the submission.</P> <P>(3) If an appellant or an intervenor files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency's compliance with the interim relief order, upon order of the Board the agency must submit evidence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).</P> <P>(4) Failure by an agency to provide the certification required by paragraph (b)(1) of this section with its petition or cross petition for review, or to provide evidence of compliance in response to a Board order in accordance with paragraph (b)(2) or (b)(3) of this section, may result in the dismissal of the agency's petition or cross petition for review.</P> <P>(c) Nothing in paragraph (b) of this section shall be construed to require any payment of back pay for the period preceding the date of the judge's initial decision or attorney fees before the decision of the Board becomes final.</P> <P>(d) The Board, after providing the other parties with an opportunity to respond, may grant a petition for review when it is established that:</P> <P>(1) New and material evidence is available that, despite due diligence, was not available when the record closed; or</P> <P>(2) The decision of the judge is based on an erroneous interpretation of statute or regulation.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 30863, June 16, 1994; 62 FR 43631, Aug. 15, 1997; 64 FR 27900, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.116</SECTNO> <SUBJECT>Appellant requests for enforcement of interim relief.</SUBJECT> <P>(a) <E T="03">Before a final decision is issued.</E> If the agency files a petition for review or a cross petition for review and has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit.</P> <P>(b) <E T="03">After a final decision is issued.</E> If the appellant is not the prevailing party in the final Board order, and if the appellant believes that the agency <PRTPAGE P="32"/>has not provided full interim relief, the appellant may file an enforcement petition with the regional office under § 1201.182. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under § 1201.183.</P> <CITA>[59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.117</SECTNO> <SUBJECT>Procedures for review or reopening.</SUBJECT> <P>(a) In any case that is reopened or reviewed, the Board may:</P> <P>(1) Issue a single decision that denies or grants a petition for review, reopens the appeal, and decides the case;</P> <P>(2) Hear oral arguments;</P> <P>(3) Require that briefs be filed;</P> <P>(4) Remand the appeal so that the judge may take further testimony or evidence or make further findings or conclusions; or</P> <P>(5) Take any other action necessary for final disposition of the case.</P> <P>(b) The Board may affirm, reverse, modify, or vacate the decision of the judge, in whole or in part. Where appropriate, the Board will issue a final decision and order a date for compliance with that decision.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.118</SECTNO> <SUBJECT>Board reopening of case and reconsideration of initial decision.</SUBJECT> <P>The Board may reopen an appeal and reconsider a decision of a judge on its own motion at any time, regardless of any other provisions of this part.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.119</SECTNO> <SUBJECT>OPM petition for reconsideration.</SUBJECT> <P>(a) <E T="03">Criteria.</E> Under 5 U.S.C. 7703(d), the Director of the Office of Personnel Management may file a petition for reconsideration of a Board final order if he or she determines:</P> <P>(1) That the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management, and</P> <P>(2) That the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.</P> <P>(b) <E T="03">Time limit.</E> The Director must file the petition for reconsideration within 35 days after the date of service of the Board's final order.</P> <P>(c) <E T="03">Briefs.</E> After the petition is filed, the Board will make the official record relating to the petition for reconsideration available to the Director for review. The Director's brief in support of the petition for reconsideration must be filed within 20 days after the Board makes the record available for review. Any party's opposition to the petition for reconsideration must be filed within 25 days from the date of service of the Director's brief.</P> <P>(d) <E T="03">Stays.</E> If the Director of OPM files a petition for reconsideration, he or she also may ask the Board to stay its final order. An application for a stay, with a supporting memorandum, must be filed at the same time as the petition for reconsideration.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.120</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Any employee or applicant for employment who is adversely affected by a final order or decision of the Board under the provisions of 5 U.S.C. 7703 may obtain judicial review in the United States Court of Appeals for the Federal Circuit. As § 1201.175 of this part provides, an appropriate United States district court has jurisdiction over a request for judicial review of cases involving the kinds of discrimination issues described in 5 U.S.C. 7702.</P> <CITA>[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Original Jurisdiction Cases</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 48451, Sept. 16, 1997, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <PRTPAGE P="33"/> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1201.121</SECTNO> <SUBJECT>Scope of jurisdiction; application of subparts B, F, and H.</SUBJECT> <P>(a) <E T="03">Scope.</E> The Board has original jurisdiction over complaints filed by the Special Counsel seeking corrective or disciplinary action (including complaints alleging a violation of the Hatch Political Activities Act), requests by the Special Counsel for stays of certain personnel actions, proposed agency actions against administrative law judges, and removals of career appointees from the Senior Executive Service for performance reasons.</P> <P>(b) <E T="03">Application of subparts B, F, and H.</E> (1) Except as otherwise expressly provided by this subpart, the regulations in subpart B of this part applicable to appellate case processing also apply to original jurisdiction cases processed under this subpart.</P> <P>(2) Subpart F of this part applies to enforcement proceedings in connection with Special Counsel complaints and stay requests, and agency actions against administrative law judges, decided under this subpart.</P> <P>(3) Subpart H of this part applies to requests for attorney fees or compensatory damages in connection with Special Counsel corrective and disciplinary action complaints, and agency actions against administrative law judges, decided under this subpart. Subpart H of this part also applies to requests for consequential damages in connection with Special Counsel corrective action complaints decided under this subpart.</P> <P>(c) The provisions of this subpart do not apply to appeals alleging non-compliance with the provisions of chapter 43 of title 38 of the United States Code relating to the employment or reemployment rights or benefits to which a person is entitled after service in the uniformed services, in which the Special Counsel appears as the designated representative of the appellant. Such appeals are governed by part 1208 of this title.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Counsel Disciplinary Actions</HD> <SECTION> <SECTNO>§ 1201.122</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> A Special Counsel complaint seeking disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint alleging a violation of the Hatch Political Activities Act) must be filed with the Clerk of the Board.</P> <P>(b) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party's representative. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The Special Counsel must serve a copy of the complaint on each party or the party's representative, as shown on the certificate of service.</P> <P>(c) <E T="03">Subsequent filings and service.</E> Each party must serve on every other party or the party's representative one copy of each of its pleadings, as defined by §1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.</P> <P>(d) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§ 1201.123</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(a) If the Special Counsel determines that the Board should take any of the actions listed below, he or she must file a written complaint in accordance with §1201.122 of this part, stating with particularity any alleged violations of law or regulation, along with the supporting facts.</P> <P>(1) Action to discipline an employee alleged to have committed a prohibited <PRTPAGE P="34"/>personnel practice, 5 U.S.C. 1215(a)(1)(A);</P> <P>(2) Action to discipline an employee alleged to have violated any law, rule, or regulation, or to have engaged in prohibited conduct, within the jurisdiction of the Special Counsel under 5 U.S.C. 1216 (including an alleged violation by a Federal or District of Columbia government employee involving political activity prohibited under 5 U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);</P> <P>(3) Action to discipline a State or local government employee for an alleged violation involving prohibited political activity, 5 U.S.C. 1505; or</P> <P>(4) Action to discipline an employee for an alleged knowing and willful refusal or failure to comply with an order of the Board, 5 U.S.C. 1215(a)(1)(C).</P> <P>(b) The administrative law judge to whom the complaint is assigned may order the Special Counsel and the responding party to file briefs, memoranda, or both in any disciplinary action complaint the Special Counsel brings before the Board.</P> </SECTION> <SECTION> <SECTNO>§1201.124</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Responsibilities of Clerk of the Board.</E> The Clerk of the Board shall furnish a copy of the applicable Board regulations to each party that is not a Federal, State, or local government agency and shall inform such a party of the party's rights under paragraph (b) of this section and the requirements regarding the timeliness and content of an answer to the Special Counsel's complaint under paragraphs (c) and (d), respectively, of this section.</P> <P>(b) <E T="03">Rights.</E> When the Special Counsel files a complaint proposing a disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the employee has the right:</P> <P>(1) To file an answer, supported by affidavits and documentary evidence;</P> <P>(2) To be represented;</P> <P>(3) To a hearing on the record before an administrative law judge;</P> <P>(4) To a written decision, issued at the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and</P> <P>(5) To a copy of the administrative law judge's decision and subsequent final decision by the Board, if any.</P> <P>(c) <E T="03">Filing and default.</E> A party named in a Special Counsel disciplinary action complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a party fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the administrative law judge's decision.</P> <P>(d) <E T="03">Content.</E> An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent has no knowledge of a fact, he or she must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.</P> </SECTION> <SECTION> <SECTNO>§1201.125</SECTNO> <SUBJECT>Administrative law judge.</SUBJECT> <P>(a) An administrative law judge will hear a disciplinary action complaint brought by the Special Counsel.</P> <P>(b) Except as provided in paragraph (c)(1) of this section, the administrative law judge will issue an initial decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.</P> <P>(c)(1) In a Special Counsel complaint seeking disciplinary action against a Federal or District of Columbia government employee for a violation of 5 U.S.C. 7324, where the administrative law judge finds that the violation does not warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with 5 U.S.C. 557.</P> <P>(2) The parties may file with the Clerk of the Board any exceptions they may have to the recommended decision of the administrative law judge. Those exceptions must be filed within 35 days after the date of service of the recommended decision or, if the filing party shows that the recommended decision was received more than 5 days <PRTPAGE P="35"/>after the date of service, within 30 days after the date the filing party received the recommended decision.</P> <P>(3) The parties may file replies to exceptions within 25 days after the date of service of the exceptions, as that date is determined by the certificate of service.</P> <P>(4) No additional evidence will be accepted with a party's exceptions or with a reply to exceptions unless the party submitting it shows that the evidence was not readily available before the administrative law judge closed the record.</P> <P>(5) The Board will consider the recommended decision of the administrative law judge, together with any exceptions and replies to exceptions filed by the parties, and will issue a final written decision.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§1201.126</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <P>(a) In any action to discipline an employee, except as provided in paragraphs (b) or (c) of this section, the administrative law judge, or the Board on petition for review, may order a removal, a reduction in grade, a debarment (not to exceed five years), a suspension, a reprimand, or an assessment of civil penalty not to exceed $1,100. 5 U.S.C. 1215(a)(3).</P> <P>(b) In any action in which the administrative law judge, or the Board on petition for review, finds under 5 U.S.C. 1505 that a State or local government employee has violated the Hatch Political Activities Act and that the employee's removal is warranted, the administrative law judge, or the Board on petition for review, will issue a written decision notifying the employing agency and the employee that the employee must be removed and not reappointed within 18 months of the date of the decision. If the agency fails to remove the employee, or if it reappoints the employee within 18 months, the administrative law judge, or the Board on petition for review, may order the Federal entity administering loans or grants to the agency to withhold funds from the agency as provided under 5 U.S.C. 1506.</P> <P>(c) In any Hatch Act action in which the administrative law judge, or the Board on petition for review, finds that a Federal or District of Columbia government employee has violated 5 U.S.C. 7324 and that the violation warrants removal, the administrative law judge, or the Board on petition for review, will issue a written decision ordering the employee's removal. If the administrative law judge determines that removal is not warranted, the judge will issue a recommended decision under §1201.125(c)(1) of this part. If the Board finds by unanimous vote that the violation does not warrant removal, it will impose instead a penalty of not less than 30 days suspension without pay. If the Board finds by majority vote that the violation warrants removal, it will order the employee's removal.</P> </SECTION> <SECTION> <SECTNO>§1201.127</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>(a) An employee subject to a final Board decision imposing disciplinary action under 5 U.S.C. 1215 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit, except as provided under paragraph (b) of this section. 5 U.S.C. 1215(a)(4).</P> <P>(b) A party aggrieved by a determination or order of the Board under 5 U.S.C. 1505 (governing alleged violations of the Hatch Political Activities Act by State or local government employees) may obtain judicial review in an appropriate United States district court. 5 U.S.C. 1508.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Counsel Corrective Actions</HD> <SECTION> <SECTNO>§1201.128</SECTNO> <SUBJECT>Filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Place of filing.</E> A Special Counsel complaint seeking corrective action under 5 U.S.C. 1214 must be filed with the Clerk of the Board. After the complaint has been assigned to a judge, subsequent pleadings must be filed with the Board office where the judge is located.</P> <P>(b) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency's representative, and each person on whose behalf the corrective action is brought. The certificate of service <PRTPAGE P="36"/>must show the last known address, telephone number, and facsimile number of the agency or its representative, and each person on whose behalf the corrective action is brought. The Special Counsel must serve a copy of the complaint on the agency or its representative, and each person on whose behalf the corrective action is brought, as shown on the certificate of service.</P> <P>(c) <E T="03">Subsequent filings and service.</E> Each party must serve on every other party or the party's representative one copy of each of its pleadings, as defined by §1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.</P> <P>(d) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the office determined under paragraph (a) of this section. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.129</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(a) If the Special Counsel determines that the Board should take action to require an agency to correct a prohibited personnel practice (or a pattern of prohibited personnel practices) under 5 U.S.C. 1214(b)(4), he or she must file a written complaint in accordance with §1201.128 of this part, stating with particularity any alleged violations of law or regulation, along with the supporting facts.</P> <P>(b) If the Special Counsel files a corrective action with the Board on behalf of an employee, former employee, or applicant for employment who has sought corrective action from the Board directly under 5 U.S.C. 1214(a)(3), the Special Counsel must provide evidence that the employee, former employee, or applicant has consented to the Special Counsel's seeking corrective action. 5 U.S.C. 1214(a)(4).</P> <P>(c) The judge to whom the complaint is assigned may order the Special Counsel and the respondent agency to file briefs, memoranda, or both in any corrective action complaint the Special Counsel brings before the Board.</P> </SECTION> <SECTION> <SECTNO>§1201.130</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Rights.</E> (1) A person on whose behalf the Special Counsel brings a corrective action has a right to request intervention in the proceeding in accordance with the regulations in §1201.34 of this part. The Clerk of the Board shall notify each such person of this right.</P> <P>(2) When the Special Counsel files a complaint seeking corrective action, the judge to whom the complaint is assigned shall provide an opportunity for oral or written comments by the Special Counsel, the agency involved, and the Office of Personnel Management. 5 U.S.C. 1214(b)(3)(A).</P> <P>(3) The judge to whom the complaint is assigned shall provide a person alleged to have been the subject of any prohibited personnel practice alleged in the complaint the opportunity to make written comments, regardless of whether that person has requested and been granted intervenor status. 5 U.S.C. 1214(b)(3)(B).</P> <P>(b) <E T="03">Filing and default.</E> An agency named as respondent in a Special Counsel corrective action complaint may file an answer with the judge to whom the complaint is assigned within 35 days of the date of service of the complaint. If the agency fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the judge's decision.</P> <P>(c) <E T="03">Content.</E> An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent agency has no knowledge of a fact, it must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.</P> </SECTION> <SECTION> <SECTNO>§1201.131</SECTNO> <SUBJECT>Judge.</SUBJECT> <P>(a) The Board will assign a corrective action complaint brought by the Special Counsel under this subpart to a <PRTPAGE P="37"/>judge, as defined at § 1201.4(a) of this part, for hearing.</P> <P>(b) The judge will issue an initial decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§1201.132</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <P>(a) In any Special Counsel complaint seeking corrective action based on an allegation that a prohibited personnel practice has been committed, the judge, or the Board on petition for review, may order appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).</P> <P>(b) (1) Subject to the provisions of paragraph (b)(2) of this section, in any case involving an alleged prohibited personnel practice described in 5 U.S.C. 2302(b)(8), the judge, or the Board on petition for review, will order appropriate corrective action if the Special Counsel demonstrates that a disclosure described under 5 U.S.C. 2302(b)(8) was a contributing factor in the personnel action that was taken or will be taken against the individual.</P> <P>(2) Corrective action under paragraph (b)(1) of this section may not be ordered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure. 5 U.S.C. 1214(b)(4)(B).</P> </SECTION> <SECTION> <SECTNO>§1201.133</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>An employee, former employee, or applicant for employment who is adversely affected by a final Board decision on a corrective action complaint brought by the Special Counsel may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. 1214(c).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Counsel Requests for Stays</HD> <SECTION> <SECTNO>§1201.134</SECTNO> <SUBJECT>Deciding official; filing stay request; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Request to stay personnel action.</E> Under 5 U.S.C. 1214(b)(1), the Special Counsel may seek to stay a personnel action if the Special Counsel determines that there are reasonable grounds to believe that the action was taken or will be taken as a result of a prohibited personnel practice.</P> <P>(b) <E T="03">Deciding official.</E> Any member of the Board may delegate to an administrative law judge the authority to decide a Special Counsel request for an initial stay. The Board may delegate to a member of the Board the authority to rule on any matter related to a stay that has been granted to the Special Counsel, including a motion for extension or termination of the stay.</P> <P>(c) <E T="03">Place of filing.</E> A Special Counsel stay request must be filed with the Clerk of the Board.</P> <P>(d) <E T="03">Initial filing and service.</E> The Special Counsel must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency's representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The Special Counsel must serve a copy of the request on the agency or its representative, as shown on the certificate of service.</P> <P>(e) <E T="03">Subsequent filings and service.</E> Each party must serve on every other party or the party's representative one copy of each of its pleadings, as defined by §1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.<PRTPAGE P="38"/> </P> <P>(f) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§1201.135</SECTNO> <SUBJECT>Contents of stay request.</SUBJECT> <P>The Special Counsel, or that official's representative, must sign each stay request, and must include the following information in the request:</P> <P>(a) The names of the parties;</P> <P>(b) The agency and officials involved;</P> <P>(c) The nature of the action to be stayed;</P> <P>(d) A concise statement of facts justifying the charge that the personnel action was or will be the result of a prohibited personnel practice; and</P> <P>(e) The laws or regulations that were violated, or that will be violated if the stay is not issued.</P> </SECTION> <SECTION> <SECTNO>§1201.136</SECTNO> <SUBJECT>Action on stay request.</SUBJECT> <P>(a) <E T="03">Initial stay.</E> A Special Counsel request for an initial stay of 45 days will be granted within three working days after the filing of the request, unless, under the facts and circumstances, the requested stay would not be appropriate. Unless the stay is denied within the 3-day period, it is considered granted by operation of law.</P> <P>(b) <E T="03">Extension of stay.</E> Upon the Special Counsel's request, a stay granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate period of time, but only after providing the agency with an opportunity to comment on the request. Any request for an extension of a stay under 5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no later than 15 days before the expiration date of the stay. A brief describing the facts and any relevant legal authority that should be considered must accompany the request for extension. Any response by the agency must be received by the Board no later than 8 days before the expiration date of the stay.</P> <P>(c) <E T="03">Evidence of compliance with a stay.</E> Within five working days from the date of a stay order or an order extending a stay, the agency ordered to stay a personnel action must file evidence setting forth facts and circumstances demonstrating compliance with the order.</P> <P>(d) <E T="03">Termination of stay.</E> A stay may be terminated at any time, except that a stay may not be terminated:</P> <P>(1) On the motion of an agency, or on the deciding official's own motion, without first providing notice and opportunity for oral or written comments to the Special Counsel and the individual on whose behalf the stay was ordered; or</P> <P>(2) On the motion of the Special Counsel without first providing notice and opportunity for oral or written comments to the individual on whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).</P> <P>(e) <E T="03">Additional information.</E> At any time, where appropriate, the Special Counsel, the agency, or both may be required to appear and present further information or explanation regarding a request for a stay, to file supplemental briefs or memoranda, or to supply factual information needed to make a decision regarding a stay.</P> <CITA>[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Actions Against Administrative Law Judges</HD> <SECTION> <SECTNO>§1201.137</SECTNO> <SUBJECT>Covered actions; filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Covered actions.</E> The jurisdiction of the Board under 5 U.S.C. 7521 and this subpart with respect to actions against administrative law judges is limited to proposals by an agency to take any of the following actions against an administrative law judge:</P> <P>(1) Removal;</P> <P>(2) Suspension;</P> <P>(3) Reduction in grade;</P> <P>(4) Reduction in pay; and</P> <P>(5) Furlough of 30 days or less.</P> <P>(b) <E T="03">Place of filing.</E> To initiate an action against an administrative law judge under this subpart, an agency must file a complaint with the Clerk of the Board.<PRTPAGE P="39"/> </P> <P>(c) <E T="03">Initial filing and service.</E> The agency must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party's representative.</P> <P>The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The agency must serve a copy of the complaint on each party or the party's representative, as shown on the certificate of service.</P> <P>(d) <E T="03">Subsequent filings and service.</E> Each party must serve on every other party or the party's representative one copy of each of its pleadings, as defined by §1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.</P> <P>(e) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.138</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>A complaint filed under this section must describe with particularity the facts that support the proposed agency action.</P> </SECTION> <SECTION> <SECTNO>§1201.139</SECTNO> <SUBJECT>Rights; answer to complaint.</SUBJECT> <P>(a) <E T="03">Responsibilities of Clerk of the Board.</E> The Clerk of the Board shall furnish a copy of the applicable Board regulations to each administrative law judge named as a respondent in the complaint and shall inform each respondent of his or her rights under paragraph (b) of this section and the requirements regarding the timeliness and content of an answer to the agency's complaint under paragraphs (c) and (d), respectively, of this section.</P> <P>(b) <E T="03">Rights.</E> When an agency files a complaint proposing an action against an administrative law judge under 5 U.S.C. 7521 and this subpart, the administrative law judge has the right:</P> <P>(1) To file an answer, supported by affidavits and documentary evidence;</P> <P>(2) To be represented;</P> <P>(3) To a hearing on the record before an administrative law judge;</P> <P>(4) To a written decision, issued at the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and</P> <P>(5) To a copy of the administrative law judge's decision and subsequent final decision by the Board, if any.</P> <P>(c) <E T="03">Filing and default.</E> A respondent named in an agency complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a respondent fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the administrative law judge's decision.</P> <P>(d) <E T="03">Content.</E> An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent has no knowledge of a fact, he or she must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.</P> </SECTION> <SECTION> <SECTNO>§1201.140</SECTNO> <SUBJECT>Judge; requirement for finding of good cause.</SUBJECT> <P>(a) <E T="03">Judge.</E> (1) An administrative law judge will hear an action brought by an employing agency under this subpart against a respondent administrative law judge.</P> <P>(2) The judge will issue an initial decision pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.</P> <P>(b) <E T="03">Requirement for finding of good cause.</E> A decision on a proposed agency action under this subpart against an administrative law judge will authorize <PRTPAGE P="40"/>the agency to take a disciplinary action, and will specify the penalty to be imposed, only after a finding of good cause as required by 5 U.S.C. 7521 has been made.</P> </SECTION> <SECTION> <SECTNO>§1201.141</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>An administrative law judge subject to a final Board decision authorizing a proposed agency action under 5 U.S.C. 7521 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. 7703.</P> </SECTION> <SECTION> <SECTNO>§1201.142</SECTNO> <SUBJECT>Actions filed by administrative law judges.</SUBJECT> <P>An administrative law judge who alleges that an agency has interfered with the judge's qualified decisional independence so as to constitute an unauthorized action under 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The filing and service requirements of § 1201.137 apply. Such complaints shall be adjudicated in the same manner as agency complaints under this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Removal From the Senior Executive Service</HD> <SECTION> <SECTNO>§1201.143</SECTNO> <SUBJECT>Right to hearing; filing complaint; serving documents on parties.</SUBJECT> <P>(a) <E T="03">Right to hearing.</E> If an agency proposes to remove a career appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2) and 5 CFR 359.502, and to place that employee in another civil service position, the appointee may request an informal hearing before an official designated by the Board. Under 5 CFR 359.502, the agency proposing the removal must provide the appointee 30 days advance notice and must advise the appointee of the right to request a hearing. If the appointee files the request at least 15 days before the effective date of the proposed removal, the request will be granted.</P> <P>(b) <E T="03">Place of filing.</E> A request for an informal hearing under paragraph (a) of this section must be filed with the Clerk of the Board. After the request has been assigned to a judge, subsequent pleadings must be filed with the Board office where the judge is located.</P> <P>(c) <E T="03">Initial filing and service.</E> The appointee must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the agency proposing the appointee's removal or the agency's representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The appointee must serve a copy of the request on the agency or its representative, as shown on the certificate of service.</P> <P>(d) <E T="03">Subsequent filings and service.</E> Each party must serve on every other party or the party's representative one copy of each of its pleadings, as defined by §1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.</P> <P>(e) <E T="03">Method of filing and service.</E> Filing may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to the office determined under paragraph (b) of this section. Service may be by mail, by facsimile, by commercial overnight delivery, or by personal delivery to each party or the party's representative, as shown on the certificate of service.</P> </SECTION> <SECTION> <SECTNO>§1201.144</SECTNO> <SUBJECT>Hearing procedures; referring the record.</SUBJECT> <P>(a) The official designated to hold an informal hearing requested by a career appointee whose removal from the Senior Executive Service has been proposed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a judge, as defined at §1201.4(a) of this part.</P> <P>(b) The appointee, the appointee's representative, or both may appear and present arguments in an informal hearing before the judge. A verbatim record of the proceeding will be made. The appointee has no other procedural rights before the judge or the Board.</P> <P>(c) The judge will refer a copy of the record to the Special Counsel, the Office of Personnel Management, and the <PRTPAGE P="41"/>employing agency for whatever action may be appropriate.</P> </SECTION> <SECTION> <SECTNO>§1201.145</SECTNO> <SUBJECT>No appeal.</SUBJECT> <P>There is no right under 5 U.S.C. 7703 to appeal the agency's action or any action by the judge or the Board in cases arising under §1201.143(a) of this part. The removal action will not be delayed as a result of the hearing.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Requests for Protective Orders</HD> <SECTION> <SECTNO>§1201.146</SECTNO> <SUBJECT>Requests for protective orders by the Special Counsel.</SUBJECT> <P>(a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order that may be necessary to protect a witness or other individual from harassment during an investigation by the Special Counsel or during the pendency of any proceeding before the Board, except that an agency, other than the Office of the Special Counsel, may not request a protective order with respect to an investigation by the Special Counsel during such investigation.</P> <P>(b) Any motion by the Special Counsel requesting a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. Where the request is made in connection with a pending Special Counsel proceeding, the motion must be filed as early in the proceeding as practicable.</P> <P>(c) Where there is a pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the judge conducting the proceeding, and the judge will rule on the motion. Where there is no pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the Clerk of the Board, and the Board will designate a judge, as defined at §1201.4(a) of this part, to rule on the motion.</P> </SECTION> <SECTION> <SECTNO>§1201.147</SECTNO> <SUBJECT>Requests for protective orders by persons other than the Special Counsel.</SUBJECT> <P>Requests for protective orders by persons other than the Special Counsel in connection with pending original jurisdiction proceedings are governed by §1201.55(d) of this part.</P> </SECTION> <SECTION> <SECTNO>§1201.148</SECTNO> <SUBJECT>Enforcement of protective orders.</SUBJECT> <P>A protective order issued by a judge or the Board under this subpart may be enforced in the same manner as provided under subpart F of this part for Board final decisions and orders.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Procedures for Cases Involving Allegations of Discrimination</HD> <SECTION> <SECTNO>§ 1201.151</SECTNO> <SUBJECT>Scope and policy.</SUBJECT> <P>(a) <E T="03">Scope.</E> (1) The rules in this subpart implement 5 U.S.C. 7702. They apply to any case in which an employee or applicant for employment alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination.</P> <P>(2) “Prohibited discrimination,” as that term is used in this subpart, means discrimination prohibited by:</P> <P>(i) Section 717 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(a));</P> <P>(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d));</P> <P>(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791);</P> <P>(iv) Sections 12 and 15 of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 631, 633a); or</P> <P>(v) Any rule, regulation, or policy directive prescribed under any provision of law described in paragraphs (a)(2) (i) through (iv) of this section.</P> <P>(b) <E T="03">Policy.</E> The Board's policy is to adjudicate impartially, thoroughly, and fairly all issues raised under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1201.152</SECTNO> <SUBJECT>Compliance with subpart B procedures.</SUBJECT> <P>Unless this subpart expressly provides otherwise, all actions involving allegations of prohibited discrimination must comply with the regulations that are included in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1201.153</SECTNO> <SUBJECT>Contents of appeal.</SUBJECT> <P>(a) <E T="03">Contents.</E> An appeal raising issues of prohibited discrimination must comply with § 1201.24 of this part, with the following exceptions:<PRTPAGE P="42"/> </P> <P>(1) The appeal must state that there was discrimination in connection with the matter appealed, and it must state specifically how the agency discriminated against the appellant; and</P> <P>(2) The appeal must state whether the appellant has filed a formal discrimination complaint or a grievance with any agency. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the complaint or grievance.</P> <P>(b) <E T="03">Use of form.</E> Completing the form in appendix I of these regulations constitutes compliance with paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1201.154</SECTNO> <SUBJECT>Time for filing appeal; closing record in cases involving grievance decisions.</SUBJECT> <P>Appellants who file appeals raising issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits:</P> <P>(a) Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency's decision on the appealable action, whichever is later.</P> <P>(b) If the appellant has filed a timely formal complaint of discrimination with the agency:</P> <P>(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or</P> <P>(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days.</P> <P>(c) If the appellant files an appeal prematurely under this subpart, the judge will dismiss the appeal without prejudice to its later refiling under § 1201.22 of this part. If holding the appeal for a short time would allow it to become timely, the judge may hold the appeal rather than dismiss it.</P> <P>(d) This paragraph does not apply to employees of the Postal Service or to other employees excluded from the coverage of the federal labor-management relations laws at chapter 71 of title 5, United States Code. If the appellant has filed a grievance with the agency under a negotiated grievance procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. The appellant's request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that the decision was received more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain:</P> <P>(1) A statement of the grounds on which review is requested;</P> <P>(2) References to evidence of record or rulings related to the issues before the Board;</P> <P>(3) Arguments in support of the stated grounds that refer specifically to relevant documents, and that include relevant citations of authority; and</P> <P>(4) Legible copies of the final grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or tape recording of the hearing.</P> <P>(e) The record will close upon expiration of the period for filing the response to the petition for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 65 FR 25624, May 3, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="43"/> <SECTNO>§ 1201.155</SECTNO> <SUBJECT>Remand of allegations of discrimination.</SUBJECT> <P>If the parties file a written agreement that the discrimination issue should be remanded to the agency for consideration, and if the judge determines that action would be in the interest of justice, the judge may take that action. The remand order will specify a time period within which the agency action must be completed. In no instance will that time period exceed 120 days. While the issue is pending with the agency, the judge will retain jurisdiction over the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1201.156</SECTNO> <SUBJECT>Time for processing appeals involving allegations of discrimination.</SUBJECT> <P>(a) <E T="03">Issue raised in appeal.</E> When an appellant alleges prohibited discrimination in the appeal, the judge will decide both the issue of discrimination and the appealable action within 120 days after the appeal is filed.</P> <P>(b) <E T="03">Issue not raised in appeal.</E> When an appellant has not alleged prohibited discrimination in the appeal, but has raised the issue later in the proceeding, the judge will decide both the issue of discrimination and the appealable action within 120 days after the issue is raised.</P> <P>(c) <E T="03">Discrimination issue remanded to agency.</E> When the judge remands an issue of discrimination to the agency, adjudication will be completed within 120 days after the agency completes its action and returns the case to the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1201.157</SECTNO> <SUBJECT>Notice of right to judicial review.</SUBJECT> <P>Any final decision of the Board under 5 U.S.C. 7702 will notify the appellant of his or her right, within 30 days after receiving the Board's final decision, to petition the Equal Employment Opportunity Commission to consider the Board's decision, or to file a civil action in an appropriate United States district court. If an appellant elects to waive the discrimination issue, an appeal may be filed with the United States Court of Appeals for the Federal Circuit as stated in § 1201.120 of this part.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Review of Board Decision</HD> <SECTION> <SECTNO>§ 1201.161</SECTNO> <SUBJECT>Action by the Equal Employment Opportunity Commission; judicial review.</SUBJECT> <P>(a) <E T="03">Time limit for determination.</E> In cases in which an appellant petitions the Equal Employment Opportunity Commission (Commission) for consideration of the Board's decision under 5 U.S.C. 7702(b)(2), the Commission will determine, within 30 days after the date of the petition, whether it will consider the decision.</P> <P>(b) <E T="03">Judicial review.</E> The Board's decision will become judicially reviewable on:</P> <P>(1) The date on which the decision is issued, if the appellant does not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or</P> <P>(2) The date of the Commission's decision that it will not consider the petition filed under 5 U.S.C. 7702(b)(2).</P> <P>(c) <E T="03">Commission processing and time limits.</E> If the Commission decides to consider the decision of the Board, within 60 days after making its decision it will complete its consideration and either:</P> <P>(1) Concur in the decision of the Board; or</P> <P>(2) Issue in writing and forward to the Board for its action under § 1201.162 of this subpart another decision, which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law:</P> <P>(i) The decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive related to prohibited discrimination; or</P> <P>(ii) The evidence in the record as a whole does not support the decision involving that provision.</P> <P>(d) <E T="03">Transmittal of record.</E> The Board will transmit a copy of its record to the Commission upon request.</P> <P>(e) <E T="03">Development of additional evidence.</E> When asked by the Commission to do so, the Board or a judge will develop additional evidence necessary to supplement the record. This action will be completed within a period that will permit the Commission to make its decision within the statutory 60-day time limit referred to in paragraph (c) of this section. The Board or the judge may schedule additional proceedings if <PRTPAGE P="44"/>necessary in order to comply with the Commission's request.</P> <P>(f) <E T="03">Commission concurrence in Board decision.</E> If the Commission concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the appellant may file suit in an appropriate United States district court.</P> </SECTION> <SECTION> <SECTNO>§ 1201.162</SECTNO> <SUBJECT>Board action on the Commission decision; judicial review.</SUBJECT> <P>(a) <E T="03">Board decision.</E> Within 30 days after receipt of a decision of the Commission issued under 1201.161(c)(2), the Board shall consider the decision and:</P> <P>(1) Concur and adopt in whole the decision of the Commission; or</P> <P>(2) To the extent that the Board finds that, as a matter of law:</P> <P>(i) The Commission decision is based on an incorrect interpretation of any provision of any civil service law, rule, regulation, or policy directive, or</P> <P>(ii) The evidence in the record as a whole does not support the Commission decision involving that provision, it may reaffirm the decision of the Board. In doing so, it may make revisions in the decision that it determines are appropriate.</P> <P>(b) <E T="03">Judicial review.</E> If the Board concurs in or adopts the decision of the Commission under paragraph (a)(1) of this section, the decision of the Board is a judicially reviewable action.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Panel</HD> <SECTION> <SECTNO>§ 1201.171</SECTNO> <SUBJECT>Referral of case to Special Panel.</SUBJECT> <P>If the Board reaffirms its decision under § 1201.162(a)(2) of this part with or without modification, it will certify the matter immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon certification, the Board, within 5 days (excluding Saturdays, Sundays, and Federal holidays), will transmit the administrative record in the proceeding to the Chairman of the Special Panel and to the Commission. That record will include the following:</P> <P>(a) The factual record compiled under this section, which will include a transcript of any hearing;</P> <P>(b) The decisions issued by the Board and the Commission under 5 U.S.C. 7702; and</P> <P>(c) A transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.</P> </SECTION> <SECTION> <SECTNO>§ 1201.172</SECTNO> <SUBJECT>Organization of Special Panel; designation of members.</SUBJECT> <P>(a) A Special Panel is composed of:</P> <P>(1) A Chairman, appointed by the President with the advice and consent of the Senate, whose term is six (6) years;</P> <P>(2) One member of the Board, designated by the Chairman of the Board each time a Panel is convened;</P> <P>(3) One member of the Commission, designated by the Chairman of the Commission each time a Panel is convened.</P> <P>(b) <E T="03">Designation of Special Panel members—</E>(1) <E T="03">Time of designation.</E> Within 5 days of certification of a case to a Special Panel, the Chairman of Board and the Chairman of the Commission each will designate one member from his or her agency to serve on the Special Panel.</P> <P>(2) <E T="03">Manner of designation.</E> Letters designating the Panel members will be served on the Chairman of the Panel and on the parties to the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1201.173</SECTNO> <SUBJECT>Practices and procedures of Special Panel.</SUBJECT> <P>(a) <E T="03">Scope.</E> The rules in this subpart apply to proceedings before a Special Panel.</P> <P>(b) <E T="03">Suspension of rules.</E> Unless a rule is required by statute, the Chairman of a Special Panel may suspend the rule, in the interest of expediting a decision or for other good cause shown, and may conduct the proceedings in a manner he or she directs. The Chairman may take this action at the request of a party, or on his or her own motion.</P> <P>(c) <E T="03">Time limit for proceedings.</E> In accordance with 5 U.S.C. 7702(d)(2)(A), the Special Panel will issue a decision within 45 days after a matter has been certified to it.</P> <P>(d) <E T="03">Administrative assistance to the Special Panel.</E> (1) The Board and the Commission will provide the Panel with the administrative resources that the Chairman of the Special Panel determines are reasonable and necessary.</P> <P>(2) Assistance will include, but is not limited to, processing vouchers for pay and travel expenses.<PRTPAGE P="45"/> </P> <P>(3) The Board and the Commission are responsible for all administrative costs the Special Panel incurs, and, to the extent practicable, they will divide equally the costs of providing administrative assistance. If the Board and the Commission disagree on the manner in which costs are to be divided, the Chairman of the Special Panel will resolve the disagreement.</P> <P>(e) <E T="03">Maintaining the official record.</E> The Board will maintain the official record of the appeal. It will transmit two copies of each submission that is filed to each member of the Special Panel in an expeditious manner.</P> <P>(f) <E T="03">Filing and service of pleadings.</E> (1) The parties must file the original and six copies of each submission with the Clerk, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. The Office of the Clerk will serve one copy of each submission on the other parties.</P> <P>(2) A certificate of service specifying how and when service was made must accompany all submissions of the parties.</P> <P>(3) Service may be made by mail or by personal delivery during the Board's normal business hours (8:30 a.m. to 5:00 p.m.). Because of the short statutory time limit for processing these cases, parties must file their submissions by overnight Express Mail, provided by the U.S. Postal Service, if they file their submissions by mail.</P> <P>(4) A submission filed by Express Mail is considered to have been filed on the date of the Express Mail Order. A submission that is delivered personally is considered to have been filed on the date the Office of the Clerk of the Board receives it.</P> <P>(g) <E T="03">Briefs and responsive pleadings.</E> If the parties wish to submit written argument, they may file briefs with the Special Panel within 15 days after the date of the Board's certification order. Because of the short statutory time limit for processing these cases, the Special Panel ordinarily will not permit responsive pleadings.</P> <P>(h) <E T="03">Oral argument.</E> The parties have the right to present oral argument. Parties wishing to exercise this right must indicate this desire when they file their briefs or, if no briefs are filed, within 15 days after the date of the Board's certification order. Upon receiving a request for argument, the Chairman of the Special Panel will determine the time and place for argument and the amount of time to be allowed each side, and he or she will provide this information to the parties.</P> <P>(i) <E T="03">Postargument submission.</E> Because of the short statutory time limit for processing these cases, the parties may not file postargument submissions unless the Chairman of the Special Panel permits those submissions.</P> <P>(j) <E T="03">Procedural matters.</E> Any procedural matters not addressed in these regulations will be resolved by written order of the Chairman of the Special Panel.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.174</SECTNO> <SUBJECT>Enforcing the Special Panel decision.</SUBJECT> <P>The Board, upon receipt of the decision of the Special Panel, will order the agency concerned to take any action appropriate to carry out the decision of the Panel. The Board's regulations regarding enforcement of a final order of the Board apply to this matter. These regulations are set out in subpart F of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1201.175</SECTNO> <SUBJECT>Judicial review of cases decided under 5 U.S.C. 7702.</SUBJECT> <P>(a) <E T="03">Place and type of review.</E> The appropriate United States district court is authorized to conduct all judicial review of cases decided under 5 U.S.C. 7702. Those cases include appeals from actions taken under the following provisions: Section 717(c) of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(c)); section 15(c) of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)).</P> <P>(b) <E T="03">Time for filing request.</E> Regardless of any other provision of law, requests for judicial review of all cases decided under 5 U.S.C. 7702 must be filed within 30 days after the appellant received notice of the judicially reviewable action.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="46"/> <HD SOURCE="HED">Subpart F—Enforcement of Final Decisions and Orders</HD> <SECTION> <SECTNO>§ 1201.181</SECTNO> <SUBJECT>Authority and explanation.</SUBJECT> <P>(a) Under 5 U.S.C. 1204(a)(2), the Board has the authority to order any Federal agency or employee to comply with decisions and orders issued under its jurisdiction, and the authority to enforce compliance with its orders and decisions. The parties are expected to cooperate fully with each other so that compliance with the Board's orders and decisions can be accomplished promptly and in accordance with the laws, rules, and regulations that apply to individual cases. The Board's decisions and orders will contain a notice of the Board's enforcement authority.</P> <P>(b) In order to avoid unnecessary petitions under this subpart, the agency must inform the appellant promptly of the actions it takes to comply, and it must tell the appellant when it believes it has completed its compliance. The appellant must provide all necessary information that the agency requests in order to comply, and, if not otherwise notified, he or she should, from time to time, ask the agency about its progress.</P> </SECTION> <SECTION> <SECTNO>§ 1201.182</SECTNO> <SUBJECT>Petition for enforcement.</SUBJECT> <P>(a) <E T="03">Appellate jurisdiction.</E> Any party may petition the Board for enforcement of a final decision or order issued under the Board's appellate jurisdiction. The petition must be filed promptly with the regional or field office that issued the initial decision; a copy of it must be served on the other party or that party's representative; and it must describe specifically the reasons the petitioning party believes there is noncompliance. The petition also must include the date and results of any communications regarding compliance. Any petition for enforcement that is filed more than 30 days after the date of service of the agency's notice that it has complied must contain a statement and evidence showing good cause for the delay and a request for an extension of time for filing the petition.</P> <P>(b) <E T="03">Original jurisdiction.</E> Any party seeking enforcement of a final Board decision or order issued under its original jurisdiction must file a petition for enforcement with the Clerk of the Board and must serve a copy of that petition on the other party or that party's representative. The petition must describe specifically the reasons why the petitioning party believes there is noncompliance.</P> <P>(c) <E T="03">Petition by an employee other than a party.</E> (1) Under 5 U.S.C. 1204(e)(2)(B), any employee who is aggrieved by the failure of any other employee to comply with an order of the Board may petition the Board for enforcement. Except for a petition filed under paragraph (c)(2) or (c)(3) of this section, the Board will entertain a petition for enforcement from an aggrieved employee who is not a party only if the employee seeks and is granted party status as a permissive intervenor under § 1201.34(c) of this part. The employee must file a motion to intervene at the time of filing the petition for enforcement. The petition for enforcement must describe specifically why the petitioner believes there is noncompliance and in what way the petitioner is aggrieved by the noncompliance. The motion to intervene will be considered in accordance with § 1201.34(c) of this part.</P> <P>(2) Under § 1201.33(c) of this part, a nonparty witness who has obtained an order from a judge that his or her employing agency provide the witness with official time may petition the Board for enforcement of the order.</P> <P>(3) Under § 1201.55(d) of this part, a nonparty witness or other individual who has obtained a protective order from a judge during the course of a Board proceeding for protection from harassment may petition the Board for enforcement of the order.</P> <P>(4) A petition for enforcement under paragraph (c)(1), (c)(2), or (c)(3) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party's representative. If the petition is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the petition.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994; 62 FR 48935, Sept. 18, 1997]</CITA> </SECTION> <SECTION> <PRTPAGE P="47"/> <SECTNO>§ 1201.183</SECTNO> <SUBJECT>Procedures for processing petitions for enforcement.</SUBJECT> <P>(a) <E T="03">Initial Processing.</E> (1) When a party has filed a petition for enforcement of a final decision, the alleged noncomplying party must file one of the following within 15 days of the date of service of the petition:</P> <P>(i) Evidence of compliance, including a narrative explanation of the calculation of back pay and other benefits, and supporting documents;</P> <P>(ii) Evidence as described in paragraph (a)(1)(i) of this section of the compliance actions that the party has completed, and a statement of the actions that are in process and the actions that remain to be taken, along with a reasonable schedule for full compliance; or</P> <P>(iii) A statement showing good cause for the failure to comply completely with the decision of the Board.</P> <FP>The party that filed the petition may respond to that submission within 10 days after the date of service of the submission. The parties must serve copies of their pleadings on each other as required under § 1201.26(b)(2) of this part.</FP> <P>(2) If the agency is the alleged noncomplying party, it shall submit the name and address of the agency official charged with complying with the Board's order, even if the agency asserts it has fully complied. In the absence of this information, the Board will presume that the highest ranking appropriate agency official who is not appointed by the President by and with the consent of the Senate is charged with compliance.</P> <P>(3) The judge may convene a hearing if one is necessary to resolve matters at issue.</P> <P>(4) If the judge finds that there has been compliance or a good faith effort to take all actions required to be in compliance with the final decision, he or she will state those findings in a decision. That decision will be subject to the procedures for petitions for review by the Board under subpart C of this part, and subject to judicial review under § 1201.120 of this part.</P> <P>(5) If the judge finds that:</P> <P>(i) The alleged noncomplying party has not taken, or has not made a good faith effort to take, any action required to be in compliance with the final decision, or</P> <P>(ii) The party has taken or made a good faith effort to take one or more, but not all, actions required to be in compliance with the final decision; he or she will issue a recommendation containing his or her findings, a statement of the actions required by the party to be in compliance with the final decision, and a recommendation that the Board enforce the final decision.</P> <P>(6) If a recommendation described under paragraph (a)(5) of this section is issued, the alleged noncomplying party must do one of the following:</P> <P>(i) If it decides to take the actions required by the recommendation, it must submit to the Clerk of the Board, within 15 days after the issuance of the recommendation, evidence that it has taken those actions.</P> <P>(ii) If it decides not to take any of the actions required by the recommendation, it must file a brief supporting its nonconcurrence in the recommendation. The brief must be filed with the Clerk of the Board within 30 days after the recommendation is issued and, if it is filed by the agency, it must identify by name, title, and grade the agency official responsible for the failure to take the actions required by the recommendation for compliance.</P> <P>(iii) If the party decides to take one or more, but not all, actions required by the recommendation, it must submit both evidence of the actions it has taken and, with respect to the actions that it has not taken, a brief supporting its disagreement with the recommendation. The evidence and brief must be filed with the Clerk of the Board within 30 days after issuance of the recommendation and, if it is filed by the agency, it must contain the identifying information required by paragraph (a)(6)(ii) of this section.</P> <P>(7) The petitioner may file a brief that responds to the submission described in paragraph (a)(6) of this section, and that asks the Board to review any finding in the recommendation, made under paragraph (a)(5)(ii) of this section, that the other party is in partial compliance with the final decision. The petitioner must file this brief with <PRTPAGE P="48"/>the Clerk of the Board within 20 days of the date of service of the submission described in paragraph (a)(6) of this section.</P> <P>(b) <E T="03">Consideration by the Board.</E> (1) The Board will consider the recommendation, along with the submissions of the parties, promptly. When appropriate, the Board may require the alleged noncomplying party, or that party's representative, to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the party or its representative to make this showing in writing, or to make it both personally and in writing.</P> <P>(2) The Board may hold a hearing on an order to show cause, or it may issue a decision without a hearing.</P> <P>(3) The Board's final decision on the issues of compliance is subject to judicial review under § 1201.120 of this part.</P> <P>(c) <E T="03">Certification to the Comptroller General.</E> When appropriate, the Board may certify to the Comptroller General of the United States, under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain Federal employee. This order may apply to any Federal employee, other than a Presidential appointee subject to confirmation by the Senate, who is found to be in noncompliance with the Board's order.</P> <P>(d) <E T="03">Effect of Special Counsel's action or failure to act.</E> Failure by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and subpart D of this part will not preclude the Board from taking action under this subpart.</P> <CITA>[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Savings Provisions</HD> <SECTION> <SECTNO>§ 1201.191</SECTNO> <SUBJECT>Savings provisions.</SUBJECT> <P>(a) <E T="03">Civil Service Reform Act of 1978 (Pub.L. 95-454)—</E>(1) <E T="03">Scope.</E> All executive orders, rules and regulations relating to the Federal service that were in effect prior to the effective date of the Civil Service Reform Act shall continue in effectand be applied by the Board in its adjudications until modified, terminated, superseded, or repealed by the President, Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority, as appropriate.</P> <P>(2) <E T="03">Administrative proceedings and appeals therefrom.</E> No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.</P> <P>(3) <E T="03">Explanation.</E> Mr. X was advised of agency's intention to remove him for abandonment of position, effective December 29, 1978. Twenty days later Mr. X appealed the agency action to the Merit Systems Protection Board. The Merit Systems Protection Board docketed Mr. X's appeal as an “old system case,” i.e., one to which the savings clause applied. The appropriate regional office processed the case, applying the substantive laws, rules and regulations in existence prior to the enactment of the Act. The decision, dated February 28, 1979, informed Mr. X that he is entitled to judicial review if he files a timely notice of appeal in the appropriate United States district court or the United States Court of Claims under the statute of limitations applicable when the adverse action was taken.</P> <P>(b) <E T="03">Whistleblower Protection Act of 1989 (Pub. L. 101-12)—</E>(1) <E T="03">Scope.</E> All orders, rules, and regulations issued by the Board and the Special Counsel before the effective date of the Whistleblower Protection Act of 1989 shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the Board or the Special Counsel, as appropriate.</P> <P>(2) <E T="03">Administrative proceedings and appeals therefrom.</E> No provision of the Whistleblower Protection Act of 1989 shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is <PRTPAGE P="49"/>considered to encompass existing agency proceedings, including personnel actions that were proposed, threatened, or taken before July 9, 1989, the effective date of the Whistleblower Protection Act of 1989, and appeals before the Board or its predecessor agencies that were subject to judicial review on that date. An agency proceeding is considered to exist once the employee has received notice of the proposed action.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable), Consequential Damages, and Compensatory Damages</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 41179, Aug. 3, 1998, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1201.201</SECTNO> <SUBJECT>Statement of purpose.</SUBJECT> <P>(a) This subpart governs Board proceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, and compensatory damages.</P> <P>(b) There are seven statutory provisions covering attorney fee awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most requests for attorney fees will be governed by § 1201.202(a)(1). There are, however, other attorney fee provisions that apply only to specific kinds of cases. For example, § 1201.202(a)(4) applies only to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6) apply only to corrective and disciplinary action cases brought by the Special Counsel. Section 1201.202(a)(7) applies only to appeals brought under the Uniformed Services Employment and Reemployment Rights Act.</P> <P>(c) An award of consequential damages is authorized in only two situations: Where the Board orders corrective action in a whistleblower appeal under 5 U.S.C. 1221, and where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. Consequential damages include such items as medical costs and travel expenses, and other costs as determined by the Board through case law.</P> <P>(d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an award of compensatory damages to a prevailing party who is found to have been intentionally discriminated against based on race, color, religion, sex, national origin, or disability. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.</P> </SECTION> <SECTION> <SECTNO>§ 1201.202</SECTNO> <SUBJECT>Authority for awards.</SUBJECT> <P>(a) <E T="03">Awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable)</E>. The Board is authorized by various statutes to order payment of attorney fees and, where applicable, costs, expert witness fees, and litigation expenses. These statutory authorities include, but are not limited to, the following authorities to order payment of:</P> <P>(1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701 or an agency action against an administrative law judge under 5 U.S.C. 7521, and an award is warranted in the interest of justice;</P> <P>(2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C. 7121(d), or an agency action against an administrative law judge under 5 U.S.C. 7521, and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1);</P> <P>(3) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(2), where the appellant is the prevailing party in an appeal under 5 U.S.C. 7701 and the Board's decision is based on a finding of a prohibited personnel practice;</P> <P>(4) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(1)(B), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies;</P> <P>(5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214;<PRTPAGE P="50"/> </P> <P>(6) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the respondent is the prevailing party in a Special Counsel complaint for disciplinary action under 5 U.S.C. 1215;</P> <P>(7) Attorney fees, expert witness fees, and litigation expenses, as authorized by the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324(c)(4); and</P> <P>(8) Attorney fees, expert witness fees, and other litigation expenses, as authorized by the Veterans Employment Opportunities Act; 5 U.S.C. 3330c(b).</P> <P>(b) <E T="03">Awards of consequential damages.</E> The Board may order payment of consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages:</P> <P>(1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies; and</P> <P>(2) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214.</P> <P>(c) <E T="03">Awards of compensatory damages.</E> The Board may order payment of compensatory damages, as authorized by section 102 of the Civil Rights Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful intentional discrimination but not on an employment practice that is unlawful because of its disparate impact under the Civil Rights Act of 1964, the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.</P> <P>(d) <E T="03">Definitions.</E> For purposes of this subpart:</P> <P>(1) A <E T="03">proceeding on the merits</E> is a proceeding to decide an appeal of an agency action under 5 U.S.C. 1221 or 7701, an appeal under 38 U.S.C. 4324, an appeal under 5 U.S.C. 3330a, a request to review an arbitration decision under 5 U.S.C. 7121(d), a Special Counsel complaint under 5 U.S.C. 1214 or 1215, or an agency action against an administrative law judge under 5 U.S.C. 7521.</P> <P>(2) An <E T="03">addendum proceeding</E> is a proceeding conducted after issuance of a final decision in a proceeding on the merits, including a decision accepting the parties’ settlement of the case. The final decision in the proceeding on the merits may be an initial decision of a judge that has become final under § 1201.113 of this part or a final decision of the Board.</P> <CITA>[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.203</SECTNO> <SUBJECT>Proceedings for attorney fees.</SUBJECT> <P>(a) <E T="03">Form and content of request.</E> A request for attorney fees must be made by motion, must state why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard, and must be supported by evidence substantiating the amount of the request. Evidence supporting a motion for attorney fees must include at a minimum:</P> <P>(1) Accurate and current time records;</P> <P>(2) A copy of the terms of the fee agreement (if any);</P> <P>(3) A statement of the attorney's customary billing rate for similar work, with evidence that that rate is consistent with the prevailing community rate for similar services in the community in which the attorney ordinarily practices; and</P> <P>(4) An established attorney-client relationship.</P> <P>(b) <E T="03">Addendum proceeding.</E> A request for attorney fees will be decided in an addendum proceeding.</P> <P>(c)<E T="03"> Place of filing.</E> Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field office, a motion for attorney fees must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board's headquarters or where the only decision was a final decision issued by the Board, a motion for attorney fees must be filed with the Clerk of the Board.</P> <P>(d) <E T="03">Time of filing.</E> A motion for attorney fees must be filed as soon as possible after a final decision of the Board <PRTPAGE P="51"/>but no later than 60 days after the date on which a decision becomes final.</P> <P>(e)<E T="03"> Service.</E> A copy of a motion for attorney fees must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit established by the judge.</P> <P>(f)<E T="03"> Hearing; applicability of subpart B.</E> The judge may hold a hearing on a motion for attorney fees and may apply appropriate provisions of subpart B of this part to the addendum proceeding.</P> <P>(g) <E T="03">Initial decision; review by the Board.</E> The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.</P> <CITA>[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000</CITA> </SECTION> <SECTION> <SECTNO>§ 1201.204</SECTNO> <SUBJECT>Proceedings for consequential damages and compensatory damages.</SUBJECT> <P>(a) <E T="03">Time for making request.</E> (1) A request for consequential damages or compensatory damages must be made during the proceeding on the merits, no later than the end of the conference(s) held to define the issues in the case.</P> <P>(2) The judge or the Board, as applicable, may waive the time limit for making a request for consequential damages or compensatory damages for good cause shown. The time limit will not be waived if a party shows that such waiver would result in undue prejudice.</P> <P>(b)<E T="03"> Form and content of request.</E> A request for consequential damages or compensatory damages must be made in writing and must state the amount of damages sought and the reasons why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard.</P> <P>(c)<E T="03"> Service.</E> A copy of a request for consequential damages or compensatory damages must be served on the other parties or their representatives when the request is made.</P> <P>A party may file a pleading responding to the request within the time limit established by the judge or the Board, as applicable.</P> <P>(d)<E T="03"> Addendum proceeding.</E> (1) A request for consequential damages or compensatory damages will be decided in an addendum proceeding.</P> <P>(2) A judge may waive the requirement of paragraph (d)(1), either on his or her own motion or on the motion of a party, and consider a request for damages in a proceeding on the merits where the judge determines that such action is in the interest of the parties and will promote efficiency and economy in adjudication.</P> <P>(e) <E T="03">Initiation of addendum proceeding.</E> (1) A motion for initiation of an addendum proceeding to decide a request for consequential damages or compensatory damages must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final. Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field office, the motion must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board's headquarters or where the only decision was a final decision issued by the Board, the motion must be filed with the Clerk of the Board.</P> <P>(2) A copy of a motion for initiation of an addendum proceeding to decide a request for consequential damages or compensatory damages must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit established by the judge.</P> <P>(f) <E T="03">Hearing; applicability of subpart B.</E> The judge may hold a hearing on a request for consequential damages or compensatory damages and may apply appropriate provisions of subpart B of this part to the addendum proceeding.</P> <P>(g)<E T="03"> Initial decision; review by the Board.</E> The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.</P> <P>(h)<E T="03"> Request for damages first made in proceeding before the Board.</E> Where a request for consequential damages or compensatory damages is first made on petition for review of a judge's initial decision on the merits and the Board waives the time limit for making the <PRTPAGE P="52"/>request in accordance with paragraph (a)(2) of this section, or where the request is made in a case where the only MSPB proceeding is before the 3-member Board, including, for compensatory damages only, a request to review an arbitration decision under 5 U.S.C. 7121(d), the Board may:</P> <P>(1) Consider both the merits and the request for damages and issue a final decision;</P> <P>(2) Remand the case to the judge for a new initial decision, either on the request for damages only or on both the merits and the request for damages; or</P> <P>(3) Where there has been no prior proceeding before a judge, forward the request for damages to a judge for hearing and a recommendation to the Board, after which the Board will issue a final decision on both the merits and the request for damages.</P> <P>(i)<E T="03"> EEOC review of decision on compensatory damages.</E> A final decision of the Board on a request for compensatory damages pursuant to the Civil Rights Act of 1991 shall be subject to review by the Equal Employment Opportunity Commission as provided under subpart E of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1201.205</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>A final Board decision under this subpart is subject to judicial review as provided under 5 U.S.C. 7703.</P> </SECTION> <APPENDIX> <PRTPAGE P="53"/> <EAR>Pt. 1201, App. I</EAR> <HD SOURCE="HED">Appendix I to Part 1201—Merit Systems Protection Board Appeal Form</HD> <GPH DEEP="452" SPAN="2"> <GID>ER07JN01.007</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="54"/> <GID>ER07JN01.008</GID> </GPH> <GPH DEEP="429" SPAN="2"> <PRTPAGE P="55"/> <GID>ER07JN01.009</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="56"/> <GID>ER07JN01.010</GID> </GPH> <GPH DEEP="427" SPAN="2"> <PRTPAGE P="57"/> <GID>ER07JN01.011</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="58"/> <GID>ER07JN01.012</GID> </GPH> <CITA>[66 FR 30635, June 7, 2001]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. II</EAR> <HD SOURCE="HED">Appendix II to Part 1201—Appropriate Regional or Field Office for Filing Appeals</HD> <P>All submissions shall be addressed to the Regional Director, if submitted to a regional office, or the Chief Administrative Judge, if submitted to a field office, Merit Systems Protection Board, at the addresses listed below, according to geographic region of the employing agency or as required by § 1201.4(d) of this part. The facsimile numbers listed below are TDD-capable; however, calls will be answered by voice before being connected <PRTPAGE P="59"/>to the TDD. Address of Appropriate Regional or Field Office and Area Served: </P> <FP SOURCE="FP-1">1. Atlanta Regional Office, 401 West Peachtree Street, N.W., 10th floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, (Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee).</FP> <FP SOURCE="FP-1">2. Central Regional Office, 230 South Dearborn Street, 31st floor, Chicago, Illinois 60604-1669, Facsimile No.: (312) 886-4231, (Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin).</FP> <FP SOURCE="FP-1">2a. Dallas Field Office, 1100 Commerce Street, Room 6F20, Dallas, Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas, Louisiana, Oklahoma, and Texas).</FP> <FP SOURCE="FP-1">3. Northeastern Regional Office, U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, Pennsylvania 19106-2987, Facsimile No.: (215) 597-3456, (Delaware; Maryland—except the counties of Montgomery and Prince George's; New Jersey—except the counties of Bergen, Essex, Hudson, and Union; Pennsylvania; and West Virginia).</FP> <FP SOURCE="FP-1">3a. Boston Field Office, 99 Summer Street, Suite 1810, Boston, Massachusetts 02110-1200, Facsimile No.: (617) 424-5708, (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont).</FP> <FP SOURCE="FP-1">3b. New York Field Office, 26 Federal Plaza, Room 3137-A, New York, New York 10278-0022, Facsimile No.: (212) 264-1417, (New Jersey—counties of Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and Virgin Islands).</FP> <FP SOURCE="FP-1">4. Washington Regional Office, 1800 Diagonal Road, Alexandria, Virginia 22314, Facsimile No.: (703) 756-7112, (Maryland—counties of Montgomery and Prince George's; North Carolina; Virginia; Washington, DC; and all overseas areas not otherwise covered).</FP> <FP SOURCE="FP-1">5. Western Regional Office, 250 Montgomery Street, Suite 400, 4th floor, San Francisco, California 94104-3401, Facsimile No.: (415) 705-2945, (California and Nevada).</FP> <FP SOURCE="FP-1">5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228-2009, Facsimile No.: (303) 969-5109, (Arizona, Colorado, Kansas—except Kansas City, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and Wyoming).</FP> <FP SOURCE="FP-1">5b. Seattle Field Office, 915 Second Avenue, Suite 1840, Seattle, Washington 98174-1056, Facsimile No.: (206) 220-7982, (Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas).</FP> <CITA>[61 FR 4586, Feb. 7, 1996, as amended at 65 FR 58902, Oct. 3, 2000; 66 FR 57841, Nov. 19, 2001]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. III</EAR> <HD SOURCE="HED">Appendix III to Part 1201—Approved Hearing Locations By Regional Office</HD> <HD SOURCE="HD2">Atlanta Regional Office</HD> <FP SOURCE="FP-1">Birmingham, Alabama</FP> <FP SOURCE="FP-1">Huntsville, Alabama</FP> <FP SOURCE="FP-1">Mobile, Alabama</FP> <FP SOURCE="FP-1">Montgomery, Alabama</FP> <FP SOURCE="FP-1">Jacksonville, Florida</FP> <FP SOURCE="FP-1">Miami, Florida</FP> <FP SOURCE="FP-1">Orlando, Florida</FP> <FP SOURCE="FP-1">Pensacola, Florida</FP> <FP SOURCE="FP-1">Tallahassee, Florida</FP> <FP SOURCE="FP-1">Tampa/St. Petersburg, Florida</FP> <FP SOURCE="FP-1">Atlanta, Georgia</FP> <FP SOURCE="FP-1">Augusta, Georgia</FP> <FP SOURCE="FP-1">Macon, Georgia</FP> <FP SOURCE="FP-1">Savannah, Georgia</FP> <FP SOURCE="FP-1">Jackson, Mississippi</FP> <FP SOURCE="FP-1">Charleston, South Carolina</FP> <FP SOURCE="FP-1">Columbia, South Carolina</FP> <FP SOURCE="FP-1">Chattanooga, Tennessee</FP> <FP SOURCE="FP-1">Knoxville, Tennessee</FP> <FP SOURCE="FP-1">Memphis, Tennessee</FP> <FP SOURCE="FP-1">Nashville, Tennessee</FP> <HD SOURCE="HD2">Central Regional Office</HD> <FP SOURCE="FP-1">Chicago, Illinois</FP> <FP SOURCE="FP-1">Indianapolis, Indiana</FP> <FP SOURCE="FP-1">Davenport, Iowa/Rock Island, Illinois</FP> <FP SOURCE="FP-1">Des Moines, Iowa</FP> <FP SOURCE="FP-1">Lexington, Kentucky</FP> <FP SOURCE="FP-1">Louisville, Kentucky</FP> <FP SOURCE="FP-1">Detroit, Michigan</FP> <FP SOURCE="FP-1">Minneapolis/St. Paul, Minnesota</FP> <FP SOURCE="FP-1">Kansas City, Missouri</FP> <FP SOURCE="FP-1">Springfield, Missouri</FP> <FP SOURCE="FP-1">St. Louis, Missouri</FP> <FP SOURCE="FP-1">Cleveland, Ohio</FP> <FP SOURCE="FP-1">Cincinnati, Ohio</FP> <FP SOURCE="FP-1">Columbus, Ohio</FP> <FP SOURCE="FP-1">Dayton, Ohio</FP> <FP SOURCE="FP-1">Milwaukee, Wisconsin</FP> <HD SOURCE="HD2">Dallas Field Office</HD> <FP SOURCE="FP-1">Little Rock, Arkansas</FP> <FP SOURCE="FP-1">Alexandria, Louisiana</FP> <FP SOURCE="FP-1">New Orleans, Louisiana</FP> <FP SOURCE="FP-1">Oklahoma City, Oklahoma</FP> <FP SOURCE="FP-1">Tulsa, Oklahoma</FP> <FP SOURCE="FP-1">Corpus Christi, Texas</FP> <FP SOURCE="FP-1">Dallas, Texas</FP> <FP SOURCE="FP-1">El Paso, Texas</FP> <FP SOURCE="FP-1">Houston, Texas</FP> <FP SOURCE="FP-1">San Antonio, Texas</FP> <FP SOURCE="FP-1">Temple, Texas</FP> <FP SOURCE="FP-1">Texarkana, Texas</FP> <HD SOURCE="HD2">Northeastern Regional Office</HD> <FP SOURCE="FP-1">Dover, Delaware</FP> <FP SOURCE="FP-1">Baltimore, Maryland</FP> <FP SOURCE="FP-1">Trenton, New Jersey</FP> <FP SOURCE="FP-1">Harrisburg, Pennsylvania</FP> <FP SOURCE="FP-1">Philadelphia, Pennsylvania<PRTPAGE P="60"/> </FP> <FP SOURCE="FP-1">Pittsburgh, Pennsylvania</FP> <FP SOURCE="FP-1">Wilkes-Barre, Pennsylvania</FP> <FP SOURCE="FP-1">Charleston, West Virginia</FP> <FP SOURCE="FP-1">Morgantown, West Virginia</FP> <HD SOURCE="HD2">Boston Field Office</HD> <FP SOURCE="FP-1">Hartford, Connecticut</FP> <FP SOURCE="FP-1">New Haven, Connecticut</FP> <FP SOURCE="FP-1">Bangor, Maine</FP> <FP SOURCE="FP-1">Portland, Maine</FP> <FP SOURCE="FP-1">Boston, Massachusetts</FP> <FP SOURCE="FP-1">Manchester, New Hampshire</FP> <FP SOURCE="FP-1">Portsmouth, New Hampshire</FP> <FP SOURCE="FP-1">Providence, Rhode Island</FP> <FP SOURCE="FP-1">Burlington, Vermont</FP> <HD SOURCE="HD2">New York Field Office</HD> <FP SOURCE="FP-1">Newark, New Jersey</FP> <FP SOURCE="FP-1">Albany, New York</FP> <FP SOURCE="FP-1">Buffalo, New York</FP> <FP SOURCE="FP-1">New York, New York</FP> <FP SOURCE="FP-1">Syracuse, New York</FP> <FP SOURCE="FP-1">San Juan, Puerto Rico</FP> <HD SOURCE="HD2">Washington Regional Office</HD> <FP SOURCE="FP-1">Washington, DC</FP> <FP SOURCE="FP-1">Asheville, North Carolina</FP> <FP SOURCE="FP-1">Charlotte, North Carolina</FP> <FP SOURCE="FP-1">Raleigh, North Carolina</FP> <FP SOURCE="FP-1">Jacksonville, North Carolina</FP> <FP SOURCE="FP-1">Bailey's Crossroads, Falls Church, Virginia</FP> <FP SOURCE="FP-1">Norfolk, Virginia</FP> <FP SOURCE="FP-1">Richmond, Virginia</FP> <FP SOURCE="FP-1">Roanoke, Virginia</FP> <HD SOURCE="HD2">Western Regional Office</HD> <FP SOURCE="FP-1">Fresno, California</FP> <FP SOURCE="FP-1">Los Angeles, California</FP> <FP SOURCE="FP-1">Sacramento, California</FP> <FP SOURCE="FP-1">San Diego, California</FP> <FP SOURCE="FP-1">San Francisco, California</FP> <FP SOURCE="FP-1">Santa Barbara, California</FP> <FP SOURCE="FP-1">Las Vegas, Nevada</FP> <FP SOURCE="FP-1">Reno, Nevada</FP> <HD SOURCE="HD2">Denver Field Office</HD> <FP SOURCE="FP-1">Phoenix, Arizona</FP> <FP SOURCE="FP-1">Tucson, Arizona</FP> <FP SOURCE="FP-1">Denver, Colorado</FP> <FP SOURCE="FP-1">Grand Junction, Colorado</FP> <FP SOURCE="FP-1">Pueblo, Colorado</FP> <FP SOURCE="FP-1">Wichita, Kansas</FP> <FP SOURCE="FP-1">Billings, Montana</FP> <FP SOURCE="FP-1">Great Falls, Montana</FP> <FP SOURCE="FP-1">Missoula, Montana</FP> <FP SOURCE="FP-1">Omaha, Nebraska</FP> <FP SOURCE="FP-1">Albuquerque, New Mexico</FP> <FP SOURCE="FP-1">Bismarck, North Dakota</FP> <FP SOURCE="FP-1">Fargo, North Dakota</FP> <FP SOURCE="FP-1">Rapid City, South Dakota</FP> <FP SOURCE="FP-1">Sioux Falls, South Dakota</FP> <FP SOURCE="FP-1">Salt Lake City, Utah</FP> <FP SOURCE="FP-1">Casper, Wyoming</FP> <HD SOURCE="HD2">Seattle Field Office</HD> <FP SOURCE="FP-1">Anchorage, Alaska</FP> <FP SOURCE="FP-1">Honolulu, Hawaii</FP> <FP SOURCE="FP-1">Boise, Idaho</FP> <FP SOURCE="FP-1">Pocatello, Idaho</FP> <FP SOURCE="FP-1">Medford, Oregon</FP> <FP SOURCE="FP-1">Portland, Oregon</FP> <FP SOURCE="FP-1">Seattle, Washington</FP> <FP SOURCE="FP-1">Spokane, Washington</FP> <FP SOURCE="FP-1">Richland, Kennewick, and Pasco, Washington</FP> <CITA>[61 FR 4586, Feb. 7, 1996]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1201, App. IV</EAR> <HD SOURCE="HED">Appendix IV to Part 1201—Sample Declaration Under 28 U.S.C.1746</HD> <HD SOURCE="HD3">Declaration</HD> <P>I, ___________, do hereby declare:</P> <P>I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.</P> <FP>Executed on</FP> <FP SOURCE="FP-DASH"/> <FP>Date</FP> <FP SOURCE="FP-DASH"/> <FP>Signature</FP> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 1202</EAR> <HD SOURCE="HED">PART 1202—STATUTORY REVIEW BOARD</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204.</P> </AUTH> <SECTION> <SECTNO>§ 1202.1</SECTNO> <SUBJECT>Designating Chairman of Statutory Review Board.</SUBJECT> <P>At the written request of the Department of Transportation, the Chairman of the Board will designate a presiding official of the Board to serve as the Chairman of any Board of Review established by the Secretary of Transportation under 5 U.S.C. 3383(b) to review certain actions to remove air traffic controllers.</P> <CITA>[54 FR 28658, July 6, 1989]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1203</EAR> <HD SOURCE="HED">PART 1203—PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECHD>Sec.</SECHD> <SECTNO>1203.1</SECTNO> <SUBJECT>Scope; application of part 1201, subpart B.</SUBJECT> <SECTNO>1203.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Review</HD> <SECTNO>1203.11</SECTNO> <SUBJECT>Request for regulation review.</SUBJECT> <SECTNO>1203.12</SECTNO> <SUBJECT>Granting or denying the request for regulation review.</SUBJECT> <SECTNO>1203.13</SECTNO> <SUBJECT>Filing pleadings.<PRTPAGE P="61"/> </SUBJECT> <SECTNO>1203.14</SECTNO> <SUBJECT>Serving documents.</SUBJECT> <SECTNO>1203.15</SECTNO> <SUBJECT>Review of regulations on the Board's own motion.</SUBJECT> <SECTNO>1203.16</SECTNO> <SUBJECT>Proceedings.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Order of the Board</HD> <SECTNO>1203.21</SECTNO> <SUBJECT>Final order of the Board.</SUBJECT> <SECTNO>1203.22</SECTNO> <SUBJECT>Enforcement of order.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204(a), 1204(f), and 1204(h).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 23632, June 2, 1989, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 1203.1</SECTNO> <SUBJECT>Scope; application of part 1201, subpart B.</SUBJECT> <P>(a) <E T="03">General.</E> This part applies to the Board's review, under 5 U.S.C. 1204(a)(4) and 1204(f), of any rules or regulations (“regulations”) issued by the Office of Personnel Management (OPM). It applies to the Board's review of the way in which an agency implements regulations, as well as to its review of the validity of the regulations on their face.</P> <P>(b) <E T="03">Application of 5 CFR part 1201, subparts B and C.</E> (1) Where appropriate, and unless the Board's regulations provide otherwise, the Board may apply the provisions of 5 CFR part 1201, subpart B to proceedings conducted under this part. It may do so on its own motion or on the motion of a party to these proceedings.</P> <P>(2) The following provisions of 5 CFR part 1201, subparts B and C do not apply to proceedings conducted under this part:</P> <P>(i) Sections 1201.21 through 1201.27 which concern petitions for appeal of agency actions, and the pleadings that are filed in connection with those petitions; and</P> <P>(ii) Sections 1201.111 through 1201.119 which concern final decisions of presiding officials, and petitions for Board review of those decisions.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Invalid regulation</E> means a regulation that has been issued by OPM, and that, on its face, would require an employee to commit a prohibited personnel practice if any agency implemented the regulation.</P> <P>(b) <E T="03">Invalidly implemented regulation</E> means a regulation, issued by OPM, whose implementation by an agency has required an employee to commit a prohibited personnel practice. A valid regulation may be invalidly implemented.</P> <P>(c) <E T="03">Merit system principles</E> are the principles stated in 5 U.S.C. 2301(b)(1) through 2301(b)(9).</P> <P>(d) <E T="03">Pleadings</E> are written submissions containing claims, allegations, arguments, or evidence. They include briefs, motions, requests for regulation review, responses, replies, and attachments that are submitted in connection with proceedings under this part.</P> <P>(e) <E T="03">Prohibited personnel practices</E> are the impermissible actions described in 5 U.S.C. 2302(b)(1) through 2302(b)(11).</P> <P>(f) <E T="03">Regulation review</E> means the procedure under which the Board, under 5 U.S.C. 1204(f), reviews regulations issued by OPM on their face, or reviews those regulations as they have been implemented, or both, in order to determine whether the regualtions require any employee to commit a prohibited personnel practice.</P> <P>(g) <E T="03">Request for regulation review</E> means a request that the Board review a regulation issued by OPM.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Review</HD> <SECTION> <SECTNO>§ 1203.11</SECTNO> <SUBJECT>Request for regulation review.</SUBJECT> <P>(a) An interested person or the Special Counsel may submit a request for regulation review.</P> <P>(b) Contents of request. (1) Each request for regulation review must include the following information:</P> <P>(i) The name, address, and signature of the requester's representative or, if the requester has no representative, of the requester;</P> <P>(ii) A citation identifying the regulation being challenged;</P> <P>(iii) A statement (along with any relevant documents) describing in detail the reasons why the regulation would require an employee to commit a prohibited personnel practice; or the reasons why the implementation of the regulation requires an employee to <PRTPAGE P="62"/>commit a prohibited personnel practice;</P> <P>(iv) Specific identification of the prohibited personnel practice at issue; and</P> <P>(v) A description of the action the requester would like the Board to take.</P> <P>(2) If the prohibited personnel practice at issue is one prohibited by 5 U.S.C. 2302(b)(12), the request must include the following additional information:</P> <P>(i) Identification of the law or regulation that allegedly would be or has been violated, and how it would be or has been violated; and</P> <P>(ii) Identification of the merit system principles at issue and an explanation of the way in which the law or regulation at issue implements or directly concerns those principles.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 65 FR 57939, Sept. 27, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.12</SECTNO> <SUBJECT>Granting or denying the request for regulation review.</SUBJECT> <P>(a) The Board, in its sole discretion, may grant or deny an interested person's request for regulation review. It will grant a request for regulation review that the Special Counsel submits. It will not, however, review a regulation before its effective date.</P> <P>(b) After considering the request for regulation review, the Board will issue an order granting or denying the request in whole or in part. Orders in which the Board grants the request, in whole or in part, will identify the agency or agencies involved, if any. They also will include the following:</P> <P>(1) A citation identifying the regulation being challenged;</P> <P>(2) A description of the issues to be addressed;</P> <P>(3) The docket number assigned to the proceedings; and</P> <P>(4) Instructions covering the review proceedings, including information regarding the time limits for filing submissions related to the request.</P> <CITA>[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.13</SECTNO> <SUBJECT>Filing pleadings.</SUBJECT> <P>(a) <E T="03">Place to file and number of copies.</E> One original and three copies of each pleading must be filed with the Office of the Clerk, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. In addition, parties to a proceeding under this part must serve their pleadings on each other in accordance with § 1203.14 of this part. The Office of the Clerk will make all pleadings available for review by the public.</P> <P>(b) <E T="03">Time limits.</E> (1) A request for regulation review may be filed any time after the effective date of the regulation.</P> <P>(2) A response to a request for regulation review, whether the response supports or opposes the request, must be filed within the time period provided in the Board order granting the request for review.</P> <P>(3) A reply to a response may be filed within 10 days after the response is filed. The reply may address only those matters raised in the response that were not addressed in the request for regulation review.</P> <P>(4) Motions may be filed at any time during the regulation review. The filing of a motion will not delay the acting of the Board unless the Board orders a postponement. The Board may rule immediately on a motion for an extension of time or a continuance if circumstances make consideration of others’ views regarding the motion impracticable.</P> <P>(5) Submissions opposing motions must be filed within five days after the opposing party receives the motion.</P> <P>(c) <E T="03">Additional pleadings.</E> The Board will consider pleadings in addition to those mentioned above only if the Board requests them, or if it grants a request that it consider them.</P> <P>(d) <E T="03">Method and date of filing.</E> Documents may be filed with the Office of the Clerk either by mail, by personal delivery, by facsimile, or by commercial overnight delivery. If the document was submitted by certified mail, it is considered to have been filed on the mailing date. If it was submitted by regular mail, it is presumed to have been filed five days before the Office of the Clerk receives it, in the absence of evidence contradicting that presumption. If it was delivered personally, it is considered to have been filed on the date the Office of the Clerk receives it. If it was submitted by facsimile, the date of the facsimile is considered to be the filing date. If it was submitted by <PRTPAGE P="63"/>commercial overnight delivery, the date of filing is the date it was delivered to the commercial overnight delivery service.</P> <P>(e) <E T="03">Extensions of time.</E> The Board will grant a request for extension of time only when good cause is shown.</P> <CITA>[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.14</SECTNO> <SUBJECT>Serving documents.</SUBJECT> <P>(a) <E T="03">Parties.</E> In every case, the person requesting regulation review must serve a copy of the request on the Director of OPM. In addition, when the implementation of a regulation is being challenged, the requester must also serve a copy of the request on the head of the implementing agency. A copy of all other pleadings must be served, by the person submitting the pleading, on each other party to the proceeding.</P> <P>(b) <E T="03">Method of serving documents.</E> Pleadings may be served on parties by mail, by personal delivery, by facsimile, or by commercial overnight delivery. Service by mail is accomplished by mailing the pleading to each party or representative, at the party's or representative's last known address. Service by facsimile is accomplished by transmitting the pleading by facsimile to each party or representative. Service by personal delivery or by commercial overnight delivery is accomplished by delivering the pleading to the business office or home of each party or representative and leaving it with the party or representative, or with a responsible person at that address. Regardless of the method of service, the party serving the document must submit to the Board, along with the pleading, a certificate of service as proof that the document was served on the other parties or their representatives. The certificate of service must list the names and addresses of the persons on whom the pleading was served, must state the date on which the pleading was served, must state the method (i.e., mail, personal delivery, facsimile, or commercial overnight delivery) by which service was accomplished, and must be signed by the person responsible for accomplishing service.</P> <CITA>[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.15</SECTNO> <SUBJECT>Review of regulations on the Board's own motion.</SUBJECT> <P>The Board may, from time to time, review a regulation on its own motion under 5 U.S.C. 1204(f)(1)(A). When it does so, it will publish notice of the review in the <E T="04">Federal Register.</E> </P> <CITA>[54 FR 28658, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1203.16</SECTNO> <SUBJECT>Proceedings.</SUBJECT> <P>The Board has substantial discretion in conducting a regulation review under this part. It may conduct a review on the basis of the pleadings alone, or on the basis of the pleadings along with any or all of the following:</P> <P>(a) Additional written comments;</P> <P>(b) Oral argument;</P> <P>(c) Evidence presented at a hearing; and/or</P> <P>(d) Evidence gathered through any other appropriate procedures that are conducted in accordance with law.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Order of the Board</HD> <SECTION> <SECTNO>§ 1203.21</SECTNO> <SUBJECT>Final order of the Board.</SUBJECT> <P>(a) <E T="03">Invalid regulation</E>. If the Board determines that a regulation is invalid on its face, in whole or in part, it will require any agency affected by the order to stop complying with the regulation, in whole or in part. In addition, it may order other remedial action that it finds necessary.</P> <P>(b) <E T="03">Invalidly implemented regulation.</E> If the Board determines that a regulation has been implemented invalidly, in whole or in part, it will require affected agencies to terminate the invalid implementation.</P> <P>(c) <E T="03">Corrective action.</E> The Board may order corrective action necessary to ensure compliance with its order. The action it may order includes, but is not limited to, the following:</P> <P>(1) Cancellation of any personnel action related to the prohibited personnel practice;</P> <P>(2) Rescission of any action related to the cancelled personnel action;<PRTPAGE P="64"/> </P> <P>(3) Removal of any reference, record, or document within an employee's official personnel folder that is related to the prohibited personnel practice;</P> <P>(4) Award of back pay and benefits;</P> <P>(5) Award of attorney fees;</P> <P>(6) Other remedial measures to reverse the effects of a prohibited personnel practice; and</P> <P>(7) The agency's submission of a verified report of its compliance with the Board's order.</P> </SECTION> <SECTION> <SECTNO>§ 1203.22</SECTNO> <SUBJECT>Enforcement of order.</SUBJECT> <P>(a) Any party may ask the Board to enforce a final order it has issued under this part. The request may be made by filing a petition for enforcement with the Office of the Clerk of the Board and by serving a copy of the petition on each party to the regulation review. The petition must include specific reasons why the petitioning party believes that there has been a failure to comply with the Board's order.</P> <P>(b) The Board will take all action necessary to determine whether there has been compliance with its final order. If it determines that there has been a failure to comply with the order, it will take actions necessary to obtain compliance.</P> <P>(c) Where appropriate, the Board may initiate the enforcement procedures described in 5 CFR 1201.183(c).</P> </SECTION> </SUBJGRP> </PART> <PART> <EAR>Pt. 1204</EAR> <HD SOURCE="HED">PART 1204—AVAILABILITY OF OFFICIAL INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Scope</HD> <SECHD>Sec.</SECHD> <SECTNO>1204.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1204.2</SECTNO> <SUBJECT>Scope.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records Under the Freedom of Information Act</HD> <SECTNO>1204.11</SECTNO> <SUBJECT>Requests for access to Board records.</SUBJECT> <SECTNO>1204.12</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1204.13</SECTNO> <SUBJECT>Denials.</SUBJECT> <SECTNO>1204.14</SECTNO> <SUBJECT>Requests for access to confidential commercial information.</SUBJECT> <SECTNO>1204.15</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Appeals</HD> <SECTNO>1204.21</SECTNO> <SUBJECT>Submission.</SUBJECT> <SECTNO>1204.22</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-231, and E.O. 12600.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 51039, Sept. 21, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Scope</HD> <SECTION> <SECTNO>§ 1204.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, by stating the procedures to follow when requesting information from the Board, and by stating the fees that will be charged for that information.</P> </SECTION> <SECTION> <SECTNO>§ 1204.2</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) For the purpose of this part, the term <E T="03">record</E> and any other term used in reference to information includes any information that would be a Board record subject to the requirements of 5 U.S.C. 552 when maintained by the Board in any format including an electronic format. All written requests for information that are not processed under part 1205 of this chapter will be processed under this part. The Board may continue, without complying with this part, to furnish the public with the information it has furnished in the regular course of performing its official duties, unless furnishing the information would violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.</P> <P>(b) When the subject of the record, or the subject's representative, requests a record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves the record by the subject's name or other personal identifier, the Board will handle the request under the procedures and fees shown in part 1205 of this chapter. When a third party requests access to those records, without the written consent of the subject of the record, the Board will handle the request under this part.</P> <P>(c) When a party to an appeal requests a copy of a tape recording, video tape, or transcript (if one has been prepared) of a hearing that the Board or a judge held under part 1201 or part 1209 of this chapter, the Board will handle the request under § 1201.53 of this chapter. When someone other than a party to the appeal makes this request, the <PRTPAGE P="65"/>Board will handle the request under this part.</P> <P>(d) In accordance with 5 U.S.C. 552(a)(2), the Board's final opinions and orders (including concurring and dissenting opinions), those statements of policy and interpretations adopted by the Board and that are not published in the <E T="04">Federal Register</E>, administrative staff manuals and instructions to staff that affect a member of the public, and agency records processed and disclosed in response to a FOIA request that the Board determines have been or are likely to become the subject of additional requests for basically the same records and a general index of those records, are available for public review and copying in the Board's Headquarters’ Library, 1615 M Street, NW., Washington, DC 20419-0001, and on the Board's World Wide Web site at http://www.mspb.gov.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48885, Aug. 10, 2000]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records Under the Freedom of Information Act</HD> <SECTION> <SECTNO>§ 1204.11</SECTNO> <SUBJECT>Request for access to Board records.</SUBJECT> <P>(a) <E T="03">Sending a request.</E> A person may request a Board record under this part by writing to the office that has the record. If the requester believes that the records are located in a regional or field office, the request must be sent to that office. A list of the addresses of the Board's regional and field offices are in appendix II of part 1201 of this chapter and on the Board's World Wide Web site at http://www.mspb.gov. Other requests must be sent to the Clerk of the Board, 1615 M Street, NW., Washington, DC 20419-0001. Requests sent under this part must be clearly marked “Freedom of Information Act Request” on both the envelope and the request.</P> <P>(b) <E T="03">Description.</E> A request must describe the records wanted in enough detail for Board employees to locate the records with no more than a reasonable effort. Wherever possible, a request must include specific information about each record, such as the date, title or name, author, recipient, and subject matter of the record. In addition, if the request asks for records on cases decided by the Board, it must show the title of the case, the MSPB docket number, and the date of the decision.</P> <P>(c) <E T="03">Time limits and decisions.</E> If a request is not properly labeled or is sent to the wrong office, the time for processing the request will begin when the proper office receives it. Requests to the Board's headquarters will be decided by the Clerk of the Board. Requests to one of the regional or field offices will be decided by the Regional Director or Chief Administrative Judge. The Board will decide a request within 20 workdays after the appropriate office receives it, except under the conditions that follow.</P> <P>(1) <E T="03">Extension of time.</E> If “unusual circumstances” exist, the Board may extend the time for deciding the request by no more than 10 additional workdays. An example of unusual circumstances could be the need to find and retrieve records from regional or field offices or from federal records centers or the need to search, collect and or examine a large number of records which are demanded in a single request, or the need to talk to another agency with a substantial interest in the determination of the request. When the Board extends the time to decide the request, it will inform the requester in writing and describe the “unusual circumstances”, and it will state a date on which a decision on the request will be made. If the “unusual circumstances” are such that the Board cannot comply with the request within the time limit, the Board will offer the requester an opportunity:</P> <P>(i) To limit the request so that it may be processed within the time limit, or</P> <P>(ii) To arrange with the Board a different time frame for processing the request or a changed request.</P> <P>(2) <E T="03">Expedited processing.</E> Where a requester shows a “compelling need” and in other cases determined by the Board, a decision whether to provide expedited processing of a request and notification of that decision to the requester will be made within 10 workdays of the date of the request. An example of a compelling need could be <PRTPAGE P="66"/>that a failure to obtain the records expeditiously could reasonably be expected to be a threat to the life or physical safety of a person or that there is urgency to inform the public about actual or alleged Federal Government activity by a person primarily engaged in distributing information. Where the Board approves expeditious processing, the Board will process the request within 5 workdays from the date of the decision to grant the expeditious processing. If, in order to fully satisfy the request, the Board requires the standard or additional processing time, or if it decides that good cause for expedited processing has not been made, it will provide written notice of its decision to the requester and will inform the requester of the right to administrative and court review of the decision. A showing of a compelling need must be made by a statement certified to be true to the best of the requester's knowledge and belief.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1204.12</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">General.</E> The Board will charge the requester fees for services provided in processing requests for information. Those fees will be charged according to the schedule in paragraph (d) of this section, and will recover the full allowable direct costs that the Board incurs. Fees may be charged for time spent searching for information, even if the Board fails to locate responsive records, and even if it determines that the information is exempt from disclosure.</P> <P>(b) <E T="03">Definitions.</E> (1) The term <E T="03">direct costs</E> means the costs to an agency for searching for and copying (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of each employee performing work at the rate of $5 per quarter hour. Overhead expenses, such as costs of space and of heating or lighting the facility in which the records are stored, are not included in direct costs.</P> <P>(2) The term <E T="03">search</E>, as defined by 5 U.S.C. 552(a)(3)(D), means either manual or automated review of Board records to locate those records asked for, and includes all time spent looking for material in response to a request, including page-by-page or line-by-line identification of material within documents. Searches will be done in the most efficient and least expensive way to limit costs for both the Board and the requester. Searches may be done manually or by computer using existing programming. The Board will make a reasonable effort to search for the records in electronic form or format, except when such effort would interfere to a large extent with the operation of the Board's automated information system.</P> <P>(3) The term <E T="03">duplication</E> means the process of copying a document or electronically maintained information in response to a FOIA request. Copies can take the form of paper, microfilm, audio-visual materials, or machine-readable documentation (e.g., magnetic tape or disk), among others. The copy provided will be in a form or format requested if the record is readily reproducible by the Board in that form or format. The Board will make a reasonable effort to maintain its records in forms or formats that are reproducible.</P> <P>(4) The term <E T="03">review</E> includes the process of examining documents to determine whether any portion of them may be exempt from disclosure under the FOIA, when the documents have been located in response to a request that is for a commercial use. The term also includes processing any documents for disclosure, e.g., doing all that is necessary to edit them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues.</P> <P>(5) The term <E T="03">commercial use request</E> means a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In deciding whether a requester properly belongs in this category, the Board will decide the use the requester will make of the documents requested. Also, where the Board has reasonable cause to doubt the use a requester will make of the records requested, or where that use is not clear from the request, the Board will seek <PRTPAGE P="67"/>additional clarification before assigning the request to a specific category.</P> <P>(6) The term <E T="03">educational institution</E> means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education that operates a program or programs of scholarly research.</P> <P>(7) The term <E T="03">noncommercial scientific institution</E> means an institution that is not operated on a “commercial” basis as that term is used above, and that is operated solely for the purpose of conducting scientific research whose results are not intended to promote any particular product or industry.</P> <P>(8) The term <E T="03">representative of the news media</E> means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> means information that concerns current events or that would be of current interest to the public.</P> <P>(c) <E T="03">Categories of requesters.</E> There are four categories of FOIA requesters: Commercial use requesters; educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. To be included in the category of educational and noncommercial scientific institutions, requesters must show that the request is authorized by a qualifying institution and that they are seeking the records not for a commercial use, but to further scholarly or scientific research. To be included in the news media category, a requester must meet the definition in paragraph (b)(8) of this section and the request must not be made for a commercial use. To avoid commercial use charges, requesters must show that they should be included in a category or categories other than that of commercial use requesters. The Board will decide the categories to place requesters for fee purposes. It will make these determinations based on information given by the requesters and information otherwise known to the Board.</P> <P>(d) The Board will not charge a requester if the fee for any request is less that $100 (the cost to the Board of processing and collecting the fee).</P> <P>(1) When the Board receives a request:</P> <P>(i) From a commercial use requester, it will charge fees that recover the full direct costs for searching for the information requested, reviewing it for release at the initial request stage, reviewing it after an appeal to determine whether other exemptions not considered before the appeal apply to it, and copying it.</P> <P>(ii) From an educational and noncommercial scientific institution or, to the extent copying exceeds 100 pages, from a representative of the news media, it will charge fees only for the cost of copying the requested information.</P> <P>(iii) From all other requesters, to the extent copying exceeds 100 pages and search time exceeds 2 hours, it will charge fees for the full direct cost of searching for and copying requested records.</P> <P>(2) When the Board reasonably believes that a requester or group of requesters is attempting to divide a request into more than one request to avoid payment of fees, the Board will combine the requests and charge fees accordingly. The Board will not combine multiple requests on unrelated subjects from one requester.</P> <P>(3) When the Board decides that charges for a request are likely to exceed $250, the Board will require the requester to pay the entire fee in advance before continuing to process the request.</P> <P>(4) When a requester has an outstanding fee charge or has not paid a fee on time, the Board will require the requester to pay the full amount of the estimated fee in advance before the Board begins to process a new or pending request from that requester, and before it applies administrative time limits for making a decision on the new or pending request.</P> <P>(e) <E T="03">Fee schedule.</E> (1) Fees for document searches for records will be charged at a rate of $5 per quarter hour spent by each Board employee performing the search.</P> <P>(2) Fees for computer searches for records will be $5 per quarter hour spent by each employee operating the <PRTPAGE P="68"/>computer equipment and/or developing a new inquiry or report.</P> <P>(3) Fees for review at the initial administrative level to determine whether records or portions of records are exempt from disclosure, and for review after an appeal to determine whether the records are exempt on other legal grounds, will be charged, for commercial use requests, at a rate of $5 per quarter hour spent by each reviewing employee.</P> <P>(4) Fees for photocopying records is 20 cents a page, the fee for copying audio tapes is the direct cost up to $15 per cassette tape; the fee for copying video tapes is the direct cost up to $20 per tape; and the fee for computer printouts is 10 cents a page. The fee for duplication of electronically maintained information in the requester's preferred format will be $21 for copying computer tapes and $4 for copying records on computer diskettes, if it is feasible for the Board to reproduce records in the format requested. Fees for certified copies of the Board's records will include a $4 per page charge for each page displaying the Board's seal and certification. When the Board estimates that copying costs will exceed $100, it will notify the requester of the estimated amount unless the requester has indicated in advance a willingness to pay an equal or higher amount.</P> <P>(f) <E T="03">Fee waivers.</E> (1) Upon request, the Clerk of the Board, Regional Director, or Chief Administrative Judge, as appropriate, will furnish information without charge or at reduced rates if it is established that disclosure “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.” This decision will be based on:</P> <P>(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government;</P> <P>(ii) The informative value of the information to be disclosed: Whether the disclosure is likely to contribute to an understanding of government operations or activities;</P> <P>(iii) Whether disclosure of the requested information is likely to contribute to public understanding of the subject of the disclosure; and</P> <P>(iv) The significance of the contribution the disclosure would make to public understanding of government operations or activities.</P> <P>(2) If information is to be furnished without charge or at reduced rates, the requester must also establish that disclosure of the information is not primarily in the commercial interest of the requester. This decision will be based on:</P> <P>(i) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,</P> <P>(ii) Whether the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.</P> <P>(3) The requester must establish eligibility for a waiver of fees or for reduced fees. The denial of a request for waiver of fees may be appealed under subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1204.13</SECTNO> <SUBJECT>Denials</SUBJECT> <P>(a) The Board may deny: A request for reduced fees or waiver of fees; a request for a record, either in whole or in part; a request for expeditious processing based on the requester's compelling need; or a request that records be released in a specific electronic format. The denial will be in writing, will state the reasons, and will notify the requester of the right to appeal.</P> <P>(b) If the Board applies one or more of the exemptions provided under the FOIA to deny access to some or all of the information requested, it will respond in writing, identifying for the requester the specific exemption(s), providing an explanation as to why the exemption(s) to withhold the requested information must be applied, and providing an estimate of the amount of material that has been denied to the requester, unless providing such an estimate would harm an interest protected by the exemptions.</P> <P>(c) The amount of information deleted will be indicated on the released portion of the record at the place in the record where the deletion is made, if technically feasible and unless the <PRTPAGE P="69"/>indication would harm an interest protected by the exemption under which the deletion is made.</P> </SECTION> <SECTION> <SECTNO>§ 1204.14</SECTNO> <SUBJECT>Requests for access to confidential commercial information.</SUBJECT> <P>(a) <E T="03">General.</E> Confidential commercial information provided to the Board by a business submitter will not be disclosed in response to a FOIA request except as required by this section.</P> <P>(b) <E T="03">Definitions.</E> (1) The term <E T="03">confidential commercial information</E> means records provided to the government by a submitter that are believed to contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.</P> <P>(2) The term <E T="03">submitter</E> means any person or organization that provides confidential commercial information to the government. The term <E T="03">submitter</E> includes, but is not limited to, corporations, state governments, and foreign governments.</P> <P>(c) <E T="03">Notice to business submitters.</E> The Board will provide a business submitter with prompt written notice of a request for its confidential commercial information whenever such written notice is required under paragraph (d) of this section. Exceptions to such written notice are at paragraph (h) of this section. This written notice will either describe the exact nature of the confidential information requested or provide copies of the records or parts of records containing the commercial information.</P> <P>(d) <E T="03">When initial notice is required.</E> (1) With respect to confidential commercial information received by the Board before January 1, 1988, the Board will give the business submitter notice of a request whenever:</P> <P>(i) The information is less than 10 years old; or</P> <P>(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.</P> <P>(2) With respect to confidential commercial information received by the Board on or after January 1, 1988, the Board will give notice to the business submitter whenever:</P> <P>(i) The business submitter has designated the information in good faith as commercially or financially sensitive information; or</P> <P>(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.</P> <P>(3) Notice of a request for commercially confidential information that was received by January 1, 1988, is required for a period of not more than 10 years after the date on which the information is submitted unless the business submitter requests, and provides justification for, a longer specific notice period. Whenever possible, the submitter's claim of confidentially must be supported by a statement or certification, by an officer or authorized representative of the company, that the information in question is confidential commercial information and has not been disclosed to the public.</P> <P>(e) <E T="03">Opportunity to object to disclosure.</E> Through the notice described in paragraph (c) of this section, the Board will give a business submitter a reasonable period to provide a detailed statement of any objection to disclosure. The statement must specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act. In addition, in the case of Exemption 4, the statement must state why the information is considered to be a trade secret, or to be commercial or financial information that is privileged or confidential. Information a business submitter provides under this paragraph may itself be subject to disclosure under the Freedom of Information Act.</P> <P>(f) <E T="03">Notice of intent to release information.</E> The Board will consider carefully a business submitter's objections and specific grounds for claiming that the information should not be released before determining whether to release confidential commercial information. Whenever the Board decides to release confidential commercial information over the objection of a business submitter, it will forward to the business submitter a written notice that includes:</P> <P>(1) A statement of the reasons for which the business submitter's objections to the release were not sufficient;<PRTPAGE P="70"/> </P> <P>(2) A description of the confidential commercial information to be released; and</P> <P>(3) <E T="03">A specified release date.</E> The Board will forward the notice of intent to release the information a reasonable number of days, as circumstances permit, before the specified date upon which release is expected. It will forward a copy of the release notice to the requester at the same time.</P> <P>(g) <E T="03">Notice of Freedom of Information Act lawsuit.</E> Whenever a requester files a lawsuit seeking to require release of business information covered by paragraph (d) of this section, the Board will notify the business submitter promptly.</P> <P>(h) <E T="03">Exceptions to notice requirements.</E> The notice requirements of this section do not apply when:</P> <P>(1) The Board decides that the information should not be released;</P> <P>(2) The information lawfully has been published or otherwise made available to the public;</P> <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or</P> <P>(4) The disclosure is required by an agency rule that:</P> <P>(i) Was adopted after notice and public comment;</P> <P>(ii) Specifies narrow classes of records submitted to the agency that are to be released under the FOIA; or</P> <P>(iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that release of the information could reasonably be expected to cause substantial competitive harm.</P> <P>(5) The information requested is not designated by the submitter as exempt from release according to agency regulations issued under this section, when the submitter has an opportunity to do so at the time of sending the information or a reasonable time thereafter, unless the agency has good reason to believe that disclosure of the information would result in competitive harm; or</P> <P>(6) The designation made by the submitter according to Board regulations appears obviously frivolous; except that, in such case, the Board must provide the submitter with written notice of any final administrative release decision within a reasonable period before the stated release date.</P> </SECTION> <SECTION> <SECTNO>§ 1204.15</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> <P>Requests for Board records that were created by another agency may, in appropriate circumstances, be referred to that agency for discussion or processing. In these instances, the Board will notify the requester.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Appeals</HD> <SECTION> <SECTNO>§ 1204.21</SECTNO> <SUBJECT>Submission.</SUBJECT> <P>(a) A person may appeal the following actions, or failure to act by the Clerk of the Board, a Regional Director, or Chief Administrative Judge:</P> <P>(1) A denial of access to agency records;</P> <P>(2) A denial of a request for a waiver or reduced fees;</P> <P>(3) A decision that it is technically not possible to reproduce electronically maintained information in the requester's preferred format;</P> <P>(4) A denial of a request for expedited processing of information under this part; or</P> <P>(5) A failure to decide a request for expedited processing within 10 workdays from the date of the request.</P> <P>(b) Appeals must be filed with the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays from the date of the denial. Any appeal must include a copy of the initial request, a copy of the letter denying the request, and a statement of the reasons why the requester believes the denying employee erred.</P> <CITA>[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1204.22</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> <P>A decision on an appeal will be made within 20 workdays after the appeal is received. A decision not to provide expeditious processing of a request will be made within 15 workdays after the appeal is received. The decision will be in writing and will contain the reasons for the decision and information about the appellant's right to seek court review of the denial.</P> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="71"/> <EAR>Pt. 1205</EAR> <HD SOURCE="HED">PART 1205—PRIVACY ACT REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>1205.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1205.2</SECTNO> <SUBJECT>Policy and scope.</SUBJECT> <SECTNO>1205.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1205.4</SECTNO> <SUBJECT>Disclosure of Privacy Act records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records</HD> <SECTNO>1205.11</SECTNO> <SUBJECT>Access to Board records.</SUBJECT> <SECTNO>1205.12</SECTNO> <SUBJECT>Time limits and determinations.</SUBJECT> <SECTNO>1205.13</SECTNO> <SUBJECT>Identification.</SUBJECT> <SECTNO>1205.14</SECTNO> <SUBJECT>Granting access.</SUBJECT> <SECTNO>1205.15</SECTNO> <SUBJECT>Denying access.</SUBJECT> <SECTNO>1205.16</SECTNO> <SUBJECT>Fees.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Amendment of Records</HD> <SECTNO>1205.21</SECTNO> <SUBJECT>Request for amendment.</SUBJECT> <SECTNO>1205.22</SECTNO> <SUBJECT>Action on request.</SUBJECT> <SECTNO>1205.23</SECTNO> <SUBJECT>Time limits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Appeals</HD> <SECTNO>1205.31</SECTNO> <SUBJECT>Submitting appeal.</SUBJECT> <SECTNO>1205.32</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a and 1204.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 51043, Sept. 21, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 1205.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This subpart implements the Privacy Act of 1974, 5 U.S.C. 552a, (“the Act”) by stating the procedures by which individuals may determine the existence of, seek access to, and request amendment of Board records concerning themselves, and by stating the requirements that apply to Board employees’ use and disclosure of those records.</P> </SECTION> <SECTION> <SECTNO>§ 1205.2</SECTNO> <SUBJECT>Policy and scope.</SUBJECT> <P>The Board's policy is to apply these regulations to all records that can be retrieved from a system of records under the Board's control by using an individual's name or by using a number, symbol, or other way to identify the individual. These regulations, however, do not govern the rights of the parties in adversary proceedings before the Board to obtain discovery from adverse parties; those rights are governed by part 1201 and part 1209 of this chapter. These regulations also are not meant to allow the alteration, either before or after the Board has issued a decision on an appeal, of evidence presented during the Board's adjudication of the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1205.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The definitions of 5 U.S.C. 552a apply to this part. In addition, as used in this part:</P> <P>(a) <E T="03">Inquiry</E> means a request by an individual regarding whether the Board has a record that refers to that individual.</P> <P>(b) <E T="03">Request for access</E> means a request by an individual to look at or copy a record.</P> <P>(c) <E T="03">Request for amendment</E> means a request by an individual to change the substance of a particular record by addition, deletion, or other correction.</P> <P>(d) <E T="03">Requester</E> means the individual requesting access to or amendment of a record. The individual may be either the person to whom the requested record refers, a legal guardian acting on behalf of the individual, or a representative designated by that individual.</P> </SECTION> <SECTION> <SECTNO>§ 1205.4</SECTNO> <SUBJECT>Disclosure of Privacy Act records.</SUBJECT> <P>(a) Except as provided in 5 U.S.C. 552a(b), the Board will not disclose any personal record information from systems of records it maintains to any individual other than the individual to whom the record refers, or to any other agency, without the express written consent of the individual to whom the record refers, or his or her representative or attorney.</P> <P>(b) The Board's staff will take necessary steps, in accordance with the law and these regulations, to protect the security and integrity of the records and the personal privacy interests of the subjects of the records.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Obtaining Records</HD> <SECTION> <SECTNO>§ 1205.11</SECTNO> <SUBJECT>Access to Board records.</SUBJECT> <P>(a) <E T="03">Submission of request.</E> Inquiries or requests for access to records must be submitted to the appropriate regional or field office of the Board, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., <PRTPAGE P="72"/>Washington, DC 20419-0001. If the requester has reason to believe that the records are located in a regional or field office, the request must be submitted to that office. Requests submitted to the regional or field office must be addressed to the Regional Director or Chief Administrative Judge at the appropriate regional or field office listed in appendix II of 5 CFR part 1201.</P> <P>(b) <E T="03">Form.</E> Each submission must contain the following information:</P> <P>(1) The name, address, and telephone number of the individual to whom the record refers;</P> <P>(2) The name, address, and telephone number of the individual making the request if the requester is someone other than the person to whom the record refers, such as a legal guardian or an attorney, along with evidence of the relationship. Evidence of the relationship may consist of an authenticated copy of:</P> <P>(i) The birth certificate of the minor child, and</P> <P>(ii) The court document appointing the individual legal guardian, or</P> <P>(iii) An agreement for representation signed by the individual to whom the record refers;</P> <P>(3) Any additional information that may assist the Board in responding to the request, such as the name of the agency that may have taken an action against an individual, or the docket number of the individual's case;</P> <P>(4) The date of the inquiry or request;</P> <P>(5) The inquirer's or requester's signature; and</P> <P>(6) A conspicuous indication, both on the envelope and the letter, that the inquiry is a “PRIVACY ACT REQUEST”.</P> <P>(c) <E T="03">Identification.</E> Each submission must follow the identification requirements stated in § 1205.13 of this part.</P> <P>(d) <E T="03">Payment.</E> Records usually will not be released until fees have been received.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.12</SECTNO> <SUBJECT>Time limits and determinations.</SUBJECT> <P>(a) <E T="03">Board determinations.</E> The Board will acknowledge the request for access to records and make a determination on whether to grant it within 20 workdays after it receives the request, except under the unusual circumstances described below:</P> <P>(1) When the Board needs to obtain the records from other Board offices or a Federal Records Center;</P> <P>(2) When it needs to obtain and examine a large number of records;</P> <P>(3) When it needs to consult with another agency that has a substantial interest in the records requested; or</P> <P>(4) When other extenuating circumstances prevent the Board from processing the request within the 20-day period.</P> <P>(b) <E T="03">Time extensions.</E> When unusual circumstances exist, the Board may extend the time for making a determination on the request for no more than 10 additional workdays. If it does so, it will notify the requester of the extension.</P> <P>(c) <E T="03">Improper request.</E> If a request or an appeal is not properly labeled, does not contain the necessary identifying information, or is submitted to the wrong office, the time period for processing the request will begin when the correct official receives the properly labeled request and the necessary information.</P> <P>(d) <E T="03">Determining officials.</E> The Clerk of the Board, a Regional Director, or a Chief Administrative Judge will make determinations on requests.</P> <CITA>[64 FR 51043, Sept. 21, 1999; 64 FR 71267, Dec. 21, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.13</SECTNO> <SUBJECT>Identification.</SUBJECT> <P>(a) <E T="03">In person.</E> Each requester must present satisfactory proof of identity. The following items, which are listed in order of the Board's preference, are acceptable proof of the requester's identity when the request is made in person:</P> <P>(1) A document showing the requester's photograph;</P> <P>(2) A document showing the requester's signature; or</P> <P>(3) If the items described in paragraphs (a)(1) and (2) of the section are not available, a signed statement in which the requester asserts his or her identity and acknowledges understanding that misrepresentation of identity in order to obtain a record is <PRTPAGE P="73"/>a misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C. 552a(i)(3).</P> <P>(b) <E T="03">By mail.</E> The identification of a requester making a request by mail must be certified by a notary public or equivalent official or contain other information to identify the requester. Information could be the date of birth of the requester and some item of information in the record that only the requester would be likely to know.</P> <P>(c) <E T="03">Parents of minors, legal guardians, and representatives.</E> Parents of minors, legal guardians, and representatives must submit identification under paragraph (a) or (b) of this section. Additionally, they must present an authenticated copy of:</P> <P>(1) The minor's birth certificate, and</P> <P>(2) The court order of guardianship, or</P> <P>(3) The agreement of representation, where appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 1205.14</SECTNO> <SUBJECT>Granting access.</SUBJECT> <P>(a) The Board may allow a requester to inspect records through either of the following methods:</P> <P>(1) It may permit the requester to inspect the records personally during normal business hours at a Board office or other suitable Federal facility closer to the requester; or</P> <P>(2) It may mail copies of the records to the requester.</P> <P>(b) A requester seeking personal access to records may be accompanied by another individual of the requester's choice. Under those circumstances, however, the requester must sign a statement authorizing the discussion and presentation of the record in the accompanying individuals presence.</P> </SECTION> <SECTION> <SECTNO>§ 1205.15</SECTNO> <SUBJECT>Denying access.</SUBJECT> <P>(a) <E T="03">Basis.</E> In accordance with 5 U.S.C. 552a(k)(2), the Board may deny access to records that are of an investigatory nature and that are compiled for law enforcement purposes. Those requests will be denied only where access to them would otherwise be unavailable under Exemption (b)(7) of the Freedom of Information Act.</P> <P>(b) <E T="03">Form.</E> All denials of access under this section will be made in writing and will notify the requester of the right to judicial review.</P> </SECTION> <SECTION> <SECTNO>§ 1205.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) No fees will be charged except for making copies of records.</P> <P>(b) Photocopies of records duplicated by the Board will be subject to a charge of 20 cents a page.</P> <P>(c) If the fee to be assessed for any request is less than $100 (the cost to the Board of processing and collecting the fee), no charge will be made to the requester.</P> <P>(d) Fees for copying audio tapes and computer records will be charged at a rate representing the actual costs to the Board, as shown in paragraphs (d)(1) through (d)(3) of this section.</P> <P>(1) Audio tapes will be provided at a charge not to exceed $15 for each cassette tape.</P> <P>(2) Computer printouts will be provided at a charge of 10 cents a page.</P> <P>(3) Records reproduced on computer tapes, computer diskettes, or other electronic media, will be provided at the actual cost to the Board.</P> <P>(e) The Board will provide one copy of the amended parts of any record it amends free of charge as evidence of the amendment.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Amendment of Records</HD> <SECTION> <SECTNO>§ 1205.21</SECTNO> <SUBJECT>Request for amendment.</SUBJECT> <P>A request for amendment of a record must be submitted to the Regional Director or Chief Administrative Judge of the appropriate regional or field office, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001, depending on which office has custody of the record. The request must be in writing, must be identified conspicuously on the outside of the envelope and the letter as a “PRIVACY ACT REQUEST,” and must include the following information:</P> <P>(a) An identification of the record to be amended;</P> <P>(b) A description of the amendment requested; and</P> <P>(c) A statement of the basis for the amendment, along with supporting documentation, if any.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="74"/> <SECTNO>§ 1205.22</SECTNO> <SUBJECT>Action on request.</SUBJECT> <P>(a) <E T="03">Amendment granted.</E> If the Board grants the request for amendment, it will notify the requester and provide him or her with a copy of the amendment.</P> <P>(b) <E T="03">Amendment denied.</E> If the Board denies the request for amendment in whole or in part, it will provide the requester with a written notice that includes the following information:</P> <P>(1) The basis for the denial; and</P> <P>(2) The procedures for appealing the denial.</P> </SECTION> <SECTION> <SECTNO>§ 1205.23</SECTNO> <SUBJECT>Time limits.</SUBJECT> <P>The Clerk of the Board, Regional Director, or Chief Administrative Judge will acknowledge a request for amendment within 10 workdays of receipt of the request in the appropriate office except under the unusual circumstances described in paragraphs (a)(1) through (a)(4) of § 1205.12 of this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Appeals</HD> <SECTION> <SECTNO>§ 1205.31</SECTNO> <SUBJECT>Submitting appeal.</SUBJECT> <P>(a) A partial or complete denial, by the Clerk of the Board, by the Regional Director, or by the Chief Administrative Judge, of a request for amendment may be appealed to the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays from the date of the denial.</P> <P>(b) Any appeal must be in writing, must be clearly and conspicuously identified as a Privacy Act appeal on both the envelope and letter, and must include:</P> <P>(1) A copy of the original request for amendment of the record;</P> <P>(2) A copy of the denial; and</P> <P>(3) A statement of the reasons why the original denial should be overruled.</P> <CITA>[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1205.32</SECTNO> <SUBJECT>Decision on appeal.</SUBJECT> <P>(a) The Chairman will decide the appeal within 30 workdays unless the Chairman determines that there is good cause for extension of that deadline. If an appeal is improperly labeled, does not contain the necessary information, or is submitted to an inappropriate official, the time period for processing that appeal will begin when the Chairman receives the appeal and the necessary information.</P> <P>(b) If the request for amendment of a record is granted on appeal, the Chairman will direct that the amendment be made. A copy of the amended record will be provided to the requester.</P> <P>(c) If the request for amendment of a record is denied, the Chairman will notify the requester of the denial and will inform the requester of:</P> <P>(1) The basis for the denial;</P> <P>(2) The right to judicial review of the decision under 5 U.S.C. 552a(g)(1)(A); and</P> <P>(3) The right to file a concise statement with the Board stating the reasons why the requester disagrees with the denial. This statement will become a part of the requester's record.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1206</EAR> <HD SOURCE="HED">PART 1206—OPEN MEETINGS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Policy</HD> <SECHD>Sec.</SECHD> <SECTNO>1206.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1206.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1206.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures</HD> <SECTNO>1206.4</SECTNO> <SUBJECT>Notice of meeting.</SUBJECT> <SECTNO>1206.5</SECTNO> <SUBJECT>Change in meeting plans after notice.</SUBJECT> <SECTNO>1206.6</SECTNO> <SUBJECT>Decision to close meeting.</SUBJECT> <SECTNO>1206.7</SECTNO> <SUBJECT>Record of meetings.</SUBJECT> <SECTNO>1206.8</SECTNO> <SUBJECT>Providing information to the public.</SUBJECT> <SECTNO>1206.9</SECTNO> <SUBJECT>Procedures for expedited closing of meetings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Conduct of Meetings</HD> <SECTNO>1206.11</SECTNO> <SUBJECT>Meeting place.</SUBJECT> <SECTNO>1206.12</SECTNO> <SUBJECT>Role of observers.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552b.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 20367, May 11, 1989, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Purpose and Policy</HD> <SECTION> <SECTNO>§ 1206.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part is to prescribe the procedures by which the Board will conduct open meetings in accordance with the Government in the Sunshine Act (5 U.S.C. 552b) (“the Act”).</P> </SECTION> <SECTION> <PRTPAGE P="75"/> <SECTNO>§ 1206.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>The Board will provide the public with the fullest practicable information regarding its decision-making processes, while protecting individuals’ rights and the Board's ability to carry out its responsibilities. Meetings at which the Board members jointly conduct or dispose of official business are presumptively open to the public. The Board will close those meetings in whole or in part only in accordance with the exemptions provided under 5 U.S.C. 552b(c), and only when doing so is in the public interest.</P> </SECTION> <SECTION> <SECTNO>§ 1206.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The following definitions apply to this part:</P> <P>(a) <E T="03">Meeting</E> means deliberations of at least two Board members that determine or result in the joint conduct of official Board business.</P> <P>(b) <E T="03">Member</E> means one of the members of the Merit Systems Protection Board.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures</HD> <SECTION> <SECTNO>§ 1206.4</SECTNO> <SUBJECT>Notice of meeting.</SUBJECT> <P>(a) Notice of a Board meeting will be published in the <E T="04">Federal Register</E> at least one week before the meeting. Each notice will include the following information:</P> <P>(1) The time of the meeting;</P> <P>(2) The place where the meeting will be held;</P> <P>(3) The subject and agenda of the meeting;</P> <P>(4) Whether the meeting is to be open to the public or closed; and</P> <P>(5) The name and telephone number of a Board official responsible for receiving inquiries regarding the meeting.</P> <P>(b) The Board, by majority vote, may provide less than one week's notice. When it does so, however, it will provide notice of the meeting at the earliest practicable time.</P> </SECTION> <SECTION> <SECTNO>§ 1206.5</SECTNO> <SUBJECT>Change in meeting plans after notice.</SUBJECT> <P>(a) After notice of a meeting has been published, the Board may change the time or place of the meeting only if it announces the change publicly at the earliest practicable time.</P> <P>(b) After notice of a meeting has been published, the Board may not change either the subject matter of the meeting or the decision that the meeting will be open to the public or closed unless both of the following conditions are met:</P> <P>(1) By majority, recorded vote, the Board members determine that Board business requires the change and that no earlier announcement of the change was possible; and</P> <P>(2) Notice of the change, and of the individual Board members’ vote, is published in the <E T="04">Federal Register</E> at the earliest practicable time.</P> </SECTION> <SECTION> <SECTNO>§ 1206.6</SECTNO> <SUBJECT>Decision to close meeting.</SUBJECT> <P>(a) <E T="03">Basis.</E> The Board, by majority vote, may decide to close a meeting in accordance with the provisions of 5 U.S.C. 552b(c)(1) to 552b(c)(10) when closing the meeting is in the public interest.</P> <P>(b) <E T="03">General Counsel certification.</E> For every meeting that is closed to the public in whole or in part, the General Counsel will certify that closing the meeting is proper, and will state the basis for that opinion.</P> <P>(c) <E T="03">Vote.</E> Within one day after voting to close a meeting, the Board will make publicly available a record reflecting the vote of each member. In addition, within one day after any vote to close a portion or portions of a meeting to the public, the Board will make publicly available a full written explanation of its decision to close the meeting, together with a list naming all persons expected to attend the meeting and identifying their affiliation, unless that disclosure would reveal the information that the meeting was closed to protect.</P> </SECTION> <SECTION> <SECTNO>§ 1206.7</SECTNO> <SUBJECT>Record of meetings.</SUBJECT> <P>(a) <E T="03">Closed Meeting.</E> When the Board has decided to close a meeting in whole or in part, it will maintain the following record:</P> <P>(1) A transcript or recording of the proceeding;</P> <P>(2) A copy of the General Counsel's certification under § 1206.6(b) of this part;</P> <P>(3) A statement from the presiding official specifying the time and place of <PRTPAGE P="76"/>the meeting and naming the persons present; and</P> <P>(4) A record (which may be part of the transcript) of all votes and all documents considered at the meeting.</P> <P>(b) <E T="03">Open meeting.</E> Transcripts or other records will be made of all open meetings of the Board. Those records will be made available upon request at a fee representing the Board's actual cost of making them available.</P> <CITA>[54 FR 20367, May 11, 1989, as amended at 54 FR 28664, July 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1206.8</SECTNO> <SUBJECT>Providing information to the public.</SUBJECT> <P>Information available to the public under this part will be made available by the Office of the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. Individuals or organizations with a special interest in activities of the Board may ask the Office of the Clerk to have them placed on a mailing list for receipt of information available under this part.</P> <CITA>[54 FR 20367, May 11, 1989, as amended at 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1206.9</SECTNO> <SUBJECT>Procedures for expedited closing of meetings.</SUBJECT> <P>Instead of following the procedures described in §§ 1206.4 through 1206.8 of this part, and in §§ 1206.11 and 1206.12, the Board may expedite the closing of its meetings under the following conditions by using the following procedures:</P> <P>(a) <E T="03">Finding.</E> (1) Most regular Board business consists of reviewing initial decisions in cases adjudicated after an opportunity for a hearing has been provided. Based on a review of this circumstance, the legislative history of the Civil Service Reform Act of 1978 (Pub. L. 95-454), the Government in the Sunshine Act (5 U.S.C. 552b), and the Board's regulations at 5 CFR part 1201, the Board finds that a majority of its meetings may properly be closed to the public under 5 U.S.C. 552b(c)(10) and 552b(d)(4).</P> <P>(2) Absent a compelling public interest to the contrary, meetings or portions of meetings that can be expected to be closed under these procedures include meetings held to consider the following: Petitions for review or cases that have been or may be reopened under 5 CFR 1201.114 through 1201.117; proposals to take action against administrative law judges under 5 CFR 1201.131 through 1201.136; and actions brought by the Special Counsel under 5 CFR 1201.129.</P> <P>(b) <E T="03">Announcement.</E> The Board will announce publicly, at the earliest practicable time, the time, place, and subject matter of meetings or portions of meetings that are closed under this provision.</P> <P>(c) <E T="03">Procedure for closing meetings under this section.</E> At the beginning of a meeting or portion of a meeting that is to be closed under this section, the Board may, by recorded vote of two of its members, decide to close the meeting or a portion of it to public observation. The Board may take this action, however, only after it receives a certification by the General Counsel under § 1206.6(b) of this part.</P> <P>(d) <E T="03">Record Availability.</E> When the Board has closed a meeting or portion of a meeting under this paragraph, it will make the following available as soon as practicable:</P> <P>(1) A written record reflecting the vote of each participating member of the Board with respect to closing the meeting; and</P> <P>(2) The General Counsel certification under § 1206.6(b).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Conduct of Meetings</HD> <SECTION> <SECTNO>§ 1206.11</SECTNO> <SUBJECT>Meeting place.</SUBJECT> <P>The Board will hold open meetings in meeting rooms designated in the public announcements of those meetings. Whenever the number of observers is greater than can be accommodated in the designated meeting room, however, it will make alternative facilities available to the extent possible.</P> </SECTION> <SECTION> <SECTNO>§ 1206.12</SECTNO> <SUBJECT>Role of observers.</SUBJECT> <P>The public may attend open meetings for the sole purpose of observation. Observers may not participate in the meetings unless they are expressly invited to do so. They also may not create distractions that interfere with the conduct and disposition of Board business, and they may be asked to leave if they do so. Observers of meetings that are partially closed must leave the <PRTPAGE P="77"/>meeting room when they are asked to do so.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1207</EAR> <HD SOURCE="HED">PART 1207—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1207.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1207.102</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1207.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1207.104-1207.109</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <SECTNO>1207.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>1207.112-1207.129</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <SECTNO>1207.131-1207.139</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>1207.141-1207.148</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <SECTNO>1207.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <SECTNO>1207.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <SECTNO>1207.152-1207.159</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <SECTNO>1207.161-1207.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1207.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <SECTNO>1207.171-1207.999</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 794.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 25881 and 25885, July 8, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1207.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this regulation is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.</P> </SECTION> <SECTION> <SECTNO>§ 1207.102</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This regulation (§§ 1207.101-1207.170) applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with handicaps in the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1207.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this regulation, the term—</P> <P> <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P> <P> <E T="03">Auxiliary aids</E> means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices.</P> <P> <E T="03">Complete complaint</E> means a written statement that contains the complainant's name and address and describes the agency's alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.</P> <P> <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P> <P> <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P> <P> <E T="03">Historic properties</E> means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.</P> <P> <E T="03">Individual with handicaps</E> means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.<PRTPAGE P="78"/> </P> <P>As used in this definition, the phrase:</P> <P>(1) <E T="03">Physical or mental impairment</E> includes—</P> <P>(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or</P> <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.</P> <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P> <P>(3) <E T="03">Has a record of such an impairment</E> means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.</P> <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P> <P>(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;</P> <P>(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or</P> <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.</P> <P> <E T="03">Qualified individual with handicaps</E> means—</P> <P>(1) With respect to preschool, elementary, or secondary education services provided by the agency, an individual with handicaps who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency;</P> <P>(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;</P> <P>(3) With respect to any other program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and</P> <P>(4) <E T="03">Qualified handicapped person</E> as that term is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this regulation by § 1207.140.</P> <P> <E T="03">Section 504</E> means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). As used in this regulation, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.</P> <P> <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.104-1207.109</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.110</SECTNO> <SUBJECT>Self-evaluation.</SUBJECT> <P>(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.<PRTPAGE P="79"/> </P> <P>(b) The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the self-evaluation process by submitting comments (both oral and written).</P> <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P> <P>(1) A description of areas examined and any problems identified; and</P> <P>(2) A description of any modifications made.</P> </SECTION> <SECTION> <SECTNO>§ 1207.111</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.112-1207.129</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.130</SECTNO> <SUBJECT>General prohibitions against discrimination.</SUBJECT> <P>(a) No qualified individual with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P> <P>(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—</P> <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;</P> <P>(ii) Afford a qualified individual with handicaps an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;</P> <P>(iii) Provide a qualified individual with handicaps with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;</P> <P>(iv) Provide different or separate aid, benefits, or services to individuals with handicaps or to any class of individuals with handicaps than is provided to others unless such action is necessary to provide qualified individuals with handicaps with aid, benefits, or services that are as effective as those provided to others;</P> <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P> <P>(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.</P> <P>(2) The agency may not deny a qualified individual with handicaps the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.</P> <P>(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—</P> <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P> <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P> <P>(i) Exclude individuals with handicaps from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or</P> <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P> <P>(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.<PRTPAGE P="80"/> </P> <P>(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this regulation.</P> <P>(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive order to a different class of individuals with handicaps is not prohibited by this regulation.</P> <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.131-1207.139</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.140</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>No qualified individual with handicaps shall, on the basis of handicap, be subject to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.</P> </SECTION> <SECTION> <SECTNO>§ 1207.141-1207.148</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.149</SECTNO> <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT> <P>Except as otherwise provided in § 1207.150, no qualified individual with handicaps shall, because the agency's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P> </SECTION> <SECTION> <SECTNO>§ 1207.150</SECTNO> <SUBJECT>Program accessibility: Existing facilities.</SUBJECT> <P>(a) <E T="03">General.</E> The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not—</P> <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P> <P>(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or</P> <P>(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1207.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity.</P> <P>(b) <E T="03">Methods</E>—(1) <E T="03">General</E>. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, <PRTPAGE P="81"/>or any other methods that result in making its programs or activities readily accessible to and usable by individuals with handicaps. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate.</P> <P>(2) <E T="03">Historic preservation programs.</E> In meeting the requirements of § 1207.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to individuals with handicaps. In cases where a physical alteration to an historic property is not required because of § 1207.150(a) (2) or (3), alternative methods of achieving program accessibility include—</P> <P>(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;</P> <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P> <P>(iii) Adopting other innovative methods.</P> <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by November 7, 1988, except that where structural changes in facilities are undertaken, such changes shall be made by September 6, 1991, but in any event as expeditiously as possible.</P> <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by March 6, 1989, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—</P> <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P> <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P> <P>(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and</P> <P>(4) Indicate the official responsible for implementation of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 1207.151</SECTNO> <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT> <P>Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with handicaps. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.152-1207.159</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.160</SECTNO> <SUBJECT>Communications.</SUBJECT> <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P> <P>(1) The agency shall furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.</P> <P>(i) In determining what type of auxiliary aid is necessary, the agency shall <PRTPAGE P="82"/>give primary consideration to the requests of the individual with handicaps.</P> <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P> <P>(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.</P> <P>(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.</P> <P>(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.</P> <P>(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1207.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with handicaps receive the benefits and services of the program or activity.</P> </SECTION> <SECTION> <SECTNO>§§ 1207.161-1207.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1207.170</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the agency.</P> <P>(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P> <P>(c) The Equal Employment Officer shall be responsible for coordinating implementation of this section. Complaints may be sent to the Equal Employment Office, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419.</P> <P>(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.</P> <P>(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate Government entity.</P> <P>(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by individuals with handicaps.</P> <P>(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—</P> <P>(1) Findings of fact and conclusions of law;</P> <P>(2) A description of a remedy for each violation found; and</P> <P>(3) A notice of the right to appeal.<PRTPAGE P="83"/> </P> <P>(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1207.170(g). The agency may extend this time for good cause.</P> <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P> <P>(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.</P> <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P> <P>(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.</P> <CITA>[53 FR 25881 and 25885, July 8, 1988, as amended at 53 FR 25881, July 8, 1988; 65 FR 48886, Aug. 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1207.171-1207.999</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </PART> <PART> <EAR>Pt. 1208</EAR> <HD SOURCE="HED">PART 1208—PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1208.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1208.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>1208.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <SECTNO>1208.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—USERRA Appeals</HD> <SECTNO>1208.11</SECTNO> <SUBJECT>Choice of procedure under USERRA; exhaustion requirement.</SUBJECT> <SECTNO>1208.12</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1208.13</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <SECTNO>1208.14</SECTNO> <SUBJECT>Representation by Special Counsel.</SUBJECT> <SECTNO>1208.15</SECTNO> <SUBJECT>Remedies.</SUBJECT> <SECTNO>1208.16</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—VEOA Appeals</HD> <SECTNO>1208.21</SECTNO> <SUBJECT>VEOA exhaustion requirement.</SUBJECT> <SECTNO>1208.22</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1208.23</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <SECTNO>1208.24</SECTNO> <SUBJECT>Election to terminate MSPB proceeding.</SUBJECT> <SECTNO>1208.25</SECTNO> <SUBJECT>Remedies.</SUBJECT> <SECTNO>1208.26</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 5412, Feb. 4, 2000, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1208.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This part governs appeals filed with the Board under the provisions of 38 U.S.C. 4324, as enacted by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, as amended, or under the provisions of 5 U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act of 1998 (VEOA), Public Law 105-339. With respect to USERRA appeals, this part applies to any appeal filed with the Board on or after October 13, 1994, without regard as to whether the alleged violation occurred before, on, or after October 13, 1994. With respect to VEOA appeals, this part applies to any appeal filed with the Board which alleges that a violation occurred on or after October 31, 1998.</P> </SECTION> <SECTION> <SECTNO>§ 1208.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>(a) <E T="03">USERRA</E>. Under 38 U.S.C. 4324, a person entitled to the rights and benefits provided by chapter 43 of title 38, United States Code, may file an appeal with the Board alleging that a Federal agency employer or the Office of Personnel Management has failed or refused, or is about to fail or refuse, to comply with a provision of that chapter(other than a provision relating to benefits under the Thrift Savings Plan for Federal employees). In general, the provisions of chapter 43 of title 38 that apply to Federal employees guarantee various reemployment rights following <PRTPAGE P="84"/>a period of service in a uniformed service, provided the employee satisfies the requirements for coverage under that chapter. In addition, chapter 43 of title 38 prohibits discrimination based on a person's service—or application or obligation for service—in a uniformed service (38 U.S.C.4311). This prohibition applies with respect to initial employment, reemployment, retention in employment, promotion, or any benefit of employment.</P> <P>(b) <E T="03">VEOA</E>. Under 5 U.S.C. 3330a, a preference eligible who alleges that a Federal agency has violated his rights under any statute or regulation relating to veterans' preference may file an appeal with the Board, provided that he has satisfied the statutory requirements for first filing a complaint with the Secretary of Labor and allowing the Secretary at least 60 days to attempt to resolve the complaint.</P> </SECTION> <SECTION> <SECTNO>§ 1208.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <P>Except as expressly provided in this part, the Board will apply subparts A (Jurisdiction and Definitions), B(Procedures for Appellate Cases), C (Petitions for Review of Initial Decisions), and F (Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to appeals governed by this part. The Board will apply the provisions of subpart H (Attorney Fees, and Litigation Expenses, Where Applicable), Consequential Damages, and CompensatoryDamages) of 5 CFR part 1201 regarding awards of attorney fees to appeals governed by this part.</P> </SECTION> <SECTION> <SECTNO>§ 1208.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Appeal</E>. “Appeal” means a request for review of an agency action (the same meaning as in 5 CFR § 1201.4(f)) and includes a “complaint” or “action” as those terms are used in USERRA (38 U.S.C. 4324) and a “complaint” or “appeal” as those terms are used in VEOA (5 U.S.C. 3330a).</P> <P>(b) <E T="03">Preference eligible.</E> “Preference eligible” is defined in 5 U.S.C. 2108.</P> <P>(c) <E T="03">USERRA appeal.</E> “USERRA appeal” means an appeal filed under 38 U.S.C. 4324, as enacted by the Uniformed ServicesEmployment and Reemployment Rights Act of 1994 (Public Law 103-353), as amended. The term includes an appeal that alleges a violation of a predecessor statutory provision of chapter 43 of title 38, United States Code.</P> <P>(d) <E T="03">VEOA appeal.</E> “VEOA appeal” means an appeal filed under 5 U.S.C. 3330a, as enacted by the Veterans EmploymentOpportunities Act of 1998 (Public Law 105-339).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—USERRA Appeals</HD> <SECTION> <SECTNO>§ 1208.11</SECTNO> <SUBJECT>Choice of procedure under USERRA; exhaustion requirement.</SUBJECT> <P>(a) <E T="03">Choice of procedure.</E> An appellant may file a USERRA appeal directly with the Board under this subpart <E T="03">or</E> may file a complaint with the Secretary of Labor under 38 U.S.C. 4322.</P> <P>(b) <E T="03">Exhaustion requirement.</E> If an appellant files a complaint with the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file a USERRA appeal with the Board until the Secretary notifies the appellant in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint. An appellant who seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint with the Secretary under 38 U.S.C. 4322 is not subject to the exhaustion requirement of this paragraph.</P> <P>(c) <E T="03">Appeals after exhaustion of Department of Labor procedure.</E> When an appellant receives notice from the Secretary of Labor in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint, the appellant may file a USERRA appeal directly with the Board or may ask the Secretary to refer the complaint to the Special Counsel. If the Special Counsel agrees to represent the appellant, the Special Counsel may file a USERRA appeal directly with the Board. If the Special Counsel does not agree to represent the appellant, the appellant may file a USERRA appeal directly with the Board.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.12</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>Under chapter 43 of title 38, United States Code, there is no time limit for filing a USERRA appeal with the Board. However, the Board encourages appellants to file a USERRA appeal as <PRTPAGE P="85"/>soon as possible after the date of the alleged violation or, if a complaint is filed with the Secretary of Labor, as soon as possible after receiving notice from the Secretary in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint, or, if the Secretary has referred the complaint to the Special Counsel and the Special Counsel does not agree to represent the appellant, as soon as possible after receiving the Special Counsel's notice.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.13</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> A USERRA appeal may be in any format, including letter form, but must contain the following:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);</P> <P>(2) Evidence or argument that the appellant has performed service in a uniformed service, including the dates of such service (or, where applicable, has applied for or has an obligation to perform such service), and that the appellant otherwise satisfies the requirements for coverage under chapter 43 of title 38, United States Code;</P> <P>(3) A statement describing in detail the basis for the appeal, that is, the protected right or benefit that was allegedly denied, including reference to the provision(s) of chapter 43 of title 38, United States Code, allegedly violated if possible.</P> <P>(4) If the appellant filed a complaint with the Secretary of Labor under 38 U.S.C. 4322(a), evidence of notice under 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint (a copy of the Secretary's notice satisfies this requirement); and</P> <P>(5) If the appellant's complaint was referred to the Special Counsel and the appellant has received notice that the Special Counsel will not represent the appellant before the Board, evidence of the Special Counsel's notice (a copy of the Special Counsel's notice satisfies this requirement).</P> <P>(b) <E T="03">Request for hearing.</E> An appellant must submit any request for a hearing with the USERRA appeal, or within any other time period the judge sets. A hearing may be provided to the appellant once the Board's jurisdiction over the appeal is established. The judge may also order a hearing if necessary to resolve issues of jurisdiction. The appellant has the burden of proof with respect to issues of jurisdiction (5 CFR 1201.56(a)(2)(i)).</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.14</SECTNO> <SUBJECT>Representation by Special Counsel.</SUBJECT> <P>The Special Counsel may represent an appellant in a USERRA appeal before the Board. A written statement (in any format) that the appellant submitted a written request to the Secretary of Labor that the appellant's complaint under 38 U.S.C. 4322(a) be referred to the Special Counsel for litigation before the Board and that the Special Counsel has agreed to represent the appellant will be accepted as the written designation of representative required by 5 CFR 1201.31(a).</P> <CITA>[65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.15</SECTNO> <SUBJECT>Remedies.</SUBJECT> <P>(a) <E T="03">Order for compliance.</E> If the Board determines that a Federal agency employer or the Office of Personnel</P> <P>Management has not complied with a provision or provisions of chapter 43 of title 38, United States Code (other than a provision relating to benefits under the Thrift Savings Plan for Federal employees), the decision of the Board (either an initial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the Federal agency employer or the Office of PersonnelManagement, as applicable, to comply with such provision(s) and to compensate the appellant for any loss of wages or benefits suffered by the appellant because of such lack of compliance. Under 38 U.S.C. 4324(c)(3), any compensation received by the appellant pursuant to the Board's order shall be in addition to any other right or benefit provided for by chapter 43 of title 38, United States Code, and shall not diminish any such right or benefit.<PRTPAGE P="86"/> </P> <P>(b) <E T="03">Attorney fees and expenses.</E> If the Board issues a decision ordering compliance under paragraph (a) of this section, the Board has discretion to order payment of reasonable attorney fees, expert witness fees, and other litigation expenses under 38 U.S.C. 4324(c)(4). The provisions of subpart H of part 1201 shall govern any proceeding for attorney fees and expenses.</P> </SECTION> <SECTION> <SECTNO>§ 1208.16</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> <P>Nothing in USERRA prevents an appellant who may appeal an agency action to the Board under any other law, rule, or regulation from raising a claim of a USERRA violation in that appeal. The Board will treat such a claim as an affirmative defense that the agency action was not in accordance with law (5 CFR 1201.56(b)(3)).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—VEOA Appeals</HD> <SECTION> <SECTNO>§ 1208.21</SECTNO> <SUBJECT>VEOA exhaustion requirement.</SUBJECT> <P>Before an appellant may file a VEOA appeal with the Board, the appellant must first file a complaint under 5 U.S.C.3330a(a) with the Secretary of Labor within 60 days after the date of the alleged violation and allow the Secretary at least 60 days from the date the complaint is filed to attempt to resolve the complaint.</P> </SECTION> <SECTION> <SECTNO>§ 1208.22</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>(a) Unless the Secretary of Labor has notified the appellant that the Secretary's efforts have not resolved the VEOA complaint, a VEOA appeal may not be filed with the Board before the 61st day after the date on which the appellant filed the complaint under 5 U.S.C. 3330a(a) with the Secretary.</P> <P>(b) If the Secretary of Labor notifies the appellant that the Secretary's efforts have not resolved the VEOA complaint and the appellant elects to appeal to the Board under 5 U.S.C. 3330a(d), the appellant must file the VEOA appeal with the Board within 15 days after the date of receipt of the Secretary's notice. A copy of the Secretary's notice must be submitted with the appeal.</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.23</SECTNO> <SUBJECT>Content of appeal; request for hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> A VEOA appeal may be in any format, including letter form, but must contain the following:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);</P> <P>(2) Evidence or argument that the appellant is a preference eligible;</P> <P>(3) A statement identifying the statute or regulation relating to veterans' preference that was allegedly violated, an explanation of how the provision was violated, and the date of the violation;</P> <P>(4) Evidence that a complaint under 5 U.S.C. 3330a(a) was filed with the Secretary of Labor, including the date the complaint was filed; and</P> <P>(5)(i) Evidence that the Secretary has notified the appellant in accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have not resolved the complaint (a copy of the Secretary's notice satisfies this requirement); or</P> <P>(ii) Evidence that the appellant has provided written notice to the Secretary of the appellant's intent to appeal to the Board, as required by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to the Secretary satisfies this requirement).</P> <P>(b) <E T="03">Request for hearing.</E> An appellant must submit any request for a hearing with the VEOA appeal, or within any other time period the judge sets. A hearing may be provided to the appellant once the Board's jurisdiction over the appeal is established and it has been determined that the appeal is timely. The judge may also order a hearing if necessary to resolve issues of jurisdiction or timeliness. The appellant has the burden of proof with respect to issues of jurisdiction and timeliness (5 CFR 1201.56(a)(2)(i) and (ii)).</P> <CITA>[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1208.24</SECTNO> <SUBJECT>Election to terminate MSPB proceeding.</SUBJECT> <P>(a) <E T="03">Election to terminate.</E> At any time beginning on the 121st day after an appellant files a VEOA appeal with the Board, if a judicially reviewable Board decision on the appeal has not been <PRTPAGE P="87"/>issued, the appellant may elect to terminate the Board proceeding as provided under 5 U.S.C.3330b and file a civil action with an appropriate UnitedStates district court. Such election must be in writing, filed with the Board office where the appeal is being processed, and served on the parties. The election is effective immediately on the date of receipt by the Board office where the appeal is being processed.</P> <P>(b) <E T="03">Termination order.</E> Following receipt by the Board of an appellant's written election to terminate the Board proceeding, a termination order will be issued to document the termination of the proceeding. The termination order will state that the proceeding was terminated as of the date of receipt of the appellant's written election. Such an order is neither an initial decision under 5 CFR 1201.111 nor a final Board decision and is not subject to a petition for review in accordance with subpart C of part 1201, a petition for enforcement in accordance with subpart F of part 1201, or a petition for judicial review.</P> </SECTION> <SECTION> <SECTNO>§ 1208.25</SECTNO> <SUBJECT>Remedies.</SUBJECT> <P>(a) <E T="03">Order for compliance.</E> If the Board determines that a Federal agency has violated the appellant's VEOA rights, the decision of the Board (either an initial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the agency to comply with the statute or regulation violated and to compensate the appellant for any loss of wages or benefits suffered by the appellant because of the violation. If the Board determines that the violation was willful, it will order the agency to pay the appellant an amount equal to back pay as liquidated damages.</P> <P>(b) <E T="03">Attorney fees and expenses.</E> If the Board issues a decision ordering compliance under paragraph (a) of this section, the Board will order payment of reasonable attorney fees, expert witness fees, and other litigation expenses. The provisions of subpart H of part 1201 shall govern any proceeding for attorney fees and expenses.</P> </SECTION> <SECTION> <SECTNO>§ 1208.26</SECTNO> <SUBJECT>Appeals under another law, rule, or regulation.</SUBJECT> <P>(a) The VEOA provides that 5 U.S.C. 3330a shall not be construed to prohibit a preference eligible from appealing directly to the Board from any action that is appealable under any other law, rule, or regulation, in lieu of administrative redress under VEOA (5 U.S.C. 3330a(e)(1)). An appellant may not pursue redress for an alleged violation of veterans' preference under VEOA at the same time he pursues redress for such violation under any other law, rule, or regulation (5 U.S.C. 3330a(e)(2)).</P> <P>(b) An appellant who elects to appeal to the Board under another law, rule, or regulation must comply with the provisions of subparts B and C of 5 CFR part 1201, including the time of filing requirement of 5 CFR 1201.22(b)(1).</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1209</EAR> <HD SOURCE="HED">PART 1209—PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECHD>Sec.</SECHD> <SECTNO>1209.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1209.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>1209.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <SECTNO>1209.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Appeals</HD> <SECTNO>1209.5</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <SECTNO>1209.6</SECTNO> <SUBJECT>Content of appeal; right to hearing.</SUBJECT> <SECTNO>1209.7</SECTNO> <SUBJECT>Burden and degree of proof.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Stay Requests</HD> <SECTNO>1209.8</SECTNO> <SUBJECT>Filing a request for a stay.</SUBJECT> <SECTNO>1209.9</SECTNO> <SUBJECT>Content of stay request and response.</SUBJECT> <SECTNO>1209.10</SECTNO> <SUBJECT>Hearing and order ruling on stay request.</SUBJECT> <SECTNO>1209.11</SECTNO> <SUBJECT>Duration of stay; interim compliance.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Reports on Applications for Transfers</HD> <SECTNO>1209.12</SECTNO> <SUBJECT>Filing of agency reports.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Referrals to the Special Counsel</HD> <SECTNO>§ 1209.13</SECTNO> <SUBJECT>Referral of findings to the Special Counsel.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.</P> </AUTH> <SOURCE> <PRTPAGE P="88"/> <HD SOURCE="HED">Source:</HD> <P>55 FR 28592, July 12, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Jurisdiction and Definitions</HD> <SECTION> <SECTNO>§ 1209.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This part governs any appeal or stay request filed with the Board by an employee, former employee, or applicant for employment where the appellant alleges that a personnel action defined in 5 U.S.C. 2302(a)(2) was threatened, proposed, taken, or not taken because of the appellant's whistleblowing activities. Included are individual right of action appeals authorized by 5 U.S.C. 1221(a), appeals of otherwise appealable actions allegedly based on the appellant's whistleblowing activities, and requests for stays of personnel actions allegedly based on whistleblowing.</P> </SECTION> <SECTION> <SECTNO>§ 1209.2</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>(a) Under 5 U.S.C. 1214(a)(3), an employee, former employee, or applicant for employment may appeal to the Board from agency personnel actions alleged to have been threatened, proposed, taken, or not taken because of the appellant's whistleblowing activities.</P> <P>(b) The Board exercises jurisdiction over:</P> <P>(1) <E T="03">Individual right of action appeals.</E> These are authorized by 5 U.S.C. 1221(a) with respect to personnel actions listed in § 1209.4(a) of this part that are allegedly threatened, proposed, taken, or not taken because of the appellant's whistleblowing activities. If the action is not otherwise directly appealable to the Board, the appellant must seek corrective action from the Special Counsel before appealing to the Board. </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because of his whistleblowing activities. Because a performance evaluation is not an otherwise appealable action, Mr. X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Mr. X appeals the evaluation to the Board after the Special Counsel proceeding is terminated or exhausted, his appeal is an individual right of action appeal.</P> </EXAMPLE> <P>(2) <E T="03">Otherwise appealable action appeals.</E> These are appeals to the Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that include an allegation that the action was based on the appellant's whistleblowing activities. The appellant may choose either to seek corrective action from the Special Counsel before appealing to the Board or to appeal directly to the Board. (Examples of such otherwise appealable actions are listed in 5 CFR 1201.3 (a)(1) through (a)(19).) </P> <EXAMPLE> <HD SOURCE="HED">Example:</HD> <P>Agency B removes Ms. Y for alleged misconduct under 5 U.S.C. 7513. Ms. Y believes that the agency removed her because of her whistleblowing activities. Because the removal action is appealable to the Board under some law, rule or regulation other than 5 U.S.C. 1221(a), Ms. Y may choose to file an appeal with the Board without first seeking corrective action from the Special Counsel or to seek corrective action from the Special Counsel and then appeal to the Board.</P> </EXAMPLE> <P>(3) <E T="03">Stays.</E> Where the appellant alleges that a personnel action was or will be based on whistleblowing, the Board may, upon the appellant's request, order an agency to suspend that action.</P> </SECTION> <SECTION> <SECTNO>§ 1209.3</SECTNO> <SUBJECT>Application of 5 CFR part 1201.</SUBJECT> <P>Except as expressly provided in this part, the Board will apply subparts A, B, C, E, F, and G of 5 CFR part 1201 to appeals and stay requests governed by this part. The Board will apply the provisions of subpart H of part 1201 regarding awards of attorney fees and consequential damages under 5 U.S.C. 1221(g) to appeals governed by this part.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Personnel action</E> means, as to individuals and agencies covered by 5 U.S.C. 2302:</P> <P>(1) An appointment;</P> <P>(2) A promotion;</P> <P>(3) An adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;</P> <P>(4) A detail, transfer, or reassignment;</P> <P>(5) A reinstatement;</P> <P>(6) A restoration;<PRTPAGE P="89"/> </P> <P>(7) A reemployment;</P> <P>(8) A performance evaluation under chapter 43 of title 5, United States Code;</P> <P>(9) A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action;</P> <P>(10) A decision to order psychiatric testing or examination; or</P> <P>(11) Any other significant change in duties, responsibilities, or working conditions.</P> <P>(b) <E T="03">Whistleblowing</E> is the disclosure of information by an employee, former employee, or applicant that the individual reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.</P> <P>(c) <E T="03">Contributing factor</E> means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.</P> <P>(d) <E T="03">Clear and convincing evidence</E> is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than “preponderance of the evidence” as defined in 5 CFR 1201.56(c)(2).</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Appeals</HD> <SECTION> <SECTNO>§ 1209.5</SECTNO> <SUBJECT>Time of filing.</SUBJECT> <P>(a) <E T="03">Individual right of action appeals.</E> The appellant must seek corrective action from the Special Counsel before appealing to the Board. Where the appellant has sought corrective action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed:</P> <P>(1) No later than 65 days after the date of issuance of the Office of Special Counsel's written notification to the appellant that it was terminating its investigation of the appellant's allegations or, if the appellant shows that the Special Counsel's notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel's notification; or,</P> <P>(2) If the Office of Special Counsel has not notified the appellant that it will seek corrective action on the appellant's behalf within 120 days of the date of filing of the request for corrective action, at any time after the expiration of 120 days.</P> <P>(b) <E T="03">Otherwise appealable action appeals.</E> The appellant may choose either to seek corrective action from the Special Counsel before appealing to the Board or to file the appeal directly with the Board. If the appellant seeks corrective action from the Special Counsel, the time limit for appealing is governed by paragraph (a) of this section. If the appellant appeals directly to the Board, the time limit for filing is governed by 5 CFR 1201.22(b).</P> <P>(c) <E T="03">Appeals after a stay request.</E> Where an appellant has filed a request for a stay with the Board without first filing an appeal of the action, the appeal must be filed within 30 days after the date the appellant receives the order ruling on the stay request. Failure to timely file the appeal will result in the termination of any stay that has been granted unless a good reason for the delay is shown.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 62 FR 59993, Nov. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.6</SECTNO> <SUBJECT>Content of appeal; right to hearing.</SUBJECT> <P>(a) <E T="03">Content.</E> Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file an appeal. Appeals may be in any format, including letter form, but must contain the following:</P> <P>(1) The nine (9) items or types of information required in 5 CFR 1201.24 (a)(1) through (a)(9);<PRTPAGE P="90"/> </P> <P>(2) Where the appellant first sought corrective action from the Special Counsel, evidence that the appeal is timely filed;</P> <P>(3) The name(s) and position(s) held by the employee(s) who took the action(s), and a chronology of facts concerning the action(s);</P> <P>(4) A description of each disclosure evidencing whistleblowing as defined in § 1209.4(b) of this part; and</P> <P>(5) Evidence or argument that:</P> <P>(i) The appellant was or will be subject to a personnel action as defined in § 1209.4(a) of this part, or that the agency has threatened to take or not to take such a personnel action, together with specific indications giving rise to the appellant's apprehensions; and</P> <P>(ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure, as described in § 1209.4(b) of this part.</P> <P>(6) An appellant who first sought corrective action from the Special Counsel may satisfy the requirements of paragraphs (a)(3) through (a)(5) of this section by filing with the appeal a copy of <E T="03">Part 2: Reprisal For Whistleblowing</E> of the complaint form submitted to the Office of Special Counsel (Form OSC-11, <E T="03">Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity,</E> Rev. 8/00), together with a copy of any continuation sheet with answers to Part 2 questions filed with the Office of Special Counsel, and any supplement to Part 2 of the original complaint filed with the Office of Special Counsel or completed by the Office of Special Counsel and furnished to the appellant.</P> <P>(b) <E T="03">Right to hearing.</E> An appellant has a right to a hearing.</P> <P>(c) <E T="03">Timely request.</E> The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.7</SECTNO> <SUBJECT>Burden and degree of proof.</SUBJECT> <P>(a) Subject to the exception stated in paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that a disclosure described under 5 U.S.C. 2302(b)(8) was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant.</P> <P>(b) However, even where the appellant meets the burden stated in paragraph (a) of this section, the Board will not order corrective action if the agency shows by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Stay Requests</HD> <SECTION> <SECTNO>§ 1209.8</SECTNO> <SUBJECT>Filing a request for a stay.</SUBJECT> <P>(a) <E T="03">Time of filing.</E> An appellant may request a stay of a personnel action allegedly based on whistleblowing at any time after the appellant becomes eligible to file an appeal with the Board under § 1209.5 of this part, but no later than the time limit set for the close of discovery in the appeal. It may be filed prior to, simultaneous with, or after the filing of an appeal.</P> <P>(b) <E T="03">Place of filing.</E> Requests must be filed with the appropriate Board regional or field office as set forth in 5 CFR 1201.4(d).</P> <P>(c) <E T="03">Service of stay request.</E> A stay request must be simultaneously served upon the Board's regional or field office and upon the agency's local servicing personnel office or the agency's designated representative, if any. A certificate of service stating how and when service was made must accompany the stay request.</P> <P>(d) <E T="03">Method of filing.</E> A stay request must be filed with the appropriate Board regional or field office by personal delivery, by facsimile, by mail, or by commercial overnight delivery.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.9</SECTNO> <SUBJECT>Content of stay request and response.</SUBJECT> <P>(a) Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file a stay request. The request <PRTPAGE P="91"/>may be in any format, and must contain the following:</P> <P>(1) The name, address, and telephone number of the appellant, and the name and address of the acting agency;</P> <P>(2) The name, address, and telephone number of the appellant's representative, if any;</P> <P>(3) The signature of the appellant or, if the appellant has a representative, of the representative;</P> <P>(4) A chronology of facts, including a description of the appellant's disclosure and the action that the agency has taken or intends to take;</P> <P>(5) Where the appellant first sought corrective action from the Special Counsel, evidence that the stay request is timely filed;</P> <P>(6) Evidence and/or argument showing that:</P> <P>(i) The action threatened, proposed, taken, or not taken is a personnel action, as defined in § 1209.4(a) of this part;</P> <P>(ii) The action complained of was based on whistleblowing, as defined in § 1209.4(b) of this part; and</P> <P>(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal;</P> <P>(7) Evidence and/or argument addressing how long the stay should remain in effect; and</P> <P>(8) Any documentary evidence that supports the stay request.</P> <P>(b) An appellant may provide evidence and/or argument addressing the question of whether a stay would impose extreme hardship on the agency.</P> <P>(c) <E T="03">Agency response.</E> (1) The agency's response to the stay request must be received by the appropriate Board regional or field office within five days (excluding Saturdays, Sundays, and Federal holidays) of the date of service of the stay request on the agency.</P> <P>(2) The agency's response must contain the following:</P> <P>(i) Evidence and/or argument addressing whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal;</P> <P>(ii) Evidence and/or argument addressing whether the grant of a stay would result in extreme hardship to the agency; and</P> <P>(iii) Any documentation relevant to the agency's position on these issues.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.10</SECTNO> <SUBJECT>Hearing and order ruling on stay request.</SUBJECT> <P>(a) <E T="03">Hearing.</E> The judge may hold a hearing on the stay request.</P> <P>(b) <E T="03">Order ruling on stay request.</E> (1) The judge must rule upon the stay request within 10 days (excluding Saturdays, Sundays, and Federal holidays) after the request is received by the appropriate Board regional or field office.</P> <P>(2) The judge's ruling on the stay request must set forth the factual and legal bases for the decision. The judge must decide whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal, and whether the stay would result in extreme hardship to the agency.</P> <P>(3) If the judge grants a stay, the order must specify the effective date and duration of the stay.</P> <CITA>[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1209.11</SECTNO> <SUBJECT>Duration of stay; interim compliance.</SUBJECT> <P>(a) <E T="03">Duration of stay.</E> A stay becomes effective on the date specified in the judge's order. The stay will remain in effect for the time period set forth in the order or until the Board issues a final decision on the appeal of the underlying personnel action that was stayed, or until the Board vacates or modifies the stay, whichever occurs first.</P> <P>(b) <E T="03">Interim compliance.</E> An agency must immediately comply with an order granting a stay request. Although the order granting a stay request is not a final order, petitions for enforcement of such orders are governed by 5 CFR part 1201, subpart F.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Reports on Applications for Transfers</HD> <SECTION> <SECTNO>§ 1209.12</SECTNO> <SUBJECT>Filing of agency reports.</SUBJECT> <P>When an employee who has applied for a transfer to another position in an Executive agency under 5 U.S.C. 3352 <PRTPAGE P="92"/>asks the agency head to review a rejection of his or her application for transfer, the agency head must complete the review and provide a written statement of findings to the employee and the Clerk of the Board within 30 days after receiving the request.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Referrals to the Special Counsel</HD> <SECTION> <SECTNO>§ 1209.13</SECTNO> <SUBJECT>Referral of findings to the Special Counsel.</SUBJECT> <P>When the Board determines in a proceeding under this part that there is reason to believe that a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215.</P> <CITA>[62 FR 17048, Apr. 9, 1997]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1210</EAR> <HD SOURCE="HED">PART 1210—DEBT MANAGEMENT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Salary Offset</HD> <SECHD>Sec.</SECHD> <SECTNO>1210.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1210.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1210.4</SECTNO> <SUBJECT>Notice requirements.</SUBJECT> <SECTNO>1210.5</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>1210.6</SECTNO> <SUBJECT>Written decision.</SUBJECT> <SECTNO>1210.7</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <SECTNO>1210.8</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>1210.9</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>1210.10</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <SECTNO>1210.11</SECTNO> <SUBJECT>Nonwaiver of rights.</SUBJECT> <SECTNO>1210.12</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Collection</HD> <SECTNO>1210.21</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1210.22</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1210.23</SECTNO> <SUBJECT>Other remedies.</SUBJECT> <SECTNO>1210.24</SECTNO> <SUBJECT>Claims involving criminal activity or misconduct.</SUBJECT> <SECTNO>1210.25</SECTNO> <SUBJECT>Collection.</SUBJECT> <SECTNO>1210.26</SECTNO> <SUBJECT>Notices to debtor.</SUBJECT> <SECTNO>1210.27</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <SECTNO>1210.28</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <SECTNO>1210.29</SECTNO> <SUBJECT>Use of credit reporting agencies.</SUBJECT> <SECTNO>1210.30</SECTNO> <SUBJECT>Collection services.</SUBJECT> <SECTNO>1210.31</SECTNO> <SUBJECT>Referral to the Department of Justice or the General Accounting Office.</SUBJECT> <SECTNO>1210.32</SECTNO> <SUBJECT>Compromise, suspension and termination.</SUBJECT> <SECTNO>1210.33</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 50603, Dec. 8, 1989, unless otherwise noted.</P> </SOURCE> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Salary Offset</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 5514, Executive Order 11809 (redesignated Executive Order 12107), and 5 CFR 550 subpart K.</P> </AUTH> <SECTION> <SECTNO>§ 1210.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) This regulation provides procedures for the collection by administrative offset of a Federal employee's salary without his/her consent to satisfy certain debts owed to the Federal Government. These regulations apply to all Federal employees who owe debts to the MSPB and to current employees of the MSPB who owe debts to other Federal agencies. This regulation does not apply when the employee consents to recovery from his/her current pay account.</P> <P>(b) This regulation does not apply to debts or claims arising under:</P> <P>(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 <E T="03">et seq.;</E> </P> <P>(2) The Social Security Act, 42 U.S.C. 301 <E T="03">et seq.;</E> </P> <P>(3) The tariff laws of the United States; or</P> <P>(4) Any case where a collection of a debt by salary offset is explicitly provided for or prohibited by another statute.</P> <P>(c) This regulation does not apply to any adjustment to pay arising out of an employee's selection of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less.</P> <P>(d) This regulation does not preclude the compromise, suspension, or termination of collection action where appropriate under the standards implementing the Federal Claims Collection Act, 31 U.S.C. 3711 <E T="03">et seq.</E> 4 CFR parts 101 through 105; 5 CFR part 1210.</P> <P>(e) This regulation does not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 U.S.C. 716 or in any way questioning the amount of validity of the debt by submitting a subsequent claim to the General Accounting Office. This regulation does not preclude an employee from requesting a waiver <PRTPAGE P="93"/>pursuant to other statutory provisions applicable to the particular debt being collected.</P> <P>(f) Matters not addressed in these regulations should be reviewed in accordance with the Federal Claims Collection Standards at 4 CFR 101.1 <E T="03">et seq.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1210.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Agency.</E> An executive agency as is defined at 5 U.S.C. 105 including the U.S. Postal Service, the U.S. Postal Commission, a military department as defined at 5 U.S.C. 102, an agency or court in the judicial branch, an agency of the legislative branch including the U.S. Senate and House of Representatives and other independent establishments that are entities of the Federal government.</P> <P>(b) <E T="03">Chairman.</E> The Chairman of the MSPB or the Chairman's designee.</P> <P>(c) <E T="03">Creditor agency.</E> The agency to which the debt is owed.</P> <P>(d) <E T="03">Debt.</E> An amount owed to the United States from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales or real or personal property, overpayments, penalties, damages, interests, fines, forfeitures (except those arising under the Uniform Code of Military Justice), and all other similar sources.</P> <P>(e) <E T="03">Disposable pay.</E> The amount that remains from an employee's Federal pay after required deductions for social security, Federal, state or local income tax, health insurance premiums, retirement contributions, life insurance premiums, Federal employment taxes, and any other deductions that are required to be withheld by law.</P> <P>(f) <E T="03">Hearing official.</E> An individual responsible for conducting any hearing with respect to the existence or amount of a debt claimed, and who renders a decision on the basis of such hearing. A hearing official may not be under the supervision or control of the Chairman of the MSPB.</P> <P>(g) <E T="03">Paying Agency.</E> The agency that employs the individual who owes the debt and authorizes the payment of his/her current pay.</P> <P>(h) <E T="03">Salary offset.</E> An administrative offset to collect a debt pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially established pay intervals from the current pay account of an employee without his/her consent.</P> </SECTION> <SECTION> <SECTNO>§ 1210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) These regulations are to be followed when:</P> <P>(1) The MSPB is owed a debt by an individual currently employed by another Federal agency;</P> <P>(2) The MSPB is owed a debt by an individual who is a current employee of the MSPB; or</P> <P>(3) The MSPB employs an individual who owes a debt to another Federal agency.</P> </SECTION> <SECTION> <SECTNO>§ 1210.4</SECTNO> <SUBJECT>Notice requirements.</SUBJECT> <P>(a) Deductions shall not be made unless the employee is provided with written notice signed by the Chairman of the debt at least 30 days before salary offset commences.</P> <P>(b) The written notice shall contain:</P> <P>(1) A statement that the debt is owed and an explanation of its nature, and amount;</P> <P>(2) The agency's intention to collect the debt by deducting from the employee's current disposable pay account;</P> <P>(3) The amount, frequency proposed beginning date, and duration of the intended deduction(s);</P> <P>(4) An explanation of interest, penalties, and administrative charges, including a statement that such charges will be assessed unless excused in accordance with the Federal Claims Collections Standards at 4 CFR 101.1 <E T="03">et seq.;</E> </P> <P>(5) The employee's right to inspect, request, or receive a copy of government records relating to the debt;</P> <P>(6) The opportunity to establish a written schedule for the voluntary repayment of the debt;</P> <P>(7) The right to a hearing conducted by an impartial hearing official;</P> <P>(8) The methods and time period for petitioning for hearings;</P> <P>(9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection proceedings;</P> <P>(10) A statement that a final decision on the hearing will be issued not later than 60 days after the filing of the petition requesting the hearing unless the <PRTPAGE P="94"/>employee requests and the hearing official grants a delay in the proceedings;</P> <P>(11) A statement that knowingly false or frivolous statements, representations, or evidence may subject the employee to appropriate disciplinary procedures;</P> <P>(12) A statement of other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made; and</P> <P>(13) Unless there are contractual or statutory provisions to the contrary, a statement that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.</P> </SECTION> <SECTION> <SECTNO>§ 1210.5</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) <E T="03">Request for hearing</E>. (1) An employee must file a petition for a hearing in accordance with the instructions outlined in the agency's notice to offset.</P> <P>(2) A hearing may be requested by filing a written petition addressed to the Chairman of the MSPB stating why the employee disputes the existence or amount of the debt. The petition for a hearing must be received by the Chairman no later than fifteen (15) calendar days after the date of the notice to offset unless the employee can show good cause for failing to meet the deadline date.</P> <P>(b) <E T="03">Hearing procedures</E>. (1) The hearing will be presided over by an impartial hearing official.</P> <P>(2) The hearing shall conform to procedures contained in the Federal Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the employee to demonstrate that the existence or the amount of the debt is in error.</P> </SECTION> <SECTION> <SECTNO>§ 1210.6</SECTNO> <SUBJECT>Written decision.</SUBJECT> <P>(a) The hearing official shall issue a written opinion no later than 60 days after the hearing.</P> <P>(b) The written opinion will include: A statement of the facts presented to demonstrate the nature and origin of the alleged debt; the hearing official's analysis, findings and conclusions; the amount and validity of the debt, and the repayment schedule.</P> </SECTION> <SECTION> <SECTNO>§ 1210.7</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <P>(a) <E T="03">The MSPB as the creditor agency</E>. (1) When the Chairman determines that an employee of a Federal agency owes a delinquent debt to the MSPB, the Chairman shall as appropriate:</P> <P>(i) Arrange for a hearing upon the proper petitioning by the employee;</P> <P>(ii) Certify in writing that the employee owes the debt, the amount and basis of the debt, the date on which payment is due, the date the Government's right to collect the debt accrued, and that MSPB regulations for salary offset have been approved by the Office of Personnel Management;</P> <P>(iii) Advise the paying agency of the amount or percentage of disposable pay to be collected in each installment, if collection is to be made in installments;</P> <P>(iv) Advise the paying agency of the actions taken under 5 U.S.C. 5514(b) and provide the dates on which action was taken unless the employee has consented to salary offset in writing or signed a statement acknowledging receipt of procedures required by law. The written consent or acknowledgment must be sent to the paying agency;</P> <P>(v) If the employee is in the process of separating, MSPB must submit its debt claim to the paying agency as provided in this part. The paying agency must certify any amounts already collected, notify the employee, and send a copy of the certification and notice of the employee's separation to the creditor agency. If the paying agency is aware that the employee is entitled to Civil Service Retirement and Disability Fund or similar payments, it must certify to the agency responsible for making such payments the amount of the debt and that the provisions of this part have been followed; and</P> <P>(vi) If the employee has already separated and all payments due from the paying agency have been paid, the Chairman may request unless otherwise prohibited, that money payable to the employee from the Civil Service Retirement and Disability Fund or other similar funds be collected by administrative offset.</P> <P>(b) <E T="03">MSPB as the paying agency</E>. (1) Upon receipt of a properly certified <PRTPAGE P="95"/>debt claim from another agency, deductions will be scheduled to begin at the next established pay interval. The employee must receive written notice that the MSPB has received a certified debt claim from the creditor agency, the amount of the debt, the date salary offset will begin, and the amount of the deduction(s). The MSPB shall not review the merits of the creditor agency's determination of the validity or the amount of the certified claim.</P> <P>(2) If the employee transfers to another agency after the creditor agency has submitted its debt claim to the MSPB and before the debt is collected completely, the MSPB must certify the total amount collected. One copy of the certification must be furnished to the employee. A copy must be furnished the creditor agency with notice of the employee's transfer.</P> </SECTION> <SECTION> <SECTNO>§ 1210.8</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>(a) Deductions to liquidate an employee's debt will be by the method and in the amount stated in the Chairman's notice of intention to offset as provided in § 1210.4. Debts will be collected in one lump sum where possible. If the employee is financially unable to pay in one lump sum, collection must be made in installments.</P> <P>(b) Debts will be collected by deduction at officially established pay intervals from an employee's current pay account unless alternative arrangements for repayment are made.</P> <P>(c) Installment deductions will be made over a period not greater than the anticipated period of employment. The size of installment deductions must bear a reasonable relationship to the size of the debt and the employee's ability to pay. The deduction for the pay intervals for any period must not exceed 15 percent of disposable pay unless the employee has agreed in writing to a deduction of a greater amount.</P> <P>(d) Unliquidated debts may be offset against any financial payment due to a separated employee including but not limited to final salary payment or leave in accordance with 31 U.S.C. 3716.</P> </SECTION> <SECTION> <SECTNO>§ 1210.9</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(a) The MSPB will refund promptly any amounts deducted to satisfy debts owed to the MSPB when the debt is waived, found not owed to the MSPB, or when directed by an administrative or judicial order.</P> <P>(b) The creditor agency will promptly return any amounts deducted by MSPB to satisfy debts owed to the creditor agency when the debt is waived, found not owed, or when directed by an administrative or judicial order.</P> <P>(c) Unless required by law, refunds under this subsection shall not bear interest.</P> </SECTION> <SECTION> <SECTNO>§ 1210.10</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <P>If a debt has been outstanding for more than 10 years after the agency's right to collect the debt first accrued, the agency may not collect by salary offset unless facts material to the Government's right to collect were not known and could not reasonably have been known by the official or officials who were charged with the responsibility for discovery and collection of such debts.</P> </SECTION> <SECTION> <SECTNO>§ 1210.11</SECTNO> <SUBJECT>Nonwaiver of rights.</SUBJECT> <P>An employee's involuntary payment of all or any part of a debt collected under these regulations will not be construed as a waiver of any rights that employee may have under 5 U.S.C. 5514 or any other provision of contract law unless there are statutes or contract(s) to the contrary.</P> </SECTION> <SECTION> <SECTNO>§ 1210.12</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <P>Charges may be assessed for interest, penalties, and administrative costs in accordance with the Federal Claims Collection Standards, 4 CFR 102.13. Dated: July 24, 1987.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Collection</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>The authority for this part is the Federal Claims Collection Act of 1966, as amended, 31 U.S.C. 3711 and 3716-3719; the Federal Claims Collection Standards at 4 CFR parts 101-105, as amended by 49 FR 8889, 5 U.S.C. 552a, and Office of Management and Budget Circular A-129.</P> </AUTH> <SECTION> <SECTNO>§ 1210.21</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part prescribes standards and procedures for officers and employees of the MSPB who are responsible for the collection and disposition of debts <PRTPAGE P="96"/>owed to the United States. The activities covered include: Collecting claims in any amount; compromising claims, or suspending or terminating the collection of claims that do not exceed $20,000 exclusive of interest and charges; and referring debts that cannot be disposed of by the MSPB to the Department of Justice or to the General Accounting Office for further administrative action or litigation.</P> </SECTION> <SECTION> <SECTNO>§ 1210.22</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Claim</E> or <E T="03">debt.</E> An amount or property owed to the United States which includes, but is not limited to: Overpayments to program beneficiaries; overpayments to contractors and grantees, including overpayments arising from audit disallowances; excessive cash advances to grantees and contractors; and civil penalties and assessments. A debt is overdue or delinquent if it is not paid by the due date specified in the initial notice of the debt (see § 1210.26) or if the debtor fails to satisfy his or her obligation under a repayment agreement.</P> <P>(b) <E T="03">Debtor.</E> An individual, organization, group, association, partnership, or corporation indebted to the United States, or the person or entity with legal responsibility for assuming the debtor's obligation.</P> <P>(c) <E T="03">MSPB.</E> The Merit Systems Protection Board.</P> <P>(d) <E T="03">Administrative offset.</E> Satisfying a debt by withholding money payable by the United States to or held by the United States for a debtor.</P> </SECTION> <SECTION> <SECTNO>§ 1210.23</SECTNO> <SUBJECT>Other remedies.</SUBJECT> <P>The remedies and sanctions available to the MSPB under this part are not intended to be exclusive. The Chairman of the MSPB or his designee may impose other appropriate sanctions upon a debtor for prolonged or repeated failure to pay a debt. For example, the Chairman or his designee may place the debtor's name on a list of debarred, suspended, or ineligible contractors. In such cases the debtor will be advised of the MSPB's action.</P> </SECTION> <SECTION> <SECTNO>§ 1210.24</SECTNO> <SUBJECT>Claims involving criminal activity or misconduct.</SUBJECT> <P>(a) A debtor whose indebtedness involves criminal activity such as fraud, embezzlement, theft, or misuse of government funds or property is subject to punishment by fine or imprisonment as well as to a civil claim by the United States for compensation for the misappropriated funds. The MSPB will refer these cases to the appropriate law enforcement agency for prosecution.</P> <P>(b) Debts involving fraud, false claims, or misrepresentation shall not be compromised, terminated, suspended, or otherwise disposed of under this rule. Only the Department of Justice is authorized to compromise, terminate, suspend, or otherwise dispose of such debts.</P> </SECTION> <SECTION> <SECTNO>§ 1210.25</SECTNO> <SUBJECT>Collection.</SUBJECT> <P>(a) The MSPB will take aggressive action to collect debts and reduce delinquencies. Collection efforts shall include sending to the debtor's last known address a total of three progressively stronger written demands for payment at not more than 30 day intervals. When necessary to protect the Government's interest, written demand may be preceded by other appropriate action, including immediate referral for litigation. Other contact with the debtor or his or her representative or guarantor by telephone, in person and/or in writing may be appropriate to demand prompt payment, to discuss the debtor's position regarding the existence, amount and repayment of the debt, and to inform the debtor of his or her rights and effect of nonpayment or delayed payment. A debtor who disputes a debt must promptly provide available supporting evidence.</P> <P>(b) If a debtor is involved in insolvency proceedings, the debt will be referred to the appropriate United States Attorney to file a claim. The United States may have a priority over other creditors under 31 U.S.C. 3713.</P> </SECTION> <SECTION> <SECTNO>§ 1210.26</SECTNO> <SUBJECT>Notices to debtor.</SUBJECT> <P>The first written demand for payment must inform the debtor of the following:</P> <P>(a) The amount and nature of the debt;</P> <P>(b) The date payment is due, which will generally be 30 days from the date the notice was mailed;</P> <P>(c) The assessment of interest under § 1210.27 from the date the notice was <PRTPAGE P="97"/>mailed if payment is not received within the 30 days;</P> <P>(d) The right to dispute the debt;</P> <P>(e) The office, address and telephone number that the debtor should contact to discuss repayment and reconsideration of the debt; and</P> <P>(f) The sanctions available to the MSPB to collect a delinquent debt including, but not limited to, referral of the debt to a credit reporting agency, a private collection bureau, or the Department of Justice for litigation.</P> </SECTION> <SECTION> <SECTNO>§ 1210.27</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <P>(a) Interest will accrue on all debts from the date when the first notice of the debt and the interest requirement is mailed to the last known address or hand-delivered to the debtor if the debt is not paid within 30 days from the date the first notice was mailed. The MSPB will charge an annual rate of interest that is equal to the average investment rate for the Treasury tax and loan accounts on September 30 of each year, rounded to the nearest whole per centum. This rate, which represents the current value of funds to the United States Treasury, may be revised quarterly by the Secretary of the Treasury and is published by the Secretary of the Treasury annually or quarterly in the <E T="04">Federal Register</E> and the Treasury Financial Manual Bulletins.</P> <P>(b) The rate of interest initially assessed will remain fixed for the duration of the indebtedness, except that if a debtor defaults on a repayment agreement interest may be set at the Treasury rate in effect on the date a new agreement is executed.</P> <P>(c) The MSPB shall charge debtors for administrative costs incurred in handling overdue debts.</P> <P>(d) Interest will not be charged on administrative costs.</P> <P>(e) The MSPB shall assess a penalty charge, not to exceed 6 percent per year on debts which have been delinquent for more than 90 days. This change shall accrue from the date that the debt became delinquent.</P> <P>(f) The Chairman or his designee may waive in whole or in part the collection of interest and administrative and penalty charges if determined that collection would be against equity or not in the best interests of the United States. The MSPB shall waive the collection of interest on the debt or any part of the debt which is paid within 30 days after the date on which interest began to accrue.</P> </SECTION> <SECTION> <SECTNO>§ 1210.28</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <P>(a) The MSPB may collect debts owed by administrative offset if:</P> <P>(1) The debt is certain in amount;</P> <P>(2) Efforts to obtain direct payment have been, or would most likely be unsuccessful, or the MSPB and the debtor agree to the offset;</P> <P>(3) Offset is cost effective or has significant deterrent value; and</P> <P>(4) Offset is best suited to further and protect the Government's interest.</P> <P>(b) The MSPB may offset a debt owed to another Federal agency from amounts due or payable by the MSPB to the debtor or request another Federal agency to offset a debt owed to the MSPB;</P> <P>(c) Prior to initiating administrative offset, the MSPB will send the debtor written notice of the following:</P> <P>(1) The nature and amount of the debt and the agency's intention to collect the debt by offset 30 days from the date the notice was mailed if neither payment nor a satisfactory response is received by that date;</P> <P>(2) The debtor's right to an opportunity to submit a good faith alternative repayment schedule to inspect and copy agency records pertaining to the debt, to request a review of the determination of indebtedness; and to enter into a written agreement to repay the debt; and</P> <P>(3) The applicable interest.</P> <P>(d) The MSPB may effect an administrative offset against a payment to be made to a debtor prior to the completion of the procedures required by paragraph (c) of this section if:</P> <P>(1) Failure of offset would substantially prejudice the Government's ability to collect the debt; and</P> <P>(2) The time before the payment is to be made does not reasonably permit completion of those procedures.</P> </SECTION> <SECTION> <SECTNO>§ 1210.29</SECTNO> <SUBJECT>Use of credit reporting agencies.</SUBJECT> <P>(a) The MSPB may report delinquent accounts to credit reporting agencies <PRTPAGE P="98"/>consistent with the notice requirements contained in the § 1210.26. Individual debtors must be given at least 60 days written notice that the debt is overdue and will be reported to a credit reporting agency.</P> <P>(b) Debts may be reported to consumer or commercial reporting agencies. Consumer reporting agencies are defined in 31 U.S.C. 3701(a)(3) pursuant to 5 U.S.C. 552a(b)(12) and 31 U.S.C. 3711(f). The MSPB may disclose only an individual's name, address, Social Security number, and the nature, amount, status and history of the debt and the program under which the claim arose.</P> </SECTION> <SECTION> <SECTNO>§ 1210.30</SECTNO> <SUBJECT>Collection services.</SUBJECT> <P>(a) The MSPB may contract for collection services to recover outstanding debts. The MSPB may refer delinquent debts to private collection agencies listed on the schedule compiled by the General Services Administration. In such contracts, the MSPB will retain the authority to resolve disputes, compromise claims, terminate or suspend collection, and refer the matter to the Department of Justice or the General Accounting Office.</P> <P>(b) The contractor shall be subject to the disclosure provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a(m)), and to applicable Federal and state laws and regulations pertaining to debt collection practices, including the Fair Debt Collection Practices Act, 15 U.S.C. 1692. The contractor shall be strictly accountable for all amounts collected.</P> <P>(c) The contractor shall be required to provide to the MSPB any data contained in its files relating to the debt account upon agency request or upon returning an account to the MSPB for referral to the Department of Justice for litigation.</P> </SECTION> <SECTION> <SECTNO>§ 1210.31</SECTNO> <SUBJECT>Referral to the Department of Justice or the General Accounting Office.</SUBJECT> <P>Debts over $600 but less than $100,000 which the MSPB determines can neither be collected nor otherwise disposed of will be referred for litigation to the United States Attorney in whose judicial district the debtor is located. Claims for amounts exceeding $100,000 shall be referred for litigation to the Commercial Litigation Branch, Civil Division of the Department of Justice.</P> </SECTION> <SECTION> <SECTNO>§ 1210.32</SECTNO> <SUBJECT>Compromise, suspension and termination.</SUBJECT> <P>(a) The Chairman of the MSPB or his designee may compromise, suspend or terminate the collection of debts where the outstanding principal is not greater than $20,000. MSPB procedures for writing off outstanding accounts are available to the public.</P> <P>(b) The Chairman of the MSPB may compromise, suspend or terminate collection of debts where the outstanding principal is greater than $20,000 only with the approval of, or by referral to the United States Attorney or the Department of Justice.</P> <P>(c) The Chairman of the MSPB will refer to the General Accounting Office (GAO) debts arising from GAO audit exceptions.</P> </SECTION> <SECTION> <SECTNO>§ 1210.33</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <P>Failure to comply with any provisions of this rule may not serve as a defense to any debtor.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. III (1-1-03 Edition)</LRH> <RRH>Office of Management and Budget</RRH> <TOC> <TOCHD> <PRTPAGE P="99"/> <HD SOURCE="HED">CHAPTER III—OFFICE OF MANAGEMENT AND BUDGET</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ADMINISTRATIVE PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1300</PT> <SUBJECT>Standards of conduct</SUBJECT> <PG>101</PG> <PT>1302</PT> <SUBJECT>Privacy Act procedures</SUBJECT> <PG>101</PG> <PT>1303</PT> <SUBJECT>Public information provisions of the Administrative Procedures Act</SUBJECT> <PG>107</PG> <PT>1304</PT> <SUBJECT>Post employment conflict of interest</SUBJECT> <PG>114</PG> <PT>1305</PT> <SUBJECT>Release of official information, and testimony by OMB personnel as witnesses, in litigation</SUBJECT> <PG>117</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—OMB DIRECTIVES</HD> </SUBCHAP> <CHAPTI> <PT>1310</PT> <SUBJECT>OMB circulars</SUBJECT> <PG>119</PG> <PT>1312</PT> <SUBJECT>Classification, downgrading, declassification and safeguarding of national security information</SUBJECT> <PG>120</PG> <PT>1315</PT> <SUBJECT>Prompt payment</SUBJECT> <PG>123</PG> <PT>1320</PT> <SUBJECT>Controlling paperwork burdens on the public</SUBJECT> <PG>146</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="101"/> <HD SOURCE="HED">SUBCHAPTER A—ADMINISTRATIVE PROCEDURES</HD> <PART> <EAR>Pt. 1300</EAR> <HD SOURCE="HED">PART 1300—STANDARDS OF CONDUCT</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 7301.</P> </AUTH> <SECTION> <SECTNO>§ 1300.1</SECTNO> <SUBJECT>Cross-reference to employees ethical conduct standards and financial disclosure regulations.</SUBJECT> <P>Employees of the Office of Management and Budget are subject to the executive branch-wide standards of ethical conduct at 5 CFR part 2635, OMB's regulations at 5 CFR part 8701 which supplement the executive branch-wide standards, and the executive branch-wide financial disclosure regulations at 5 CFR part 2634.</P> <CITA>[60 FR 12397, Mar. 7, 1995]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1302</EAR> <HD SOURCE="HED">PART 1302—PRIVACY ACT PROCEDURES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1302.1</SECTNO> <SUBJECT>Rules for determining if an individual is the subject of a record.</SUBJECT> <SECTNO>1302.2</SECTNO> <SUBJECT>Requests for access.</SUBJECT> <SECTNO>1302.3</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <SECTNO>1302.4</SECTNO> <SUBJECT>Requests to amend records.</SUBJECT> <SECTNO>1302.5</SECTNO> <SUBJECT>Request for review.</SUBJECT> <SECTNO>1302.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Pub. L. 93-579, 88 Stat. 1896, 5 USC 552a(f).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>41 FR 38491, Sept. 10, 1976, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1302.1</SECTNO> <SUBJECT>Rules for determining if an individual is the subject of a record.</SUBJECT> <P>(a) Individuals desiring to know if a specific system of records maintained by the Office of Management and Budget contains a record pertaining to them should address their inquiries to the Assistant to the Director for Administration, Office of Management and Budget, Washington, DC 20503. The written inquiry should contain a specific reference to the system of records maintained by OMB listed in the OMB Notices of Systems of Records or it should describe the type of record in sufficient detail to reasonably identify the system of records. Notice of OMB systems of records subject to the Privacy Act will be made in the <E T="04">Federal Register</E> and copies of the notices will be available upon request to the Assistant to the Director for Administration when so published. A compilation of such notices will also be made and published by the Office of Federal Register, in accordance with section 5 U.S.C. 552a(f).</P> <P>(b) At a minimum, the request should also contain sufficient information to identify the requester in order to allow OMB to determine if there is a record pertaining to that individual in a particular system of records. In instances when the information is insufficient to insure disclosure to the individual to whom the information pertains, in view of the sensitivity of the information, OMB reserves the right to ask the requester for additional identifying information.</P> <P>(c) Ordinarily the requester will be informed whether the named system of records contains a record pertaining to the requester within 10 days of receipt of such a request (excluding Saturdays, Sundays, and legal Federal holidays). Such a response will also contain or reference the procedures which must be followed by the individual making the request in order to gain access to the record.</P> <P>(d) Whenever a response cannot be made within the 10 days, the Assistant to the Director for Administration will inform the requester of the reasons for the delay and the date by which a response may be anticipated.</P> </SECTION> <SECTION> <SECTNO>§ 1302.2</SECTNO> <SUBJECT>Requests for access.</SUBJECT> <P>(a) <E T="03">Requirement for written requests.</E> Individuals desiring to gain access to a record pertaining to them in a system of records maintained by OMB must submit their request in writing in accordance with the procedures set forth in paragraph (b) of this section. Due to security measures in effect in both the Old and New Executive Office Buildings, requests made in person (walk-ins) cannot be accepted, except that individuals who are employed by the Office of Management and Budget may make their request on a regularly scheduled workday (Monday through <PRTPAGE P="102"/>Friday, excluding legal Federal holidays) between the hours of 9:00 a.m. and 5:30 p.m. Such requests for access by individuals employed by OMB need not be made in writing.</P> <P>(b) <E T="03">Procedures—</E>(1) <E T="03">Content of the Request.</E> (i) The request for access to a record in a system of records shall be addressed to the Assistant to the Director for Administration, at the address cited above, and shall name the system of records or contain a description (as concise as possible) of such system of records. The request should state that the request is pursuant to the Privacy Act of 1974. In the absence of specifying solely the Privacy Act of 1974 and, if the request may be processed under both the Freedom of Information Act and the Privacy Act and the request specifies both or neither act, the procedures under the Privacy Act of 1974 will be employed. The individual will be advised that the procedures of the Privacy Act will be utilized, of the existence and the general effect of the Freedom of Information Act, and the difference between procedures under the two acts (e.g. fees, time limits, access). The request should contain necessary information to verify the identity of the requester (see § 1302.2(b)(2)(vi), of this part) . In addition, the requester should include any other information which may assist in the rapid identification of the record for which access is being requested (e.g., maiden name, dates of employment, etc.) as well as any other identifying information contained in and required by the OMB Notice of Systems of Records.</P> <P>(ii) If the request for access follows a prior request under § 1302.1, of this part, the same identifying information need not be included in the request for access if a reference is made to that prior correspondence, or a copy of the OMB response to that request is attached.</P> <P>(iii) If the individual specifically desires a copy of the record, the request should so specify.</P> <P>(2) <E T="03">OMB action on request.</E> A request for access will ordinarily be answered within 10 days, except when the Assistant to the Director for Administration determines that access cannot be afforded in that time, in which case the requester will be informed of the reason for the delay and an estimated date by which the request will be answered. Normally, access will be granted within 30 days from the date the request was received by the Office of Management and Budget. At a minimum, the answer to the request for access shall include the following:</P> <P>(i) A statement that there is a record as requested or a statement that there is not a record in the system of records maintained by OMB;</P> <P>(ii) A statement as to whether access will be granted only by providing a copy of the record through the mail; or the address of the location and the date and time at which the record may be examined. In the event the requester is unable to meet the specified date and time, alternative arrangements may be made with the official specified in § 1302.2(b)(1) of this part;</P> <P>(iii) A statement, when appropriate, that examination in person will be the sole means of granting access only when the Assistant to the Director for Administration has determined that it would not unduly impede the requester's right of access;</P> <P>(iv) The amount of fees charged, if any (see § 1302.6 of this part). (Fees are applicable only to requests for copies.);</P> <P>(v) The name, title, and telephone number of the OMB official having operational control over the record; and</P> <P>(vi) The documentation required by OMB to verify the identity of the requester. At a minimum, OMB's verification standards include the following:</P> <P>(A) <E T="03">Current or former OMB employees.</E> Current or former OMB employees requesting access to a record pertaining to them in a system of records maintained by OMB may, in addition to the other requirements of this section, and at the sole discretion of the official having operational control over the record, have his or her identity verified by visual observation. If the current or former OMB employee cannot be so identified by the official having operational control over the records, identification documentation will be required. Employee identification cards, annuitant identification, driver licenses, or the “employee copy” of any official personnel document in the <PRTPAGE P="103"/>record are examples of acceptable identification validation.</P> <P>(B) <E T="03">Other than current or former OMB employees.</E> Individuals other than current or former OMB employees requesting access to a record pertaining to them in a system of records maintained by OMB must produce identification documentation of the type described herein, prior to being granted access. The extent of the identification documentation required will depend on the type of record to be accessed. In most cases, identification verification will be accomplished by the presentation of two forms of identification. Any additional requirements are specified in the system notices published pursuant to 5 U.S.C. 552a(e)(4).</P> <P>(C) <E T="03">Access granted by mail.</E> For records to be accessed by mail, the Assistant to the Director for Administration shall, to the extent possible, establish identity by a comparison of signatures in situations where the data in the record is not so sensitive that unauthorized access could cause harm or embarrassment to the individual to whom they pertain. No identification documentation will be required for the disclosure to the requester of information required to be made available to the public by 5 U.S.C. 552. When, in the opinion of the Assistant to the Director for Administration, the granting of access through the mail could reasonably be expected to result in harm or embarrassment if disclosed to a person other than the individual to whom the record pertains, a notarized statement of identity or some similar assurance of identity will be required.</P> <P>(D) <E T="03">Unavailability of identification documentation.</E> If an individual is unable to produce adequate identification documentation the individual will be required to sign a statement asserting identity and acknowledging that knowingly or willfully seeking or obtaining access to records about another person under false pretenses may result in a fine of up to $5,000. In addition, depending upon the sensitivity of the records sought to be accessed, the official having operational control over the records may require such further reasonable assurances as may be considered appropriate; e.g., statements of other individuals who can attest to the identity of the requester. No verification of identity will be required of individuals seeking access to records which are otherwise available to any person under 5 U.S.C. 552, Freedom of Information Act.</P> <P>(E) <E T="03">Access by the parent of a minor, or legal guardian.</E> A parent of a minor, upon presenting suitable personal identification, may access on behalf of the minor any record pertaining to the minor maintained by OMB in a system of records. A legal guardian may similarly act on behalf of an individual declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, absent a court order or consent, a parent or legal guardian has no absolute right to have access to a record about a child. Minors are not precluded from exercising on their own behalf rights given to them by the Privacy Act.</P> <P>(F) <E T="03">Granting access when accompanied by another individual.</E> When an individual requesting access to his or her record in a system of records maintained by OMB wishes to be accompanied by another individual during the course of the examination of the record, the individual making the request shall submit to the official having operational control of the record, a signed statement authorizing that person access to the record.</P> <P>(G) <E T="03">Denial of access for inadequate identification documentation.</E> If the official having operation control over the records in a system of records maintained by OMB determines that an individual seeking access has not provided sufficient identification documentation to permit access, the official shall consult with the Assistant to the Director for Administration prior to finally denying the individual access.</P> <P>(H) <E T="03">Review of decision to deny access.</E> Whenever the Assistant to the Director for Administration determines, in accordance with the procedures herein, that access cannot be granted, the response will also include a statement of the procedures to obtain a review of the decision to deny in accordance with § 1302.5 of this part.</P> <P>(vii) <E T="03">Exceptions.</E> Nothing in these regulations shall be construed to entitle an individual the right to access to any <PRTPAGE P="104"/>information compiled in reasonable anticipation of a civil action or proceedings. The mere fact that records in a system of records are frequently the subject of litigation does not bring those systems of records within the scope of this provision. This provision is not intended to preclude access by an individual to records which are available to that individual under other processes such as the Freedom of Information Act or the rules of civil procedure.</P> </SECTION> <SECTION> <SECTNO>§ 1302.3</SECTNO> <SUBJECT>Access to the accounting of disclosures from records.</SUBJECT> <P>Rules governing the granting of access to the accounting of disclosures are the same as those for granting access to the records (including verification of identity) outlined in § 1302.2, of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1302.4</SECTNO> <SUBJECT>Requests to amend records.</SUBJECT> <P>(a) <E T="03">Requirement for written requests.</E> Individuals desiring to amend a record that pertain to them in a system of records maintained by OMB, must submit their request in writing in accordance with the procedures set forth herein unless this requirement is waived by the official having responsibility for the system of records. Records not subject to the Privacy Act of 1974 will not be amended in accordance with these provisions. However, individuals who believe that such records are inaccurate may bring this to the attention of OMB.</P> <P>(b) <E T="03">Procedures.</E> (1) (i) The request to amend a record in a system of records shall be addressed to the Assistant to the Director for Administration. Included in the request shall be the name of the system and a brief description of the record proposed for amendment. In the event the request to amend the record is the result of the individual's having gained access to the record in accordance with the provisions concerning access to records as set forth above, copies of previous correspondence between the requester and OMB will serve in lieu of a separate description of the record.</P> <P>(ii) When the individual's identity has been previously verified pursuant to § 1302.2(b)(2)(vi) herein, further verification of identity is not required as long as the communication does not suggest that a need for verification is present. If the individual's identity has not been previously verified, OMB may require identification validation as described in § 1302.2(b)(2)(vi). Individuals desiring assistance in the preparation of a request to amend a record should contact the Assistant to the Director for Administration at the address cited above.</P> <P>(iii) The exact portion of the record the individual seeks to have amended should be clearly indicated. If possible, the proposed alternative language should also be set forth, or at a minimum, the facts which the individual believes are not accurate, relevant, timely, or complete should be set forth with such particularity as to permit OMB not only to understand the individual's basis for the request, but also to make an appropriate amendment to the record.</P> <P>(iv) The request must also set forth the reasons why the individual believes his record is not accurate, relevant, timely, or complete. In order to avoid the retention by OMB of personal information merely to permit verification of records, the burden of persuading OMB to amend a record will be upon the individual. The individual must furnish sufficient facts to persuade the official in charge of the system of the inaccuracy, irrelevancy, timeliness, or incompleteness of the record.</P> <P>(v) Incomplete or inaccurate requests will not be rejected categorically. The individual will be asked to clarify the request as needed.</P> <P>(2) <E T="03">OMB action on the request.</E> To the extent possible, a decision upon a request to amend a record will be made within 10 days, excluding Saturdays, Sundays, and legal Federal holidays. The response reflecting the decision upon a request for amendment will include the following:</P> <P>(i) The decision of the Office of Management and Budget whether to grant in whole, or deny any part of the request to amend the record.</P> <P>(ii) The reasons for the determination for any portion of the request which is denied.</P> <P>(iii) The name and address of the official with whom an appeal of the denial may be lodged.<PRTPAGE P="105"/> </P> <P>(iv) The name and address of the official designated to assist, as necessary, and upon request of, the individual making the request in the preparation of the appeal.</P> <P>(v) A description of the review of the appeal within OMB (see § 1302.5 of this part).</P> <P>(vi) A description of any other procedures which may be required of the individual in order to process the appeal.</P> <FP>If the nature of the request or the system of records precludes a decision within 10 days, the individual making the request will be informed within 10 days of the expected date for a decision. Such a decision will be issued as soon as it is reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal Federal holidays) unless unusual circumstances preclude completing action within that time. If the expected completion date for the decision indicated cannot be met, the individual will be advised of that delay and of a revised date when the decision may be expected to be completed.</FP> </SECTION> <SECTION> <SECTNO>§ 1302.5</SECTNO> <SUBJECT>Request for review.</SUBJECT> <P>(a) Individuals wishing to request a review of the decision by OMB with regard to an initial request to access or amend a record in accordance with the provisions of §§ 1302.2 and 1302.4 of this part, should submit the request for review in writing and, to the extent possible, include the information specified in § 1302.5(b), below. Individuals desiring assistance in the preparation of their request for review should contact the Assistant to the Director for Administration at the address provided herein.</P> <P>(b) The request for review should contain a brief description of the record involved or in lieu thereof, copies of the correspondence from OMB in which the request to access or to amend was denied and also the reasons why the requester believes that access should be granted or the disputed information amended. The request for review should make reference to the information furnished by the individual in support of his claim and the reasons as required by §§ 1302.2 and 1302.4 of this part set forth by OMB in its decision denying access or amendment. Appeals filed without a complete statement by the requester setting forth the reasons for the review will, of course, be processed. However, in order to make the appellate process as meaningful as possible, the requester's disagreement should be set forth in an understandable manner. In order to avoid the unnecessary retention of personal information, OMB reserves the right to dispose of the material concerning the request to access or amend a record if no request for review in accordance with this section is received by OMB within 180 days of the mailing by OMB of its decision upon an initial request. A request for review received after the 180 day period may, at the discretion of the Assistant to the Director for Administration, be treated as an initial request to access or amend a record.</P> <P>(c) The request for review should be addressed to the Assistant to the Director for Administration.</P> <P>(d) Upon receipt of a request for review, the Assistant to the Director for Administration will convene a review group composed of the Assistant to the Director for Administration, the General Counsel, or their designees, and the official having operational control over the record. This group will review the basis for the requested review and will develop a recommended course of action to the Deputy Director. If at any time additional information is required from the requester, the Assistant to the Director for Administration is authorized to acquire it or authorize its acquisition from the requester.</P> <P>(e) The Office of Management and Budget has established an internal Committee on Freedom of Information and Privacy (hereinafter referred to as the Committee). The Committee is composed of:</P> <P>(1) Deputy Director;</P> <P>(2) Assistant to the Director for Administration;</P> <P>(3) General Counsel;</P> <P>(4) Assistant Director for Budget Review;</P> <P>(5) Assistant Director for Legislative Reference;</P> <P>(6) Assistant to the Director for Public Affairs;</P> <P>(7) Deputy Associate Director for Information Systems;<PRTPAGE P="106"/> </P> <P>(8) Deputy Associate Director for Statistical Policy;</P> <P>(9) Deputy Associate Director for National Security;</P> <P>(10) Budget and Management Officer;</P> <P>(11) Personnel Officer.</P> <P>(f) The Committee, when directed by the Assistant to the Director for Administration, will review the Office's administration of the Freedom of Information and Privacy Acts and make recommendations for the improvement thereto. In addition, the Committee, upon the request of the Deputy Director, may evaluate a request for review or appeal and recommend a decision to the Deputy Director, who has the final authority regarding appeals.</P> <P>(g) The Deputy Director will inform the requester in writing of the decision on the request for review within 20 days (excluding Saturdays, Sundays, and legal Federal holidays) from the date of receipt by OMB of the individual's request for review unless the Deputy Director extends the 20 day period for good cause. The extension and the reasons therefor will be sent by OMB to the requester within the initial 20 day period. Such extensions should not be routine and should not normally exceed an additional thirty days. If the decision does not grant in full the request for amendment, the notice of the decision will provide a description of the steps the individual may take to obtain judicial review of such a decision, a statement that the individual may file a concise statement with OMB setting forth the individual's reasons for his disagreement with the decision and the procedures for filing such a statement of disagreement. The Assistant to the Director for Administration has the authority to determine the “conciseness” of the statement, taking into account the scope of the disagreement and the complexity of the issues. Upon the filing of a proper concise statement by the individual, any subsequent disclosure of the information in dispute will be clearly noted so that the fact that the record is disputed is apparent, a copy of the concise statement furnished and a concise statement by OMB setting forth its reasons for not making the requested changes, if OMB chooses to file such a statement. A notation of a dispute is required to be made only if an individual informs the agency of his disagreement with OMB's determination in accordance with § 1302.5 (a), (b) and (c). A copy of the individual's statement, and if it chooses, OMB's statement will be sent to any prior transferee of the disputed information who is listed on the accounting required by 5 U.S.C. 552a(c). If the reviewing official determines that the record should be amended in accordance with the individual's request, OMB will promptly correct the record, advise the individual, and inform previous recipients if an accounting of the disclosure was made pursuant to 5 U.S.C. 552(a)(c). The notification of correction pertains to information actually disclosed.</P> </SECTION> <SECTION> <SECTNO>§ 1302.6</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>(a) <E T="03">Prohibitions against charging fees.</E> Individuals will not be charged for:</P> <P>(1) The search and review of the record,</P> <P>(2) Any copies of the record produced as a necessary part of the process of making the record available for access, or</P> <P>(3) Any copies of the requested record when it has been determined that access can only be accomplished by providing a copy of the record through the mail.</P> <P>(b) <E T="03">Waiver.</E> The Assistant to the Director for Administration may at no charge, provide copies of a record if it is determined the production of the copies is in the interest of the Government.</P> <P>(c) <E T="03">Fee schedule and method of payment.</E> Fees will be charged as provided below except as provided in paragraphs (a) and (b) of this section.</P> <P>(1) <E T="03">Duplication of records.</E> Records will be duplicated at a rate of $.10 per page for all copying of 4 pages or more. There is not charge for duplication 3 or fewer pages.</P> <P>(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25.00, the requester shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25.00, an advance deposit may be required. The notice or request for an advance <PRTPAGE P="107"/>deposit shall extend an offer to the requester to consult with Office personnel in order to reformulate the request in a manner which will reduce the fees, yet still meet the needs of the requester.</P> <P>(3) Fees should be paid in full prior to issuance of requested copies. In the event the requester is in arrears for previous requests copies will not be provided for any subsequent request until the arrears have been paid in full.</P> <P>(4) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed or delivered to the Assistant to the Director for Administration, Office of Management and Budget, Washington, DC 20503.</P> <P>(5) A receipt for fees paid will be given upon request.</P> </SECTION> </PART> <PART> <EAR>Pt. 1303</EAR> <HD SOURCE="HED">PART 1303—PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">Organization</HD> <SECHD>Sec.</SECHD> <SECTNO>1303.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1303.2</SECTNO> <SUBJECT>Authority and functions.</SUBJECT> <SECTNO>1303.3</SECTNO> <SUBJECT>Organization.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTNO>1303.10</SECTNO> <SUBJECT>Access to information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Availability of Information</HD> <SECTNO>1303.20</SECTNO> <SUBJECT>Inspection and copying.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTNO>1303.30</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1303.40</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <SECTNO>1303.50</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <SECTNO>1303.60</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <SECTNO>1303.70</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 33483, Aug. 3, 1982, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Organization</HD> <SECTION> <SECTNO>§ 1303.1</SECTNO> <SUBJECT>General</SUBJECT> <P>This information is furnished for the guidance of the public and in compliance with the requirements of section 552 of title 5, United States Code, as amended.</P> </SECTION> <SECTION> <SECTNO>§ 1303.2</SECTNO> <SUBJECT>Authority and functions.</SUBJECT> <P>The general functions of the Office of Management and Budget, as provided by statute and executive order, are to develop and execute the budget, oversee implementation of Administration policies and programs, advise and assist the President, and develop and implement management policies for the government.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.3</SECTNO> <SUBJECT>Organization.</SUBJECT> <P>(a) The brief description of the central organization of the Office of Management and Budget follows:</P> <P>(1) The Director's Office includes the Director, the Deputy Director, the Deputy Director for Management, and the Executive Associate Director.</P> <P>(2) Staff Offices include General Counsel, Legislative Affairs, Communications, Administration, and Economic Policy.</P> <P>(3) Offices that provide OMB-wide support include the Legislative Reference and Budget Review Divisions.</P> <P>(4) Resource Management Offices. These offices develop and support the President's management and budget agenda in the areas of Natural Resources, Energy and Science, National Security and International Affairs, Health and Personnel, Human Resources, and General Government and Finance.</P> <P>(5) Statutory offices include the Office of Federal Financial Management, Office of Federal Procurement Policy, and the Office of Information and Regulatory Affairs.</P> <P>(b) The Office of Management and Budget is located in Washington, DC, and has no field offices. Staff are housed in either the Old Executive Office Building, 17th Street and Pennsylvania Ave, NW., or the New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Persons desiring to visit offices or employees of the Office of Management and Budget, in either building, must write or telephone ahead to make an appointment. Security in both buildings prevents visitors <PRTPAGE P="108"/>from entering the building without an appointment.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTION> <SECTNO>§ 1303.10</SECTNO> <SUBJECT>Access to information.</SUBJECT> <P>(a) The Office of Management and Budget makes available information pertaining to matters issued, adopted, or promulgated by OMB, that are within the scope of 5 U.S.C. 552(a)(2). A public reading area is located in the Executive Office of the President Library, Room G-102, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-5715. Some of these materials are also available from the Executive Office of the President's Publications Office, Room 2200 New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-7332. OMB issuances are also available via fax-on-demand at (202) 395-9068, and are available electronically from the OMB homepage at http:/www.whitehouse.gov/WH/EOP/omb. In addition, OMB maintains the Office of Information and Regulatory Affairs (OIRA) Docket Library, Room 10102, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, phone (202) 395-6880. The Docket Library contains records related to information collections sponsored by the Federal government and reviewed by OIRA under the Paperwork Reduction Act of 1995. The Docket Library also maintains records related to proposed Federal agency regulatory actions reviewed by OIRA under Executive Order 12866 “Regulatory Planning and Review”. Telephone logs and materials from meetings with the public attended by the OIRA Administrator are also available in the Docket Library.</P> <P>(b) The FOIA Officer is responsible for acting on all initial requests. Individuals wishing to file a request under the Freedom of Information Act (FOIA) should address their request in writing to the FOIA Officer, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Phone (202) 395-5715. Requests for information shall be as specific as possible.</P> <P>(c) Upon receipt of any request for information or records, the FOIA Officer will determine within 20 days (excepting Saturdays, Sundays and legal public holidays) after the receipt of such request whether it is appropriate to grant the request and will immediately provide written notification to the person making the request. If the request is denied, the written notification to the person making the request shall include the names of the individuals who participated in the determination, the reasons for the denial, and a notice that an appeal may be lodged within the Office of Management and Budget. (Receipt of a request as used herein means the date the request is received in the office of the FOIA Officer.)</P> <P>(d) <E T="03">Expedited processing.</E> (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:</P> <P>(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;</P> <P>(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;</P> <P>(iii) The loss of substantial due process rights; or</P> <P>(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which effect public confidence.</P> <P>(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.</P> <P>(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (d)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requester within the category (d)(1)(ii) of this section also must establish a particular urgency to inform <PRTPAGE P="109"/>the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of administrative discretion.</P> <P>(4) Within ten days of its receipt of a request for expedited processing, OMB will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.</P> <P>(e) Appeals shall be set forth in writing within 30 days of receipt of a denial and addressed to the FOIA Officer at the address specified in paragraph (b) of this section. The appeal shall include a statement explaining the basis for the appeal. Determinations of appeals will be set forth in writing and signed by the Deputy Director, or his designee, within 20 days (excepting Saturdays, Sundays, and legal public holidays). If, on appeal, the denial is in whole or in part upheld, the written determination will also contain a notification of the provisions for judicial review and the names of the persons who participated in the determination.</P> <P>(f) In unusual circumstances, the time limits prescribed in paragraphs (c) and (e) of this section may be extended for not more than 10 days (excepting Saturdays, Sundays, or legal public holidays). Extensions may be granted by the FOIA Officer. The extension period may be split between the initial request and the appeal but in no instance may the total period exceed 10 working days. Extensions will be by written notice to the persons making the request and will set forth the reasons for the extension and the date the determination is expected.</P> <P>(g) With respect to a request for which a written notice under paragraph (f) of this section extends the time limits prescribed under paragraph (c) of this section, the agency shall notify the person making the request if the request cannot be processed within the time limit specified in paragraph (f) of this section and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of 5 U.S.C. 552 (a)(6)(C). When OMB reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, OMB may aggregate those requests for purposes of this paragraph. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.</P> <P>(h) As used herein, but only to the extent reasonably necessary to the proper processing of the particular request, the term “unusual circumstances” means:</P> <P>(1) The need to search for and collect the requested records from establishments that are separated from the office processing the request;</P> <P>(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or</P> <P>(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency which have a substantial subject matter interest therein.</P> <CITA>[63 FR 20514, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Availability of Information</HD> <SECTION> <SECTNO>§ 1303.20</SECTNO> <SUBJECT>Inspection and copying.</SUBJECT> <P>When a request for information has been approved pursuant to § 1303.10, the person making the request may make an appointment to inspect or copy the materials requested during regular business hours by writing or telephoning the FOIA Officer at the address or telephone number listed in § 1303.10(b). Such materials may be copied and reasonable facilities will be made available for that purpose. Copies <PRTPAGE P="110"/>of individual pages of such materials will be made available at the price per page specified in § 1303.40(d); however, the right is reserved to limit to a reasonable quantity the copies of such materials which may be made available in this manner when copies also are offered for sale by the Superintendent of Documents.</P> <CITA>[63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Charges for Search and Reproduction</HD> <SECTION> <SECTNO>§ 1303.30</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of these regulations:</P> <P>(a) All the terms defined in the Freedom of Information Act apply.</P> <P>(b) A <E T="03">statute specifically providing for setting the level of fees for particular types of records</E> (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set the level of fees for particular types of records, in order to:</P> <P>(1) Serve both the general public and private sector organizations by conveniently making available government information;</P> <P>(2) Ensure that groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public;</P> <P>(3) Operate an information dissemination activity on a self-sustaining basis to the maximum extent possible; or</P> <P>(4) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information.</P> <FP>Statutes, such as the User Fee Statute, which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents do not supersede the Freedom of Information Act under section (a)(4)(A)(vi) of that statute.</FP> <P>(c) The term <E T="03">direct costs</E> means those expenditures that OMB actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.</P> <P>(d) The term <E T="03">search</E> means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. OMB employees should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. For example, employees should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (f) of this section).</P> <P>(e) The term <E T="03">duplication</E> means the making of a copy of a document, or of the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others. The requester's specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format.</P> <P>(f) The term <E T="03">review</E> refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (g) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, <E T="03">e.g.,</E> doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.<PRTPAGE P="111"/> </P> <P>(g) The term <E T="03">‘commercial use’ request</E> refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, OMB must determine the use to which a requester will put the documents requested. Moreover, where an OMB employee has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the employee should seek additional clarification before assigning the request to a specific category.</P> <P>(h) The term <E T="03">educational institution</E> refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, that operates a program or programs of scholarly research.</P> <P>(i) The term <E T="03">non-commercial scientific institution</E> refers to an institution that is not operated on a <E T="03">commercial</E> basis (as that term is referenced in paragraph (g) of this section), and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.</P> <P>(j) The term <E T="03">representative of the news media</E> refers to any peson actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of <E T="03">news</E>) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (<E T="03">e.g.,</E> electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of <E T="03">freelance</E> journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but OMB may also look to the past publication record of a requester in making this determination.</P> <CITA>[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.40</SECTNO> <SUBJECT>Fees to be charged—general.</SUBJECT> <P>OMB should charge fees that recoup the full allowable direct costs it incurs. Moreover, it shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in Sections 1303.30(b)), such as the NTIS, OMB should inform requesters of the steps necessary to obtain records from those sources.</P> <P>(a) <E T="03">Manual searches for records.</E> OMB will charge at the salary rate(s) (<E T="03">i.e.,</E> basic pay plus 16 percent) of the employee(s) making the search.</P> <P>(b) <E T="03">Computer searches for records.</E> OMB will charge at the actual direct cost of providing the service. This will include the cost of operating the central processing unit (CPU) for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and operator/programmer salary apportionable to the search.</P> <P>(c) <E T="03">Review of records.</E> Only requesters who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review; <E T="03">i.e.,</E> the review undertaken the first time OMB analyzes the applicability of a specific exemption to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may <PRTPAGE P="112"/>be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review is assessable.</P> <P>(d) <E T="03">Duplication of records.</E> Records will be duplicated at a rate of $.15 per page. For copies prepared by computer, such as tapes or printouts, OMB shall charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, OMB will charge the actual direct costs of producing the document(s). If OMB estimates that duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(e) <E T="03">Other charges.</E> OMB will recover the full costs of providing services such as those enumerated below when it elects to provide them:</P> <P>(1) Certifying that records are true copies;</P> <P>(2) Sending records by special methods such as express mail.</P> <P>(f) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed to the FOIA Officer, Office of Management and Budget, Washington, DC 20503.</P> <P>(g) A receipt for fees paid will be given upon request. Refund of fees paid for services actually rendered will not be made.</P> <P>(h) <E T="03">Restrictions on assessing fees.</E> With the exception of requesters seeking documents for a commercial use, OMB will provide the first 100 pages of duplication and the first two hours of search time without charge. Moreover, OMB will not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself.</P> <P>(1) The elements to be considered in determining the “cost of collecting a fee” are the administrative costs of receiving and recording a requester's remittance, and processing the fee for deposit in the Treasury Department's special account.</P> <P>(2) For purposes of these restrictions on assessment of fees, the word “pages” refers to paper copies of “8<FR>1/2</FR> × 11” or “11 × 14.” Thus, requesters are not entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout, does meet the terms of the restriction.</P> <P>(3) Similarly, the term “search time” in this context has as its basis, manual search. To apply this term to searches made by computer, OMB will determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, <E T="03">i.e.,</E> the operator, OMB will begin assessing charges for computer search.</P> <CITA>[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.50</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <P>There are four categories of FOIA requesters: commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The specific levels of fees for each of these categories are:</P> <P>(a) <E T="03">Commercial use requesters.</E> When OMB receive a request for documents for commercial use, it will assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the record sought. Requesters must reasonably describe the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. OMB may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see § 1303.60(b)).</P> <P>(b) <E T="03">Educational and non-commercial scientific institution requesters.</E> OMB shall provide documents to requesters <PRTPAGE P="113"/>in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought.</P> <P>(c) <E T="03">Requesters who are representatives of the news media.</E> OMB shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 1303.10(j), and his or her request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought.</P> <P>(d) <E T="03">All other requesters.</E> OMB shall charge requesters who do not fit into any of the categories above fees that recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Moreover, requests for records about the requesters filed in OMB's systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.</P> <CITA>[52 FR 49154, Dec. 30, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.60</SECTNO> <SUBJECT>Miscellaneous fee provisions.</SUBJECT> <P>(a) <E T="03">Charging interest—notice and rate.</E> OMB may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. The fact that the fee has been received by OMB within the thirty day grace period, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing.</P> <P>(b) <E T="03">Charges for unsuccessful search.</E> OMB may assess charges for time spent searching, even if it fails to locate the records or if records located are determined to be exempt from disclosure. If OMB estimates that search charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(c) <E T="03">Aggregating requests.</E> A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When OMB reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, OMB may aggregate those requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.</P> <P>(d) <E T="03">Advance payments.</E> OMB may not require a requester to make an advance payment, <E T="03">i.e.,</E> payment before work is commenced or continued on a request, unless:</P> <P>(1) OMB estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then, OMB will notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or</P> <P>(2) A requester has previously failed to pay a fee charged in a timely fashion (<E T="03">i.e.,</E> within 30 days of the date of the billing). Then, OMB may require the requester to pay the full amount owed plus any applicable interest as provided above or demonstrate that he or she has, in fact, paid the fee, and to make <PRTPAGE P="114"/>an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.</P> <P>(3) When OMB acts under paragraph (d)(1) or (2) of this section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits), will begin only after OMB has received fee payments described in paragraphs (d)(1) and (2) of this section.</P> <P>(e) <E T="03">Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).</E> OMB should comply with provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.</P> <CITA>[52 FR 49154, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1303.70</SECTNO> <SUBJECT>Waiver or reduction of charges.</SUBJECT> <P>Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where it is determined that disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.</P> <CITA>[52 FR 49155, Dec. 30, 1987]</CITA> </SECTION> </SUBJGRP> </PART> <PART> <EAR>Pt. 1304</EAR> <HD SOURCE="HED">PART 1304—POST EMPLOYMENT CONFLICT OF INTEREST</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1304.4601</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1304.4604</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1304.4605</SECTNO> <SUBJECT>Post-employment restrictions.</SUBJECT> <SECTNO>1304.4606</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1304.4607</SECTNO> <SUBJECT>Advice to former Government employees.</SUBJECT> <SECTNO>1304.4608</SECTNO> <SUBJECT>Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Title V, Section 501(a), Pub. L. 95-521, as amended, 92 Stat. 1864; and Sections 1 and 2, Pub. L. 96-28, 93 Stat. 76 [18 U.S.C. 207]; 5 CFR 737.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 84007, Dec. 22, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1304.4601</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) This section sets forth OMB's policy and procedures under the Ethics in Government Act of 1978, 18 U.S.C. 207, and the Office of Personnel Management's implementing regulations, 5 CFR part 737, for determining violations of restrictions on post-employment activities and for exercising OMB's administrative enforcement authority.</P> <P>(b) These regulations bar certain acts by former Government employees which may reasonably give the appearance of making unfair use of prior Government employment and affiliations. OMB acts on the premise that it has the primary responsibility for the enforcement of restrictions on post-employment activities and that criminal enforcement by the Department of Justice should be undertaken only in cases involving aggravated circumstances.</P> <P>(c) These regulations do not incorporate possible additional restrictions contained in a professional code of conduct to which an employee may also be subject.</P> <P>(d) Any person who holds a Government position after June 30, 1979, is subject to the restrictions under this section; except that the new provisions applicable to Senior employees designated by the Director of the Office of Government Ethics are effective February 28, 1980.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4604</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Government Employee</E> includes any officer or employee of the Executive Branch, those appointed or detailed under 5 U.S.C. 3374, and Special Government Employees. It does not include an individual performing services for the United States as an independent contractor under a personal service contract.</P> <P>(b) <E T="03">Former Government Employee</E> means one who was, and no longer is, a Government employee.</P> <P>(c) <E T="03">Special Government Employee</E> means an officer or employee of an agency who is retained, designated, appointed, or employed to perform temporary duties on a full-time or intermittent basis for not more than 130 days during any period of 365 consecutive days. This applies whether the <PRTPAGE P="115"/>Special Government Employee is compensated or not.</P> <P>(d) <E T="03">Senior Employee</E> means an employee or officer as designated in the statute or by the Director of the Office of Government Ethics. The Director of the Office of Government Ethics has designated civilians who have significant decision-making or supervisory responsibility and are paid at or equivalent to GS-17 or above as Senior Employees. Civilians paid at the Executive level are automatically designated by statute as Senior Employees. (A list of Senior Employee positions is found at 5 CFR 737.33.)</P> </SECTION> <SECTION> <SECTNO>§ 1304.4605</SECTNO> <SUBJECT>Post-employment restrictions.</SUBJECT> <P>(a) General Restrictions Applicable to All Former Government Employees:</P> <P>(1) <E T="03">Permanent Bar.</E> A former Government employee is restricted from acting as a representative before an agency as to a particular matter involving a specific party if the employee participated personally and substantially in that matter as a Government employee. The government employee is also restricted from making any oral or written communication to an agency with the intent to influence on behalf of another person as to a particular matter involving a specific party if the former Government employee participated personally and substantially in that matter as a Government employee.</P> <P>(2) <E T="03">Two-Year Bar.</E> (i) A former Government employee is restricted for two years from acting as a representative before an agency as to a particular matter involving a specific party if the employee had official responsibility for that matter. The former Government employee is also restricted for two years from making any oral or written communication to any agency with the intent to influence on behalf of another person as to a particular matter involving a specific party if the employee had official responsibility for that matter.</P> <P>(ii) In order to be a matter for which the former Government employee had official responsibility, the matter must actually have been pending under the employee's responsibility within the period of one year prior to the termination of such responsibility.</P> <P>(iii) The statutory two-year restriction period is measured from the date when the employee's responsibility for a particular matter ends, not from the termination of Government service.</P> <P>(b) Restrictions Applicable Only to Former Senior Employees:</P> <P>(1) <E T="03">Two-Year Bar on Assisting in Representing.</E> (i) A former Senior Employee is restricted for two years from assisting in representing another person by personal appearance before an agency as to a particular matter involving a specific party if the former Senior Employee participated personally and substantially in that matter as a Government employee.</P> <P>(ii) The statutory two-year period is measured from the date of termination of employment in the position that was held by the Senior Employee when he participated personally and substantially in the matter involved.</P> <P>(2) <E T="03">One-Year Bar on Attempts to Influence Former Agency.</E> (i) A former Senior Employee is restricted for one year from any transactions with the former agency on a particular matter with the intent to influence the agency, regardless of the former Senior Employee's prior involvement in that matter.</P> <P>(ii) This restriction is aimed at the possible use of personal influence based on past Government affiliations in order to facilitate transaction of business. Therefore, it includes matters which first arise after a Senior Employee leaves Government service.</P> <P>(iii) The restriction applies whether the former Senior Employee is representing another or representing himself, either by appearance before an agency or through communication with that agency.</P> <P>(c) OFPP is a separate agency for purposes of the foregoing restrictions on post-employment activities.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4606</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) <E T="03">General.</E> (1) Communications made solely to furnish scientific or technological information are exempt from these prohibitions.</P> <P>(2) A former Government employee may be exempted from the restrictions on post-employment practices if the <PRTPAGE P="116"/>Deputy Director of OMB, in consultation with the Director of the Office of Government Ethics, executes a certification that is published in the <E T="04">Federal Register</E>. The certification shall state that the former Government employee has outstanding qualifications in a scientific, technological or other technical discipline; is acting with respect to a particular matter which requires such qualifications; and the national interest would be served by his participation.</P> <P>(b) <E T="03">Specific.</E> The one-year bar shall not apply to a former Senior Employee's representation on new matters if the former Senior Employee is:</P> <P>(1) An elected State or local government official, who is acting on behalf of such government; or</P> <P>(2) Regularly employed by or acting on behalf of an agency or instrumentality of a State or local government; an accredited, degree-granting institution of higher education; or a non-profit hospital or medical research organization.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4607</SECTNO> <SUBJECT>Advice to former Government employees.</SUBJECT> <P>The Office of General Counsel, OMB, has the responsibility for providing assistance promptly to former Government employees who seek advice on specific problems.</P> </SECTION> <SECTION> <SECTNO>§ 1304.4608</SECTNO> <SUBJECT>Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).</SUBJECT> <P>(a) Whenever an allegation is made that a former Government employee has violated 18 U.S.C. 207(a), (b) or (c) or any of the regulations promulgated thereunder by the Office of Government Ethics or by OMB, the allegation and any supporting evidence shall be transmitted through the Office of General Counsel to the Deputy Director, OMB.</P> <P>(b) Allegations and evidence shall be safeguarded so as to protect the privacy of former employees prior to a determination of sufficient cause to initiate an administrative disciplinary proceeding.</P> <P>(c) If review by the Office of General Counsel, OMB, shows that the information concerning a possible violation does not appear to be frivolous, the Deputy Director, OMB, shall expeditiously provide all relevant evidence, any appropriate comments, and copies of applicable agency regulations to the director, Office of Government Ethics, and to the Criminal Division, Department of Justice. Unless the Department of Justice informs OMB that it does not intend to initiate criminal prosecution, OMB shall coordinate any investigation or administrative action with the Department of Justice in order to avoid prejudicing criminal proceedings.</P> <P>(d) After appropriate review and recommendation by the Office of General Counsel, if the Deputy Director, OMB, determines that there is reasonable cause to believe that there has been a violation, the Deputy Director may direct the Office of General Counsel to initiate an administrative disciplinary proceeding and may designate an individual to represent OMB in the proceeding.</P> <P>(e) <E T="03">Notice.</E> The Office of General Counsel shall provide the former Government employee with adequate notice of its intention to institute a proceeding and with an opportunity for a hearing. The notice must include a statement of allegations, and the basis thereof, in sufficient detail to enable the former Government employee to prepare an adequate defense; notification of the right to a hearing; and an explanation of the method by which a hearing may be requested.</P> <P>(f) <E T="03">Hearing.</E> A hearing may be obtained by submitting a written request to the Office of General Counsel.</P> <P>(g) <E T="03">Examiner.</E> The presiding official at the proceedings shall be the hearing examiner, who is delegated authority by the Director, OMB, to make an initial decision. The hearing examiner shall be an attorney in the Office of General Counsel designated by the General Counsel. The hearing examiner shall be impartial and shall not have participated in any manner in the decision to initiate the proceedings.</P> <P>(h) <E T="03">Time, Date and Place.</E> The hearing shall be conducted at a reasonable time, date, and place. The hearing examiner shall give due regard in setting the hearing date to the former Government employee's need for adequate time to properly prepare a defense and <PRTPAGE P="117"/>for an expeditious resolution of allegations that may be damaging to his reputation.</P> <P>(i) <E T="03">Hearing Rights.</E> The hearing shall include, as a minimum, the right to represent oneself or to be represented by counsel; the right to introduce and examine witnesses and to submit physical evidence; the right to confront and cross-examine adverse witnesses; the right to present oral argument; and, on request, the right to have a transcript or recording of the proceedings.</P> <P>(j) <E T="03">Burden of Proof.</E> OMB has the burden of proof and must establish substantial evidence of a violation.</P> <P>(k) <E T="03">Decision.</E> The hearing examiner shall make a decision based exclusively on matters of record in the proceedings. All findings of fact and conclusions of law relevant to the matters at issue shall be set forth in the decision.</P> <P>(l) <E T="03">Appeal within OMB.</E> Within 30 days of the date of the hearing examiner's decision, either party may appeal the decision to the Director. The Director shall make a decision on the appeal based solely on the record of the proceedings or on those portions of the record agreed to by the parties to limit the issues. If the Director modifies or reverses the hearing examiner's decision, he shall specify the findings of fact and conclusions of law that are different from those of the hearing examiner.</P> <P>(m) <E T="03">Administrative Sanctions.</E> Administrative sanctions may be taken if the former Government employee fails to request a hearing after receipt of adequate notice or if a final administrative determination of a violation of 18 U.S.C. 207 (a), (b) or (c) or regulations promulgated thereunder has been made. The Director may prohibit the former Government employee from appearance or communication with OMB on behalf of another for a period not to exceed five years (5 CFR 737.27(a)(9)(i)) or take other appropriate disciplinary action (5 CFR 737.27(a)(9)(ii)).</P> <P>(n) <E T="03">Judicial Review.</E> Any person found by an OMB administrative decision to have participated in a violation of 18 U.S.C. 207 (a), (b) or (c) or regulations promulgated thereunder may seek judicial review of the administrative decision.</P> </SECTION> </PART> <PART> <EAR>Pt. 1305</EAR> <HD SOURCE="HED">PART 1305—RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB PERSONNEL AS WITNESSES, IN LITIGATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1305.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1305.2</SECTNO> <SUBJECT>Production prohibited unless approved.</SUBJECT> <SECTNO>1305.3</SECTNO> <SUBJECT>Procedures in the event of a demand for disclosure.</SUBJECT> <SECTNO>1305.4</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <SECTNO>1305.5</SECTNO> <SUBJECT>No private right of action.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 502.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 29285, May 30, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1305.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part contains the regulations of the Office of Management and Budget (OMB) concerning procedures to be followed when, in litigation (including administrative proceedings), a subpoena, order or other demand (hereinafter in this part referred to as a “demand”) of a court or other authority is issued for the production or disclosure of:</P> <P>(a) Any material contained in the files of OMB;</P> <P>(b) Any information relating to materials contained in the files of OMB; or</P> <P>(c) Any information or material acquired by any person while such person was an employee of OMB as a part of the performance of the person's official duties or because of the person's official status.</P> </SECTION> <SECTION> <SECTNO>§ 1305.2</SECTNO> <SUBJECT>Production prohibited unless approved.</SUBJECT> <P>No employee or former employee of OMB shall, in response to a demand of a court or other authority, produce any material contained in the files of OMB, disclose any information relating to materials contained in the files of OMB, or disclose any information or produce any material acquired as part of the performance of the person's official duties, or because of the person's official status, without the prior approval of the General Counsel.</P> </SECTION> <SECTION> <SECTNO>§ 1305.3</SECTNO> <SUBJECT>Procedures in the event of a demand for disclosure.</SUBJECT> <P>(a) Whenever a demand is made upon an employee or former employee of <PRTPAGE P="118"/>OMB for the production of material or the disclosure of information described in § 1305.2, he shall immediately notify the General Counsel. If possible, the General Counsel shall be notified before the employee or former employee concerned replies to or appears before the court or other authority.</P> <P>(b) If information or material is sought by a demand in any case or matter in which OMB is not a party, an affidavit (or, if that is not feasible, a statement by the party seeking the information or material, or by his attorney) setting forth a summary of the information or material sought and its relevance to the proceeding, must be submitted before a decision is made as to whether materials will be produced or permission to testify or otherwise provide information will be granted. Any authorization for testimony by a present or former employee of OMB shall be limited to the scope of the demand as summarized in such statement.</P> <P>(c) If response to a demand is required before instructions from the General Counsel are received, an attorney designated for that purpose by OMB shall appear, and shall furnish the court or other authority with a copy of the regulations contained in this part and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration by the General Counsel. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the General Counsel.</P> <APPRO>(Approved by the Office of Management and Budget under control number 0348-0056)</APPRO> </SECTION> <SECTION> <SECTNO>§ 1305.4</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> <P>If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 1305.3(c) pending receipt of instructions from the General Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand (United States ex rel. <E T="03">Touhy</E> v. <E T="03">Ragen</E>, 340 U.S. 462 (1951)).</P> <APPRO>(Approved by the Office of Management and Budget under control number 0348-0056)</APPRO> </SECTION> <SECTION> <SECTNO>§ 1305.5</SECTNO> <SUBJECT>No private right of action.</SUBJECT> <P>This part is intended only to provide guidance for the internal operations of OMB, and is not intended to, and does not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="119"/> <HD SOURCE="HED">SUBCHAPTER B—OMB DIRECTIVES</HD> <PART> <EAR>Pt. 1310</EAR> <HD SOURCE="HED">PART 1310—OMB CIRCULARS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1310.1</SECTNO> <SUBJECT>Policy guidelines.</SUBJECT> <SECTNO>1310.3</SECTNO> <SUBJECT>Availability of circulars.</SUBJECT> <SECTNO>1310.5</SECTNO> <SUBJECT>List of current circulars.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 501-06.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 70311, Dec. 21, 1998, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1310.1</SECTNO> <SUBJECT>Policy guidelines.</SUBJECT> <P>In carrying out its responsibilities, the Office of Management and Budget issues policy guidelines to Federal agencies to promote efficiency and uniformity in Government activities. These guidelines are normally in the form of circulars.</P> </SECTION> <SECTION> <SECTNO>§ 1310.3</SECTNO> <SUBJECT>Availability of circulars.</SUBJECT> <P>Copies of individual circulars are available at OMB's Internet home page; you may access them at http:/www.whitehouse.gov/WH/EOP/omb. Copies are also available from the EOP Publications Office, 725 17th Street NW., Room 2200, Washington, DC 20503; (202) 395-7332. Selected circulars are also available through fax-on-demand, by calling (202) 395-9068.</P> </SECTION> <SECTION> <SECTNO>§ 1310.5</SECTNO> <SUBJECT>List of current circulars.</SUBJECT> <P>The following list includes all circulars in effect as of December 1, 1998.</P> <FP> <E T="03">No. and Title</E> </FP> <FP SOURCE="FP-2">A-1—“System of Circulars and Bulletins to Executive Departments and Establishments”</FP> <FP SOURCE="FP-2">A-11—“Preparation and Submission of Budget Estimates” (Part 1)</FP> <FP SOURCE="FP1-2">“Preparation and Submission of Strategic Plans and Annual Performance Plans” (Part 2)</FP> <FP SOURCE="FP1-2">“Planning, Budgeting, and Acquisition of Capital Assets” (Part 3)</FP> <FP SOURCE="FP1-2">“Capital Programming Guide” (Supplement to Part 3)</FP> <FP SOURCE="FP-2">A-16—“Coordination of Surveying, Mapping, and Related Spatial Data Activities”</FP> <FP SOURCE="FP-2">A-19—“Legislative Coordination and Clearance”</FP> <FP SOURCE="FP-2">A-21—“Cost Principles for Educational Institutions”</FP> <FP SOURCE="FP-2">A-25—“User Charges”</FP> <FP SOURCE="FP-2">A-34—“Instructions on Budget Execution”</FP> <FP SOURCE="FP-2">A-45—“Rental and Construction of Government Quarters”</FP> <FP SOURCE="FP-2">A-50—“Audit Followup”</FP> <FP SOURCE="FP-2">A-76—“Performance of Commercial Activities”</FP> <FP SOURCE="FP-2">A-87—“Cost Principles for State, Local, and Indian Tribal Governments”</FP> <FP SOURCE="FP-2">A-89—“Federal Domestic Assistance Program Information”</FP> <FP SOURCE="FP-2">A-94—“Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs”</FP> <FP SOURCE="FP-2">A-97—“Rules and regulations permitting Federal agencies to provide specialized or technical services to State and local units of government under Title III of the Intergovernmental Cooperation Act of 1968”</FP> <FP SOURCE="FP-2">A-102—“Grants and Cooperative Agreements With State and Local Governments”</FP> <FP SOURCE="FP-2">A-109—“Major System Acquisitions”</FP> <FP SOURCE="FP-2">A-110—“Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-119—“Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities”</FP> <FP SOURCE="FP-2">A-122—“Cost Principles for Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-123—“Management Accountability and Control”</FP> <FP SOURCE="FP-2">A-125—“Prompt Payment”</FP> <FP SOURCE="FP-2">A-126—“Improving the Management and Use of Government Aircraft”</FP> <FP SOURCE="FP-2">A-127—“Financial Management Systems”</FP> <FP SOURCE="FP-2">A-129—“Policies for Federal Credit Programs and Non-Tax Receivables “</FP> <FP SOURCE="FP-2">A-130—“Management of Federal Information Resources”</FP> <FP SOURCE="FP-2">A-131—“Value Engineering”</FP> <FP SOURCE="FP-2">A-133—“Audits of States, Local Governments, and Non-Profit Organizations”</FP> <FP SOURCE="FP-2">A-134—“Financial Accounting Principles and Standards”<PRTPAGE P="120"/> </FP> <FP SOURCE="FP-2">A-135—“Management of Federal Advisory Committees”</FP> </SECTION> </PART> <PART> <EAR>Pt. 1312</EAR> <HD SOURCE="HED">PART 1312—CLASSIFICATION, DOWNGRADING, DECLASSIFICATION AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Classification and Declassification of National Security Information</HD> <SECHD>Sec.</SECHD> <SECTNO>1312.1</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.2</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1312.3</SECTNO> <SUBJECT>Classification requirements.</SUBJECT> <SECTNO>1312.4</SECTNO> <SUBJECT>Classified designations.</SUBJECT> <SECTNO>1312.5</SECTNO> <SUBJECT>Authority to classify</SUBJECT> <SECTNO>1312.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <SECTNO>1312.7</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <SECTNO>1312.8</SECTNO> <SUBJECT>Standard identification and markings.</SUBJECT> <SECTNO>1312.9</SECTNO> <SUBJECT>Downgrading and declassification.</SUBJECT> <SECTNO>1312.10</SECTNO> <SUBJECT>Systematic review guidelines.</SUBJECT> <SECTNO>1312.11</SECTNO> <SUBJECT>Challenges to classifications.</SUBJECT> <SECTNO>1312.12</SECTNO> <SUBJECT>Security Program Review Committee.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Control and Accountability of Classified Information</HD> <SECTNO>1312.21</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.22</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1312.23</SECTNO> <SUBJECT>Access to classified information.</SUBJECT> <SECTNO>1312.24</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <SECTNO>1312.25</SECTNO> <SUBJECT>Storage.</SUBJECT> <SECTNO>1312.26</SECTNO> <SUBJECT>Control of secret and confidential material.</SUBJECT> <SECTNO>1312.27</SECTNO> <SUBJECT>Top secret control.</SUBJECT> <SECTNO>1312.28</SECTNO> <SUBJECT>Transmission of classified material.</SUBJECT> <SECTNO>1312.29</SECTNO> <SUBJECT>Destruction.</SUBJECT> <SECTNO>1312.30</SECTNO> <SUBJECT>Loss or possible compromise.</SUBJECT> <SECTNO>1312.31</SECTNO> <SUBJECT>Security violations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Mandatory Declassification Review</HD> <SECTNO>1312.32</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <SECTNO>1312.33</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <SECTNO>1312.34</SECTNO> <SUBJECT>Information in the custody of OMB.</SUBJECT> <SECTNO>1312.35</SECTNO> <SUBJECT>Information classified by another agency.</SUBJECT> <SECTNO>1312.36</SECTNO> <SUBJECT>Appeal procedure.</SUBJECT> <SECTNO>1312.37</SECTNO> <SUBJECT>Fees.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Executive Order 12958, April 20, 1995, 3 CFR, 1995 Comp., p. 333.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 25426, May 9, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Classification and Declassification of National Security Information</HD> <SECTION> <SECTNO>§ 1312.1</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>This subpart sets forth the procedures for the classification and declassification of national security information in the possession of the Office of Management and Budget. It is issued under the authority of Executive Order 12958, (60 FR 19825, 3 CFR, 1995 Comp., P.333), as implemented by Information Security Oversight Office Directive No. 1 (32 CFR part 2001), and is applicable to all OMB employees.</P> </SECTION> <SECTION> <SECTNO>§ 1312.2</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>The effectiveness of the classification and declassification program in OMB depends entirely on the amount of attention paid to it by supervisors and their staffs in those offices and divisions that possess or produce classified material. Officials who originate classified information are responsible for proper assignment of a classification to that material and for the decision as to its declassification. Officials who produce documents containing classified information must determine the source of the classification for that information and must ensure that the proper identity of that source is shown on the document. Custodians of classified material are responsible for its safekeeping and for ensuring that such material is adequately marked as to current classification. Custodians are also responsible for the control of and accounting for all classified material within their area of jurisdiction as prescribed in OMB Manual Section 1030.</P> <P>(a) <E T="03">EOP Security Officer.</E> In cooperation with the Associate Director (or Assistant Director) for Administration, the EOP Security Officer supervises the administration of this section and develops programs to assist in the compliance with the Order. Specifically, he:</P> <P>(1) Promotes the correct understanding of this section by all employees by providing annual security refresher briefings and ensures that new employees attend initial briefings about overall security procedures and policies.<PRTPAGE P="121"/> </P> <P>(2) Issues and keeps current such classification guides and guidelines for review for declassification as are required by the Order.</P> <P>(3) Conducts periodic reviews of classified documents produced and provides assistance and guidance where necessary.</P> <P>(4) Maintains and publishes a current listing of all officials who have been designated in writing to have Top Secret, Secret, and Confidential original classification authority.</P> <P>(b) <E T="03">Heads of divisions or offices.</E> The head of each division or major organizational unit is responsible for the administration of this section within his or her area. Appropriate internal guidance should be issued to cover special or unusual conditions within an office.</P> </SECTION> <SECTION> <SECTNO>§ 1312.3</SECTNO> <SUBJECT>Classification requirements.</SUBJECT> <P>United States citizens must be kept informed about the activities of their Government. However, in the interest of national security, certain official information must be subject to constraints on its dissemination or release. This information is classified in order to provide that protection.</P> <P>(a) Information shall be considered for classification if it concerns:</P> <P>(1) Military plans, weapons systems, or operations;</P> <P>(2) Foreign government information;</P> <P>(3) Intelligence activities (including special activities), intelligence sources or methods, or cryptology;</P> <P>(4) Foreign relations or foreign activities of the United States, including confidential sources;</P> <P>(5) Scientific, technological, or economic matters relating to the national security;</P> <P>(6) United States Government programs for safeguarding nuclear materials or facilities; or</P> <P>(7) Vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.</P> <P>(b) When information is determined to meet one or more of the criteria in paragraph (a) of this section, it shall be classified by an original classification authority when he/she determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security.</P> <P>(c) Unauthorized disclosure of foreign government information, including the identity of a confidential foreign source of intelligence sources or methods, is presumed to cause damage to the national security.</P> <P>(d) Information classified in accordance with this section shall not be declassified automatically as a result of any unofficial or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information.</P> </SECTION> <SECTION> <SECTNO>§ 1312.4</SECTNO> <SUBJECT>Classified designations.</SUBJECT> <P>(a) Except as provided by the Atomic Energy Act of 1954, as amended, (42 U.S.C. 2011) or the National Security Act of 1947, as amended, (50 U.S.C. 401) Executive Order 12958 provides the only basis for classifying information. Information which meets the test for classification may be classified in one of the following three designations:</P> <P>(1) <E T="03">Top Secret.</E> This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.</P> <P>(2) <E T="03">Secret.</E> This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.</P> <P>(3) <E T="03">Confidential.</E> This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.</P> <P>(b) If there is significant doubt about the need to classify information, it shall not be classified. If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.</P> </SECTION> <SECTION> <SECTNO>§ 1312.5</SECTNO> <SUBJECT>Authority to classify.</SUBJECT> <P>(a) The authority to originally classify information or material under this part shall be limited to those officials <PRTPAGE P="122"/>concerned with matters of national security. The officials listed in this section are granted authority by the Director, OMB, to assign original classifications as indicated to information or material that is originated by OMB staff and relating to the national security of the United States:</P> <P>(1) Top Secret and below:</P> <P>(i) Deputy Director.</P> <P>(ii) Deputy Director for Management.</P> <P>(iii) Associate Director for National Security and International Affairs.</P> <P>(iv) Associate Director for Natural Resources, Energy and Science.</P> <P>(2) Secret and below:</P> <P>(i) Deputy Associate Director for National Security.</P> <P>(ii) Deputy Associate Director for International Affairs.</P> <P>(iii) Deputy Associate Director for Energy and Science.</P> <P>(b) Classification authority is not delegated to persons who only reproduce, extract, or summarize classified information, or who only apply classification markings derived from source material or from a classification guide.</P> </SECTION> <SECTION> <SECTNO>§ 1312.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <P>(a)(1) When determining the duration of classification for information originally classified under Executive Order 12958, an original classification authority shall follow the following sequence:</P> <P>(i) He/She shall attempt to determine a date or event that is less than 10 years from the date of original classification, and which coincides with the lapse of the information's national security sensitivity, and shall assign such date or event as the declassification instruction;</P> <P>(ii) If unable to determine a date or event of less than 10 years, he/she shall ordinarily assign a declassification date that is 10 years from the date of the original classification decision;</P> <P>(iii) He/She may extend the duration of classification or reclassify specific information for a period not to exceed 10 additional years if such action is consistent with the exemptions as outlined in Section 1.6(d) of the Executive Order. This provision does not apply to information contained in records that are more than 25 years old and have been determined to have permanent historical value under Title 44 United States Code.</P> <P>(iv) He/She may exempt from declassification within 10 years specific information, which is consistent with the exemptions as outlined in Section 1.6 (d) of the Executive Order.</P> <P>(2) Extending Duration of Classification. Extensions of classification are not automatic. If an original classification authority with jurisdiction over the information does not extend the date or event for declassification, the information is automatically declassified upon the occurrence of the date or event. If an original classification authority has assigned a date or event for declassification that is 10 years or less from the date of classification, an original classification authority with jurisdiction over the information may extend the classification duration of such information for additional periods not to exceed 10 years at a time. Records determined to be of historical value may not exceed the duration of 25 years.</P> <P>(b) When extending the duration of classification, the original classification authority must:</P> <P>(1) Be an original classification authority with jurisdiction over the information.</P> <P>(2) Ensure that the information continues to meet the standards for classification under the Executive Order.</P> <P>(3) Make reasonable attempts to notify all known holders of the information. Information classified under prior orders marked with a specific date or event for declassification is automatically declassified upon that date or event. Information classified under prior orders marked with Originating Agency's Determination Required (OADR) shall:</P> <P>(i) Be declassified by a declassification authority as defined in Section 3.1 of the Executive Order.</P> <P>(ii) Be re-marked by an authorized original classification authority with jurisdiction over the information to establish a duration of classification consistent with the Executive Order.</P> <P>(iii) Be subject to Section 3.4 of the Executive Order if the records are determined to be of historical value and are to remain classified for 25 years <PRTPAGE P="123"/>from the date of its original classification.</P> </SECTION> <SECTION> <SECTNO>§ 1312.7</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <P>A <E T="03">derivative classification</E> means that the information is in substance the same information that is currently classified, usually by another agency or classification authority. The application of derivative classification markings is the responsibility of the person who incorporates, restates, paraphrases, or generates in new form information that is already classified, or one who applies such classification markings in accordance with instructions from an authorized classifier or classification guide. Extreme care must be taken to continue classification and declassification markings when such information is incorporated into OMB documents. The duplication or reproduction of existing classified information is not derivative classification. Persons who use derivative classification need not possess original classification authority.</P> </SECTION> <SECTION> <SECTNO>§ 1312.8</SECTNO> <SUBJECT>Standard identification and markings.</SUBJECT> <P>(a) <E T="03">Original Classification.</E> At the time classified material is produced, the classifier shall apply the following markings on the face of each originally classified document, including electronic media:</P> <P>(1) <E T="03">Classification Authority.</E> The name/personal identifier, and position title of the original classifier shall appear on the “Classified By” line.</P> <P>(2) <E T="03">Agency and Office of Origin.</E> If not otherwise evident, the agency and office of origin shall be identified and placed below the name on the “Classified By” line.</P> <P>(3) <E T="03">Reasons for Classification.</E> Identify the reason(s) to classify. The classifier shall include, at a minimum, a brief reference to the pertinent classification category(ies), or the number 1.5 plus the letter(s) that corresponds to that classification category in Section 1.5 of the Executive Order.</P> <P>(4) <E T="03">Declassification instructions.</E> These instructions shall indicate the following:</P> <P>(i) The duration of the original classification decision shall be placed on the “Declassify On” line.</P> <P>(ii) The date or event for declassification that corresponds to the lapse of the information's national security sensitivity, which may not exceed 10 years from the date of the original decision.</P> <P>(iii) When a specific date or event within 10 years cannot be established, the classifier will apply the date that is 10 years from the date of the original decision.</P> <P>(iv) The exemption category from declassification. Upon determination that the information must remain classified beyond 10 years, the classifier will apply the letter “X” plus a brief recitation of the exemption category(ies), or the letter “X” plus the number that corresponds to the exemption category(ies) in Section 1.6(d) of the Executive Order.</P> <P>(v) An original classification authority may extend the duration of classification for successive periods not to exceed 10 years at a time. The “Declassify On” line shall be revised to include the new declassification instructions and shall include the identity of the person authorizing the extension and the date of the action.</P> <P>(vi) Information exempted from automatic declassification at 25 years should on the “Declassify On” line be revised to include the symbol “25X” plus a brief reference to the pertinent exemption categories/numbers of the Executive Order.</P> <P>(5) The overall classification of the document is the highest level of information in the document and will be conspicuously placed stamped at the top and bottom of the outside front and back cover, on the title page, and on the first page.</P> <P>(6) The highest classification of individual pages will be stamped at the top and bottom of each page, to include “unclassified” when it is applicable.</P> <P>(7) The classification of individual portions of the document, (ordinarily a paragraph, but including subjects, titles, graphics) shall be marked by using the abbreviations (TS), (S), (C), or (U), will be typed or marked at the beginning or end of each paragraph or section of the document. If all portions of the document are classified at the same level, this may be indicated by a statement to that effect.<PRTPAGE P="124"/> </P> <P>(b) <E T="03">Derivative Classification.</E> Information classified derivatively on the basis of source documents shall carry the following markings on those documents:</P> <P>(1) The derivative classifier shall concisely identify the source document(s) or the classification guide on the “Derived From” line, including the agency and where available the office of origin and the date of the source or guide. When a document is classified derivatively on the basis of more than one source document or classification guide, the “Derived From” line shall appear as “Derived From: Multiple Sources”.</P> <P>(2) The derivative classifier shall maintain the identification of each source with the file or record copy of the derivatively classified document. Where practicable the copies of the document should also have this list attached.</P> <P>(3) A document derivatively classified on the basis of a source document that is itself marked “Multiple Sources” shall cite the source document on its “Derived From” line rather than the term “Multiple Sources”.</P> <P>(4) The reason for the original classification decision, as reflected in the source document, is not required to be transferred in a derivative classification action.</P> <P>(5) Declassification instructions shall carry forward the instructions on the “Declassify On” line from the source document to the derivation document or the duration instruction from the classification guide. Where there are multiple sources, the longest duration of any of its sources shall be used.</P> <P>(6) When a source document or classification guide contains the declassification instruction “Originating Agency's Determination Required” (OADR) the derivative document shall carry forward the fact that the source document(s) were so marked and the date of origin of the most recent source document (s).</P> <P>(7) The derivatively classified document shall be conspicuously marked with the highest level of classification of information.</P> <P>(8) Each portion of a derivatively classified document shall be marked in accordance with its source.</P> <P>(9) Each office shall, consistent with Section 3.8 of the Executive Order, establish and maintain a database of information that has been declassified.</P> <P>(c) <E T="03">Additional Requirements.</E> (1) Markings other than “Top Secret”, “Secret”, and “Confidential” shall not be used to identify classified national security information.</P> <P>(2) Transmittal documents will be stamped to indicate the highest classification of the information transmitted, and shall indicate conspicuously on its face the following or something similar “Unclassified When classified Enclosure Removed” to indicate the classification of the transmittal document standing alone.</P> <P>(3) The classification data for material other than documents will be affixed by tagging, stamping, recording, or other means to insure that recipients are aware of the requirements for the protection of the material.</P> <P>(4) Documents containing foreign government information shall include the markings “This Document Contains (country of origin) Information”. If the identity of the specific government must be concealed, the document shall be marked” This Document Contains Foreign Government Information,” and pertinent portions marked “FGI” together with the classification level, e.g., “(FGI-C)”. In such cases, separate document identifying the government shall be maintained in order to facilitate future declassification actions.</P> <P>(5) Documents, regardless of medium, which are expected to be revised prior to the preparation of a finished product—working papers—shall be dated when created, marked with highest classification, protected at that level, and destroyed when no longer needed. When any of the following conditions exist, the working papers shall be controlled and marked in the same manner as prescribed for a finished classified document:</P> <P>(i) Released by the originator outside the originating activity;</P> <P>(ii) Retained more than 180 days from the date of origin;</P> <P>(iii) Filed permanently.</P> <P>(6) Information contained in unmarked records, or Presidential or related materials, and which pertain to <PRTPAGE P="125"/>the national defense or foreign relations of the U.S. and has been maintained and protected as classified information under prior orders shall continue to be treated as classified information under the Executive Order and is subject to its provisions regarding declassification.</P> </SECTION> <SECTION> <SECTNO>§ 1312.9</SECTNO> <SUBJECT>Downgrading and declassification.</SUBJECT> <P>Classified information originated by OMB offices will be downgraded or declassified as soon as it no longer qualifies for continued protection under the provisions of the classification guides. Authority to downgrade or declassify OMB-originated information is granted to those authorized to classify (See § 1312.5). Additionally, the Associate Director (or Assistant Director) for Administration is authorized to exercise downgrading and declassification actions up to and including the Top Secret level.</P> <P>(a) <E T="03">Transferred material.</E> Information which was originated by an agency that no longer exists, or that was received by OMB in conjunction with a transfer of functions, is deemed to be OMB-originated material. Information which has been transferred to another agency for storage purposes remains the responsibility of OMB.</P> <P>(b) <E T="03">Periodic review of classified material.</E> Each office possessing classified material will review that material on an annual basis or in conjunction with the transfer of files to non-current record storage and take action to downgrade or declassify all material no longer qualifying for continued protection at that level. All material transferred to non-current record storage must be properly marked with correct downgrade and declassification instructions.</P> </SECTION> <SECTION> <SECTNO>§ 1312.10</SECTNO> <SUBJECT>Systematic review guidelines.</SUBJECT> <P>The EOP Security Officer will prepare and keep current such guidelines as are required by Executive Order 12958 for the downgrading and declassification of OMB material that is in the custody of the Archivist of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1312.11</SECTNO> <SUBJECT>Challenges to classifications.</SUBJECT> <P>OMB employees are encouraged to familiarize themselves with the provisions of Executive Order 12958 and with OMB Manual Sections 1010, 1020, and 1030. Employees are also encouraged to question or to challenge those classifications they believe to be improper, unnecessary, or for an inappropriate time. Such questions or challenges may be addressed to the originator of the classification, unless the challenger desires to remain anonymous, in which case the question may be directed to the EOP Security Officer.</P> </SECTION> <SECTION> <SECTNO>§ 1312.12</SECTNO> <SUBJECT>Security Program Review Committee.</SUBJECT> <P>The Associate Director (or Assistant Director) for Administration will chair the OMB Security Program Review Committee, which will act on suggestions and complaints about the OMB security program.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Control and Accountability of Classified Information</HD> <SECTION> <SECTNO>§ 1312.21</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>This subpart sets forth procedures for the receipt, storage, accountability, and transmission of classified information at the Office of Management and Budget. It is issued under the authority of Executive Order 12958, (60 FR 19825, 3 CFR, 1995 Comp., P.333), as implemented by Information Security Oversight Office Directive No 1 (32 CFR part 2001), and is applicable to all OMB employees.</P> </SECTION> <SECTION> <SECTNO>§ 1312.22</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>The effective direction by supervisors and the alert performance of duty by employees will do much to ensure the adequate security of classified information in the possession of OMB offices. Each employee has a responsibility to protect and account for all classified information that he/she knows of within his/her area of responsibility. Such information will be made available only to those persons who have an official need to know and who have been granted the appropriate security clearance. Particular care must be taken not to discuss classified information <PRTPAGE P="126"/>over unprotected communications circuits (to include intercom and closed-circuit TV), at non-official functions, or at any time that it might be revealed to unauthorized persons. Classified information may only be entered into computer systems meeting the appropriate security criteria.</P> <P>(a) <E T="03">EOP Security Officer.</E> In cooperation with the Associate Director (or Assistant Director) for Administration, the EOP Security Officer supervises the administration of this section. Specifically, he/she:</P> <P>(1) Promotes the correct understanding of this section and insures that initial and annual briefings about security procedures are given to all new employees.</P> <P>(2) Provides for periodic inspections of office areas and reviews of produced documents to ensure full compliance with OMB regulations and procedures.</P> <P>(3) Takes prompt action to investigate alleged violations of security, and recommends appropriate administrative action with respect to violators.</P> <P>(4) Supervises the annual inventories of Top Secret material.</P> <P>(5) Ensures that containers used to store classified material meet the appropriate security standards and that combinations to security containers are changed as required.</P> <P>(b) <E T="03">Heads of Offices.</E> The head of each division or office is responsible for the administration of this section in his/her area. These responsibilities include:</P> <P>(1) The appointment of accountability control clerks as prescribed in § 1312.26.</P> <P>(2) The maintenance of the prescribed control and accountability records for classified information within the office.</P> <P>(3) Establishing internal procedures to ensure that classified material is properly safeguarded at all times.</P> </SECTION> <SECTION> <SECTNO>§ 1312.23</SECTNO> <SUBJECT>Access to classified information.</SUBJECT> <P>Classified information may be made available to a person only when the possessor of the information establishes that the person has a valid “need to know” and the access is essential to the accomplishment of official government duties. The proposed recipient is eligible to receive classified information only after he/she has been granted a security clearance by the EOP Security Officer. Cover sheets will be used to protect classified documents from inadvertent disclosure while in use. An SF-703 will be used for Top Secret material; an SF-704 for Secret material, and an SF-705 for Confidential material. The cover sheet should be removed prior to placing the document in the files.</P> </SECTION> <SECTION> <SECTNO>§ 1312.24</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <P>(a) The requirements of Section 4.2(a)(3) of Executive Order 12958 may be waived for persons who are engaged in historical research projects, or who previously have occupied policy-making positions to which they were appointed by the President. Waivers may be granted only if the Associate Director (or Assistant Director) for Administration, in cooperation with the EOP Security Officer:</P> <P>(1) Determines in writing that access is consistent with the interest of national security;</P> <P>(2) Takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with the order; and</P> <P>(3) Limits the access granted to former Presidential appointees to items that the person originated, reviewed, signed, or received while serving as a Presidential appointee.</P> <P>(b) In the instances described in paragraph (a) of this section, the Associate Director (or Assistant Director) for Administration, in cooperation with the EOP Security Officer, will make a determination as to the trustworthiness of the requestor and will obtain written agreement from the requestor to safeguard the information to which access is given. He/She will also obtain written consent to the review by OMB of notes and manuscripts for the purpose of determining that no classified information is contained therein. Upon the completion of these steps, the material to be researched will be reviewed <PRTPAGE P="127"/>by the division/office of primary interest to ensure that access is granted only to material over which OMB has classification jurisdiction.</P> </SECTION> <SECTION> <SECTNO>§ 1312.25</SECTNO> <SUBJECT>Storage.</SUBJECT> <P>All classified material in the possession of OMB will be stored in a GSA-approved container or in vault-type rooms approved for Top Secret storage. Under the direction of the EOP Security Officer, combinations to safes used in the storage of classified material will be changed when the equipment is placed in use, whenever a person knowing the combination no longer requires access to it, whenever the combination has been subjected to possible compromise, whenever the equipment is taken out of service, or at least once a year. Knowledge of combinations will be limited to the minimum number of persons necessary, and records of combinations will be assigned a classification no lower than the highest level of classified information stored in the equipment concerned. An SF-700, Security Container Information, will be used in recording safe combinations. Standard Form-702, Security Container check sheet, will be posted to each safe and will be used to record opening, closing, and checking the container whenever it is used.</P> </SECTION> <SECTION> <SECTNO>§ 1312.26</SECTNO> <SUBJECT>Control of secret and confidential material.</SUBJECT> <P>Classified material will be accounted for by the office having custody of the material. OMB Form 87, Classified Document Control, will be used to establish accountability controls on all Secret material received or produced within OMB offices. No accountability controls are prescribed for Confidential material, but offices desiring to control and account for such material should use the procedures applicable to Secret material. Information classified by another agency shall not be disclosed without that agency's authorization.</P> <P>(a) <E T="03">Accountability Control Clerks.</E> Each division or office head will appoint one person as the Accountability Control Clerk (ACC). The ACC will be the focal point for the receipt, routing, accountability, dispatch, and declassification downgrading or destruction of all classified material in the possession of the office.</P> <P>(b) <E T="03">OMB Form 87.</E> One copy of OMB Form 87 will be attached to the document, and one copy retained in the accountability control file for each active document within the area of responsibility of the ACC. Downgrading or destruction actions, or other actions removing the document from the responsibility of the ACC will be recorded on the OMB Form 87, and the form filed in an inactive file. Inactive control forms will be cut off annually, held for two additional years, then destroyed.</P> <P>(c) <E T="03">Working papers and drafts.</E> Working papers and drafts of classified documents will be protected according to their security classification, but will not be subject to accountability control unless they are forwarded outside of OMB.</P> <P>(d) <E T="03">Typewriter ribbons.</E> Typewriter ribbons, cassettes, and other devices used in the production of classified material will be removed from the machine after each use and protected as classified material not subject to controls. Destruction of such materials will be as prescribed in § 1312.29.</P> <P>(e) <E T="03">Reproduction.</E> Classified material will be reproduced only as required unless prohibited by the originator for the conduct of business and reproduced copies are subject to the same controls as are the original documents. Top Secret material will be reproduced only with the written permission of the originating agency.</P> </SECTION> <SECTION> <SECTNO>§ 1312.27</SECTNO> <SUBJECT>Top secret control.</SUBJECT> <P>The EOP Security Officer serves as the Top Secret Control Officer (TSCO) for OMB. He will be assisted by the Alternate TSCOs in each division/office Holding Top Secret material. The ATSCOs will be responsible for the accountability and custodianship of Top Secret material within their divisions/offices. The provisions of this section do not apply to special intelligence material, which will be processed as prescribed by the controlling agency.</P> <P>(a) <E T="03">Procedures.</E> All Top Secret material produced or received in OMB will be taken to the appropriate ATSCO for receipting, establishment of custodianship, issuance to the appropriate action <PRTPAGE P="128"/>officer, and, as appropriate, obtaining a receipt. Top Secret material in the custody of the TSCO or ATSCO will normally be segregated from other classified material and will be stored in a safe under his or her control. Such material will be returned to the appropriate ATSCO by action officers as soon as action is completed. OMB Form 87 will be used to establish custody, record distribution, routing, receipting and destruction of Top Secret material. Top Secret Access Record and Cover Sheet (Standard Form 703) will be attached to each Top Secret document while it is in the possession of OMB.</P> <P>(b) <E T="03">Inventory.</E> The Associate Director (or Assistant Director) for Administration will notify each appropriate OMB office to conduct an inventory of its Top Secret material by May 1 each year. The head of each office will notify the EOP Security Officer when the inventory has been satisfactorily completed. Each Top Secret item will be examined to determine whether it can be downgraded or declassified, and the inventory will be adjusted accordingly. Discrepancies in the inventory, indicating loss or possible compromise, will be thoroughly investigated by the EOP Security Officer or by the Federal Bureau of Investigation, as appropriate. Each ATSCO will retain his/her division's inventory in accordance with the security procedures set forth in this regulation.</P> </SECTION> <SECTION> <SECTNO>§ 1312.28</SECTNO> <SUBJECT>Transmission of classified material.</SUBJECT> <P>Prior to the transmission of classified material to offices outside OMB, such material will be enclosed in opaque inner and outer covers or envelopes. The inner cover will be sealed and marked with the classification, and the address of the sender and of the addressee. The receipt for the document, OMB Form 87, (not required for Confidential material) will be attached to or placed within the inner envelope to be signed by the recipient and returned to the sender. Receipts will identify the sender, the addressee, and the document, and will contain no classified information. The outer cover or envelope will be sealed and addressed with no identification of its contents.</P> <P>(a) <E T="03">Transmittal of Top Secret Material.</E> The transmittal of Top Secret material shall be by personnel specifically designated by the EOP Security Officer, or by Department of State diplomatic pouch, by a messenger-courier system specifically created for that purpose. Alternatively, it shall be taken to the White House Situation Room for transmission over secure communications circuits.</P> <P>(b) <E T="03">Transmittal of Secret Material.</E> The transmittal of Secret material shall be as follows:</P> <P>(1) Within and between the fifty States, the District of Columbia, and Puerto Rico: Use one of the authorized means for Top Secret material, or transmit by U.S. Postal Service express or registered mail.</P> <P>(2) Other Areas. Use the same means authorized for Top Secret, or transmit by U.S. registered mail through Military Postal Service facilities.</P> <P>(c) <E T="03">Transmittal of Confidential Material.</E> As identified in paragraphs (a) and (b) of this section, or transmit by U.S. Postal Service Certified, first class, or express mail service within and between the fifty States, the District of Columbia, and Puerto Rico.</P> <P>(d) <E T="03">Transmittal between OMB offices and within the EOP complex.</E> Classified material will normally be hand carried within and between offices in the Executive Office of the President complex by cleared OMB employees. Documents so carried must be protected by the appropriate cover sheet or outer envelope. Top Secret material will always be hand carried in this manner. Secret and Confidential material may be transmitted between offices in the EOP complex by preparing the material as indicated above (double envelope) and forwarding it by special messenger service provided by the messenger center. The messenger shall be advised that the material is classified. Receipts shall be obtained if Top Secret or Secret material is being transmitted outside of OMB. Classified material will never be transmitted in the Standard Messenger Envelope (SF Form 65), or by the Mail Stop system.</P> </SECTION> <SECTION> <PRTPAGE P="129"/> <SECTNO>§ 1312.29</SECTNO> <SUBJECT>Destruction.</SUBJECT> <P>The destruction of classified material will be accomplished under the direction of the TSCO or the appropriate ATSCO, who will assure that proper accountability records are kept. Classified official record material will be processed to the Information Systems and Technology, Records Management Office, Office of Administration, NEOB Room 5208, in accordance with OMB Manual Section 540. Classified nonrecord material will be destroyed as soon as it becomes excess to the needs of the office. The following destruction methods are authorized:</P> <P>(a) <E T="03">Shredding.</E> Using the equipment approved for that purpose within OMB offices. Shredders will not accommodate typewriter ribbons or cassettes. Shredding is the only authorized means of Destroying Top Secret material.</P> <P>(b) <E T="03">Burn Bag.</E> Classified documents, cassettes, ribbons, and other materials at the Secret level or below, not suitable for shredding, may be destroyed by using burn bags, which can be obtained from the supply store. They will be disposed of as follows:</P> <P>(1) OEOB. Unless on an approved list for pick-up of burn bags, all other burn bags should be delivered to Room 096, OEOB between 8:00 a.m. and 4:30 p.m. Burn bags are not to be left in hallways.</P> <P>(2) NEOB. Hours for delivery of burn bag materials to the NEOB Loading Dock Shredder Room are Monday through Friday from 8:00 a.m. to 9:30 a.m.; 10:00 a.m. to 11:00 a.m.; 11:45 a.m. to 1:30 p.m. and 2:00 p.m. to 3:30 p.m. The phone number of the Shredder Room is 395-1593. In the event the Shredder Room is not manned, do not leave burn bags outside the Shredder Room as the security of that material may be compromised.</P> <P>(3) Responsibility for the security of the burn bag remains with the OMB office until it is handed over to the authorized representative at the shredder room. Accountability records will be adjusted after the burn bags have been delivered. Destruction actions will be recorded on OMB Form 87 by the division TSCO or by the appropriate ATSCO at the time the destruction is accomplished or at the time the burn bag is delivered to the U.D. Officer.</P> <P>(c) <E T="03">Technical Guidance.</E> Technical guidance concerning appropriate methods, equipment, and standards for destruction of electronic classified media, processing equipment components and the like, may be obtained by submitting all pertinent information to NSA/CSS Directorate for Information Systems Security, Ft. Meade, Maryland 20755. Specifications concerning appropriate equipment and standards for destruction of other storage media may be obtained from the General Services Administration.</P> </SECTION> <SECTION> <SECTNO>§ 1312.30</SECTNO> <SUBJECT>Loss or possible compromise.</SUBJECT> <P>Any person who has knowledge of the loss or possible compromise of classified information shall immediately secure the material and then report the circumstances to the EOP Security Officer. The EOP Security Officer will immediately initiate an inquiry to determine the circumstances surrounding the loss or compromise for the purpose of taking corrective measures and/or instituting appropriate administrative, disciplinary, or legal action. The agency originating the information shall be notified of the loss or compromise so that the necessary damage assessment can be made.</P> </SECTION> <SECTION> <SECTNO>§ 1312.31</SECTNO> <SUBJECT>Security violations.</SUBJECT> <P>(a) A security violation notice is issued by the United States Secret Service when an office/division fails to properly secure classified information. Upon discovery of an alleged security violation, the USSS implements their standard procedures which include the following actions:</P> <P>(1) Preparation of a Record of Security Violation form;</P> <P>(2) When a document is left on a desk or other unsecured area, the officer will remove the classified document(s) and deliver to the Uniformed Division's Control Center; and</P> <P>(3) Where the alleged violation involves an open safe, the officer will remove one file bearing the highest classification level, annotate it with his or her name, badge number, date and time, and return the document to the <PRTPAGE P="130"/>safe, which will then be secured. A description of the document will be identified in the Record of Security Violations and a copy of the violation will be left in the safe.</P> <P>(b) Office of record. The EOP Security Office shall serve as the primary office of record for OMB security violations. Reports of violations will remain in the responsible individual's security file until one year after the individual departs the Executive Office of the President, at which time all violation reports will be destroyed.</P> <P>(c) Compliance. All Office of Management and Budget employees will comply with this section. Additionally, personnel on detail or temporary duty will comply with this section, however, their parent agencies will be provided with a copy of any security violation incurred during their period of service to OMB.</P> <P>(d) Responsibilities for processing security violations. (1) EOP Security Officer. The EOP Security Officer shall provide OMB with assistance regarding Agency security violations. Upon receipt of a Record of Security Violation alleging a security violation, the EOP Security Officer shall:</P> <P>(i) Prepare a memorandum to the immediate supervisor of the office/division responsible for the violation requesting that an inquiry be made into the incident. Attached to the memorandum will be a copy of the Record of Security Violation form. The receiving office/division will prepare a written report within five working days of its receipt of the Security Officer's memorandum.</P> <P>(ii) Provide any assistance needed for the inquiry conducted by the office/division involved in the alleged violation.</P> <P>(iii) Upon receipt of the report of inquiry from the responsible office/division, the EOP Security Officer will:</P> <P>(A) Consult with the OMB Associate Director (or Assistant Director) for Administration and the General Counsel;</P> <P>(B) Determine if a damage assessment report is required. A damage assessment will be made by the agency originating the classified information, and will be prepared after it has been determined that the information was accessed without authorization; and</P> <P>(C) Forward the report with a recommendation to the OMB General Counsel.</P> <P>(2) Immediate supervisors. Upon receipt of the EOP Security Officer's security violation memorandum, the immediate supervisor will make an inquiry into the alleged incident, and send a written report of inquiry to the EOP Security Officer. The inquiry should determine, and the related report should identify, at a minimum:</P> <P>(i) Whether an actual security violation occurred;</P> <P>(ii) The identity of the person(s) responsible; and</P> <P>(iii) The probability of unauthorized access.</P> <P>(3) Deputy Associate Directors (or the equivalent) will:</P> <P>(i) Review and concur or comment on the written report; and</P> <P>(ii) In conjunction with the immediate supervisor, determine what action will be taken to prevent, within their area of responsibility, a recurrence of the circumstances giving rise to the violation.</P> <P>(e) Staff penalties for OMB security violations. When assessing penalties in accordance with this section, only those violations occurring within the calendar year (beginning January 1) will be considered. However, reports of all previous violations remain in the security files. These are the standard violation penalties that will be imposed. At the discretion of the Director or his designee, greater or lesser penalties may be imposed based upon the circumstances giving rise to the violation, the immediate supervisor's report of inquiry, and the investigation and findings of the EOP Security Officer and/or the OMB Associate Director (or Assistant Director) for Administration.</P> <P>(1) First violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file; and</P> <P>(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the respective immediate supervisor, and the responsible individual will be advised of the penalties that may be applied should a second violation occur.</P> <P>(2) Second violation:<PRTPAGE P="131"/> </P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the respective Deputy Associate Director (or the equivalent) and immediate supervisor and the responsible individual who will be advised of the penalties that may be applied should a third violation occur; and</P> <P>(iii) A letter of Warning will be placed in the Disciplinary Action file maintained by the Office of Administration, Human Resources Management Division.</P> <P>(3) Third violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the OMB Deputy Director, General Counsel, the respective Deputy Associate Director (or equivalent), and the immediate supervisor and the responsible individual who will be advised of the penalties that may be applied should a fourth violation occur; and</P> <P>(iii) A Letter of Reprimand will be placed in the Disciplinary Action file maintained by the OA/HRMD.</P> <P>(4) Fourth violation:</P> <P>(i) Written notification of the violation will be filed in the responsible individual's security file;</P> <P>(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the OMB Director, Deputy Director, General Counsel, the respective Deputy Associate Director (or the equivalent), and immediate supervisor;</P> <P>(iii) The responsible individual may receive a suspension without pay for a period not to exceed 14 days; and</P> <P>(iv) The responsible individual will be advised that future violations could result in the denial of access to classified material or other adverse actions as may be appropriate, including dismissal.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Mandatory Declassification Review</HD> <SECTION> <SECTNO>§ 1312.32</SECTNO> <SUBJECT>Purpose and authority.</SUBJECT> <P>Other government agencies, and individual members of the public, frequently request that classified information in OMB files be reviewed for possible declassification and release. This subpart prescribes the procedures for such review and subsequent release or denial. It is issued under the authority of Executive Order 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333), as implemented by Information Security Oversight Office Directive No. 1 (32 CFR part 2001).</P> </SECTION> <SECTION> <SECTNO>§ 1312.33</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <P>All requests for the mandatory declassification review of classified information in OMB files should be addressed to the Associate Director (or Assistant Director) for Administration, who will acknowledge receipt of the request. When a request does not reasonably describe the information sought, the requester shall be notified that unless additional information is provided, or the scope of the request is narrowed, no further action will be taken. All requests will receive a response within 180 days of receipt of the request.</P> </SECTION> <SECTION> <SECTNO>§ 1312.34</SECTNO> <SUBJECT>Information in the custody of OMB.</SUBJECT> <P>Information contained in OMB files and under the exclusive declassification jurisdiction of the office will be reviewed by the office of primary interest to determine whether, under the declassification provisions of the Order, the requested information may be declassified. If so, the information will be made available to the requestor unless withholding is otherwise warranted under applicable law. If the information may not be released, in whole or in part, the requestor shall be given a brief statement as to the reasons for denial, a notice of the right to appeal the determination to the Deputy Director, OMB, and a notice that such an appeal must be filed within 60 days in order to be considered.</P> </SECTION> <SECTION> <PRTPAGE P="132"/> <SECTNO>§ 1312.35</SECTNO> <SUBJECT>Information classified by another agency.</SUBJECT> <P>When a request is received for information that was classified by another agency, the Associate Director (or Assistant Director) for Administration will forward the request, along with any other related materials, to the appropriate agency for review and determination as to release. Recommendations as to release or denial may be made if appropriate. The requester will be notified of the referral, unless the receiving agency objects on the grounds that its association with the information requires protection.</P> </SECTION> <SECTION> <SECTNO>§ 1312.36</SECTNO> <SUBJECT>Appeal procedure.</SUBJECT> <P>Appeals received as a result of a denial, see § 1312.34, will be routed to the Deputy Director who will take action as necessary to determine whether any part of the information may be declassified. If so, he will notify the requester of his determination and make that information available that is declassified and otherwise releasable. If continued classification is required, the requestor shall be notified by the Deputy Director of the reasons thereafter. Determinations on appeals will normally be made within 60 working days following receipt. If additional time is needed, the requestor will be notified and this reason given for the extension. The agency's decision can be appealed to the Interagency Security Classification Appeals Panel.</P> </SECTION> <SECTION> <SECTNO>§ 1312.37</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>There will normally be no fees charged for the mandatory review of classified material for declassification under this section.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1315</EAR> <HD SOURCE="HED">PART 1315—PROMPT PAYMENT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1315.1</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1315.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1315.3</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1315.4</SECTNO> <SUBJECT>Prompt payment standards and required notices to vendors.</SUBJECT> <SECTNO>1315.5</SECTNO> <SUBJECT>Accelerated payment methods.</SUBJECT> <SECTNO>1315.6</SECTNO> <SUBJECT>Payment without evidence that supplies have been received (fast payment).</SUBJECT> <SECTNO>1315.7</SECTNO> <SUBJECT>Discounts.</SUBJECT> <SECTNO>1315.8</SECTNO> <SUBJECT>Rebates.</SUBJECT> <SECTNO>1315.9</SECTNO> <SUBJECT>Required documentation.</SUBJECT> <SECTNO>1315.10</SECTNO> <SUBJECT>Late payment interest penalties.</SUBJECT> <SECTNO>1315.11</SECTNO> <SUBJECT>Additional penalties.</SUBJECT> <SECTNO>1315.12</SECTNO> <SUBJECT>Payments to governmentwide commercial purchase card issuers.</SUBJECT> <SECTNO>1315.13</SECTNO> <SUBJECT>Commodity Credit Corporation payments.</SUBJECT> <SECTNO>1315.14</SECTNO> <SUBJECT>Payments under construction contracts.</SUBJECT> <SECTNO>1315.15</SECTNO> <SUBJECT>Grant recipients.</SUBJECT> <SECTNO>1315.16</SECTNO> <SUBJECT>Relationship to other laws.</SUBJECT> <SECTNO>1315.17</SECTNO> <SUBJECT>Formulas.</SUBJECT> <SECTNO>1315.18</SECTNO> <SUBJECT>Inquiries.</SUBJECT> <SECTNO>1315.19</SECTNO> <SUBJECT>Regulatory references to OMB Circular A-125.</SUBJECT> <SECTNO>1315.20</SECTNO> <SUBJECT>Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. chapter 39; Section 1010 of Public Law 106-398, 114 Stat. 1654; Section 1007 of Public Law 107-107, 115 Stat. 1012.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 52586, Sept. 29, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1315.1</SECTNO> <SUBJECT>Application.</SUBJECT> <P>(a) <E T="03">Procurement contracts.</E> This part applies to contracts for the procurement of goods or services awarded by:</P> <P>(1) All Executive branch agencies except:</P> <P>(i) The Tennessee Valley Authority, which is subject to the Prompt Payment Act (31 U.S.C. chapter 39), but is not covered by this part; and</P> <P>(ii) Agencies specifically exempted under 5 U.S.C. 551(1); and</P> <P>(2) <E T="03">The United States Postal Service.</E> The Postmaster General is responsible for issuing implementing procurement regulations, solicitation provisions, and contract clauses for the United States Postal Service.</P> <P>(b) <E T="03">Vendor payments.</E> All Executive branch vendor payments and payments to those defined as contractors or vendors (see § 1315.2(hh)) are subject to the Prompt Payment Act with the following exceptions:</P> <P>(1) Contract Financing Payments, as defined in § 1315.2(h); and</P> <P>(2) Payments related to emergencies (as defined in the Disaster Relief Act of 1974, Public Law 93-288, as amended (42 U.S.C. 5121 <E T="03">et seq.</E>)); military contingency operations (as defined in 10 U.S.C. 101 (a)(13)); and the release or threatened release of hazardous substances (as defined in 4 U.S.C. 9606, Section 106).</P> <P>(c) <E T="03">Utility payments.</E> All utility payments, including payments for telephone service, are subject to the Act except those under paragraph (b)(2) of <PRTPAGE P="133"/>this section. Where state, local or foreign authorities impose generally-applicable late payment rates for utility payments, those rates shall take precedence. In the absence of such rates, this part will apply.</P> <P>(d) <E T="03">Commodity Credit Corporation payments.</E> Payments made pursuant to Section 4(h) of the Act of June 29, 1948 (15 U.S.C. 714b(h)) (“CCC Charter Act”) relating to the procurement of property and services, and payments to which producers on a farm are entitled under the terms of an agreement entered into under the Agricultural Act of 1949 (7 U.S.C. 1421 <E T="03">et seq.</E>) are subject to this part.</P> </SECTION> <SECTION> <SECTNO>§ 1315.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Accelerated payment</E> means a payment made prior to the due date (see discussion in § 1315.5).</P> <P>(b) <E T="03">Acceptance</E> means an acknowledgment by an authorized Government official that goods received and services rendered conform with the contract requirements. Acceptance also applies to partial deliveries.</P> <P>(c) <E T="03">Agency</E> includes, as defined in 5 U.S.C. 551(1), each authority of the United States Government, whether or not it is within or subject to review by another agency, excluding the Congress, the United States courts, governments of territories or possessions, the District of Columbia government, courts martial, military commissions, and military authority exercised in the field in time of war or in occupied territory. <E T="03">Agency</E> also includes any entity that is operated exclusively as an instrumentality of such an agency for the purpose of administering one or more programs of that agency, and that is so identified for this purpose by the head of such agency. The term <E T="03">agency</E> includes military post and base exchanges and commissaries.</P> <P>(d) <E T="03">Applicable interest rate</E> means the interest rate established by the Secretary of the Treasury for interest payments under Section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) which is in effect on the day after the due date, except where the interest penalty is prescribed by other governmental authority (e.g., utility tariffs). The rate established under the Contract Disputes Act is referred to as the “Renegotiation Board Interest Rate,” the “Contract Disputes Act Interest Rate,” and the “Prompt Payment Act Interest Rate,” and is published semiannually by the Fiscal Service, Department of Treasury, in the <E T="04">Federal Register</E> on or about January 1 and July 1.</P> <P>(e) <E T="03">Automated Clearing House (ACH)</E> means a network that performs interbank clearing of electronic debit and credit entries for participating financial institutions.</P> <P>(f) <E T="03">Banking information</E> means information necessary to facilitate an EFT payment, including the vendor's bank account number, and the vendor financial institution's routing number.</P> <P>(g) <E T="03">Contract</E> means any enforceable agreement, including rental and lease agreements, purchase orders, delivery orders (including obligations under Federal Supply Schedule contracts), requirements-type (open-ended) service contracts, and blanket purchases agreements between an agency and a vendor for the acquisition of goods or services and agreements entered into under the Agricultural Act of 1949 (7 U.S.C. 1421 <E T="03">et seq.</E>). Contracts must meet the requirements of § 1315.9(a).</P> <P>(h) <E T="03">Contract financing payments</E> means an authorized disbursement of monies prior to acceptance of goods or services including advance payments, progress payments based on cost, progress payments (other than under construction contracts) based on a percentage or stage of completion, payments on performance-based contracts and interim payments on cost-type contracts (other than under cost-reimbursement contracts for the acquisition of services). Contract financing payments do not include invoice payments, payments for partial deliveries, or lease and rental payments. Contract financing payments also do not include progress payments under construction contracts based on a percentage or stage of completion and interim payments under cost-reimbursement service contracts. For purposes of this part, interim payments under a cost-reimbursement service contract are treated as invoice payments and subject to the requirements of this part, except as otherwise provided (see, e.g., §§ 1315.4(d) and (e), and 1315.9(b)(1) and (c)).<PRTPAGE P="134"/> </P> <P>(i) <E T="03">Contracting office</E> means any entity issuing a contract or purchase order or issuing a contract modification or termination.</P> <P>(j) <E T="03">Contractor</E> (see <E T="03">Vendor</E>).</P> <P>(k) <E T="03">Day</E> means a calendar day including weekend and holiday, unless otherwise indicated.</P> <P>(l) <E T="03">Delivery ticket</E> means a vendor document supplied at the time of delivery which indicates the items delivered, can serve as a proper invoice based on contractual agreement.</P> <P>(m) <E T="03">Designated agency office</E> means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment.</P> <P>(n) <E T="03">Discount</E> means an invoice payment reduction offered by the vendor for early payment.</P> <P>(o) <E T="03">Discount date</E> means the date by which a specified invoice payment reduction, or a discount, can be taken.</P> <P>(p) <E T="03">Due date</E> means the date on which Federal payment should be made. Determination of such dates is discussed in § 1315.4(g).</P> <P>(q) <E T="03">Electronic commerce</E> means the end to end electronic exchange of business information using electronic data interchange, electronic mail, electronic bulletin boards, electronic funds transfer (EFT) and similar technologies.</P> <P>(r) <E T="03">Electronic data interchange</E> means the computer to computer exchange of routine business information in a standard format. The standard formats are developed and maintained by the Accredited Standards Committee of the American National Standards Institute, 11 West 42d Street, New York, NY 10036.</P> <P>(s) <E T="03">Electronic Funds Transfer (EFT)</E> means any transfer of funds, other than a transaction originated by cash, check, or similar paper instrument, that is initiated through an electronic terminal, telephone, computer, or magnetic tape, for the purpose of ordering, instructing, or authorizing a financial institution to debit or credit an account. The term includes, but is not limited to, Automated Clearing House and Fedwire transfers.</P> <P>(t) <E T="03">Emergency payment</E> means a payment made under an emergency defined as a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mud slide, snowstorm, drought, fire, explosion, or other catastrophe which requires Federal emergency assistance to supplement State and local efforts to save lives and property, and ensure public health and safety; and the release or threatened release of hazardous substances.</P> <P>(u) <E T="03">Evaluated receipts</E> means contractually designated use of the acceptance document and the contract as the basis for payment without requiring a separate invoice.</P> <P>(v) <E T="03">Fast payment</E> means a payment procedure under the Federal Acquisition Regulation at Part 13.4 which allows payment under limited conditions to a vendor prior to the Government's verification that supplies have been received and accepted.</P> <P>(w) <E T="03">Federal Acquisition Regulation (FAR)</E> means the regulation (48 CFR chapter 1) that governs most Federal acquisition and related payment issues. Agencies may also have supplements prescribing unique agency policies.</P> <P>(x) <E T="03">Governmentwide commercial purchase cards</E> means internationally-accepted purchase cards available to all Federal agencies under a General Services Administration contract for the purpose of making simplified acquisitions of up to the threshold set by the Federal Acquisition Regulation or for travel expenses or payment, for purchases of fuel, or other purposes as authorized by the contract.</P> <P>(y) <E T="03">Invoice</E> means a bill, written document or electronic transmission, provided by a vendor requesting payment for property received or services rendered. A proper invoice must meet the requirements of § 1315.9(b). The term invoice can include receiving reports and delivery tickets when contractually designated as invoices.</P> <P>(z) <E T="03">Payment date</E> means the date on which a check for payment is dated or the date of an electronic fund transfer (EFT) payment (settlement date).</P> <P>(aa) <E T="03">Rebate</E> means a monetary incentive offered to the Government by Governmentwide commercial purchase <PRTPAGE P="135"/>card issuers to pay purchase card invoices early.</P> <P>(bb) <E T="03">Receiving office</E> means the entity which physically receives the goods or services, and may be separate from the accepting entity.</P> <P>(cc) <E T="03">Receiving report</E> means written or electronic evidence of receipt of goods or services by a Government official. Receiving reports must meet the requirements of § 1315.9(c).</P> <P>(dd) <E T="03">Recurring payments</E> means payments for services of a recurring nature, such as rents, building maintenance, transportation services, parking, leases, and maintenance for equipment, pagers and cellular phones, etc., which are performed under agency-vendor agreements providing for payments of definite amounts at fixed periodic intervals.</P> <P>(ee) <E T="03">Settlement date</E> means the date on which an EFT payment is credited to the vendor's financial institution.</P> <P>(ff) <E T="03">Taxpayer Identifying Number (TIN)</E> means the nine digit Employer Identifying Number or Social Security Number as defined in Section 6109 of the Internal Revenue Code of 1986 (26 U.S.C. 6109).</P> <P>(gg) <E T="03">Utilities and telephones</E> means electricity, water, sewage services, telephone services, and natural gas. Utilities can be regulated, unregulated, or under contract.</P> <P>(hh) <E T="03">Vendor</E> means any person, organization, or business concern engaged in a profession, trade, or business and any not-for-profit entity operating as a vendor (including State and local governments and foreign entities and foreign governments, but excluding Federal entities).</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78404, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.3</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>Each agency head is responsible for the following:</P> <P>(a) <E T="03">Issuing internal procedures.</E> Ensuring that internal procedures will include provisions for monitoring the causes of late payments and any interest penalties incurred, taking necessary corrective action, and handling inquiries.</P> <P>(b) <E T="03">Internal control systems.</E> Ensuring that effective internal control systems are established and maintained as required by OMB Circular A-123, “Management Accountability and Control.” <E T="51">1</E> <FTREF/> Administrative activities required for payments to vendors under this part are subject to periodic quality control validation to be conducted no less frequently than once annually. Quality control processes will be used to confirm that controls are effective and that processes are efficient. Each agency head is responsible for establishing a quality control program in order to quantify payment performance and qualify corrective actions, aid cash management decision making, and estimate payment performance if actual data is unavailable.</P> <FTNT> <P> <E T="51">1</E> For availability of OMB circulars, see 5 CFR 1310.3.</P> </FTNT> <P>(c) <E T="03">Financial management systems.</E> Ensuring that financial management systems comply with OMB Circular A-127, “Financial Management Systems.” <E T="51">2</E> <FTREF/> Agency financial systems shall provide standardized information and electronic data exchange to the central management agency. Systems shall provide complete, timely, reliable, useful and consistent financial management information. Payment capabilities should provide accurate and useful management reports on payments.</P> <FTNT> <P> <E T="51">2</E> See footnote 1 in § 1315.3(b).</P> </FTNT> <P>(d) <E T="03">Reviews.</E> Ensuring that Inspectors General and internal auditors review payments performance and systems accuracy, consistent with the Chief Financial Officers (CFO) Act requirements.</P> <P>(e) <E T="03">Timely payments and interest penalties.</E> Ensuring timely payments and payment of interest penalties where required.</P> </SECTION> <SECTION> <SECTNO>§ 1315.4</SECTNO> <SUBJECT>Prompt payment standards and required notices to vendors.</SUBJECT> <P>Agency business practices shall conform to the following standards:</P> <P>(a) <E T="03">Required documentation.</E> Agencies will maintain paper or electronic documentation as required in § 1315.9.</P> <P>(b) <E T="03">Receipt of invoice.</E> For the purposes of determining a payment due date and the date on which interest will begin to accrue if a payment is late, an invoice shall be deemed to be received:</P> <P>(1) On the later of:<PRTPAGE P="136"/> </P> <P>(i) For invoices that are mailed, the date a proper invoice is actually received by the designated agency office if the agency annotates the invoice with date of receipt at the time of receipt. For invoices electronically transmitted, the date a readable transmission is received by the designated agency office, or the next business day if received after normal working hours; or</P> <P>(ii) The seventh day after the date on which the property is actually delivered or performance of the services is actually completed; unless—</P> <P>(A) The agency has actually accepted the property or services before the seventh day in which case the acceptance date shall substitute for the seventh day after the delivery date; or</P> <P>(B) A longer acceptance period is specified in the contract, in which case the date of actual acceptance or the date on which such longer acceptance period ends shall substitute for the seventh day after the delivery date;</P> <P>(2) On the date placed on the invoice by the contractor, when the agency fails to annotate the invoice with date of receipt of the invoice at the time of receipt (such invoice must be a proper invoice); or</P> <P>(3) On the date of delivery, when the contract specifies that the delivery ticket may serve as an invoice.</P> <P>(c) <E T="03">Review of invoice.</E> Agencies will use the following procedures in reviewing invoices:</P> <P>(1) Each invoice will be reviewed by the designated agency office as soon as practicable after receipt to determine whether the invoice is a proper invoice as defined in § 1315.9(b);</P> <P>(2) When an invoice is determined to be improper, the agency shall return the invoice to the vendor as soon as practicable after receipt, but no later than 7 days after receipt (refer also to paragraph (g)(4) of this section regarding vendor notification and determining the payment due date.) The agency will identify all defects that prevent payment and specify all reasons why the invoice is not proper and why it is being returned. This notification to the vendor shall include a request for a corrected invoice, to be clearly marked as such;</P> <P>(3) Any media which produce tangible recordings of information in lieu of “written” or “original” paper document equivalents should be used by agencies to expedite the payment process, rather than delaying the process by requiring “original” paper documents. Agencies should ensure adequate safeguards and controls to ensure the integrity of the data and to prevent duplicate processing.</P> <P>(d) <E T="03">Receipt of goods and services.</E> Agencies will ensure that receipt is properly recorded at the time of delivery of goods or completion of services. This requirement does not apply to interim payments on cost-reimbursement service contracts except as otherwise required by agency regulations.</P> <P>(e) <E T="03">Acceptance.</E> Agencies will ensure that acceptance is executed as promptly as possible. Commercial items and services should not be subject to extended acceptance periods. Acceptance reports will be forwarded to the designated agency office by the fifth working day after acceptance. Unless other arrangements are made, acceptance reports will be stamped or otherwise annotated with the receipt date in the designated agency office. This requirement does not apply to interim payments on cost-reimbursement service contracts except as otherwise required by agency regulations.</P> <P>(f) <E T="03">Starting the payment period.</E> The period available to an agency to make timely payment of an invoice without incurring an interest penalty shall begin on the date of receipt of a proper invoice (see paragraph (b) of this section) except where no invoice is required (e.g., for some recurring payments as defined in § 1315.2(dd)).</P> <P>(g) <E T="03">Determining the payment due date.</E> (1) Except as provided in paragraphs (g)(2) through (5) of this section, the payment is due either:</P> <P>(i) On the date(s) specified in the contract;</P> <P>(ii) In accordance with discount terms when discounts are offered and taken (see § 1315.7);</P> <P>(iii) In accordance with Accelerated Payment Methods (see § 1315.5); or</P> <P>(iv) 30 days after the start of the payment period as specified in paragraph (f) of this section, if not specified in the contract, if discounts are not <PRTPAGE P="137"/>taken, and if accelerated payment methods are not used.</P> <P>(2) <E T="03">Interim payments under cost-reimbursement contracts for services.</E> The payment due date for interim payments under cost-reimbursement service contracts shall be 30 days after the date of receipt of a proper invoice.</P> <P>(3) <E T="03">Certain commodity payments.</E> (i) For meat, meat food products, as defined in Section 2(a)(3) of the Packers and Stockyard Act of 1921 (7 U.S.C. 182(3)), including any edible fresh or frozen poultry meat, any perishable poultry meat food product, fresh eggs, any perishable egg product, fresh or frozen fish as defined in the Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)), payment will be made no later than the seventh day after delivery.</P> <P>(ii) For perishable agricultural commodities, as defined in Section 1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499 a(4)), payment will be made no later than the 10th day after delivery, unless another payment date is specified in the contract.</P> <P>(iii) For dairy products (as defined in Section 111(e) of the Dairy Production Stabilization Act of 1983, 7 U.S.C. 4502(e)), and including, at a minimum, liquid milk, cheese, certain processed cheese products, butter, yogurt, and ice cream, edible fats or oils, and food products prepared from edible fats or oils (including, at a minimum, mayonnaise, salad dressings and other similar products), payment will be made no later than 10 days after the date on which a proper invoice, for the amount due, has been received by the agency acquiring the above listed products. Nothing in the Act permits limitation to refrigerated products. When questions arise about the coverage of a specific product, prevailing industry practices should be followed in specifying a contractual payment due date.</P> <P>(4) <E T="03">Mixed invoices for commodities.</E> When an invoice is received for items with different payment periods, agencies:</P> <P>(i) May pay the entire invoice on the due date for the commodity with the earliest due date, if it is considered in the best interests of the agency;</P> <P>(ii) May make split payments by the due date applicable to each category;</P> <P>(iii) Shall pay in accordance with the contractual payment provisions (which may not exceed the statutory mandated periods specified in paragraph (g)(2) of this section); and</P> <P>(iv) Shall not require vendors to submit multiple invoices for payment of individual orders by the agency.</P> <P>(5) <E T="03">Notification of improper invoice.</E> When an agency fails to make notification of an improper invoice within seven days according to paragraph (c)(2) of this section (three days for meat and meat food, fish and seafood products; and five days for perishable agricultural commodities, dairy products, edible fats or oils and food products prepared from edible fats or oils), the number of days allowed for payment of the corrected proper invoice will be reduced by the number of days between the seventh day (or the third or fifth day, as otherwise specified in this paragraph (g)(4)) and the day notification was transmitted to the vendor. Calculation of interest penalties, if any, will be based on an adjusted due date reflecting the reduced number of days allowable for payment;</P> <P>(h) <E T="03">Payment date.</E> Payment will be considered to be made on the settlement date for an electronic funds transfer (EFT) payment or the date of the check for a check payment. Payments falling due on a weekend or federal holiday may be made on the following business day without incurring late payment interest penalties.</P> <P>(i) <E T="03">Late payment.</E> When payments are made after the due date, interest will be paid automatically in accordance with the procedures provided in this part.</P> <P>(j) <E T="03">Timely payment.</E> An agency shall make payments no more than seven days prior to the payment due date, but as close to the due date as possible, unless the agency head or designee has determined, on a case-by-case basis for specific payments, that earlier payment is necessary. This authority must be used cautiously, weighing the benefits of making a payment early against the good stewardship inherent in effective cash management practices. An agency may use the “accelerated payment methods” in § 1315.5 when it determines that such earlier payment is necessary.<PRTPAGE P="138"/> </P> <P>(k) <E T="03">Payments for partial deliveries.</E> Agencies shall pay for partial delivery of supplies or partial performance of services after acceptance, unless specifically prohibited by the contract. Payment is contingent upon submission of a proper invoice if required by the contract.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.5</SECTNO> <SUBJECT>Accelerated payment methods.</SUBJECT> <P>(a) <E T="03">A single invoice under $2,500.</E> Payments may be made as soon as the contract, proper invoice , receipt and acceptance documents are matched except where statutory authority prescribes otherwise and except where otherwise contractually stipulated (e.g., governmentwide commercial purchase card.) Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.</P> <P>(b) <E T="03">Small business (as defined in FAR 19.001 (48 CFR 19.001)).</E> Agencies may pay a small business as quickly as possible, when all proper documentation, including acceptance, is received in the payment office and before the payment due date. Such payments are not subject to payment restrictions stated elsewhere in this part. Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.</P> <P>(c) <E T="03">Emergency payments.</E> Payments related to emergencies and disasters (as defined in the Robert T. Stafford Disaster Relief Act and Emergency Assistance, Pub. L. 93-288, as amended (42 U.S.C. 5 121 <E T="03">et seq.</E>); payments related to the release or threatened release of hazardous substances (as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980, Pub. L. 96-510, 42 U.S.C. 9606); and payments made under a military contingency (as defined in 10 U.S.C. 101(a)(13)) may be made as soon as the contract, proper invoice, receipt and acceptance documents or any other agreement are matched. Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.</P> <P>(d) <E T="03">Interim payments under cost-reimbursement contracts for services.</E> For interim payments under cost-reimbursement service contracts, agency heads may make payments earlier than seven days prior to the payment due date in accordance with agency regulations or policies.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.6</SECTNO> <SUBJECT>Payment without evidence that supplies have been received (fast payment).</SUBJECT> <P>(a) In limited situations, payment may be made without evidence that supplies have been received. Instead, a contractor certification that supplies have been shipped may be used as the basis for authorizing payment. Payment may be made within 15 days after the date of receipt of the invoice. This payment procedure may be employed only when all of the following conditions are present:</P> <P>(1) Individual orders do not exceed $25,000 (except where agency heads permits a higher amount on a case-by-case basis);</P> <P>(2) Deliveries of supplies are to occur where there is both a geographical separation and a lack of adequate communications facilities between Government receiving and disbursing activities that make it impracticable to make timely payments based on evidence of Federal acceptance;</P> <P>(3) Title to supplies will vest in the Government upon delivery to a post office or common carrier for mailing or shipment to destination or upon receipt by the Government if the shipment is by means other than the Postal Service or a common carrier; and</P> <P>(4) The contractor agrees to replace, repair, or correct supplies not received at destination, damaged in transit, or not conforming to purchase requirements.</P> <P>(b) Agencies shall promptly inspect and accept supplies acquired under these procedures and shall ensure that receiving reports and payment documents are matched and steps are taken to correct discrepancies.</P> <P>(c) Agencies shall ensure that specific internal controls are in place to assure that supplies paid for are received.</P> <P>(d) As authorized by the 1988 Amendment to the Prompt Payment Act (Section 11(b)(1)(C)), a contract clause at 48 <PRTPAGE P="139"/>CFR 52.213-1 is provided in the Federal Acquisition Regulations (FAR) at 48 CFR part 13, subpart 13.4 “Fast Payment Procedure,” for use when using this fast payment procedure.</P> </SECTION> <SECTION> <SECTNO>§ 1315.7</SECTNO> <SUBJECT>Discounts.</SUBJECT> <P>Agencies shall follow these procedures in taking discounts and determining the payment due dates when discounts are taken:</P> <P>(a) <E T="03">Economically justified discounts.</E> If an agency is offered a discount by a vendor, whether stipulated in the contract or offered on an invoice, an agency may take the discount if economically justified (see discount formula in Treasury Financial Manual (TFM) 6-8040.40) <E T="51">3</E> <FTREF/> but only after acceptance has occurred. Agencies are encouraged to include discount terms in a contract to give agencies adequate time to take the discount if it is determined to be economically justified.</P> <FTNT> <P> <E T="51">3</E> The Treasury Financial Manual is available by calling the Prompt Payment Hotline at 800-266-9667 or the Prompt Payment web site at http://www.fms.treas.gov/prompt/index.html.</P> </FTNT> <P>(b) <E T="03">Discounts taken after the discount date.</E> If an agency takes the discount after the deadline, the agency shall pay an interest penalty on any amount remaining unpaid as prescribed in § 1315.10(a)(6).</P> <P>(c) <E T="03">Payment date.</E> When a discount is taken, payment will be made as close as possible to, but no later than, the discount date.</P> <P>(d) <E T="03">Start date.</E> The period for taking the discount is calculated from the date placed on the proper invoice by the vendor. If there is no invoice date on the invoice by the vendor, the discount period will begin on the date a proper invoice is actually received and date stamped or otherwise annotated by the designated agency office.</P> </SECTION> <SECTION> <SECTNO>§ 1315.8</SECTNO> <SUBJECT>Rebates.</SUBJECT> <P>Agencies shall determine governmentwide commercial purchase card payment dates based on an analysis of the total costs and total benefits to the Federal government as a whole, unless specified in a contract. When calculating costs and benefits, agencies are expected to include the cost to the government of paying early. This cost is the interest the government would have earned, at the Current Value of Funds rate, for each day that payment was not made. Agencies may factor in benefits gained from paying early due to, for example, streamlining the payment process or other efficiencies. A rebate formula is provided in § 1315.17 and at the Prompt Payment website at <E T="03">www.fms.treas.gov/prompt/index.html.</E> </P> </SECTION> <SECTION> <SECTNO>§ 1315.9</SECTNO> <SUBJECT>Required documentation.</SUBJECT> <P>Agencies are required to ensure the following payment documentation is established to support payment of invoices and interest penalties:</P> <P>(a) The following information from the contract is required as payment documentation:</P> <P>(1) Payment due date(s) as defined in § 1315.4(g);</P> <P>(2) A notation in the contract that partial payments are prohibited, if applicable;</P> <P>(3) For construction contracts, specific payment due dates for approved progress payments or milestone payments for completed phases, increments, or segments of the project;</P> <P>(4) If applicable, a statement that the special payment provisions of the Packers and Stockyard Act of 1921 (7 U.S.C. 182(3)), or the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499a(4)), or Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)) shall apply;</P> <P>(5) Where considered appropriate by the agency head, the specified acceptance period following delivery to inspect and/or test goods furnished or to evaluate services performed is stated;</P> <P>(6) Name (where practicable), title, telephone number, and complete mailing address of officials of the Government's designated agency office, and of the vendor receiving the payments;</P> <P>(7) Reference to requirements under the Prompt Payment Act, including the payment of interest penalties on late invoice payments (including progress payments under construction contracts);</P> <P>(8) Reference to requirements under the Debt Collection Improvement Act (Pub. L. 104-134, 110 Stat. 1321), including the requirement that payments must be made electronically except in <PRTPAGE P="140"/>situations where the EFT requirement is waived under 31 CFR 208.4. Where electronic payment is required, the contract will stipulate that banking information must be submitted no later than the first request for payment;</P> <P>(9) If using Fast Payment, the proper FAR clause stipulating Fast Payment is required.</P> <P>(b)(1) Except for interim payment requests under cost-reimbursement service contracts, which are covered by paragraph (b)(2) of this section, the following correct information constitutes a proper invoice and is required as payment documentation:</P> <P>(i) Name of vendor;</P> <P>(ii) Invoice date;</P> <P>(iii) Government contract number, or other authorization for delivery of goods or services;</P> <P>(iv) Vendor invoice number, account number, and/or any other identifying number agreed to by contract;</P> <P>(v) Description (including, for example, contract line/subline number), price, and quantity of goods and services rendered;</P> <P>(vi) Shipping and payment terms (unless mutually agreed that this information is only required in the contract);</P> <P>(vii) Taxpayer Identifying Number (TIN), unless agency procedures provide otherwise;</P> <P>(viii) Banking information, unless agency procedures provide otherwise, or except in situations where the EFT requirement is waived under 31 CFR 208.4;</P> <P>(ix) Contact name (where practicable), title and telephone number;</P> <P>(x) Other substantiating documentation or information required by the contract.</P> <P>(2) An interim payment request under a cost-reimbursement service contract constitutes a proper invoice for purposes of this part if it correctly includes all the information required by the contract or by agency procedures.</P> <P>(c) Except for interim payment requests under cost-reimbursement service contracts, the following information from receiving reports, delivery tickets, and evaluated receipts is required as payment documentation:</P> <P>(1) Name of vendor;</P> <P>(2) Contract or other authorization number;</P> <P>(3) Description of goods or services;</P> <P>(4) Quantities received, if applicable;</P> <P>(5) Date(s) goods were delivered or services were provided;</P> <P>(6) Date(s) goods or services were accepted;</P> <P>(7) Signature (or electronic alternative when supported by appropriate internal controls), printed name, telephone number, mailing address of the receiving official, and any additional information required by the agency.</P> <P>(d) When a delivery ticket is used as an invoice, it must contain information required by agency procedures. The requirements in paragraph (b) of this section do not apply except as provided by agency procedures.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.10</SECTNO> <SUBJECT>Late payment interest penalties.</SUBJECT> <P>(a) <E T="03">Application and calculation.</E> Agencies will use the following procedures in calculating interest due on late payments:</P> <P>(1) Interest will be calculated from the day after the payment due date through the payment date at the interest rate in effect on the day after the payment due date;</P> <P>(2) Adjustments will be made for errors in calculating interest;</P> <P>(3) For up to one year, interest penalties remaining unpaid at the end of any 30 day period will be added to the principal and subsequent interest penalties will accrue on that amount until paid;</P> <P>(4) When an interest penalty is owed and not paid, interest will accrue on the unpaid amount until paid, except as described in paragraph (a)(5) of this section;</P> <P>(5) Interest penalties under the Prompt Payment Act will not continue to accrue:</P> <P>(i) After the filing of a claim for such penalties under the Contract Disputes Act of 1978 (41 U.S.C. 601 <E T="03">et seq.</E>); or</P> <P>(ii) For more than one year;</P> <P>(6) When an agency takes a discount after the discount date, interest will be paid on the amount of the discount taken. Interest will be calculated for the period beginning the day after the <PRTPAGE P="141"/>specified discount date through the date of payment of the discount erroneously taken;</P> <P>(7) Interest penalties of less than one dollar need not be paid;</P> <P>(8) If the banking information supplied by the vendor is incorrect, interest under this regulation will not accrue until seven days after such correct information is received (provided that the vendor has been given notice of the incorrect banking information within seven days after the agency is notified that the information is incorrect);</P> <P>(9) Interest calculations are to be based on a 360 day year; and</P> <P>(10) The applicable interest rate may be obtained by calling the Department of Treasury's Financial Management Service (FMS) Prompt Payment help line at 1-800-266-9667.</P> <P>(b) <E T="03">Payment.</E> Agencies will meet the following requirements in paying interest penalties:</P> <P>(1) Interest may be paid only after acceptance has occurred; when title passes to the government in a fast payment contract when title passing to the government constitutes acceptance for purposes of determining when interest may be paid; or when the payment is an interim payment under a cost-reimbursement service contract;</P> <P>(2) Late payment interest penalties shall be paid without regard to whether the vendor has requested payment of such penalty, and shall be accompanied by a notice stating the amount of the interest penalty, the number of days late and the rate used;</P> <P>(3) The invoice number or other agreed upon transaction reference number assigned by the vendor should be included in the notice to assist the vendor in reconciling the payment. Additionally, it is optional as to whether or not an agency includes the contract number in the notice to the vendor;</P> <P>(4) The temporary unavailability of funds does not relieve an agency from the obligation to pay these interest penalties or the additional penalties required under § 1315.11; and</P> <P>(5) Agencies shall pay any late payment interest penalties (including any additional penalties required under § 1315.11) under this part from the funds available for the administration of the program for which the penalty was incurred. The Prompt Payment Act does not authorize the appropriation of additional amounts to pay penalties.</P> <P>(c) <E T="03">Penalties not due.</E> Interest penalties are not required:</P> <P>(1) When payment is delayed because of a dispute between a Federal agency and a vendor over the amount of the payment or other issues concerning compliance with the terms of a contract. Claims concerning disputes, and any interest that may be payable with respect to the period, while the dispute is being settled, will be resolved in accordance with the provisions in the Contract Disputes Act of 1978, (41 U.S.C. 601 <E T="03">et seq.</E>), except for interest payments required under 31 U.S.C. 3902(h)(2);</P> <P>(2) When payments are made solely for financing purposes or in advance, except for interest payment required under 31 U.S.C. 3902(h)(2);</P> <P>(3) For a period when amounts are withheld temporarily in accordance with the contract;</P> <P>(4) When an EFT payment is not credited to the vendor's account by the payment due date because of the failure of the Federal Reserve or the vendor's bank to do so; or</P> <P>(5) When the interest penalty is less than $1.00.</P> <CITA>[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1315.11</SECTNO> <SUBJECT>Additional penalties.</SUBJECT> <P>(a) <E T="03">Vendor entitlements.</E> A vendor shall be entitled to an additional penalty payment when the vendor is owed a late payment interest penalty by an agency of $1.00 or more, if it:</P> <P>(1) Receives a payment dated after the payment due date which does not include the interest penalty also due to the vendor;</P> <P>(2) Is not paid the interest penalty by the agency within 10 days after the actual payment date; and</P> <P>(3) Makes a written request that the agency pay such an additional penalty. Such request must be postmarked, received by facsimile, or by electronic mail, by the 40th day after payment was made. If there is no postmark or if it is illegible, the request will be valid if it is received and annotated with the date of receipt by the agency by the <PRTPAGE P="142"/>40th day. The written request must include the following:</P> <P>(i) Specific assertion that late payment interest is due for a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required; and</P> <P>(ii) A copy of the invoice on which late payment interest was due but not paid and a statement that the principal has been received, and the date of receipt of the principle.</P> <P>(b) <E T="03">Maximum penalty.</E> The additional penalty shall be equal to one hundred (100) percent of the original late payment interest penalty but must not exceed $5,000.</P> <P>(c) <E T="03">Minimum penalty.</E> Regardless of the amount of the late payment interest penalty, the additional penalty paid shall not be less than $25. No additional penalty is owed, however, if the amount of the interest penalty is less than $1.00.</P> <P>(d) <E T="03">Penalty basis.</E> The penalty is based on individual invoices. Where payments are consolidated for disbursing purposes, the penalty determinations shall be made separately for each invoice therein.</P> <P>(e) <E T="03">Utility payments.</E> The additional penalty does not apply to the payment of utility bills where late payment penalties for these bills are determined through the tariff rate-setting process.</P> </SECTION> <SECTION> <SECTNO>§ 1315.12</SECTNO> <SUBJECT>Payments to governmentwide commercial purchase card issuers.</SUBJECT> <P>Standards for payments to government wide commercial purchase card issuers follow:</P> <P>(a) <E T="03">Payment date.</E> All individual purchase card invoices under $2,500 may be paid at any time, but not later than 30 days after the receipt of a proper invoice. Matching documents is not required before payment. The payment due date for invoices in the amount of $2,500 or more shall be determined in accordance with § 1315.8. I TFM 4-4535.10 <E T="51">4</E> <FTREF/> permits payment of the bill in full prior to verification that goods or services were received.</P> <FTNT> <P> <E T="51">4</E> See footnote 3 in § 1315.7(a).</P> </FTNT> <P>(b) <E T="03">Disputed line items.</E> Disputed line items do not render the entire invoice an improper invoice for compliance with this proposed regulation. Any undisputed items must be paid in accordance with paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1315.13</SECTNO> <SUBJECT>Commodity Credit Corporation payments.</SUBJECT> <P>As provided in § 1315.1(d), the provisions of this part apply to payments relating to the procurement of property and services made by the Commodity Credit Corporation (CCC) pursuant to Section 4(h) of the Act of June 29, 1948 (15 U.S.C. 714b(h)) (“CCC Charter Act”) and payments to which producers on a farm are entitled under the terms of an agreement entered into pursuant to the Agricultural Act of 1949 (7 U.S.C. 1421 <E T="03">et seq.</E>) (“1949 Act”.) Such payments shall be subject to the following provisions:</P> <P>(a) <E T="03">Payment standards.</E> Payments to producers on a farm under agreements entered into under the 1949 Act and payments to vendors providing property and services under the CCC Charter Act, shall be made as close as possible to the required payment date or loan closing date.</P> <P>(b) <E T="03">Interest penalties.</E> An interest penalty shall be paid to vendors or producers if the payment has not been made by the required payment or loan closing date. The interest penalty shall be paid:</P> <P>(1) On the amount of payment or loan due;</P> <P>(2) For the period beginning on the first day beginning after the required payment or loan closing date and, except as determined appropriate by the CCC consistent with applicable law, ending on the date the amount is paid or loaned; and</P> <P>(3) Out of funds available under Section 8 of the CCC Charter Act (15 U.S.C. 714f).</P> <P>(c) <E T="03">Contract Disputes Act of 1978.</E> Insofar as covered CCC payments are concerned, provisions relating to the Contract Disputes Act of 1978 (41 U.S.C. 601 <E T="03">et seq.</E>) in § 1315.10(a)(5)(i) and § 1315.6(a) do not apply.</P> <P>(d) <E T="03">Extended periods for payment.</E> Notwithstanding other provisions of this part, the CCC may allow claims for such periods of time as are consistent with authorities applicable to its operations.</P> </SECTION> <SECTION> <PRTPAGE P="143"/> <SECTNO>§ 1315.14</SECTNO> <SUBJECT>Payments under construction contracts.</SUBJECT> <P>(a) <E T="03">Payment standards.</E> Agencies shall follow these standards when making progress payments under construction contracts:</P> <P>(1) An agency may approve a request for progress payment if the application meets the requirements specified in paragraph (b) of this section;</P> <P>(2) The certification by the prime vendor as defined in paragraph (b)(2) of this section is not to be construed as final acceptance of the subcontractor's performance;</P> <P>(3) The agency shall return any such payment request which is defective to the vendor within seven days after receipt, with a statement identifying the defect(s);</P> <P>(4) A vendor is obligated to pay interest to the Government on unearned amounts in its possession from:</P> <P>(i) The eighth day after receipt of funds from the agency until the date the vendor notifies the agency that the performance deficiency has been corrected, or the date the vendor reduces the amount of any subsequent payment request by an amount equal to the unearned amount in its possession, when the vendor discovers that all or a portion of a payment received from the agency constitutes a payment for the vendor's performance that fails to conform to the specifications, terms, and conditions of its contract with the agency, under 31 U.S.C. 3905(a); or</P> <P>(ii) The eighth day after the receipt of funds from the agency until the date the performance deficiency of a subcontractor is corrected, or the date the vendor reduces the amount of any subsequent payment request by an amount equal to the unearned amount in its possession, when the vendor discovers that all or a portion of a payment received from the agency would constitute a payment for the subcontractor's performance that fails to conform to the subcontract agreement and may be withheld, under 31 U.S.C. 3905(e);</P> <P>(5) Interest payment on unearned amounts to the government under 31 U.S.C. 3905(a)(2) or 3905(e)(6), shall:</P> <P>(i) Be computed on the basis of the average bond equivalent rates of 91-day Treasury bills auctioned at the most recent auction of such bills prior to the date the vendor received the unearned amount;</P> <P>(ii) Be deducted from the next available payment to the vendor; and</P> <P>(iii) Revert to the Treasury.</P> <P>(b) <E T="03">Required documentation.</E> (1) Substantiation of the amount(s) requested shall include:</P> <P>(i) An itemization of the amounts requested related to the various elements of work specified in the contract;</P> <P>(ii) A listing of the amount included for work performed by each subcontractor under the contract;</P> <P>(iii) A listing of the total amount for each subcontract under the contract;</P> <P>(iv) A listing of the amounts previously paid to each subcontractor under the contract; and</P> <P>(v) Additional supporting data and detail in a form required by the contracting officer.</P> <P>(2) Certification by the prime vendor is required, to the best of the vendor's knowledge and belief, that:</P> <P>(i) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;</P> <P>(ii) Payments to subcontractors and suppliers have been made from previous payments received under the contract, and timely payments will be made from the proceeds of the payment covered by the certification, in accordance with their subcontract agreements and the requirements of 31 U.S.C. chapter 39; and</P> <P>(iii) The application does not include any amounts which the prime vendor intends to withhold or retain from a subcontractor or supplier, in accordance with the terms and conditions of their subcontract.</P> <P>(c) <E T="03">Interest penalties.</E> (1) Agencies will pay interest on:</P> <P>(i) A progress payment request (including a monthly percentage-of-completion progress payment or milestone payments for completed phases, increments, or segments of any project) that is approved as payable by the agency pursuant to paragraph (b) of this section, and remains unpaid for:</P> <P>(A) A period of more than 14 days after receipt of the payment request by the designated agency office; or</P> <P>(B) A longer period specified in the solicitation and/or contract if required, <PRTPAGE P="144"/>to afford the Government a practicable opportunity to adequately inspect the work and to determine the adequacy of the vendor's performance under the contract;</P> <P>(ii) Any amounts that the agency has retained pursuant to a prime contract clause providing for retaining a percentage of progress payments otherwise due to a vendor and that are approved for release to the vendor, if such retained amounts are not paid to the vendor by a date specified in the contract, or, in the absence of such a specified date, by the 30th day after final acceptance;</P> <P>(iii) Final payments, based on completion and acceptance of all work (including any retained amounts), and payments for partial performances that have been accepted by the agency, if such payments are made after the later of:</P> <P>(A) The 30th day after the date on which the designated agency office receives a proper invoice; or</P> <P>(B) The 30th day after agency acceptance of the completed work or services. Acceptance shall be deemed to have occurred on the effective date of contract settlement on a final invoice where the payment amount is subject to contract settlement actions.</P> <P>(2) For the purpose of computing interest penalties, acceptance shall be deemed to have occurred on the seventh day after work or services have been completed in accordance with the terms of the contract.</P> </SECTION> <SECTION> <SECTNO>§ 1315.15</SECTNO> <SUBJECT>Grant recipients.</SUBJECT> <P>Recipients of Federal assistance may pay interest penalties if so specified in their contracts with contractors. However, obligations to pay such interest penalties will not be obligations of the United States. Federal funds may not be used for this purpose, nor may interest penalties be used to meet matching requirements of federally assisted programs.</P> </SECTION> <SECTION> <SECTNO>§ 1315.16</SECTNO> <SUBJECT>Relationship to other laws.</SUBJECT> <P>(a) <E T="03">Contract Disputes Act of 1978 (41 U.S.C. 605).</E> (1) A claim for an interest penalty (including the additional penalty for non-payment of interest if the vendor has complied with the requirements of § 1315.9) not paid under this part may be filed under Section 6 of the Contract Disputes Act.</P> <P>(2) An interest penalty under this part does not continue to accrue after a claim for a penalty is filed under the Contract Disputes Act or for more than one year. Once a claim is filed under the Contract Disputes Act interest penalties under this part will never accrue on the amounts of the claim, for any period after the date the claim was filed. This does not prevent an interest penalty from accruing under Section 13 of the Contract Disputes Act after a penalty stops accruing under this part. Such penalty may accrue on an unpaid contract payment and on the unpaid penalty under this part.</P> <P>(3) This part does not require an interest penalty on a payment that is not made because of a dispute between the head of an agency and a vendor over the amount of payment or compliance with the contract. A claim related to such a dispute and interest payable for the period during which the dispute is being resolved is subject to the Contract Disputes Act.</P> <P>(b) <E T="03">Small Business Act (15 U.S.C. 644(k)).</E> This Act has been amended to require that any agency with an Office of Small and Disadvantaged Business Utilization must assist small business concerns to obtain payments, late payment interest penalties, additional penalties, or information due to the concerns.</P> </SECTION> <SECTION> <SECTNO>§ 1315.17</SECTNO> <SUBJECT>Formulas.</SUBJECT> <P>(a) <E T="03">Rebate formula.</E> (1) Agencies shall determine credit card payment dates based on an analysis of the total benefits to the Federal government as a whole. Specifically, agencies should compare daily basis points offered by the card issuer with the corresponding daily basis points of the government's Current Value of Funds (CVF) rate. If the basis points offered by the card issuer are greater than the daily basis points of the government” funds, the government will maximize savings by paying on the earliest possible date. If the basis points offered by the card issuer are less than the daily basis points of the government” funds, the government will minimize costs by paying on the Prompt Payment due <PRTPAGE P="145"/>date or the date specified in the contract.</P> <P>(2) Agencies may use a rebate spreadsheet which automatically calculates the net savings to the government and whether the agency should pay early or late. The only variables required for input to this spreadsheet are the CVF rate, the Maximum Discount Rate, that is, the rate from which daily basis points offered by the card issuer are derived, and the amount of debt. This spreadsheet is available for use on the prompt payment website at www.fms.treas.gov/prompt/index/.html.</P> <P>(3) If agencies chose not to use the spreadsheet, the following may be used to determine whether to pay early or late. To calculate whether to pay early or late, agencies must first determine the respective basis points. To obtain Daily Basis Points offered by card issuer, refer to the agency's contract with the card issuer. Use the following formula to calculate the average daily basis points of the CVF rate: </P> <EXTRACT> <FP SOURCE="FP-2">(CVF/360) * 100</FP> </EXTRACT> <P>(4) For example: The daily basis points offered to agency X by card issuer Y are 1.5 basis points. That is, for every day the agency delays paying the card issuer the agency loses 1.5 basis points in savings. At a CVF of 5 percent, the daily basis points of the Current Value of Funds Rate are 1.4 basis points. That is, every day the agency delays paying, the government earns 1.4 basis points. The basis points were calculated using the formula: </P> <EXTRACT> <FP SOURCE="FP-2">(CVF/360) * 100</FP> <FP SOURCE="FP-2">(5/360) * 100 = 1.4</FP> </EXTRACT> <P>(5) Because 1.5 is greater than 1.4, the agency should pay as early as possible. If the basis points offered by the card issuer are less than the daily basis points of the government” funds (if for instance the rebate equaled 1.3 basis points and the CVF was still 1.4 basis points or if the rebate equaled 1.5 but the CVF equaled 1.6), the government will minimize costs by paying as late as possible, but by the payment due date.</P> <P>(b) <E T="03">Daily simple interest formula.</E> (1) To calculate daily simple interest the following formula may be used: </P> <EXTRACT> <FP SOURCE="FP-2">P(r/360*d)</FP> <FP>Where:</FP> <FP SOURCE="FP-1"> <E T="03">P</E> is the amount of principle or invoice amount;</FP> <FP SOURCE="FP-1"> <E T="03">r</E> equals the Prompt Payment interest rate; and</FP> <FP SOURCE="FP-1"> <E T="03">d</E> equals the numbers of days for which interest is being calculated.</FP> </EXTRACT> <P>(2) For example, if a payment is due on April 1 and the payment is not made until April 11, a simple interest calculation will determine the amount of interest owed the vendor for the late payment. Using the formula above, at an invoice amount of $1,500 paid 10 days late and an interest rate of 6.5%, the amount of interest owed is calculated as follows: </P> <EXTRACT> <FP SOURCE="FP-2">$1,500 (.065/360*10) = $2.71</FP> </EXTRACT> <P>(c) <E T="03">Monthly compounding interest formula.</E> (1) To calculate interest as required in § 1315.10(a)(3), the following formula may be used: </P> <EXTRACT> <FP SOURCE="FP-1">P(1+r/12) <E T="51">n</E>*(1+(r/360*d))−P</FP> <FP>Where:</FP> <FP SOURCE="FP-1">P equals the principle or invoice amount;</FP> <FP SOURCE="FP-1"> <E T="03">r</E> equals the interest rate;</FP> <FP SOURCE="FP-1"> <E T="03">n</E> equals the number of months; and</FP> <FP SOURCE="FP-1"> <E T="03">d</E> equals the number of days for which interest is being calculated.</FP> </EXTRACT> <P>(2) The first part of the equation calculates compounded monthly interest. The second part of the equation calculates simple interest on any additional days beyond a monthly increment.</P> <P>(3) For example, if the amount owed is $1,500, the payment due date is April 1, the agency does not pay until June 15 and the applicable interest rate is 6 percent, interest is calculated as follows: </P> <EXTRACT> <FP SOURCE="FP-1">$ 1,500(1+.06/12) <SU>2</SU> * (1+(0.06/360*15))−$1,500 = $18.83</FP> </EXTRACT> </SECTION> <SECTION> <SECTNO>§ 1315.18</SECTNO> <SUBJECT>Inquiries.</SUBJECT> <P>(a) <E T="03">Regulation.</E> Inquiries concerning this part may be directed in writing to the Department of the Treasury, Financial Management Service (FMS), Cash Management Policy and Planning Division, 401 14th Street, SW. Washington, DC 20227, (202) 874-6590, or by calling the Prompt Payment help line at 1-800-266-9667, by emailing questions to FMS at <E T="03">prompt.inquiries@fms.sprint.com,</E> or by completing a Prompt Payment inquiry <PRTPAGE P="146"/>form available at www.fms.treas.gov/prompt/inquiries.html.</P> <P>(b) <E T="03">Applicable interest rate.</E> The rate is published by the Fiscal Service, Department of the Treasury, semiannually in the <E T="04">Federal Register</E> on or about January 1 and July 1. The rate also may be obtained from the Department of Treasury's Financial Management Service (FMS) at 1-800-266-9667. This information is also available at the FMS Prompt Payment Web Site at http://www.fms.treas.gov/prompt/index.html.</P> <P>(c) <E T="03">Agency payments.</E> Questions concerning delinquent payments should be directed to the designated agency office, or the office responsible for issuing the payment if different from the designated agency office. Questions about disagreements over payment amount or timing should be directed to the contracting officer for resolution. Small business concerns may obtain additional assistance on payment issues by contacting the agency's Office of Small and Disadvantaged Business Utilization.</P> </SECTION> <SECTION> <SECTNO>§ 1315.19</SECTNO> <SUBJECT>Regulatory references to OMB Circular A-125.</SUBJECT> <P>This part supercedes OMB Circular A-125 (“Prompt Payment”). Until revised to reflect the codification in this part, regulatory references to Circular A-125 shall be construed as referring to this part.</P> </SECTION> <SECTION> <SECTNO>§ 1315.20</SECTNO> <SUBJECT>Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.</SUBJECT> <P>Section 1010 of the National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398, 114 Stat. 1654), as amended by section 1007 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012), requires an agency to pay an interest penalty whenever the agency makes an interim payment under a cost-reimbursement contract for services more than 30 days after the date the agency receives a proper invoice for payment from the contractor. This part implements Section 1010, as amended, and is applicable in the following manner:</P> <P>(a) This part shall apply to all interim payment requests that are due on or after December 15, 2000 under cost-reimbursement service contracts awarded before, on, or after December 15, 2000.</P> <P>(b) No interest penalty shall accrue under this part for any delay in payment that occurred prior to December 15, 2000.</P> <P>(c) Agencies are authorized to issue modifications to contracts, as necessary, to conform them to the provisions in this part implementing Section 1010, as amended.</P> <CITA>[67 FR 79516, Dec. 30, 2002]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1320</EAR> <HD SOURCE="HED">PART 1320—CONTROLLING PAPERWORK BURDENS ON THE PUBLIC</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1320.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1320.2</SECTNO> <SUBJECT>Effect.</SUBJECT> <SECTNO>1320.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1320.4</SECTNO> <SUBJECT>Coverage.</SUBJECT> <SECTNO>1320.5</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>1320.6</SECTNO> <SUBJECT>Public protection.</SUBJECT> <SECTNO>1320.7</SECTNO> <SUBJECT>Agency head and Senior Official responsibilities.</SUBJECT> <SECTNO>1320.8</SECTNO> <SUBJECT>Agency collection of information responsibilities.</SUBJECT> <SECTNO>1320.9</SECTNO> <SUBJECT>Agency certifications for proposed collections of information.</SUBJECT> <SECTNO>1320.10</SECTNO> <SUBJECT>Clearance of collections of information, other than those contained in proposed rules or in current rules.</SUBJECT> <SECTNO>1320.11</SECTNO> <SUBJECT>Clearance of collections of information in proposed rules.</SUBJECT> <SECTNO>1320.12</SECTNO> <SUBJECT>Clearance of collections of information in current rules.</SUBJECT> <SECTNO>1320.13</SECTNO> <SUBJECT>Emergency processing.</SUBJECT> <SECTNO>1320.14</SECTNO> <SUBJECT>Public access.</SUBJECT> <SECTNO>1320.15</SECTNO> <SUBJECT>Independent regulatory agency override authority.</SUBJECT> <SECTNO>1320.16</SECTNO> <SUBJECT>Delegation of approval authority.</SUBJECT> <SECTNO>1320.17</SECTNO> <SUBJECT>Information collection budget.</SUBJECT> <SECTNO>1320.18</SECTNO> <SUBJECT>Other authority.</SUBJECT> <APP>Appendix A to Part 1320—Agencies With Delegated Review and Approval Authority</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27, 29, 31, 35.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 44984, Aug. 29, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1320.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part is to implement the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35)(the Act) concerning collections of information. It is issued under the authority of section 3516 of the Act, which provides that “The Director <PRTPAGE P="147"/>shall promulgate rules, regulations, or procedures necessary to exercise the authority provided by this chapter.” It is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated by or for the Federal government.</P> </SECTION> <SECTION> <SECTNO>§ 1320.2</SECTNO> <SUBJECT>Effect.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this part takes effect on October 1, 1995.</P> <P>(b)(1) In the case of a collection of information for which there is in effect on September 30, 1995, a control number issued by the Office of Management and Budget under 44 U.S.C. Chapter 35, the provisions of this Part shall take effect beginning on the earlier of:</P> <P>(i) The date of the first extension of approval for or modification of that collection of information after September 30, 1995; or</P> <P>(ii) The date of the expiration of the OMB control number after September 30, 1995.</P> <P>(2) Prior to such extension of approval, modification, or expiration, the collection of information shall be subject to 5 CFR part 1320, as in effect on September 30, 1995.</P> </SECTION> <SECTION> <SECTNO>§ 1320.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of implementing the Act and this Part, the following terms are defined as follows:</P> <P>(a) <E T="03">Agency</E> means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government, or any independent regulatory agency, but does not include:</P> <P>(1) The General Accounting Office;</P> <P>(2) Federal Election Commission;</P> <P>(3) The governments of the District of Columbia and the territories and possessions of the United States, and their various subdivisions; or</P> <P>(4) Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities.</P> <P>(b)(1) <E T="03">Burden</E> means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency, including:</P> <P>(i) Reviewing instructions;</P> <P>(ii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of collecting, validating, and verifying information;</P> <P>(iii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of processing and maintaining information;</P> <P>(iv) Developing, acquiring, installing, and utilizing technology and systems for the purpose of disclosing and providing information;</P> <P>(v) Adjusting the existing ways to comply with any previously applicable instructions and requirements;</P> <P>(vi) Training personnel to be able to respond to a collection of information;</P> <P>(vii) Searching data sources;</P> <P>(viii) Completing and reviewing the collection of information; and</P> <P>(ix) Transmitting, or otherwise disclosing the information.</P> <P>(2) The time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (e.g., in compiling and maintaining business records) will be excluded from the “burden” if the agency demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are usual and customary.</P> <P>(3) A collection of information conducted or sponsored by a Federal agency that is also conducted or sponsored by a unit of State, local, or tribal government is presumed to impose a Federal burden except to the extent that the agency shows that such State, local, or tribal requirement would be imposed even in the absence of a Federal requirement.</P> <P>(c) <E T="03">Collection of information</E> means, except as provided in § 1320.4, the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. “Collection of information” <PRTPAGE P="148"/>includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. As used in this Part, “collection of information” refers to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate.</P> <P>(1) A “collection of information” may be in any form or format, including the use of report forms; application forms; schedules; questionnaires; surveys; reporting or recordkeeping requirements; contracts; agreements; policy statements; plans; rules or regulations; planning requirements; circulars; directives; instructions; bulletins; requests for proposal or other procurement requirements; interview guides; oral communications; posting, notification, labeling, or similar disclosure requirements; telegraphic or telephonic requests; automated, electronic, mechanical, or other technological collection techniques; standard questionnaires used to monitor compliance with agency requirements; or any other techniques or technological methods used to monitor compliance with agency requirements. A “collection of information” may implicitly or explicitly include related collection of information requirements.</P> <P>(2) Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or the public at large, through posting, notification, labeling or similar disclosure requirements constitute the “collection of information” whenever the same requirement to obtain or compile information would be a “collection of information” if the information were directly provided to the agency. The public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within this definition.</P> <P>(3) “Collection of information” includes questions posed to agencies, instrumentalities, or employees of the United States, if the results are to be used for general statistical purposes, that is, if the results are to be used for statistical compilations of general public interest, including compilations showing the status or implementation of Federal activities and programs.</P> <P>(4) As used in paragraph (c) of this section, “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period, and to any independent entities to which the initial addressee may reasonably be expected to transmit the collection of information during that period, including independent State, territorial, tribal or local entities and separately incorporated subsidiaries or affiliates. For the purposes of this definition of “ten or more persons,” “persons” does not include employees of the respondent acting within the scope of their employment, contractors engaged by a respondent for the purpose of complying with the collection of information, or current employees of the Federal government (including military reservists and members of the National Guard while on active duty) when acting within the scope of their employment, but it does include retired and other former Federal employees.</P> <P>(i) Any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons.</P> <P>(ii) Any collection of information addressed to all or a substantial majority of an industry is presumed to involve ten or more persons.</P> <P>(d) <E T="03">Conduct or Sponsor</E>. A Federal agency is considered to “conduct or sponsor” a collection of information if the agency collects the information, causes another agency to collect the information, contracts or enters into a cooperative agreement with a person to collect the information, or requires a person to provide information to another person, or in similar ways causes another agency, contractor, partner in a cooperative agreement, or person to obtain, solicit, or require the disclosure to third parties or the public of information by or for an agency. A collection of information undertaken by a recipient of a Federal grant is considered to be “conducted or sponsored” by an agency only if:<PRTPAGE P="149"/> </P> <P>(1) The recipient of a grant is conducting the collection of information at the specific request of the agency; or</P> <P>(2) The terms and conditions of the grant require specific approval by the agency of the collection of information or collection procedures.</P> <P>(e) <E T="03">Director</E> means the Director of OMB, or his or her designee.</P> <P>(f) <E T="03">Display</E> means:</P> <P>(1) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (other than in an electronic format), to place the currently valid OMB control number on the front page of the collection of information;</P> <P>(2) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, to place the currently valid OMB control number in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent;</P> <P>(3) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, to publish the currently valid OMB control number in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing the OMB control number in the preamble or the regulatory text for the final rule, in a technical amendment to the final rule, or in a separate notice announcing OMB approval of the collection of information). In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, publication of the currently valid control number in the Code of Federal Regulations constitutes an alternative means of “display.” In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, OMB recommends for ease of future reference that, even where an agency has already “displayed” the OMB control number by publishing it in the <E T="04">Federal Register</E> as a separate notice or in the preamble for the final rule (rather than in the regulatory text for the final rule or in a technical amendment to the final rule), the agency also place the currently valid control number in a table or codified section to be included in the Code of Federal Regulations. For placement of OMB control numbers in the Code of Federal Regulations, see 1 CFR 21.35.</P> <P>(4) In other cases, and where OMB determines in advance in writing that special circumstances exist, to use other means to inform potential respondents of the OMB control number.</P> <P>(g) <E T="03">Independent regulatory agency</E> means the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Board, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Rate Commission, the Securities and Exchange Commission, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.</P> <P>(h) <E T="03">Information</E> means any statement or estimate of fact or opinion, regardless of form or format, whether in numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic or other media. “Information” does not generally include items in the following categories; however, OMB may determine that any specific item constitutes “information”:</P> <P>(1) Affidavits, oaths, affirmations, certifications, receipts, changes of address, consents, or acknowledgments; provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument (by contrast, a certification would likely involve the collection of “information” if an agency conducted or sponsored it as a substitute for a <PRTPAGE P="150"/>collection of information to collect evidence of, or to monitor, compliance with regulatory standards, because such a certification would generally entail burden in addition to that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument);</P> <P>(2) Samples of products or of any other physical objects;</P> <P>(3) Facts or opinions obtained through direct observation by an employee or agent of the sponsoring agency or through nonstandardized oral communication in connection with such direct observations;</P> <P>(4) Facts or opinions submitted in response to general solicitations of comments from the public, published in the <E T="04">Federal Register</E> or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment;</P> <P>(5) Facts or opinions obtained initially or in follow-on requests, from individuals (including individuals in control groups) under treatment or clinical examination in connection with research on or prophylaxis to prevent a clinical disorder, direct treatment of that disorder, or the interpretation of biological analyses of body fluids, tissues, or other specimens, or the identification or classification of such specimens;</P> <P>(6) A request for facts or opinions addressed to a single person;</P> <P>(7) Examinations designed to test the aptitude, abilities, or knowledge of the persons tested and the collection of information for identification or classification in connection with such examinations;</P> <P>(8) Facts or opinions obtained or solicited at or in connection with public hearings or meetings;</P> <P>(9) Facts or opinions obtained or solicited through nonstandardized follow-up questions designed to clarify responses to approved collections of information; and</P> <P>(10) Like items so designated by OMB.</P> <P>(i) <E T="03">OMB</E> refers to the Office of Management and Budget.</P> <P>(j) <E T="03">Penalty</E> includes the imposition by an agency or court of a fine or other punishment; a judgment for monetary damages or equitable relief; or the revocation, suspension, reduction, or denial of a license, privilege, right, grant, or benefit.</P> <P>(k) <E T="03">Person</E> means an individual, partnership, association, corporation (including operations of government-owned contractor-operated facilities), business trust, or legal representative, an organized group of individuals, a State, territorial, tribal, or local government or branch thereof, or a political subdivision of a State, territory, tribal, or local government or a branch of a political subdivision;</P> <P>(l) <E T="03">Practical utility</E> means the actual, not merely the theoretical or potential, usefulness of information to or for an agency, taking into account its accuracy, validity, adequacy, and reliability, and the agency's ability to process the information it collects (or a person's ability to receive and process that which is disclosed, in the case of a third-party or public disclosure) in a useful and timely fashion. In determining whether information will have “practical utility,” OMB will take into account whether the agency demonstrates actual timely use for the information either to carry out its functions or make it available to third-parties or the public, either directly or by means of a third-party or public posting, notification, labeling, or similar disclosure requirement, for the use of persons who have an interest in entities or transactions over which the agency has jurisdiction. In the case of recordkeeping requirements or general purpose statistics (see § 1320.3(c)(3)), “practical utility” means that actual uses can be demonstrated.</P> <P>(m) <E T="03">Recordkeeping requirement</E> means a requirement imposed by or for an agency on persons to maintain specified records, including a requirement to:</P> <P>(1) Retain such records;</P> <P>(2) Notify third parties, the Federal government, or the public of the existence of such records;</P> <P>(3) Disclose such records to third parties, the Federal government, or the public; or<PRTPAGE P="151"/> </P> <P>(4) Report to third parties, the Federal government, or the public regarding such records.</P> </SECTION> <SECTION> <SECTNO>§ 1320.4</SECTNO> <SUBJECT>Coverage.</SUBJECT> <P>(a) The requirements of this part apply to all agencies as defined in § 1320.3(a) and to all collections of information conducted or sponsored by those agencies, as defined in § 1320.3 (c) and (d), wherever conducted or sponsored, but, except as provided in paragraph (b) of this section, shall not apply to collections of information:</P> <P>(1) During the conduct of a Federal criminal investigation or prosecution, or during the disposition of a particular criminal matter;</P> <P>(2) During the conduct of a civil action to which the United States or any official or agency thereof is a party, or during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities;</P> <P>(3) By compulsory process pursuant to the Antitrust Civil Process Act and section 13 of the Federal Trade Commission Improvements Act of 1980; or</P> <P>(4) During the conduct of intelligence activities as defined in section 3.4(e) of Executive Order No. 12333, issued December 4, 1981, or successor orders, or during the conduct of cryptologic activities that are communications security activities.</P> <P>(b) The requirements of this Part apply to the collection of information during the conduct of general investigations or audits (other than information collected in an antitrust investigation to the extent provided in paragraph (a)(3) of this section) undertaken with reference to a category of individuals or entities such as a class of licensees or an entire industry.</P> <P>(c) The exception in paragraph (a)(2) of this section applies during the entire course of the investigation, audit, or action, whether before or after formal charges or complaints are filed or formal administrative action is initiated, but only after a case file or equivalent is opened with respect to a particular party. In accordance with paragraph (b) of this section, collections of information prepared or undertaken with reference to a category of individuals or entities, such as a class of licensees or an industry, do not fall within this exception.</P> </SECTION> <SECTION> <SECTNO>§ 1320.5</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(a) An agency shall not conduct or sponsor a collection of information unless, in advance of the adoption or revision of the collection of information—</P> <P>(1) The agency has—</P> <P>(i) Conducted the review required in § 1320.8;</P> <P>(ii) Evaluated the public comments received under § 1320.8(d) and § 1320.11;</P> <P>(iii) Submitted to the Director, in accordance with such procedures and in such form as OMB may specify,</P> <P>(A) The certification required under § 1320.9,</P> <P>(B) The proposed collection of information in accordance with § 1320.10, § 1320.11, or § 1320.12, as appropriate,</P> <P>(C) An explanation for the decision that it would not be appropriate, under § 1320.8(b)(1), for a proposed collection of information to display an expiration date;</P> <P>(D) An explanation for a decision to provide for any payment or gift to respondents, other than remuneration of contractors or grantees;</P> <P>(E) A statement indicating whether (and if so, to what extent) the proposed collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and an explanation for the decision;</P> <P>(F) A summary of the public comments received under § 1320.8(d), including actions taken by the agency in response to the comments, and the date and page of the publication in the <E T="04">Federal Register</E> of the notice therefor; and</P> <P>(G) Copies of pertinent statutory authority, regulations, and such related supporting materials as OMB may request; and</P> <P>(iv) Published, except as provided in § 1320.13(d), a notice in the <E T="04">Federal Register</E>—</P> <P>(A) Stating that the agency has made such submission; and</P> <P>(B) Setting forth—</P> <P>(<E T="03">1</E>) A title for the collection of information;<PRTPAGE P="152"/> </P> <P>(<E T="03">2</E>) A summary of the collection of information;</P> <P>(<E T="03">3</E>) A brief description of the need for the information and proposed use of the information;</P> <P>(<E T="03">4</E>) A description of the likely respondents, including the estimated number of likely respondents, and proposed frequency of response to the collection of information;</P> <P>(<E T="03">5</E>) An estimate of the total annual reporting and recordkeeping burden that will result from the collection of information;</P> <P>(<E T="03">6</E>) Notice that comments may be submitted to OMB; and</P> <P>(<E T="03">7</E>) The time period within which the agency is requesting OMB to approve or disapprove the collection of information if, at the time of submittal of a collection of information for OMB review under § 1320.10, § 1320.11 or § 1320.12, the agency plans to request or has requested OMB to conduct its review on an emergency basis under § 1320.13; and</P> <P>(2) OMB has approved the proposed collection of information, OMB's approval has been inferred under § 1320.10(c), § 1320.11(i), or § 1320.12(e), or OMB's disapproval has been voided by an independent regulatory agency under § 1320.15; and</P> <P>(3) The agency has obtained from the Director a control number to be displayed upon the collection of information.</P> <P>(b) In addition to the requirements in paragraph (a) of this section, an agency shall not conduct or sponsor a collection of information unless:</P> <P>(1) The collection of information displays a currently valid OMB control number; and</P> <P>(2)(i) The agency informs the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> <P>(ii) An agency shall provide the information described in paragraph (b)(2)(i) of this section in a manner that is reasonably calculated to inform the public.</P> <P>(A) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (other than in an electronic format), the information described in paragraph (b)(2)(i) of this section is provided “in a manner that is reasonably calculated to inform the public” if the agency includes it either on the form, questionnaire or other collection of information, or in the instructions for such collection.</P> <P>(B) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, the information described in paragraph (b)(2)(i) of this section is provided “in a manner that is reasonably calculated to inform the public” if the agency places the currently valid OMB control number in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent.</P> <P>(C) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, the information described in paragraph (b)(2)(i) of this section is provided “in a manner that is reasonably calculated to inform the public” if the agency publishes such information in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing such information in the preamble or the regulatory text, or in a technical amendment to the regulation, or in a separate notice announcing OMB approval of the collection of information). In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, publication of such information in the Code of Federal Regulations constitutes an alternative means of providing it “in a manner that is reasonably calculated to inform the public.” In the case of a collection of information published in an issuance that is also included in the Code of Federal Regulations, OMB recommends for ease of future reference that, even where an agency has already provided such information “in a manner that is reasonably calculated to inform the public” by publishing it in the <E T="04">Federal Register</E> as a separate notice or in the preamble for the final rule (rather than in the regulatory text for <PRTPAGE P="153"/>the final rule or in a technical amendment to the final rule), the agency also publish such information along with a table or codified section of OMB control numbers to be included in the Code of Federal Regulations (see § 1320.3(f)(3)).</P> <P>(D) In other cases, and where OMB determines in advance in writing that special circumstances exist, to use other means that are reasonably calculated to inform the public of the information described in paragraph (b)(2)(i) of this section.</P> <P>(c)(1) Agencies shall submit all collections of information, other than those contained in proposed rules published for public comment in the <E T="04">Federal Register</E> or in current regulations that were published as final rules in the <E T="04">Federal Register</E>, in accordance with the requirements in § 1320.10. Agencies shall submit collections of information contained in interim final rules or direct final rules in accordance with the requirements of § 1320.10.</P> <P>(2) Agencies shall submit collections of information contained in proposed rules published for public comment in the <E T="04">Federal Register</E> in accordance with the requirements in § 1320.11.</P> <P>(3) Agencies shall submit collections of information contained in current regulations that were published as final rules in the <E T="04">Federal Register</E> in accordance with the requirements in § 1320.12.</P> <P>(4) Special rules for emergency processing of collections of information are set forth in § 1320.13.</P> <P>(5) For purposes of time limits for OMB review of collections of information, any submission properly submitted and received by OMB after 12:00 noon will be deemed to have been received on the following business day.</P> <P>(d)(1) To obtain OMB approval of a collection of information, an agency shall demonstrate that it has taken every reasonable step to ensure that the proposed collection of information:</P> <P>(i) Is the least burdensome necessary for the proper performance of the agency's functions to comply with legal requirements and achieve program objectives;</P> <P>(ii) Is not duplicative of information otherwise accessible to the agency; and</P> <P>(iii) Has practical utility. The agency shall also seek to minimize the cost to itself of collecting, processing, and using the information, but shall not do so by means of shifting disproportionate costs or burdens onto the public.</P> <P>(2) Unless the agency is able to demonstrate, in its submission for OMB clearance, that such characteristic of the collection of information is necessary to satisfy statutory requirements or other substantial need, OMB will not approve a collection of information—</P> <P>(i) Requiring respondents to report information to the agency more often than quarterly;</P> <P>(ii) Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;</P> <P>(iii) Requiring respondents to submit more than an original and two copies of any document;</P> <P>(iv) Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;</P> <P>(v) In connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;</P> <P>(vi) Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;</P> <P>(vii) That includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or</P> <P>(viii) Requiring respondents to submit proprietary, trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.</P> <P>(e) OMB shall determine whether the collection of information, as submitted by the agency, is necessary for the proper performance of the agency's functions. In making this determination, OMB will take into account the criteria set forth in paragraph (d) of <PRTPAGE P="154"/>this section, and will consider whether the burden of the collection of information is justified by its practical utility. In addition:</P> <P>(1) OMB will consider necessary any collection of information specifically mandated by statute or court order, but will independently assess any collection of information to the extent that the agency exercises discretion in its implementation; and</P> <P>(2) OMB will consider necessary any collection of information specifically required by an agency rule approved or not acted upon by OMB under § 1320.11 or § 1320.12, but will independently assess any such collection of information to the extent that it deviates from the specifications of the rule.</P> <P>(f) Except as provided in § 1320.15, to the extent that OMB determines that all or any portion of a collection of information is unnecessary, for any reason, the agency shall not engage in such collection or portion thereof. OMB will reconsider its disapproval of a collection of information upon the request of the agency head or Senior Official only if the sponsoring agency is able to provide significant new or additional information relevant to the original decision.</P> <P>(g) An agency may not make a substantive or material modification to a collection of information after such collection of information has been approved by OMB, unless the modification has been submitted to OMB for review and approval under this Part.</P> <P>(h) An agency should consult with OMB before using currently approved forms or other collections of information after the expiration date printed thereon (in those cases where the actual form being used contains an expiration date that would expire before the end of the use of the form).</P> </SECTION> <SECTION> <SECTNO>§ 1320.6</SECTNO> <SUBJECT>Public protection.</SUBJECT> <P>(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to the requirements of this part if:</P> <P>(1) The collection of information does not display, in accordance with § 1320.3(f) and § 1320.5(b)(1), a currently valid OMB control number assigned by the Director in accordance with the Act; or</P> <P>(2) The agency fails to inform the potential person who is to respond to the collection of information, in accordance with § 1320.5(b)(2), that such person is not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> <P>(b) The protection provided by paragraph (a) of this section may be raised in the form of a complete defense, bar, or otherwise to the imposition of such penalty at any time during the agency administrative process in which such penalty may be imposed or in any judicial action applicable thereto.</P> <P>(c) Whenever an agency has imposed a collection of information as a means for proving or satisfying a condition for the receipt of a benefit or the avoidance of a penalty, and the collection of information does not display a currently valid OMB control number or inform the potential persons who are to respond to the collection of information, as prescribed in § 1320.5(b), the agency shall not treat a person's failure to comply, in and of itself, as grounds for withholding the benefit or imposing the penalty. The agency shall instead permit respondents to prove or satisfy the legal conditions in any other reasonable manner.</P> <P>(1) If OMB disapproves the whole of such a collection of information (and the disapproval is not overridden under § 1320.15), the agency shall grant the benefit to (or not impose the penalty on) otherwise qualified persons without requesting further proof concerning the condition.</P> <P>(2) If OMB instructs an agency to make a substantive or material change to such a collection of information (and the instruction is not overridden under § 1320.15), the agency shall permit respondents to prove or satisfy the condition by complying with the collection of information as so changed.</P> <P>(d) Whenever a member of the public is protected from imposition of a penalty under this section for failure to comply with a collection of information, such penalty may not be imposed by an agency directly, by an agency through judicial process, or by any <PRTPAGE P="155"/>other person through administrative or judicial process.</P> <P>(e) The protection provided by paragraph (a) of this section does not preclude the imposition of a penalty on a person for failing to comply with a collection of information that is imposed on the person by statute—e.g., 26 U.S.C. § 6011(a) (statutory requirement for person to file a tax return), 42 U.S.C. § 6938(c) (statutory requirement for person to provide notification before exporting hazardous waste).</P> </SECTION> <SECTION> <SECTNO>§ 1320.7</SECTNO> <SUBJECT>Agency head and Senior Official responsibilities.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, each agency head shall designate a Senior Official to carry out the responsibilities of the agency under the Act and this part. The Senior Official shall report directly to the head of the agency and shall have the authority, subject to that of the agency head, to carry out the responsibilities of the agency under the Act and this part.</P> <P>(b) An agency head may retain full undelegated review authority for any component of the agency which by statute is required to be independent of any agency official below the agency head. For each component for which responsibility under the Act is not delegated to the Senior Official, the agency head shall be responsible for the performance of those functions.</P> <P>(c) The Senior Official shall head an office responsible for ensuring agency compliance with and prompt, efficient, and effective implementation of the information policies and information resources management responsibilities established under the Act, including the reduction of information collection burdens on the public.</P> <P>(d) With respect to the collection of information and the control of paperwork, the Senior Official shall establish a process within such office that is sufficiently independent of program responsibility to evaluate fairly whether proposed collections of information should be approved under this Part.</P> <P>(e) Agency submissions of collections of information for OMB review, and the accompanying certifications under § 1320.9, may be made only by the agency head or the Senior Official, or their designee.</P> </SECTION> <SECTION> <SECTNO>§ 1320.8</SECTNO> <SUBJECT>Agency collection of information responsibilities.</SUBJECT> <P>The office established under § 1320.7 shall review each collection of information before submission to OMB for review under this part.</P> <P>(a) This review shall include:</P> <P>(1) An evaluation of the need for the collection of information, which shall include, in the case of an existing collection of information, an evaluation of the continued need for such collection;</P> <P>(2) A functional description of the information to be collected;</P> <P>(3) A plan for the collection of information;</P> <P>(4) A specific, objectively supported estimate of burden, which shall include, in the case of an existing collection of information, an evaluation of the burden that has been imposed by such collection;</P> <P>(5) An evaluation of whether (and if so, to what extent) the burden on respondents can be reduced by use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses;</P> <P>(6) A test of the collection of information through a pilot program, if appropriate; and</P> <P>(7) A plan for the efficient and effective management and use of the information to be collected, including necessary resources.</P> <P>(b) Such office shall ensure that each collection of information:</P> <P>(1) Is inventoried, displays a currently valid OMB control number, and, if appropriate, an expiration date;</P> <P>(2) Is reviewed by OMB in accordance with the clearance requirements of 44 U.S.C. § 3507; and</P> <P>(3) Informs and provides reasonable notice to the potential persons to whom the collection of information is addressed of—</P> <P>(i) The reasons the information is planned to be and/or has been collected;</P> <P>(ii) The way such information is planned to be and/or has been used to further the proper performance of the functions of the agency;<PRTPAGE P="156"/> </P> <P>(iii) An estimate, to the extent practicable, of the average burden of the collection (together with a request that the public direct to the agency any comments concerning the accuracy of this burden estimate and any suggestions for reducing this burden);</P> <P>(iv) Whether responses to the collection of information are voluntary, required to obtain or retain a benefit (citing authority), or mandatory (citing authority);</P> <P>(v) The nature and extent of confidentiality to be provided, if any (citing authority); and</P> <P>(vi) The fact that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.</P> <P>(c)(1) An agency shall provide the information described in paragraphs (b)(3)(i) through (v) of this section as follows:</P> <P>(i) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (except in an electronic format), such information can be included either on the form, questionnaire or other collection of information, as part of the instructions for such collection, or in a cover letter or memorandum that accompanies the collection of information.</P> <P>(ii) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, such information can be included either in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent;</P> <P>(iii) In the case of collections of information published in regulations, guidelines, and other issuances in the <E T="04">Federal Register</E>, such information can be published in the <E T="04">Federal Register</E> (for example, in the case of a collection of information in a regulation, by publishing such information in the preamble or the regulatory text to the final rule, or in a technical amendment to the final rule, or in a separate notice announcing OMB approval of the collection of information).</P> <P>(iv) In other cases, and where OMB determines in advance in writing that special circumstances exist, agencies may use other means to inform potential respondents.</P> <P>(2) An agency shall provide the information described in paragraph (b)(3)(vi) of this section in a manner that is reasonably calculated to inform the public (see § 1320.5(b)(2)(ii)).</P> <P>(d)(1) Before an agency submits a collection of information to OMB for approval, and except as provided in paragraphs (d)(3) and (d)(4) of this section, the agency shall provide 60-day notice in the <E T="04">Federal Register</E>, and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comment to:</P> <P>(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;</P> <P>(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;</P> <P>(iii) Enhance the quality, utility, and clarity of the information to be collected; and</P> <P>(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.</P> <P>(2) If the agency does not publish a copy of the proposed collection of information, together with the related instructions, as part of the <E T="04">Federal Register</E> notice, the agency should—</P> <P>(i) Provide more than 60-day notice to permit timely receipt, by interested members of the public, of a copy of the proposed collection of information and related instructions; or</P> <P>(ii) Explain how and from whom an interested member of the public can request and obtain a copy without charge, including, if applicable, how the public can gain access to the collection of information and related instructions electronically on demand.<PRTPAGE P="157"/> </P> <P>(3) The agency need not separately seek such public comment for any proposed collection of information contained in a proposed rule to be reviewed under § 1320.11, if the agency provides notice and comment through the notice of proposed rulemaking for the proposed rule and such notice specifically includes the solicitation of comments for the same purposes as are listed under paragraph (d)(1) of this section.</P> <P>(4) The agency need not seek or may shorten the time allowed for such public comment if OMB grants an exemption from such requirement for emergency processing under § 1320.13.</P> </SECTION> <SECTION> <SECTNO>§ 1320.9</SECTNO> <SUBJECT>Agency certifications for proposed collections of information.</SUBJECT> <P>As part of the agency submission to OMB of a proposed collection of information, the agency (through the head of the agency, the Senior Official, or their designee) shall certify (and provide a record supporting such certification) that the proposed collection of information—</P> <P>(a) Is necessary for the proper performance of the functions of the agency, including that the information to be collected will have practical utility;</P> <P>(b) Is not unnecessarily duplicative of information otherwise reasonably accessible to the agency;</P> <P>(c) Reduces to the extent practicable and appropriate the burden on persons who shall provide information to or for the agency, including with respect to small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:</P> <P>(1) Establishing differing compliance or reporting requirements or timetables that take into account the resources available to those who are to respond;</P> <P>(2) The clarification, consolidation, or simplification of compliance and reporting requirements; or</P> <P>(3) An exemption from coverage of the collection of information, or any part thereof;</P> <P>(d) Is written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond;</P> <P>(e) Is to be implemented in ways consistent and compatible, to the maximum extent practicable, with the existing reporting and recordkeeping practices of those who are to respond;</P> <P>(f) Indicates for each recordkeeping requirement the length of time persons are required to maintain the records specified;</P> <P>(g) Informs potential respondents of the information called for under § 1320.8(b)(3);</P> <P>(h) Has been developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected, including the processing of the information in a manner which shall enhance, where appropriate, the utility of the information to agencies and the public;</P> <P>(i) Uses effective and efficient statistical survey methodology appropriate to the purpose for which the information is to be collected; and</P> <P>(j) To the maximum extent practicable, uses appropriate information technology to reduce burden and improve data quality, agency efficiency and responsiveness to the public.</P> </SECTION> <SECTION> <SECTNO>§ 1320.10</SECTNO> <SUBJECT>Clearance of collections of information, other than those contained in proposed rules or in current rules.</SUBJECT> <P>Agencies shall submit all collections of information, other than those contained either in proposed rules published for public comment in the <E T="04">Federal Register</E> (which are submitted under § 1320.11) or in current rules that were published as final rules in the <E T="04">Federal Register</E> (which are submitted under § 1320.12), in accordance with the following requirements:</P> <P>(a) On or before the date of submission to OMB, the agency shall, in accordance with the requirements in § 1320.5(a)(1)(iv), forward a notice to the <E T="04">Federal Register</E> stating that OMB approval is being sought. The notice shall direct requests for information, including copies of the proposed collection of information and supporting documentation, to the agency, and shall request that comments be submitted to OMB within 30 days of the notice's publication. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency]. A <PRTPAGE P="158"/>copy of the notice submitted to the <E T="04">Federal Register</E>, together with the date of expected publication, shall be included in the agency's submission to OMB.</P> <P>(b) Within 60 days after receipt of the proposed collection of information or publication of the notice under paragraph (a) of this section, whichever is later, OMB shall notify the agency involved of its decision to approve, to instruct the agency to make a substantive or material change to, or to disapprove, the collection of information, and shall make such decision publicly available. OMB shall provide at least 30 days for public comment after receipt of the proposed collection of information before making its decision, except as provided under § 1320.13. Upon approval of a collection of information, OMB shall assign an OMB control number and, if appropriate, an expiration date. OMB shall not approve any collection of information for a period longer than three years.</P> <P>(c) If OMB fails to notify the agency of its approval, instruction to make substantive or material change, or disapproval within the 60-day period, the agency may request, and OMB shall assign without further delay, an OMB control number that shall be valid for not more than one year.</P> <P>(d) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> <P>(e)(1) In the case of a collection of information not contained in a published current rule which has been approved by OMB and has a currently valid OMB control number, the agency shall:</P> <P>(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and</P> <P>(ii) After having made a reasonable effort to seek public comment, but no later than 60 days before the expiration date of the OMB control number for the currently approved collection of information, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.</P> <P>(2) The agency may continue to conduct or sponsor the collection of information while the submission is pending at OMB.</P> <P>(f) Prior to the expiration of OMB's approval of a collection of information, OMB may decide on its own initiative, after consultation with the agency, to review the collection of information. Such decisions will be made only when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error. Upon notification by OMB of its decision to review the collection of information, the agency shall submit it to OMB for review under this part.</P> <P>(g) For good cause, after consultation with the agency, OMB may stay the effectiveness of its prior approval of any collection of information that is not specifically required by agency rule; in such case, the agency shall cease conducting or sponsoring such collection of information while the submission is pending, and shall publish a notice in the <E T="04">Federal Register</E> to that effect.</P> </SECTION> <SECTION> <SECTNO>§ 1320.11</SECTNO> <SUBJECT>Clearance of collections of information in proposed rules.</SUBJECT> <P>Agencies shall submit collections of information contained in proposed rules published for public comment in the <E T="04">Federal Register</E> in accordance with the following requirements:</P> <P>(a) The agency shall include, in accordance with the requirements in § 1320.5(a)(1)(iv) and § 1320.8(d)(1) and (3), in the preamble to the Notice of Proposed Rulemaking a statement that the collections of information contained in the proposed rule, and identified as such, have been submitted to OMB for review under section 3507(d) of the Act. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency].</P> <P>(b) All such submissions shall be made to OMB not later than the day on which the Notice of Proposed Rulemaking is published in the <E T="04">Federal <PRTPAGE P="159"/>Register</E>, in such form and in accordance with such procedures as OMB may direct. Such submissions shall include a copy of the proposed regulation and preamble.</P> <P>(c) Within 60 days of publication of the proposed rule, but subject to paragraph (e) of this section, OMB may file public comments on collection of information provisions. The OMB comments shall be in the form of an OMB Notice of Action, which shall be sent to the Senior Official or agency head, or their designee, and which shall be made a part of the agency's rulemaking record.</P> <P>(d) If an agency submission is not in compliance with paragraph (b) of this section, OMB may, subject to paragraph (e) of this section, disapprove the collection of information in the proposed rule within 60 days of receipt of the submission. If an agency fails to submit a collection of information subject to this section, OMB may, subject to paragraph (e) of this section, disapprove it at any time.</P> <P>(e) OMB shall provide at least 30 days after receipt of the proposed collection of information before submitting its comments or making its decision, except as provided under § 1320.13.</P> <P>(f) When the final rule is published in the <E T="04">Federal Register</E>, the agency shall explain how any collection of information contained in the final rule responds to any comments received from OMB or the public. The agency shall include an identification and explanation of any modifications made in the rule, or explain why it rejected the comments. If requested by OMB, the agency shall include OMB's comments in the preamble to the final rule.</P> <P>(g) If OMB has not filed public comments under paragraph (c) of this section, or has approved without conditions the collection of information contained in a rule before the final rule is published in the <E T="04">Federal Register</E>, OMB may assign an OMB control number prior to publication of the final rule.</P> <P>(h) On or before the date of publication of the final rule, the agency shall submit the final rule to OMB, unless it has been approved under paragraph (g) of this section (and not substantively or materially modified by the agency after approval). Not later than 60 days after publication, but subject to paragraph (e) of this section, OMB shall approve, instruct the agency to make a substantive or material change to, or disapprove, the collection of information contained in the final rule. Any such instruction to change or disapprove may be based on one or more of the following reasons, as determined by OMB:</P> <P>(1) The agency has failed to comply with paragraph (b) of this section;</P> <P>(2) The agency had substantially modified the collection of information contained in the final rule from that contained in the proposed rule without providing OMB with notice of the change and sufficient information to make a determination concerning the modified collection of information at least 60 days before publication of the final rule; or</P> <P>(3) In cases in which OMB had filed public comments under paragraph (c) of this section, the agency's response to such comments was unreasonable, and the collection of information is unnecessary for the proper performance of the agency's functions.</P> <P>(i) After making such decision to approve, to instruct the agency to make a substantive or material change to, or disapprove, the collection of information, OMB shall so notify the agency. If OMB approves the collection of information or if it has not acted upon the submission within the time limits of this section, the agency may request, and OMB shall assign an OMB control number. If OMB disapproves or instructs the agency to make substantive or material change to the collection of information, it shall make the reasons for its decision publicly available.</P> <P>(j) OMB shall not approve any collection of information under this section for a period longer than three years. Approval of such collection of information will be for the full three-year period, unless OMB determines that there are special circumstances requiring approval for a shorter period.</P> <P>(k) After receipt of notification of OMB's approval, instruction to make a substantive or material change to, disapproval of a collection of information, or failure to act, the agency shall publish a notice in the <E T="04">Federal Register</E> to inform the public of OMB's decision.<PRTPAGE P="160"/> </P> <P>(l) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> </SECTION> <SECTION> <SECTNO>§ 1320.12</SECTNO> <SUBJECT>Clearance of collections of information in current rules.</SUBJECT> <P>Agencies shall submit collections of information contained in current rules that were published as final rules in the <E T="04">Federal Register</E> in accordance with the following procedures:</P> <P>(a) In the case of a collection of information contained in a published current rule which has been approved by OMB and has a currently valid OMB control number, the agency shall:</P> <P>(1) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and</P> <P>(2) After having made a reasonable effort to seek public comment, but no later than 60 days before the expiration date of the OMB control number for the currently approved collection of information, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.</P> <P>(b)(1) In the case of a collection of information contained in a published current rule that was not required to be submitted for OMB review under the Paperwork Reduction Act at the time the collection of information was made part of the rule, but which collection of information is now subject to the Act and this part, the agency shall:</P> <P>(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.(8)(d); and</P> <P>(ii) After having made a reasonable effort to seek public comment, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.</P> <P>(2) The agency may continue to conduct or sponsor the collection of information while the submission is pending at OMB. In the case of a collection of information not previously approved, approval shall be granted for such period, which shall not exceed 60 days, unless extended by the Director for an additional 60 days, and an OMB control number assigned. Upon assignment of the OMB control number, and in accordance with § 1320.3(f) and § 1320.5(b), the agency shall display the number and inform the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> <P>(c) On or before the day of submission to OMB under paragraphs (a) or (b) of this section, the agency shall, in accordance with the requirements set forth in § 1320.5(a)(1)(iv), forward a notice to the <E T="04">Federal Register</E> stating that OMB review is being sought. The notice shall direct requests for copies of the collection of information and supporting documentation to the agency, and shall request that comments be submitted to OMB within 30 days of the notice's publication. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency]. A copy of the notice submitted to the <E T="04">Federal Register</E>, together with the date of expected publication, shall be included in the agency's submission to OMB.</P> <P>(d) Within 60 days after receipt of the collection of information or publication of the notice under paragraph (c) of this section, whichever is later, OMB shall notify the agency involved of its decision to approve, to instruct the agency to make a substantive or material change to, or to disapprove, the collection of information, and shall make such decision publicly available. OMB shall provide at least 30 days for public comment after receipt of the proposed collection of information before making its decision, except as provided under § 1320.13.</P> <P>(e)(1) Upon approval of a collection of information, OMB shall assign an OMB control number and an expiration date. OMB shall not approve any collection of information for a period longer than three years. Approval of any collection <PRTPAGE P="161"/>of information submitted under this section will be for the full three-year period, unless OMB determines that there are special circumstances requiring approval for a shorter period.</P> <P>(2) If OMB fails to notify the agency of its approval, instruction to make substantive or material change, or disapproval within the 60-day period, the agency may request, and OMB shall assign without further delay, an OMB control number that shall be valid for not more than one year.</P> <P>(3) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> <P>(f)(1) If OMB disapproves a collection of information contained in an existing rule, or instructs the agency to make a substantive or material change to a collection of information contained in an existing rule, OMB shall:</P> <P>(i) Publish an explanation thereof in the <E T="04">Federal Register</E>; and</P> <P>(ii) Instruct the agency to undertake a rulemaking within a reasonable time limited to consideration of changes to the collection of information contained in the rule and thereafter to submit the collection of information for approval or disapproval under § 1320.10 or § 1320.11, as appropriate; and</P> <P>(iii) Extend the existing approval of the collection of information (including an interim approval granted under paragraph (b) of this section) for the duration of the period required for consideration of proposed changes, including that required for OMB approval or disapproval of the collection of information under § 1320.10 or § 1320.11, as appropriate.</P> <P>(2) Thereafter, the agency shall, within a reasonable period of time not to exceed 120 days, undertake such procedures as are necessary in compliance with the Administrative Procedure Act and other applicable law to amend or rescind the collection of information, and shall notify the public through the <E T="04">Federal Register</E>. Such notice shall identify the proposed changes in the collections of information and shall solicit public comment on retention, change, or rescission of such collections of information. If the agency employs notice and comment rulemaking procedures for amendment or rescission of the collection of information, publication of the above in the <E T="04">Federal Register</E> and submission to OMB shall initiate OMB clearance procedures under section 3507(d) of the Act and § 1320.11. All procedures shall be completed within a reasonable period of time to be determined by OMB in consultation with the agency.</P> <P>(g) OMB may disapprove, in whole or in part, any collection of information subject to the procedures of this section, if the agency:</P> <P>(1) Has refused within a reasonable time to comply with an OMB instruction to submit the collection of information for review;</P> <P>(2) Has refused within a reasonable time to initiate procedures to change the collection of information; or</P> <P>(3) Has refused within a reasonable time to publish a final rule continuing the collection of information, with such changes as may be appropriate, or otherwise complete the procedures for amendment or rescission of the collection of information.</P> <P>(h)(1) Upon disapproval by OMB of a collection of information subject to this section, except as provided in paragraph (f)(1)(iii) of this section, the OMB control number assigned to such collection of information shall immediately expire, and no agency shall conduct or sponsor such collection of information. Any such disapproval shall constitute disapproval of the collection of information contained in the Notice of Proposed Rulemaking or other submissions, and also of the preexisting information collection instruments directed at the same collection of information and therefore constituting essentially the same collection of information.</P> <P>(2) The failure to display a currently valid OMB control number for a collection of information contained in a current rule, or the failure to inform the potential persons who are to respond to the collection of information that such <PRTPAGE P="162"/>persons are not required to respond to the collection of information unless it displays a currently valid OMB control number, does not, as a legal matter, rescind or amend the rule; however, such absence will alert the public that either the agency has failed to comply with applicable legal requirements for the collection of information or the collection of information has been disapproved, and that therefore the portion of the rule containing the collection of information has no legal force and effect and the public protection provisions of 44 U.S.C. 3512 apply.</P> <P>(i) Prior to the expiration of OMB's approval of a collection of information in a current rule, OMB may decide on its own initiative, after consultation with the agency, to review the collection of information. Such decisions will be made only when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error. Upon notification by OMB of its decision to review the collection of information, the agency shall submit it to OMB for review under this Part.</P> </SECTION> <SECTION> <SECTNO>§ 1320.13</SECTNO> <SUBJECT>Emergency processing.</SUBJECT> <P>An agency head or the Senior Official, or their designee, may request OMB to authorize emergency processing of submissions of collections of information.</P> <P>(a) Any such request shall be accompanied by a written determination that:</P> <P>(1) The collection of information:</P> <P>(i) Is needed prior to the expiration of time periods established under this Part; and</P> <P>(ii) Is essential to the mission of the agency; and</P> <P>(2) The agency cannot reasonably comply with the normal clearance procedures under this part because:</P> <P>(i) Public harm is reasonably likely to result if normal clearance procedures are followed;</P> <P>(ii) An unanticipated event has occurred; or</P> <P>(iii) The use of normal clearance procedures is reasonably likely to prevent or disrupt the collection of information or is reasonably likely to cause a statutory or court ordered deadline to be missed.</P> <P>(b) The agency shall state the time period within which OMB should approve or disapprove the collection of information.</P> <P>(c) The agency shall submit information indicating that it has taken all practicable steps to consult with interested agencies and members of the public in order to minimize the burden of the collection of information.</P> <P>(d) The agency shall set forth in the <E T="04">Federal Register</E> notice prescribed by § 1320.5(a)(1)(iv), unless waived or modified under this section, a statement that it is requesting emergency processing, and the time period stated under paragraph (b) of this section.</P> <P>(e) OMB shall approve or disapprove each such submission within the time period stated under paragraph (b) of this section, provided that such time period is consistent with the purposes of this Act.</P> <P>(f) If OMB approves the collection of information, it shall assign a control number valid for a maximum of 90 days after receipt of the agency submission.</P> </SECTION> <SECTION> <SECTNO>§ 1320.14</SECTNO> <SUBJECT>Public access.</SUBJECT> <P>(a) In order to enable the public to participate in and provide comments during the clearance process, OMB will ordinarily make its paperwork docket files available for public inspection during normal business hours. Notwithstanding other provisions of this Part, and to the extent permitted by law, requirements to publish public notices or to provide materials to the public may be modified or waived by the Director to the extent that such public participation in the approval process would defeat the purpose of the collection of information; jeopardize the confidentiality of proprietary, trade secret, or other confidential information; violate State or Federal law; or substantially interfere with an agency's ability to perform its statutory obligations.</P> <P>(b) Agencies shall provide copies of the material submitted to OMB for review promptly upon request by any person.</P> <P>(c) Any person may request OMB to review any collection of information <PRTPAGE P="163"/>conducted by or for an agency to determine, if, under this Act and this part, a person shall maintain, provide, or disclose the information to or for the agency. Unless the request is frivolous, OMB shall, in coordination with the agency responsible for the collection of information:</P> <P>(1) Respond to the request within 60 days after receiving the request, unless such period is extended by OMB to a specified date and the person making the request is given notice of such extension; and</P> <P>(2) Take appropriate remedial action, if necessary.</P> </SECTION> <SECTION> <SECTNO>§ 1320.15</SECTNO> <SUBJECT>Independent regulatory agency override authority.</SUBJECT> <P>(a) An independent regulatory agency which is administered by two or more members of a commission, board, or similar body, may by majority vote void:</P> <P>(1) Any disapproval, instruction to such agency to make material or substantive change to, or stay of the effectiveness of OMB approval of, any collection of information of such agency; or</P> <P>(2) An exercise of authority under § 1320.10(g) concerning such agency.</P> <P>(b) The agency shall certify each vote to void such OMB action to OMB, and explain the reasons for such vote. OMB shall without further delay assign an OMB control number to such collection of information, valid for the length of time requested by the agency, up to three years, to any collection of information as to which this vote is exercised. No override shall become effective until the independent regulatory agency, as provided in § 1320.5(b) and § 1320.6(2), has displayed the OMB control number and informed the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.</P> </SECTION> <SECTION> <SECTNO>§ 1320.16</SECTNO> <SUBJECT>Delegation of approval authority.</SUBJECT> <P>(a) OMB may, after complying with the notice and comment procedures of the Administrative Procedure Act, delegate OMB review of some or all of an agency's collections of information to the Senior Official, or to the agency head with respect to those components of the agency for which he or she has not delegated authority.</P> <P>(b) No delegation of review authority shall be made unless the agency demonstrates to OMB that the Senior Official or agency head to whom the authority would be delegate:</P> <P>(1) Is sufficiently independent of program responsibility to evaluate fairly whether proposed collections of information should be approved;</P> <P>(2) Has sufficient resources to carry out this responsibility effectively; and</P> <P>(3) Has established an agency review process that demonstrates the prompt, efficient, and effective performance of collection of information review responsibilities.</P> <P>(c) OMB may limit, condition, or rescind, in whole or in part, at any time, such delegations of authority, and reserves the right to review any individual collection of information, or part thereof, conducted or sponsored by an agency, at any time.</P> <P>(d) Subject to the provisions of this part, and in accordance with the terms and conditions of each delegation as specified in appendix A to this part, OMB delegates review and approval authority to the following agencies:</P> <P>(1) Board of Governors of the Federal Reserve System; and</P> <P>(2) Managing Director of the Federal Communications Commission.</P> </SECTION> <SECTION> <SECTNO>§ 1320.17</SECTNO> <SUBJECT>Information collection budget.</SUBJECT> <P>Each agency's Senior Official, or agency head in the case of any agency for which the agency head has not delegated responsibility under the Act for any component of the agency to the Senior Official, shall develop and submit to OMB, in such form, at such time, and in accordance with such procedures as OMB may prescribe, an annual comprehensive budget for all collections of information from the public to be conducted in the succeeding twelve months. For good cause, OMB may exempt any agency from this requirement.</P> </SECTION> <SECTION> <PRTPAGE P="164"/> <SECTNO>§ 1320.18</SECTNO> <SUBJECT>Other authority.</SUBJECT> <P>(a) OMB shall determine whether any collection of information or other matter is within the scope of the Act, or this Part.</P> <P>(b) In appropriate cases, after consultation with the agency, OMB may initiate a rulemaking proceeding to determine whether an agency's collection of information is consistent with statutory standards. Such proceedings shall be in accordance with the informal rulemaking procedures of the Administrative Procedure Act.</P> <P>(c) Each agency is responsible for complying with the information policies, principles, standards, and guidelines prescribed by OMB under this Act.</P> <P>(d) To the extent permitted by law, OMB may waive any requirements contained in this part.</P> <P>(e) Nothing in this part shall be interpreted to limit the authority of OMB under this Act, or any other law. Nothing in this part or this Act shall be interpreted as increasing or decreasing the authority of OMB with respect to the substantive policies and programs of the agencies.</P> </SECTION> <APPENDIX> <EAR>Pt. 1320, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 1320—Agencies With Delegated Review and Approval Authority</HD> <P SOURCE="P1">1. The Board of Governors of the Federal Reserve System</P> <P>(a) Authority to review and approve collection of information requests, collection of information requirements, and collections of information in current rules is delegated to the Board of Governors of the Federal Reserve System.</P> <P>(1) This delegation does not include review and approval authority over any new collection of information or any modification to an existing collection of information that:</P> <P>(i) Is proposed to be collected as a result of a requirement or other mandate of the Federal Financial Institutions Examination Council, or other Federal executive branch entities with authority to require the Board to conduct or sponsor a collection of information.</P> <P>(ii) Is objected to by another Federal agency on the grounds that agency requires information currently collected by the Board, that the currently collected information is being deleted from the collection, and the deletion will have a serious adverse impact on the agency's program, provided that such objection is certified to OMB by the head of the Federal agency involved, with a copy to the Board, before the end of the comment period specified by the Board on the <E T="04">Federal Register</E> notices specified in paragraph (1)(3)(i) of this section 1.</P> <P>(iii) Would cause the burden of the information collections conducted or sponsored by the Board to exceed by the end of the fiscal year the Information Collection Budget allowance set by the Board and OMB for the fiscal year-end.</P> <P>(2) The Board may ask that OMB review and approve collections of information covered by this delegation.</P> <P>(3) In exercising delegated authority, the Board will:</P> <P>(i) Provide the public, to the extent possible and appropriate, with reasonable opportunity to comment on collections of information under review prior to taking final action approving the collection. Reasonable opportunity for public comment will include publishing a notice in the <E T="04">Federal Register</E> informing the public of the proposed collection of information, announcing the beginning of a 60-day public comment period, and the availability of copies of the “clearance package,” to provide the public with the opportunity to comment. Such <E T="04">Federal Register</E> notices shall also advise the public that they may also send a copy of their comments to the Federal Reserve Board and to the OMB/OIRA Desk Officer.</P> <P>(A) Should the Board determine that a new collection of information or a change in an existing collection must be instituted quickly and that public participation in the approval process would defeat the purpose of the collection or substantially interfere with the Board's ability to perform its statutory obligation, the Board may temporarily approve of the collection of information for a period not to exceed 90 days without providing opportunity for public comment.</P> <P>(B) At the earliest practical date after approving the temporary extension to the collection of information, the Board will publish a <E T="04">Federal Register</E> notice informing the public of its approval of the collection of information and indicating why immediate action was necessary. In such cases, the Board will conduct a normal delegated review and publish a notice in the <E T="04">Federal Register</E> soliciting public comment on the intention to extend the collection of information for a period not to exceed three years.</P> <P>(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve Board with a copy of the Board's <E T="04">Federal Register</E> notice not later than the day the Board files the notice with the Office of the Federal Register.</P> <P>(iii) Assure that approved collections of information are reviewed not less frequently than once every three years, and that such reviews are normally conducted before the expiration date of the prior approval. Where the review has not been completed prior to <PRTPAGE P="165"/>the expiration date, the Board may extend the report, for up to three months, without public notice in order to complete the review and consequent revisions, if any. There may also be other circumstances in which the Board determines that a three-month extension without public notice is appropriate.</P> <P>(iv) Take every reasonable step to conduct the review established under 5 CFR 1320.8, including the seeking of public comment under 5 CFR 1320.8(d). In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies. The Board will not approve a collection of information that it determines does not satisfy the guidelines set forth in 5 CFR 1320.5(d)(2), unless it determines that departure from these guidelines is necessary to satisfy statutory requirements or other substantial need.</P> <P>(v)(A) Assure that each approved collection of information displays, as required by 5 CFR 1320.6, a currently valid OMB control number and the fact that a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.</P> <P>(B) Assure that all collections of information, except those contained in regulations, display the expiration date of the approval, or, in case the expiration date has been omitted, explain the decision that it would not be appropriate, under 5 CFR 1320.5(a)(1)(iii)(C), for a proposed collection of information to display an expiration date.</P> <P>(C) Assure that each collection of information, as required by 5 CFR 1320.8(b)(3), informs and provides fair notice to the potential respondents of why the information is being collected; the way in which such information is to be used; the estimated burden; whether responses are voluntary, required to obtain or retain a benefit, or mandatory; the confidentiality to be provided; and the fact that an agency may not conduct or sponsor, and the respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.</P> <P>(vi) Assure that each approved collection of information, together with a completed form OMB 83-I, a supporting statement, a copy of each comment received from the public and other agencies in response to the Board's <E T="04">Federal Register</E> notice or a summary of these comments, the certification required by 5 CFR 1320.9, and a certification that the Board has approved of the collection of information in accordance with the provisions of this delegation is transmitted to OMB for incorporation into OMB's public docket files. Such transmittal shall be made as soon as practical after the Board has taken final action approving the collection. However, no collection of information may be instituted until the Board has delivered this transmittal to OMB.</P> <P>(b) OMB will:</P> <P>(1) Provide the Board in advance with a block of control numbers which the Board will assign in sequential order to and display on, new collections of information.</P> <P>(2) Provide a written notice of action to the Board indicating that the Board approvals of collections of information that have been received by OMB and incorporated into OMB's public docket files and an inventory of currently approved collections of information.</P> <P>(3) Review any collection of information referred by the Board in accordance with the provisions of section 1(a)(2) of this Appendix.</P> <P>(c) OMB may review the Board's paperwork review process under the delegation. The Board will cooperate in carrying out such a review. The Board will respond to any recommendations resulting from such review and, if it finds the recommendations to be appropriate, will either accept the recommendations or propose an alternative approach to achieve the intended purpose.</P> <P>(d) This delegation may, as provided by 5 CFR 1320.16(c), be limited, conditioned, or rescinded, in whole or in part at any time. OMB will exercise this authority only in unusual circumstances and, in those rare instances, will do so, subject to the provisions of 5 CFR 1320.10(f) and 1320.10(g), prior to the expiration of the time period set for public comment in the Board's <E T="04">Federal Register</E> notices and generally only if:</P> <P>(1) Prior to the commencement of a Board review (e.g., during the review for the Information Collection Budget). OMB has notified the Board that it intends to review a specific new proposal for the collection of information or the continued use (with or without modification) of an existing collection;</P> <P>(2) There is substantial public objection to a proposed information collection: or</P> <P>(3) OMB determines that a substantially inadequate and inappropriate lead time has been provided between the final announcement date of the proposed requirement and the first date when the information is to be submitted or disclosed. When OMB exercises this authority it will consider that the period of its review began the date that OMB received the <E T="04">Federal Register</E> notice provided for in section 1(a)(3)(i) of this Appendix.</P> <P>(e) Where OMB conducts a review of a Board information collection proposal under section 1(a)(1), 1(a)(2), or 1(d) of this Appendix, the provisions of 5 CFR 1320.13 continue to apply. </P> <P SOURCE="P1">2. The Managing Director of the Federal Communications Commission</P> <P>(a) Authority to review and approve currently valid (OMB-approved) collections of <PRTPAGE P="166"/>information, including collections of information contained in existing rules, that have a total annual burden of 5,000 hours or less and a burden of less than 500 hours per respondent is delegated to the Managing Director of the Federal Communications Commission.</P> <P>(1) This delegation does not include review and approval authority over any new collection of information, any collections whose approval has lapsed, any substantive or material modification to existing collections, any reauthorization of information collections employing statistical methods, or any information collections that exceed a total annual burden of 5,000 hours or an estimated burden of 500 hours per respondent.</P> <P>(2) The Managing Director may ask that OMB review and approve collections of information covered by the delegation.</P> <P>(3) In exercising delegated authority, the Managing Director will:</P> <P>(i) Provide the public, to the extent possible and appropriate, with reasonable opportunity to comment on collections of information under review prior to taking final action on reauthorizing an existing collection. Reasonable opportunity for public comment will include publishing a notice in the <E T="04">Federal Register</E> and an FCC Public Notice informing the public that a collection of information is being extended and announcing the beginning of a 60-day comment period, notifying the public of the “intent to extend an information collection,” and providing the public with the opportunity to comment on the need for the information, its practicality, the accuracy of the agency's burden estimate, and on ways to minimize burden, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Such notices shall advise the public that they may also send a copy of their comments to the OMB/Office of Information and Regulatory Affairs desk officer for the Commission.</P> <P>(A) Should the Managing Director determine that a collection of information that falls within the scope of this delegation must be reauthorized quickly and that public participation in the reauthorization process interferes with the Commission's ability to perform its statutory obligation, the Managing Director may temporarily reauthorize the extension of an information collection, for a period not to exceed 90 days, without providing opportunity for public comment.</P> <P>(B) At the earliest practical date after granting this temporary extension to an information collection, the Managing Director will conduct a normal delegated review and publish a <E T="04">Federal Register</E> notice soliciting public comment on its intention to extend the collection of information for a period not to exceed three years.</P> <P>(ii) Assure that approved collections of information are reviewed not less frequently than once every three years and that such reviews are conducted before the expiration date of the prior approval. When the review is not completed prior to the expiration date, the Managing Director will submit the lapsed information collection to OMB for review and reauthorization.</P> <P>(iii) Assure that each reauthorized collection of information displays an OMB control number and, except for those contained in regulations or specifically designated by OMB, displays the expiration date of the approval.</P> <P>(iv) Inform and provide fair notice to the potential respondents, as required by 5 CFR 1320.8(b)(3), of why the information is being collected; the way in which such information is to be used; the estimated burden; whether responses are voluntary, required, required to obtain or retain a benefit, or mandatory; the confidentiality to be provided; and the fact that an agency may not conduct or sponsor, and the respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.</P> <P>(v) Transmit to OMB for incorporation into OMB's public docket files, a report of delegated approval certifying that the Managing Director has reauthorized each collection of information in accordance with the provisions of this delegation. The Managing Director shall also make the certification required by 5 CFR 1320.9, e.g., that the approved collection of information reduces to the extent practicable and appropriate, the burden on respondents, including, for small business, local government, and other small entities, the use of the techniques outlined in the Regulatory Flexibility Act. Such transmittals shall be made no later than 15 days after the Managing Director has taken final action reauthorizing the extension of an information collection.</P> <P>(vi) Ensure that the personnel in the Commission's functional bureaus and offices responsible for managing information collections receive periodic training on procedures related to meeting the requirements of this part and the Act.</P> <P>(b) OMB will:</P> <P>(1) Provide notice to the Commission acknowledging receipt of the report of delegated approval and its incorporation into OMB's public docket files and inventory of currently approved collections of information.</P> <P>(2) Act upon any request by the Commission to review a collection of information referred by the Commission in accordance with the provisions of section 2(a)(2) of this appendix.</P> <P>(3) Periodically assess, at its discretion, the Commission's paperwork review process as administered under the delegation. The <PRTPAGE P="167"/>Managing Director will cooperate in carrying out such an assessment. The Managing Director will respond to any recommendations resulting from such a review and, if it finds the recommendations to be appropriate, will either accept the recommendation or propose an alternative approach to achieve the intended purpose.</P> <P>(c) This delegation may, as provided by 5 CFR 1320.16(c), be limited, conditioned, or rescinded, in whole or in part at any time. OMB will exercise this authority only in unusual circumstances.</P> </APPENDIX> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. V (1-1-03 Edition)</LRH> <RRH>Int'l Organizations Employees Loyalty Board</RRH> <TOC> <TOCHD> <PRTPAGE P="169"/> <HD SOURCE="HED">CHAPTER V—THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1501</PT> <SUBJECT>Operations of the International Organizations Employees Loyalty Board.</SUBJECT> <PG>171</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="171"/> <EAR>Pt. 1501</EAR> <HD SOURCE="HED">PART 1501—OPERATIONS OF THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1501.1</SECTNO> <SUBJECT>Name.</SUBJECT> <SECTNO>1501.2</SECTNO> <SUBJECT>Officers.</SUBJECT> <SECTNO>1501.3</SECTNO> <SUBJECT>Duties of officers.</SUBJECT> <SECTNO>1501.4</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>1501.5</SECTNO> <SUBJECT>Panels of the Board.</SUBJECT> <SECTNO>1501.6</SECTNO> <SUBJECT>Quorum.</SUBJECT> <SECTNO>1501.7</SECTNO> <SUBJECT>Authority and responsibility of the Board.</SUBJECT> <SECTNO>1501.8</SECTNO> <SUBJECT>Grounds for determinations of the Board.</SUBJECT> <SECTNO>1501.9</SECTNO> <SUBJECT>Cases reviewable by the Board.</SUBJECT> <SECTNO>1501.10</SECTNO> <SUBJECT>Consideration of reports of investigation.</SUBJECT> <SECTNO>1501.11</SECTNO> <SUBJECT>Consideration of complete file before hearing.</SUBJECT> <SECTNO>1501.12</SECTNO> <SUBJECT>Obtaining further information.</SUBJECT> <SECTNO>1501.13</SECTNO> <SUBJECT>Conduct of hearings.</SUBJECT> <SECTNO>1501.14</SECTNO> <SUBJECT>Decision of the Board.</SUBJECT> <SECTNO>1501.15</SECTNO> <SUBJECT>Transmission of Determination to the Secretary of State.</SUBJECT> <SECTNO>1501.16</SECTNO> <SUBJECT>Notification of individual concerned.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 10422, as amended; 3 CFR, 1949-1953 Comp., p. 921.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>18 FR 6371, Oct. 7, 1953, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1501.1</SECTNO> <SUBJECT>Name.</SUBJECT> <P>This Board shall be known as the International Organizations Employees Loyalty Board, and any reference to the “Board” in this part shall mean such International Organizations Employees Loyalty Board.</P> </SECTION> <SECTION> <SECTNO>§ 1501.2</SECTNO> <SUBJECT>Officers.</SUBJECT> <P>The officers of the Board shall consist of a chairman, a vice-chairman to be designated by the chairman, and an executive secretary to be appointed by the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1501.3</SECTNO> <SUBJECT>Duties of officers.</SUBJECT> <P>(a) <E T="03">The Chairman.</E> The chairman shall perform all the duties usually pertaining to the office of chairman, including presiding at Board meetings, supervising the administrative work of the Board, and conducting its correspondence. He shall be authorized to call special meetings of the Board, when in his judgment, such meetings are necessary and shall call such meetings at the written request of three members of the Board. The time and place of such meetings shall be fixed by the chairman. The chairman shall constitute such panels of the Board as may be necessary or desirable to render advisory determinations and to conduct hearings, and he is authorized to appoint such committees as from time to time may be required to handle the work of the Board. The chairman may request the vice-chairman to assume the duties of the chairman in the event of the absence of the chairman or his inability to act.</P> <P>(b) <E T="03">The Vice-Chairman.</E> The duties of the vice-chairman, when acting in the place of the chairman, shall be the same as the duties of the chairman.</P> <P>(c) <E T="03">The Executive-Secretary.</E> The executive-secretary shall perform all of the duties customarily performed by an executive-secretary. He shall have immediate charge of the administrative duties of the Board under the direction of the chairman and shall have general responsibility for advising and assisting the Board members and exercising executive direction over the staff.</P> </SECTION> <SECTION> <SECTNO>§ 1501.4</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>No adverse determination shall be made without the opportunity for a hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1501.5</SECTNO> <SUBJECT>Panels of the Board.</SUBJECT> <P>All hearings shall be held by panels of the Board, the determinations of which shall be the determinations of the Board. Such panels of the Board shall consist of not less than three members designated by the chairman. The chairman shall designate the Board member who shall be the presiding member and it shall be the duty of such presiding member to make due report to the Board of all acts and proceedings of the said panel.</P> </SECTION> <SECTION> <SECTNO>§ 1501.6</SECTNO> <SUBJECT>Quorum.</SUBJECT> <P>A majority of all the members of the Board shall constitute a quorum of the Board. Minutes shall be kept of the transactions of the Board in its meetings.</P> </SECTION> <SECTION> <SECTNO>§ 1501.7</SECTNO> <SUBJECT>Authority and responsibility of the Board.</SUBJECT> <P>The Board shall have the authority and responsibility to make rules and regulations, not inconsistent with the <PRTPAGE P="172"/>provisions of Executive Order 10422, as amended, for the execution of its functions and for making available to the Secretary General of the United Nations and the executive heads of other public international organizations certain information concerning United States citizens employed or being considered for employment by the United Nations or other public international organizations of which the United States is a member.</P> </SECTION> <SECTION> <SECTNO>§ 1501.8</SECTNO> <SUBJECT>Grounds for determinations of the Board.</SUBJECT> <P>(a) <E T="03">Standard.</E> The standard to be used by the Board in making any advisory determination relating to the loyalty of a United States citizen who is an employee of, or is being considered for employment in, a public international organization of which the United States is a member, shall be whether or not on all the evidence there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.</P> <P>(b) <E T="03">Activities and associations.</E> Among the activities and associations of the employee or person being considered for employment which may be considered in connection with a determination of disloyalty may be one or more of the following:</P> <P>(1) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs.</P> <P>(2) Treason or sedition or advocacy thereof.</P> <P>(3) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States.</P> <P>(4) Intentional, unauthorized disclosure to any person, under circumstances which may indicate disloyalty to the United States, of United States documents or United States information of a confidential or non-public character obtained by the person making the disclosure as a result of his previous employment by the Government of the United States or otherwise.</P> <P>(5) Performing or attempting to perform his duties, or otherwise acting, while an employee of the United States Government during a previous period, so as to serve the interests of another government in preference to the interests of the United States.</P> <P>(6) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, or group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.</P> </SECTION> <SECTION> <SECTNO>§ 1501.9</SECTNO> <SUBJECT>Cases reviewable by the Board.</SUBJECT> <P>All cases in which an investigation has been made under Executive Order 10422, as amended, shall be referred to and reviewed by the Board in accordance with the Executive Order and the rules and regulations of the Board.</P> </SECTION> <SECTION> <SECTNO>§ 1501.10</SECTNO> <SUBJECT>Consideration of reports of investigation.</SUBJECT> <P>(a) In all cases the Board shall consider the reports of investigation in the light of the standard as set forth in § 1501.8 and shall determine whether such reports warrant a finding favorable to the individual or appear to call for further processing of the case with a view to a possible unfavorable determination.</P> <P>(b) If the Board reaches a favorable conclusion in a case involving a question of loyalty, it shall make a determination that on all the evidence there is not a reasonable doubt as to the individual's loyalty.</P> <P>(c) If the Board determines that the reports do not warrant a finding favorable to the individual, or the Board determines that the evidence is of such a nature that a hearing may be required before a final decision is made, the Board shall send by registered mail, or in such other manner as the Board in a particular case may decide, a written interrogatory to the individual. Such interrogatory shall state the nature of the evidence against him, setting forth with particularity the facts and circumstances involved, in as much detail as security conditions permit, in order <PRTPAGE P="173"/>to enable him to submit his answer, defense or explanation and to submit affidavits. It will also inform the applicant or employee, of his opportunity to reply to the interrogatory in writing, under oath or affirmation, within ten (10) calendar days of the date of receipt by him of the interrogatory or such longer time as the Board in specific cases may prescribe, and of his opportunity for a hearing on the issues before the Board or a panel of the Board, including his right to appear personally at such hearing, to be represented by counsel of a representative of his own choosing, to present evidence in his own behalf, and to cross-examine witnesses offered in support of the derogatory information.</P> </SECTION> <SECTION> <SECTNO>§ 1501.11</SECTNO> <SUBJECT>Consideration of complete file before hearing.</SUBJECT> <P>(a) Following delivery to the applicant or employee of the interrogatory and after expiration of the time limit for filing an answer to the interrogatory, the Board shall proceed to consider the case on the complete file, including the answer, if any, to the interrogatory.</P> <P>(b) If, upon such consideration, the Board concludes that a finding favorable to the individual may be made, no hearing shall be required.</P> <P>(c) If, upon such consideration, the Board concludes that a determination favorable to the individual cannot be made on the basis of the information in the file, it shall set a time and place for a hearing and shall give notice thereof to the individual.</P> </SECTION> <SECTION> <SECTNO>§ 1501.12</SECTNO> <SUBJECT>Obtaining further information.</SUBJECT> <P>At any stage in its review and consideration of a case, if the Board deems it advisable or necessary to obtain information or clarification of any matter, the Board may request further investigation, or submit a written questionnaire to the individual whose case is before the Board, or request such individual to furnish information in an oral interview.</P> </SECTION> <SECTION> <SECTNO>§ 1501.13</SECTNO> <SUBJECT>Conduct of hearings.</SUBJECT> <P>(a) Not less than three members of a panel of the Board shall be present at all hearings. The Board shall conduct its hearings in such manner as to protect from disclosure information affecting the national security. The chairman of the panel shall preside and be responsible for the maintenance of decorum and order in the hearing.</P> <P>(b) Attendance at hearings shall be limited to the applicant or employee, his attorney or representative, the panel of the Board assigned to the case, Board members, Board staff employees participating in the case, the witness who is testifying, and such other persons as in the opinion of the panel are required for the proper presentation of the case. Representation for an applicant or employee shall be limited to one attorney or representative and one bona fide assistant, both representing the applicant or employee only.</P> <P>(c) Hearings shall begin with the reading of the interrogatory. The applicant or employee shall thereupon be informed of his right to participate in the hearing, to be represented by counsel, to present witnesses and other evidence in his behalf, and to cross-examine witnesses offered in support of the derogatory information.</P> <P>(d) Testimony shall be given under oath or affirmation.</P> <P>(e) Strict legal rules of evidence shall not be applied at the hearings, but reasonable bounds shall be maintained as to competency, relevancy, and materiality and due allowance shall be made for the effect of any nondisclosure to the individual of information or the absence of any opportunity to cross-examine persons who supplied information but who do not appear and testify. Both the Government and the applicant or employee may introduce such evidence as the panel may deem proper in the particular case.</P> <P>(f) A complete verbatim stenographic transcript shall be made of the hearing, and the transcript shall constitute a permanent part of the record.</P> <P>(g) Applicants and employees must pay their own travel and subsistence expenses incident to attendance at hearings, except that the Board may authorize the payment of travel and subsistence expenses to applicants or employees when the hearing is held at a place other than the place outside the continental limits of the United States where the employee works, or <PRTPAGE P="174"/>the applicant resides, and such payment is considered in the interest of good administration and funds are available for this purpose.</P> <CITA>[18 FR 6371, Oct. 7, 1953, as amended at 21 FR 5249, July 14, 1956]</CITA> </SECTION> <SECTION> <SECTNO>§ 1501.14</SECTNO> <SUBJECT>Decision of the Board.</SUBJECT> <P>After the employee or person being considered for employment has been given a hearing, the Board shall promptly make its decision. The determination of the Board shall be in writing and shall be signed by the members of the panel. It shall state the action taken, together with the reasons therefor, and shall be made a permanent part of the file in every case.</P> </SECTION> <SECTION> <SECTNO>§ 1501.15</SECTNO> <SUBJECT>Transmission of Determination to the Secretary of State.</SUBJECT> <P>The Board shall transmit its determination in each case to the Secretary of State for transmission to the Secretary General of the United Nations, or the executive head of any other public international organization concerned. In each case in which the Board determines that, on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States, it shall also transmit a statement of the reasons for the Board's determination in as much detail as the Board deems that security considerations permit.</P> </SECTION> <SECTION> <SECTNO>§ 1501.16</SECTNO> <SUBJECT>Notification of individual concerned.</SUBJECT> <P>A copy of the determination of the Board, but not of the statement of reasons, shall be furnished in each case to the person who is the subject thereof.</P> </SECTION> </PART> </CHAPTER> <CHAPTER> <LRH>5 CFR Ch. VI (1-1-03 Edition)</LRH> <RRH>Federal Retirement Thrift Investment Board</RRH> <TOC> <TOCHD> <PRTPAGE P="175"/> <HD SOURCE="HED">CHAPTER VI—FEDERAL RETIREMENT THRIFT INVESTMENT BOARD</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1600</PT> <SUBJECT>Employee elections to contribute to the Thrift Savings Plan</SUBJECT> <PG>177</PG> <PT>1601</PT> <SUBJECT>Participants’ choices of investment funds</SUBJECT> <PG>182</PG> <PT>1603</PT> <SUBJECT>Vesting</SUBJECT> <PG>186</PG> <PT>1604</PT> <SUBJECT>Uniformed services accounts</SUBJECT> <PG>187</PG> <PT>1605</PT> <SUBJECT>Correction of administrative errors</SUBJECT> <PG>193</PG> <PT>1606</PT> <SUBJECT>Lost earnings attributable to employing agency errors</SUBJECT> <PG>204</PG> <PT>1620</PT> <SUBJECT>Expanded and continuing eligibility</SUBJECT> <PG>211</PG> <PT>1630</PT> <SUBJECT>Privacy Act regulations</SUBJECT> <PG>220</PG> <PT>1631</PT> <SUBJECT>Availability of records</SUBJECT> <PG>229</PG> <PT>1632</PT> <SUBJECT>Rules regarding public observation of meetings</SUBJECT> <PG>239</PG> <PT>1633</PT> <SUBJECT>Standards of conduct</SUBJECT> <PG>243</PG> <PT>1636</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Federal Retirement Thrift Investment Board</SUBJECT> <PG>243</PG> <PT>1639</PT> <SUBJECT>Claims collection</SUBJECT> <PG>249</PG> <PT>1640</PT> <SUBJECT>Periodic participant statements</SUBJECT> <PG>264</PG> <PT>1645</PT> <SUBJECT>Allocation of earnings</SUBJECT> <PG>265</PG> <PT>1650</PT> <SUBJECT>Methods of withdrawing funds from the Thrift Savings Plan</SUBJECT> <PG>268</PG> <PT>1651</PT> <SUBJECT>Death benefits</SUBJECT> <PG>279</PG> <PT>1653</PT> <SUBJECT>Domestic relations orders affecting Thrift Savings Plan accounts</SUBJECT> <PG>285</PG> <PT>1655</PT> <SUBJECT>Loan program</SUBJECT> <PG>293</PG> <PT>1690</PT> <SUBJECT>Miscellaneous regulations</SUBJECT> <PG>302</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="177"/> <EAR>Pt. 1600</EAR> <HD SOURCE="HED">PART 1600—EMPLOYEE ELECTIONS TO CONTRIBUTE TO THE THRIFT SAVINGS PLAN</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1600.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Elections</HD> <SECTNO>1600.11</SECTNO> <SUBJECT>Types of elections.</SUBJECT> <SECTNO>1600.12</SECTNO> <SUBJECT>Period for making contribution elections.</SUBJECT> <SECTNO>1600.13</SECTNO> <SUBJECT>Effective dates of contribution elections.</SUBJECT> <SECTNO>1600.14</SECTNO> <SUBJECT>Method of election.</SUBJECT> <SECTNO>1600.15</SECTNO> <SUBJECT>Number of elections.</SUBJECT> <SECTNO>1600.16</SECTNO> <SUBJECT>Belated elections.</SUBJECT> <SECTNO>1600.17</SECTNO> <SUBJECT>Timing of agency contributions.</SUBJECT> <SECTNO>1600.18</SECTNO> <SUBJECT>Effect of transfer to FERS.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Program of Contributions</HD> <SECTNO>1600.21</SECTNO> <SUBJECT>Contributions in whole numbers.</SUBJECT> <SECTNO>1600.22</SECTNO> <SUBJECT>Maximum contributions.</SUBJECT> <SECTNO>1600.23</SECTNO> <SUBJECT>Required reduction of contribution rates.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Transfers From Other Qualified Retirement Plans</HD> <SECTNO>1600.31</SECTNO> <SUBJECT>Accounts eligible for transfer.</SUBJECT> <SECTNO>1600.32</SECTNO> <SUBJECT>Methods for transferring eligible rollover distribution to TSP.</SUBJECT> <SECTNO>1600.33</SECTNO> <SUBJECT>Treatment accorded transferred funds.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8432(b)(1)(A), 8432(j), 8474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 22089, May 2, 2001, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1600.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Terms used in this part have the following meanings:</P> <P> <E T="03">Account</E> or <E T="03">individual account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a).</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1) and (c)(3).</P> <P> <E T="03">Agency matching contributions</E> means any contributions made under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Basic pay</E> means basic pay as defined in 5 U.S.C. 8331(3). For CSRS and FERS employees, it is the rate of pay used in computing any amount the individual is otherwise required to contribute to the Civil Service Retirement and Disability Fund as a condition of participating in the Civil Service Retirement System or the Federal Employees' Retirement System, as the case may be.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established under 5 U.S.C. 8472.</P> <P> <E T="03">Contribution allocation</E> means the apportionment of a participant's future contributions and loan payments among the TSP investment funds.</P> <P> <E T="03">Contribution election</E> means a request by an employee to start contributing to the TSP, to change the amount of contributions made to the TSP each pay period, or to terminate contributions to the TSP.</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent Federal retirement system.</P> <P> <E T="03">CSRS employee</E> or <E T="03">CSRS participant</E> means any employee or participant covered by CSRS.</P> <P> <E T="03">Date of appointment</E> means the effective date of an employee's accession by the current employing agency.</P> <P> <E T="03">Election period</E> means the last calendar month of a TSP open season. It is the earliest period during which a TSP contribution election can become effective.</P> <P> <E T="03">Eligible employer plan</E> means a qualified trust; an annuity plan described in I.R.C. section 403(a) (26 U.S.C. 403(a)); an annuity contract described in I.R.C. section 403(b) (26 U.S.C. 403(b)); and an eligible deferred compensation plan described in I.R.C. section 457(b) (26 U.S.C. 457(b)) which is maintained by an eligible employer described in I.R.C. section 457(e)(1)(A) (26 U.S.C. 457(e)(1)(A)).</P> <P> <E T="03">Eligible retirement plan</E> means an eligible employer plan or a traditional IRA.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440e.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3) and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.<PRTPAGE P="178"/> </P> <P> <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board under 5 U.S.C. 8474.</P> <P> <E T="03">FERS</E> means the Federal Employees' Retirement System established by 5 U.S.C. chapter 84 or any equivalent Federal retirement system.</P> <P> <E T="03">FERS employee</E> or <E T="03">FERS participant</E> means any employee or TSP participant covered by FERS.</P> <P> <E T="03">Open season</E> means the period during which employees may elect to make contributions to the TSP, change the amount of contributions, or terminate contributions (without losing the right to resume contributions during the next open season).</P> <P> <E T="03">Separation from Government service</E> means the cessation of employment with the Federal Government, the U.S. Postal Service, or with any other employer, from a position that is deemed to be Government employment for purposes of participating in the TSP, for 31 or more full calendar days.</P> <P> <E T="03">Thrift Savings Plan,</E> <E T="03">TSP,</E> or <E T="03">Plan</E> means the Thrift Savings Plan established under subchapters III and VII of the Federal Employees' Retirement System Act of 1986, 5 U.S.C. 8351 and 8401-8479.</P> <P> <E T="03">Thrift Savings Plan Service Office</E> (TSPSO) means the office of the TSP recordkeeper which provides service to participants. The TSPSO's address is: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500.</P> <P> <E T="03">Traditional IRA</E> means an individual retirement account described in I.R.C. section 408(a) (26 U.S.C. 408(a)) and an individual retirement annuity described in I.R.C. section 408(b) (26 U.S.C. 408(b)) (other than an endowment contract).</P> <P> <E T="03">TSP recordkeeper</E> means the entity that is engaged by the Board to perform recordkeeping services for the Thrift Savings Plan. The TSP recordkeeper is the National Finance Center, Office of Finance and Management, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <CITA>[66 FR 22089, May 2, 2001, as amended at 67 FR 17604, Apr. 11, 2002]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Elections</HD> <SECTION> <SECTNO>§ 1600.11</SECTNO> <SUBJECT>Types of elections.</SUBJECT> <P>(a) <E T="03">Contribution elections.</E> A contribution election can be made on a Form TSP-1, Thrift Savings Plan Election Form, and includes any one of the following elections:</P> <P>(1) To make employee contributions;</P> <P>(2) To change the amount of employee contributions; or</P> <P>(3) To terminate employee contributions.</P> <P>(b) <E T="03">Contribution allocation.</E> A participant may make or change the manner in which future deposits to his or her account are allocated among the TSP's investment funds only in accordance with 5 CFR part 1601.</P> </SECTION> <SECTION> <SECTNO>§ 1600.12</SECTNO> <SUBJECT>Period for making contribution elections.</SUBJECT> <P>(a) <E T="03">Participation upon initial appointment or reappointment.</E> An employee may make a contribution election as follows:</P> <P>(1) <E T="03">Appointments made during the period January 1 through June 30, 2001.</E> An employee appointed, or reappointed following a separation from Government service, to a position covered by FERS or CSRS during the period January 1 through June 30, 2001, may make a TSP contribution election during the May 15 through July 31, 2001, open season.</P> <P>(2) <E T="03">Appointments made on or after July 1, 2001.</E> An employee appointed, or reappointed following a separation from Government service, to a position covered by FERS or CSRS may make a TSP contribution election within 60 days after the effective date of the appointment.</P> <P>(b) <E T="03">Open season elections.</E> Any employee may make a contribution election during an open season. Each year an open season will begin on May 15 and will end on July 31; a second open season will begin on November 15 and will end on January 31 of the following year. If the last day of an open season falls on a Saturday, Sunday, or legal holiday, the open season will be extended through the end of the next business day.</P> <P>(c) <E T="03">Election to terminate contributions.</E> An employee may elect to terminate employee contributions to the TSP at <PRTPAGE P="179"/>any time. If an employee's election to terminate contributions is received by the employing agency during an open season, the employee, if otherwise eligible, may make an election to resume contributions during the next open season. If the election to terminate contributions is received by the employing agency outside an open season, the employee may not make an election to resume contributions until the second open season beginning after the election to terminate.</P> <P>(d) <E T="03">Forced termination of employee contributions due to in-service hardship withdrawal restrictions under 5 CFR part 1650.</E> If an employee is reappointed to a position covered by FERS or CSRS following a separation from Government service and, at the time of separation, he or she had been previously ineligible to make employee contributions or receive agency matching contributions because of the restrictions on participants' ability to make contributions after having received an in-service hardship distribution, described in 5 CFR part 1650, the employee continues to be ineligible to make employee contributions or have agency matching contributions made on the employee's behalf during the six-month period described at 5 CFR 1650.32.</P> </SECTION> <SECTION> <SECTNO>§ 1600.13</SECTNO> <SUBJECT>Effective dates of contribution elections.</SUBJECT> <P>(a) <E T="03">Participation upon initial appointment or reappointment.</E> (1) TSP contribution elections made pursuant to § 1600.12(a)(1) that are received by the employing agency between May 15, 2001, and June 30, 2001, will become effective the first full pay period in July 2001. TSP contribution elections made pursuant to § 1600.12(a)(1) that are received by the employing agency during July 2001 will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(2) TSP contribution elections made pursuant to § 1600.12(a)(2) will become effective no later than the first full pay period after the election is received by the employing agency.</P> <P>(b) <E T="03">Open season elections.</E> TSP contribution elections made pursuant to § 1600.12(b) that are received by an employing agency during a portion of an open season which precedes the election period, except for an election to terminate contributions, will become effective the first full pay period of the election period. TSP contribution elections made pursuant to § 1600.12(b) that are received by an employing agency during the election period will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(c) <E T="03">Election to terminate contributions.</E> An election to terminate contributions, whenever it is made, will become effective no later than the first full pay period after the date the employing agency receives the election.</P> <P>(d) <E T="03">Elections resulting from transfer to FERS.</E> Elections made pursuant to § 1600.18 will become effective no later than the first full pay period after the date the employing agency receives the election. If the employee submits a contribution election at the same time that he or she submits the FERS transfer election, both elections will become effective the same pay period.</P> </SECTION> <SECTION> <SECTNO>§ 1600.14</SECTNO> <SUBJECT>Method of election.</SUBJECT> <P>(a) A participant must submit a contribution election to his or her employing agency. Employees may use either the paper TSP election form, Form TSP-1, or, if provided by their employing agency, electronic media to make an election. If an electronic medium is used, all relevant elements contained on the paper Form TSP-1 must be included in the electronic medium.</P> <P>(b) A contribution election must:</P> <P>(1) Be completed in accordance with the instructions on Form TSP-1, if a paper form is used;</P> <P>(2) Be made in accordance with the employing agency's instructions, if the submission is made electronically; and</P> <P>(3) Not exceed the maximum contribution limitations described in § 1600.22.</P> </SECTION> <SECTION> <SECTNO>§ 1600.15</SECTNO> <SUBJECT>Number of elections.</SUBJECT> <P>Once a contribution election made during an open season becomes effective, no further contribution elections may be made during the same open season, except an election to terminate contributions.</P> </SECTION> <SECTION> <PRTPAGE P="180"/> <SECTNO>§ 1600.16</SECTNO> <SUBJECT>Belated elections.</SUBJECT> <P>When an employing agency determines that an employee was unable, for reasons that were beyond the employee's control (other than agency administrative error, as provided in 5 CFR part 1605), to make a contribution election within the time limits prescribed by this part, the agency may accept the employee's election within 30 calendar days after it advises the employee of its determination. The election will become effective no later than the first full pay period after the date the employing agency receives the election.</P> </SECTION> <SECTION> <SECTNO>§ 1600.17</SECTNO> <SUBJECT>Timing of agency contributions.</SUBJECT> <P>(a) <E T="03">Employees not previously eligible to receive agency contributions.</E> An employee appointed or reappointed to a position covered by FERS who had not been previously eligible to receive agency contributions is eligible to receive agency contributions the full second election period following the effective date of the appointment. If an employee is appointed during an election period, that election period is not counted as the first election period.</P> <P>(b) <E T="03">Employees previously eligible to receive agency contributions.</E> An employee reappointed to a position covered by FERS who was previously eligible to receive agency contributions is immediately eligible to receive agency contributions.</P> <P>(c) Agency matching contributions that are attributable to the employee contributions made to the account of a FERS participant must change or terminate, as applicable, when the employee's contribution election becomes effective.</P> </SECTION> <SECTION> <SECTNO>§ 1600.18</SECTNO> <SUBJECT>Effect of transfer to FERS.</SUBJECT> <P>(a) If an employee appointed to a position covered by CSRS elects to transfer to FERS, the employee may make a contribution election simultaneously with the election to transfer to FERS, or within 30 calendar days after the effective date of his or her transfer.</P> <P>(b) Eligibility to make employee contributions, and therefore to have agency matching contributions made on the employee's behalf, is subject to the restrictions on making employee contributions after receipt of a financial hardship in-service withdrawal described at 5 CFR part 1650.</P> <P>(c) If the employee had elected to make TSP contributions while covered by CSRS, the election continues to be valid until the employee makes a new valid election.</P> <P>(d) Agency automatic (1%) contributions for all employees covered under this section and, if applicable, agency matching contributions attributable to employee contributions must begin the same pay period that the transfer to FERS becomes effective.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Program of Contributions</HD> <SECTION> <SECTNO>§ 1600.21</SECTNO> <SUBJECT>Contributions in whole numbers.</SUBJECT> <P>Employees may elect to contribute a percentage of basic pay or a dollar amount, subject to the limits described in § 1600.22. The election must be expressed in whole percentages or whole dollar amounts.</P> </SECTION> <SECTION> <SECTNO>§ 1600.22</SECTNO> <SUBJECT>Maximum contributions.</SUBJECT> <P>(a) <E T="03">Percentage of basic pay.</E> (1) Subject to paragraphs (b) and (c) of this section, the maximum FERS employee contribution for 2001 is 11 percent of basic pay per pay period. The maximum contribution will increase one percent a year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraphs (b) and (c) of this section.</P> <P>(2) Subject to paragraphs (b) and (c) of this section, the maximum CSRS employee contribution for 2001 is 6 percent of basic pay per pay period. The maximum contribution will increase one percent a year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraphs (b) and (c) of this section.</P> <P>(b) <E T="03">Internal Revenue Code (I.R.C.) limit on elective deferrals.</E> Section 402(g) of the I.R.C. (26 U.S.C. 402(g)) places a limit on the amount an employee may save on a tax-deferred basis through the TSP. Employee contributions to the TSP will be restricted to the I.R.C. <PRTPAGE P="181"/>limit; the TSP will not accept any contribution that exceeds the I.R.C. section 402(g) limit. If a participant contributes to the TSP and another plan, and the combined contributions exceed the I.R.C. section 402(g) limit, he or she may request a refund of employee contributions from the TSP to conform with the limit.</P> <P>(c) <E T="03">I.R.C. limit on contributions to qualified plans.</E> Section 415(c) of the I.R.C. (26 U.S.C. 415(c)) also places a limit on the amount an employee may save on a tax-deferred basis through the TSP. Employee contributions, described in this section, and employer contributions, described in § 1600.17, made to the TSP will be restricted to the I.R.C. section 415(c) limit. No employee contribution may be made to the TSP for any year to the extent that the sum of the employee contributions and the employer contributions for that year would exceed the I.R.C. section 415(c) limit.</P> </SECTION> <SECTION> <SECTNO>§ 1600.23</SECTNO> <SUBJECT>Required reduction of contribution rates.</SUBJECT> <P>(a) The employing agency will reduce the contribution of any FERS or CSRS employee who has elected a whole dollar amount but whose elected contribution for any pay period exceeds any of the applicable maximum percentages set forth in § 1600.22. The employing agency will reduce the whole dollar amount to the highest whole dollar amount that does not exceed the applicable maximum percentage.</P> <P>(b) An employing agency will not contribute to a participant's TSP account any amounts in excess of the limits referred to in § 1600.22(b) or (c).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Transfers From Other Qualified Retirement Plans</HD> <SECTION> <SECTNO>§ 1600.31</SECTNO> <SUBJECT>Accounts eligible for transfer.</SUBJECT> <P>(a) A participant who is entitled to receive (or receives) an eligible rollover distribution, within the meaning of I.R.C. section 402(c)(4) (26 U.S.C. 402(c)(4)), from an eligible employer plan or a rollover contribution, within the meaning of I.R.C. section 408(d)(3) (26 U.S.C. 408(d)(3)), from a traditional IRA may cause to be transferred (or transfer) that distribution into his or her existing TSP account. This option is not available to participants who have already made a full withdrawal of their TSP account after separation from service or who are receiving monthly payments.</P> <P>(b) The only balances that the TSP will accept are balances that would otherwise be includible in gross income if the distribution were paid to the participant. The TSP will not accept any balances that have already been subjected to Federal income tax (after-tax monies) or balances from a uniformed services TSP account that will not be subject to Federal income tax (tax-exempt monies).</P> <CITA>[67 FR 17604, Apr. 11, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1600.32</SECTNO> <SUBJECT>Methods for transferring eligible rollover distribution to TSP.</SUBJECT> <P>(a) <E T="03">Trustee-to-trustee transfer</E>. Participants may request that the administrator or trustee of their eligible retirement plan transfer any or all of their account directly to the TSP by executing and submitting a Form TSP-60 or TSP-U-60, Request for a Transfer Into the TSP, to the administrator or trustee. The administrator or trustee must complete the appropriate section of the form and forward the completed form and the distribution to the TSP record keeper.</P> <P>(b) <E T="03">Rollover by participant</E>. Participants who have already received a distribution from an eligible retirement plan may roll over all or part of the distribution into the TSP in accordance with the following requirements:</P> <P>(1) The participant must complete Form TSP-60 or TSP-U-60, Request for a Transfer Into the TSP.</P> <P>(2) The administrator or trustee of the eligible retirement plan must certify on the Form TSP-60 or TSP-U-60 the amount and date of the distribution.</P> <P>(3) The participant must submit the completed Form TSP-60 or TSP-U-60, together with a certified check, cashier's check, cashier's draft, money order, or treasurer's check from a credit union, made out to the “Thrift Savings Plan,” for the entire amount of the rollover. A participant may roll over the full amount of the distribution by making up, from his or her own funds, the amount that was withheld <PRTPAGE P="182"/>from the distribution for the payment of Federal taxes.</P> <P>(4) The transaction must be completed within 60 days of the participant's receipt of the distribution from his or her eligible retirement plan. The transaction is not complete until the TSP record keeper receives the Form TSP-60 or TSP-U-60, executed by both the participant and administrator, trustee, or custodian, together with the guaranteed funds for the amount to be rolled over.</P> <P>(c) <E T="03">Participant's certification</E>. When transferring a distribution to the TSP by either a trustee-to-trustee transfer or a rollover, the participant must certify that the distribution is eligible for transfer into the TSP, as follows:</P> <P>(1) <E T="03">Distribution from an eligible employer plan</E>. The participant must certify that the distribution:</P> <P>(i) Is not one of a series of substantially equal periodic payments made over the life expectancy of the participant (or the joint lives of the participant and designated beneficiary, if applicable) or for a period of 10 years or more;</P> <P>(ii) Is not a minimum distribution required by I.R.C. section 401(a)(9) (26 U.S.C. 401(a)(9));</P> <P>(iii) Is not a hardship distribution;</P> <P>(iv) Is not a plan loan that is deemed to be a taxable distribution because of default;</P> <P>(v) Is not a return of excess elective deferrals; and</P> <P>(vi) If not transferred or rolled over, would be includible in gross income for the tax year in which the distribution is paid.</P> <P>(2) <E T="03">Distribution from a traditional IRA</E>. The participant must certify that the distribution:</P> <P>(i) Is not a minimum distribution required under I.R.C. section 401(a)(9) (26 U.S.C. 401(a)(9)); and</P> <P>(ii) If not transferred or rolled over, would be includible in gross income for the tax year in which the distribution is paid.</P> <CITA>[67 FR 17604, Apr. 11, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1600.33</SECTNO> <SUBJECT>Treatment accorded transferred funds.</SUBJECT> <P>(a) All funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 will be treated as employee contributions.</P> <P>(b) All funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 will be invested in accordance with the participant's contribution allocation on file at the time the transfer is completed.</P> <P>(c) Funds transferred to the TSP pursuant to §§ 1600.31 and 1600.32 are not subject to the limits on contributions described in § 1600.22.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1601</EAR> <HD SOURCE="HED">PART 1601—PARTICIPANTS' CHOICES OF INVESTMENT FUNDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1601.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Investing Future Contributions and Loan Payments</HD> <SECTNO>1601.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.12</SECTNO> <SUBJECT>Investing future contributions and loan payments in the TSP investment funds.</SUBJECT> <SECTNO>1601.13</SECTNO> <SUBJECT>Elections.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Redistributing Participants' Existing Account Balances</HD> <SECTNO>1601.21</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.22</SECTNO> <SUBJECT>Methods of requesting an interfund transfer.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Contribution Allocations and Interfund Transfer Requests</HD> <SECTNO>1601.31</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1601.32</SECTNO> <SUBJECT>Timing and posting dates.</SUBJECT> <SECTNO>1601.33</SECTNO> <SUBJECT>Acknowledgment of risk.</SUBJECT> <SECTNO>1601.34</SECTNO> <SUBJECT>Effectiveness of Form TSP-50.</SUBJECT> <SECTNO>1601.35</SECTNO> <SUBJECT>Posting of transaction requests.</SUBJECT> <SECTNO>1601.36</SECTNO> <SUBJECT>Error correction.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8438, 7474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 22093, May 2, 2001, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1601.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Account balance</E> means the sum of the dollar balances for each source of contributions in each investment fund for an individual account.</P> <P> <E T="03">Acknowledgment of risk</E> means an acknowledgment that any investment in the F Fund, C Fund, S Fund, or I Fund is made at the participant's risk, that the participant is not protected by the <PRTPAGE P="183"/>United States Government or the Board against any loss on the investment, and that neither the United States Government nor the Board guarantees any return on the investment.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">Contribution allocation</E> means the apportionment of a participant's future contributions and loan payments among the TSP investment funds.</P> <P> <E T="03">Day</E> means calendar day, unless otherwise stated.</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">I Fund</E> means the International Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(E).</P> <P> <E T="03">Interfund transfer</E> means the reapportionment, under this part, of a participant's existing account balance among the various TSP investment funds.</P> <P> <E T="03">Investment fund</E> means any investment fund authorized under 5 U.S.C. 8438.</P> <P> <E T="03">S Fund</E> means the Small Capitalization Stock Index Fund established under 5 U.S.C. 8438(b)(1)(D).</P> <P> <E T="03">Source of contributions</E> means employee contributions, agency automatic (1%) contributions, or agency matching contributions.</P> <P> <E T="03">ThriftLine</E> means the automated voice response system by which TSP participants may, among other things, access their accounts by telephone. The ThriftLine can be reached at (504) 255-8777.</P> <P> <E T="03">TSP recordkeeper</E> means the entity that is engaged by the Board to perform recordkeeping services for the Thrift Savings Plan. The TSP recordkeeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <P> <E T="03">TSP Web site</E> means the Internet location maintained by the Board, which contains information about the TSP and by which TSP participants may, among other things, access their accounts by computer. The TSP Web site address is http://www.tsp.gov.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Investing Future Contributions and Loan Payments</HD> <SECTION> <SECTNO>§ 1601.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies only to the investment of future contributions and loan payments in the TSP's investment funds; it does not apply to redistributing participants' existing account balances among the investment funds, which is covered in subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.12</SECTNO> <SUBJECT>Investing future contributions and loan payments in the TSP investment funds.</SUBJECT> <P>(a) <E T="03">Transition rule.</E> Effective May 1, 2001, contributions and loan payments will be allocated among the investment funds based on the allocation of the most recent contribution posted to the account between March 15, 2001, and April 30, 2001. If no contributions have been posted to an account between March 15, 2001, and April 30, 2001, the allocation will be based on the allocation shown on an interfund transfer request pending for April 30, 2001. If there is no interfund transfer pending for April 30, 2001, the allocation will be based on the allocation of the account as of the March 31, 2001, account balance. If the March 31, 2001, account balance is zero, the contributions and loan payments will be allocated 100% to the G Fund. The allocation derived under this section will be applied to all contributions and loan payments posted as of a date after April 30, 2001, until a new contribution allocation is made by the participant pursuant to § 1600.12.</P> <P>(b) <E T="03">Investment fund availability.</E> Effective May 1, 2001, all participants may elect to invest all or any portion of their future contributions and loan payments in any of the TSP's five investment funds.</P> </SECTION> <SECTION> <SECTNO>§ 1601.13</SECTNO> <SUBJECT>Elections.</SUBJECT> <P>(a) <E T="03">Contribution allocation.</E> Effective May 1, 2001, each participant may indicate his or her choice of investment <PRTPAGE P="184"/>funds for the allocation of future contributions and loan payments by using the TSP Web site or the ThriftLine, or completing Form TSP-50, Investment Allocation. The following rules apply to contribution allocations:</P> <P>(1) Contribution allocations must be made in one percent increments. The sum of the percentages elected for all of the investment funds must equal 100%;</P> <P>(2) The percentage elected by a participant for investment of future contributions in an investment fund will be applied to all sources of contributions and loan payments. A participant may not make different percentage elections for different sources of contributions or for loan payments;</P> <P>(3) A participant who elects for the first time to invest contributions and loan payments in the F Fund, C Fund, S Fund, or I Fund must execute an acknowledgment of risk in accordance with § 1601.33;</P> <P>(4) All contributions and loan payments made on behalf of a participant who does not have a contribution allocation in effect will be invested in the G Fund;</P> <P>(5) Once a contribution allocation becomes effective, it remains in effect until it is superseded by a subsequent contribution allocation. If a separated participant is rehired, his or her last contribution allocation before separation from service will be given effect until a new allocation is made.</P> <P>(b) <E T="03">Effect of rejection of form.</E> If a Form TSP-50 is rejected, the purported contribution allocation made on the form will have no effect. The TSP will provide the participant with a written statement of the reason the form was rejected.</P> <P>(c) <E T="03">Contribution elections.</E> A participant may designate the amount of employee contributions he or she wishes to make to the TSP or may stop contributions only in accordance with 5 CFR part 1600.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Redistributing Participants' Existing Account Balances</HD> <SECTION> <SECTNO>§ 1601.21</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies only to redistributing participants' existing account balances among the TSP's investment funds; it does not apply to the investment of future contributions and loan payments, which is covered in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.22</SECTNO> <SUBJECT>Methods of requesting an interfund transfer.</SUBJECT> <P>(a) Effective May 1, 2001, participants may make an interfund transfer using the TSP Web site or the ThriftLine, or by completing a Form TSP-50, Investment Allocation. The following rules apply to an interfund transfer request:</P> <P>(1) Interfund transfer requests must be made in one percent increments. The sum of the percentages elected for all of the investment funds must equal 100%;</P> <P>(2) The percentages elected by the participant will be applied to the balances from each source of contributions that make up the participant's total account balance on the effective date of the interfund transfer;</P> <P>(3) Any participant who elects to invest in the F Fund, C Fund, S Fund, or I Fund for the first time must execute an acknowledgment of risk in accordance with § 1601.33.</P> <P>(b) An interfund transfer request has no effect on contributions and loan payments made after the effective date of the interfund transfer request; subsequent contributions and loan payments will continue to be allocated among the investment funds in accordance with the participant's contribution allocation made under subpart B of this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Contribution Allocations and Interfund TransferRequests</HD> <SECTION> <SECTNO>§ 1601.31</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies both to contribution allocations made under subpart B of this part and interfund transfers made under subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1601.32</SECTNO> <SUBJECT>Timing and posting dates.</SUBJECT> <P>(a) <E T="03">Posting dates.</E> (1) A contribution allocation will ordinarily be posted within 2 business days after it is received.</P> <P>(2) An interfund transfer request received by midnight (central time) on the 15th of the month will be posted to <PRTPAGE P="185"/>a participant's account as of the last day of the month. (If the 15th of the months falls on a weekend, holiday, or other nonbusiness day, the deadline will be the next business day.) Requests received after the deadline will be posted to a participant's account as of the last day of the following month.</P> <P>(b) <E T="03">Limit.</E> There is no limit on the number of contribution allocations or interfund transfer requests that may be made by a participant; however, only one interfund transfer will be processed per month.</P> <P>(c) <E T="03">Multiple contribution allocations or interfund transfer requests.</E> (1) If two or more contribution allocations or two or more interfund transfer requests with different dates are received for a participant and would be posted on the same day under the rules set forth in paragraph (a) of this section, only the last contribution allocation or interfund transfer request with the latest date will be posted.</P> <P>(2) If two or more contribution allocations or two or more interfund transfer requests with the same date are received for a participant and would be posted on the same day, the following rules will apply:</P> <P>(i) If one or more of the contribution allocations or interfund transfer requests are submitted through the TSP Web site or the ThriftLine and one or more are made on a Form TSP-50 and would be posted on the same day, only the latest contribution allocation or interfund transfer request made through the TSP Web site or the ThriftLine will be posted;</P> <P>(ii) If one or more of the contribution allocations or interfund transfer requests are made through the TSP Web site or the ThriftLine, only the contribution allocation or interfund transfer request entered at the latest time will be posted; and</P> <P>(iii) If the contribution allocations or interfund transfer requests are submitted using Form TSP-50, all of the forms will be rejected unless the percentage allocations among the investment funds are identical, in which case one will be accepted.</P> <P>(3) For purposes of determining the date and time of a contribution allocation or an interfund transfer request, the following rules apply:</P> <P>(i) The date of a contribution allocation or interfund transfer request made through the TSP Web site or the ThriftLine, is the date the participant enters the investment percentages;</P> <P>(ii) The date of a contribution allocation or interfund transfer request made on Form TSP-50 is the date the form is signed by the participant; and</P> <P>(iii) Central time is used for determining the date and time on which a transaction is entered and confirmed through the TSP Web site or the ThriftLine.</P> <P>(d) <E T="03">Cancellation of contribution allocation or interfund transfer request.</E> (1) A contribution allocation or an interfund transfer request may be canceled only through the TSP Web site, the ThriftLine, or through written correspondence.</P> <P>(2) <E T="03">Cancellation on the TSP Web site or ThriftLine.</E> A contribution allocation or an interfund transfer request may be canceled by entering the cancellation on the TSP Web site or the ThriftLine only up to the deadline, described in paragraph (a) of this section, that is applicable to the original request. If a change or cancellation is received after the deadline, the original request will be processed as scheduled. The second request will then be processed in turn.</P> <P>(3) <E T="03">Cancellation by correspondence.</E> A participant may also cancel a contribution allocation or an interfund transfer request by submitting a letter to the TSP recordkeeper requesting cancellation. To be accepted, the cancellation letter must be signed and dated and must contain the participant's name, Social Security number, and date of birth. To be effective, the cancellation must be received by the deadline described in paragraph (a) of this section. Unless the letter states unambiguously the specific contribution allocation or interfund transfer request it seeks to cancel, the written cancellation will apply to any contribution allocation or interfund transfer request with a date (as determined under paragraph (c)(3) of this section) before the date of the cancellation letter. If the date of a cancellation letter is the same as the date of a contribution allocation or an interfund transfer request and the request was made on Form TSP-50, the form will be canceled. If the request <PRTPAGE P="186"/>was made on the TSP Web site or ThriftLine, it will only be canceled if the written cancellation specifies the date of the TSP Web site or ThriftLine request to be canceled.</P> </SECTION> <SECTION> <SECTNO>§ 1601.33</SECTNO> <SUBJECT>Acknowledgment of risk.</SUBJECT> <P>(a) A participant who wants to invest in any investment fund other than the G Fund must execute an acknowledgment of risk for that fund. If a required acknowledgment of risk has not been executed, no transactions involving the fund(s) for which the acknowledgment is required will be accepted.</P> <P>(b) The acknowledgment of risk may be executed in association with a contribution allocation or an interfund transfer using the TSP Web site, the ThriftLine, or Form TSP-50.</P> </SECTION> <SECTION> <SECTNO>§ 1601.34</SECTNO> <SUBJECT>Effectiveness of Form TSP-50.</SUBJECT> <P>(a) A Form TSP-50 will not be effective if:</P> <P>(1) It is not signed and dated;</P> <P>(2) It is missing a Social Security number or date of birth;</P> <P>(3) The contribution allocation or interfund transfer percentages do not total 100%; or</P> <P>(4) The form is otherwise not properly completed in accordance with the instructions on the form.</P> <P>(b) If a Form TSP-50 is rejected, the TSP will provide the participant with a written statement of the reason the form was rejected.</P> </SECTION> <SECTION> <SECTNO>§ 1601.35</SECTNO> <SUBJECT>Posting of transaction requests.</SUBJECT> <P>The Board fully expects to meet the standards of § 1601.32. However, the Board cannot and does not guarantee that the TSP Web site or the ThriftLine will always be available to accept and process transaction requests.</P> </SECTION> <SECTION> <SECTNO>§ 1601.36</SECTNO> <SUBJECT>Error correction.</SUBJECT> <P>Errors in processing contribution allocations and interfund transfer requests, or errors that otherwise cause money to be invested in the wrong investment fund, will be corrected in accordance with the error correction regulations found at 5 CFR part 1605.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1603</EAR> <HD SOURCE="HED">PART 1603—VESTING</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1603.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1603.2</SECTNO> <SUBJECT>Basic vesting rules.</SUBJECT> <SECTNO>1603.3</SECTNO> <SUBJECT>Service requirements.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8432(g), 8432b(h)(1), 8474(b)(5) and (c)(1).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 29835, Aug. 12, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1603.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Terms used in this part shall have the following meaning:</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1);</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, and any equivalent Federal Government retirement plan;</P> <P> <E T="03">CSRS employee</E> means any employee, Member, or participant covered by CSRS, including employees authorized to contribute to the Thrift Savings Plan under 5 U.S.C. 8351, or 5 U.S.C. 8440a to 8440d;</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, and any equivalent Federal Government retirement plan;</P> <P> <E T="03">FERS employee</E> means an employee, Member, or participant covered by FERS;</P> <P> <E T="03">First conversion contributions</E> refers to the retroactive agency contributions, including interest on these contributions, made under 5 U.S.C. 8432(c)(3)(C) to the TSP accounts of employees who were automatically converted to the Federal Employees’ Retirement System on January 1, 1987;</P> <P> <E T="03">Individual account</E> means the total of all sums contributed to the Thrift Savings Plan by or on behalf of a CSRS employee or FERS employee, plus earnings allocated to the employee's account under 5 CFR part 1645;</P> <P> <E T="03">Separation date</E> means the effective date of an employee's separation from Government service;</P> <P> <E T="03">Separation from Government service</E> has the same meaning as provided in 5 CFR 1650.3;</P> <P> <E T="03">Service</E> means:</P> <P>(1) Any non-military service that is creditable under either 5 U.S.C. chapter <PRTPAGE P="187"/>83, subchapter III, or 5 U.S.C. 8411, provided however, that such service is to be determined without regard to any time limitations, any deposit or redeposit requirements contained in those statutory provisions after performing the service involved, or any requirement that the individual give written notice of that individual's desire to become subject to the retirement system established by 5 U.S.C. chapters 83 or 84; or</P> <P>(2) Any military service creditable under the provisions of 5 U.S.C. 8432b(h)(1) and the regulations issued at 5 CFR part 1620, subpart H;</P> <P> <E T="03">Vested</E> means those amounts in an individual account which are nonforfeitable; and</P> <P> <E T="03">Year of service</E> means one full calendar year of service.</P> <CITA>[62 FR 33968, June 23, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1603.2</SECTNO> <SUBJECT>Basic vesting rules.</SUBJECT> <P>(a) All amounts in a CSRS employee's individual account are immediately vested.</P> <P>(b) Except as provided in paragraph (c) of this section, all amounts in a FERS employee's individual account (including all first conversion contributions) are immediately vested.</P> <P>(c) Except as provided in paragraph (d) of this section, upon separation from Government service without meeting the applicable service requirements of § 1603.3, a FERS employee's agency automatic (1%) contributions and attributable earnings will be forfeited.</P> <P>(d) If a FERS employee dies (or died) after January 7, 1988, without meeting the applicable service requirements set forth in § 1603.3, the agency automatic (1%) contributions and attributable earnings in his or her individual account are deemed vested and shall not be forfeited. If a FERS employee died on or before January 7, 1988, without meeting those service requirements, his or her agency automatic (1%) contributions and attributable earnings are forfeited to the Thrift Savings Plan.</P> <CITA>[52 FR 29835, Aug. 12, 1987, as amended at 62 FR 33969, June 23, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1603.3</SECTNO> <SUBJECT>Service requirements.</SUBJECT> <P>(a) Except as provided under paragraph (b) of this section, FERS employees will be vested in their agency automatic (1%) contributions and attributable earnings upon separating from Government only if, as of their separation date, they have completed three years of service.</P> <P>(b) FERS employees will be vested in their agency automatic (1%) contributions and attributable earnings upon separating from Government service if, as of their separation date, they have completed two years of service and they are serving in one of the following positions:</P> <P>(1) A position in the Senior Executive Service as a non-career appointee (as defined in 5 U.S.C. 3132(a)(7));</P> <P>(2) Positions listed in 5 U.S.C. 5312, 5313, 5314, 5315 or 5316;</P> <P>(3) A position placed in level IV or level V of the Executive Schedule, pursuant to 5 U.S.C. 5317;</P> <P>(4) A position in the Executive Branch which is excepted from the competitive service by the Office of Personnel Management because of the confidential and policy-determining character of the position; or</P> <P>(5) A Member of Congress or a Congressional employee.</P> <CITA>[52 FR 29835, Aug. 12, 1987, as amended at 60 FR 24535, May 9, 1995; 62 FR 33969, June 23, 1997]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1604</EAR> <HD SOURCE="HED">PART 1604—UNIFORMED SERVICES ACCOUNTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1604.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1604.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1604.3</SECTNO> <SUBJECT>Contribution elections.</SUBJECT> <SECTNO>1604.4</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1604.5</SECTNO> <SUBJECT>Separate service member and civilian accounts.</SUBJECT> <SECTNO>1604.6</SECTNO> <SUBJECT>Error correction.</SUBJECT> <SECTNO>1604.7</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <SECTNO>1604.8</SECTNO> <SUBJECT>Death benefits.</SUBJECT> <SECTNO>1604.9</SECTNO> <SUBJECT>Court orders and legal processes.</SUBJECT> <SECTNO>1604.10</SECTNO> <SUBJECT>Loans.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474(b)(5) and (c)(1); sec. 661(b), Pub. L. 106-65, 113 Stat. 512, 672 (5 U.S.C. 8440e).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 50713, Oct. 4, 2001, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="188"/> <SECTNO>§ 1604.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This part describes the special features of TSP participation applicable to members of the uniformed services. Uniformed services members are also covered by the other regulations of 5 CFR chapter VI to the extent they do not conflict with the regulations of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1604.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Basic pay</E> means basic pay payable under 37 U.S.C. 204 and compensation received under 37 U.S.C. 206.</P> <P> <E T="03">Bonus contributions</E> means contributions made by participants from a bonus as defined in 37 U.S.C. chapter 5.</P> <P> <E T="03">Civilian account</E> means the TSP account to which contributions have been made by or on behalf of a civilian employee.</P> <P> <E T="03">Civilian employee</E> means a TSP participant covered by the Federal Employees' Retirement System, the Civil Service Retirement System, or equivalent retirement plans.</P> <P> <E T="03">Combat zone compensation</E> means compensation received for active service during a month in which a member of the uniformed services serves in a combat zone.</P> <P> <E T="03">Combat zone contributions</E> means employee contributions that are made from compensation subject to the Federal income tax exclusion at 26 U.S.C. 112 for combat zone compensation.</P> <P> <E T="03">Eligible retirement plan</E> means a plan defined at 26 U.S.C. 402(c)(8). Generally, an eligible retirement plan is an individual retirement account (IRA) or an individual retirement annuity (other than an endowment contract); a qualified pension, profit sharing, or stock bonus plan; an annuity plan described in 26 U.S.C. 403(a); an annuity contract described in 26 U.S.C. 403(b); or an eligible deferred compensation plan described in 26 U.S.C. 457(b). The IRA or other eligible retirement plan to which a payment from the TSP can be transferred must be a trust established inside the United States (<E T="03">i.e.,</E> the 50 states and the District of Columbia).</P> <P> <E T="03">Employee contributions</E> means contributions made by participants from basic pay, incentive pay, and special pay (including bonuses).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual who is eligible to contribute to the TSP and that has authority to make compensation decisions for that employee.</P> <P> <E T="03">Federal civilian retirement system</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, the Federal Employees' Retirement System established by 5 U.S.C. chapter 84, or any equivalent Federal civilian retirement system.</P> <P> <E T="03">Periodic contributions</E> means employee contributions made from recurring incentive pay and special pay (including bonuses) as defined in 37 U.S.C. chapter 5.</P> <P> <E T="03">Ready Reserve</E> means those members of the uniformed services described at 10 U.S.C. 10142.</P> <P> <E T="03">Regular contributions</E> means employee contributions made from basic pay.</P> <P> <E T="03">Separation from service</E> means discharge of a member from active duty or the Ready Reserve or transfer of a member to inactive status or to a retired list pursuant to any provision of title 10, U.S.C. The discharge or transfer may not be followed, before the end of the 31-day period beginning on the day following the effective date of the discharge, by resumption of active duty, an appointment to a civilian position covered by the Federal Employees' Retirement System, the Civil Service Retirement System, or an equivalent retirement system, or continued service in or affiliation with the Ready Reserve. Reserve component members serving on full-time active duty who terminate their active duty status and subsequently participate in the drilling reserve are said to continue in the Ready Reserve. Active component members who are released from active duty and subsequently participate in the drilling reserve are said to affiliate with the Ready Reserve.</P> <P> <E T="03">Service member</E> means a member of the uniformed services on active duty or a member of the Ready Reserve in any pay status.</P> <P> <E T="03">Service member account</E> means the account to which contributions have been made by or on behalf of a member of the uniformed services.</P> <P> <E T="03">Special and incentive pay</E> means pay payable as special or incentive pay under 37 U.S.C. chapter 5.<PRTPAGE P="189"/> </P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <P> <E T="03">Uniformed services</E> means the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service, and the National Oceanic and Atmospheric Administration.</P> </SECTION> <SECTION> <SECTNO>§ 1604.3</SECTNO> <SUBJECT>Contribution elections.</SUBJECT> <P>A service member may make contribution elections as described in 5 CFR part 1600, with the following exceptions:</P> <P>(a) <E T="03">Initial uniformed services open season.</E> A service member may make a contribution election during an initial uniformed services TSP open season beginning October 9, 2001, and ending January 31, 2002. Contributions based on an election made on or before December 31, 2001, will be deducted from pay the first full pay period of January 2002; elections made in January 2002 will be effective during the first full pay period after the election is received.</P> <P>(b) <E T="03">New service members.</E> An individual who is appointed as a service member may make a TSP contribution election within 60 days after the effective date of the appointment; contributions based on such an election will be made during the first full pay period after the election is received.</P> <P>(c) <E T="03">Conversion between active duty and Ready Reserve status.</E> A service member who converts from Ready Reserve status to active duty status (for more than 30 days), or who converts from active duty to Ready Reserve status, may make a TSP contribution election within 60 days after the effective date of the conversion; contributions based on such an election will be made during the first full pay period after it is received.</P> <P>(d) <E T="03">TSP open season elections.</E> In addition to being able to make a contribution election during the periods described in paragraphs (a) through (c) of this section, as applicable, a service member may make a contribution election during any TSP open season thereafter (as described at 5 CFR part 1600, subpart B).</P> <P>(e) <E T="03">Source of contributions.</E> A service member may elect to contribute sums to the TSP from basic pay, incentive pay, and special pay (including bonuses). However, the service member must be contributing to the TSP from basic pay in order to contribute to the TSP from incentive pay and special pay (including bonuses). Except for an election to contribute from bonuses, all contribution elections must be made during one of the periods described in paragraphs (a) through (d) of this section. A service member may elect to contribute from special pay or incentive pay (including bonuses) in anticipation of receiving such pay (that is, he or she does not have to be receiving the special pay or incentive pay when the contribution election is made); those elections will take effect when the service member receives the special or incentive pay.</P> </SECTION> <SECTION> <SECTNO>§ 1604.4</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>(a) <E T="03">Employee contributions.</E> Subject to the regulations at 5 CFR part 1600 and the following limitations, a service member may make regular contributions to the TSP from basic pay. If the service member makes regular contributions, he or she also may contribute all or a portion of incentive pay and special pay (including bonuses) to the TSP:</P> <P>(1) <E T="03">Temporary percentage limitations.</E> Subject to paragraph (a)(2) of this section, the maximum service member TSP regular employee contribution (including combat zone contributions) for 2002 is 7 percent of basic pay per pay period. The maximum contribution will increase one percentage point each year until 2005, after which the percentage of basic pay limit will not apply and the maximum contribution will be limited only as provided in paragraph (a)(2) of this section.</P> <P>(2) <E T="03">Internal Revenue Code limitations.</E> The dollar amount of TSP employee contributions is limited by two different provisions of the Internal Revenue Code (I.R.C.). If a service member's employee contributions exceed either of these limitations, the service member may request a refund of employee contributions (and associated <PRTPAGE P="190"/>earnings) from the TSP on the form titled “Request for Return of Excess Employee Contributions to Participant,” which can be obtained from the TSP record keeper. The completed form must be returned to the TSP record keeper by February 20 of the year after the excess contributions were made.</P> <P>(i) <E T="03">Limit on elective deferrals.</E> Section 402(g) of the I.R.C. (26 U.S.C. 402(g)) places a dollar limit on the amount a person may save on a tax-deferred basis through retirement savings plans. (For 2002, the limit is $11,000. The limit will increase each year by $1,000 until it reaches $15,000 in 2006; thereafter, it will be periodically adjusted by the Internal Revenue Service (IRS).) The TSP will not accept any employee contributions that exceed the I.R.C. section 402(g) limit. If a service member contributes to a civilian TSP account or to another qualified employer plan described at I.R.C. sections 401(k), 403(b), or 408(k) (26 U.S.C. 401(k), 403(b), or 408(k)), and the total employee contributions from taxable income made to all plans exceed the I.R.C. section 402(g) limit, he or she may request a refund of employee contributions from the TSP to conform with the limit. (Combat zone contributions are not taken into consideration when determining the application of the I.R.C. section 402(g) limit.)</P> <P>(ii) <E T="03">Limit on contributions to qualified plans.</E> Section 415(c) of the I.R.C. (26 U.S.C. 415(c)) also places an annual limit on the combined amount that can be contributed to the TSP and to other Federal civilian retirement systems (as defined in § 1604.2). (The limit is periodically adjusted by the IRS; it is the lesser of 100 percent of compensation or $40,000 in 2002.) For purposes of applying this limit, compensation includes combat zone compensation. In implementation of this law, no employee contribution may be made to the TSP for any year to the extent that the sum of the employee's contributions to the TSP and to a Federal civilian retirement system, when added to the employer's contributions to the TSP for that year, would exceed the I.R.C. section 415(c) limit. (If a service member contributes to a civilian TSP account and to a service member TSP account in a single calendar year, the annual limit on contributions will be derived from the participant's combined service member and civilian compensation.) Combat zone contributions are taken into consideration when determining the application of the I.R.C. section 415(c) limit.</P> <P>(b) <E T="03">Matching contributions.</E> When matching contributions are authorized for a service member, that service member's regular contributions will be matched dollar-for-dollar on the first three percent of basic pay contributed to the TSP, and 50 cents on the dollar on the next two percent of basic pay contributed. Matching contributions only apply to regular contributions. Matching contributions are not taken into consideration when determining the application of the contribution limit found at I.R.C. section 402(g)(described in paragraph (a)(2)(i) of this section), but they are taken into consideration when determining the application of the contribution limit found at I.R.C. section 415 (described in paragraph (a)(2)(ii) of this section).</P> <P>(c) <E T="03">Deduction and transmittal of contributions.</E> A service member's employing agency will deduct regular contributions from the service member's basic pay each pay period based on his or her contribution election and will transmit the contributions to the TSP. If a service member also elects to make periodic contributions to the TSP, the employing agency must deduct (and transmit to the TSP) these contributions from the service member's incentive pay or special pay (including bonuses), as applicable.</P> </SECTION> <SECTION> <SECTNO>§ 1604.5</SECTNO> <SUBJECT>Separate service member and civilian accounts.</SUBJECT> <P>(a) <E T="03">Separate accounts.</E> Service member accounts are maintained separately from civilian accounts. Therefore, service members making both civilian and uniformed services TSP contributions will have two TSP accounts. For those participants, the accounts are treated separately except in the following circumstances:</P> <P>(1) If a participant contributes to a service member account and a civilian account, the contributions to both accounts together cannot exceed the Internal Revenue Code contribution limits described in § 1604.4(a)(2).<PRTPAGE P="191"/> </P> <P>(2) A member of the uniformed services may obtain a loan from his or her account, as described at § 1604.10, and the loan will be disbursed from the uniformed services account. If the TSP maintains a service member account and a civilian account for an individual, the TSP will calculate the Internal Revenue Code maximum loan amount using both account balances, as described in § 1604.10(a)(3).</P> <P>(b) <E T="03">Transfers between TSP accounts.</E> Service member and civilian TSP account balances may be combined through a transfer (thus producing one account), and the transferred funds will be treated as employee contributions and otherwise invested as described at 5 CFR part 1600. Transfers under this section are subject to the following rules:</P> <P>(1) An account balance can be transferred once the TSP is informed (by the participant's employing agency) that the participant has separated from either civilian or uniformed services employment.</P> <P>(2) Combat zone contributions may not be transferred from a uniformed services TSP account to a civilian TSP account.</P> <P>(3) Transferred funds will be allocated among the TSP's investment funds according to the contribution allocation in effect for the gaining account.</P> <P>(4) A service member must obtain the consent of his or her spouse before transferring a uniformed services TSP account balance into a civilian account that is subject to Civil Service Retirement System spousal rights. A request for an exception to the spousal consent requirement will be evaluated under the rules explained in 5 CFR part 1650.</P> <P>(5) Before the transfer can be accomplished, any outstanding loans from the account to be transferred must be closed as described in 5 CFR part 1655.</P> </SECTION> <SECTION> <SECTNO>§ 1604.6</SECTNO> <SUBJECT>Error correction.</SUBJECT> <P>(a) <E T="03">General rule.</E> A service member's employing agency must correct the service member's account if, as the result of employing agency error, a service member does not receive the TSP contributions to which he or she is entitled. Except as provided in paragraph (b) of this section, those corrections must be made in accordance with 5 CFR part 1605.</P> <P>(b) <E T="03">Missed bonus contributions.</E> This paragraph (b) applies when an employing agency fails to implement a contribution election that was properly submitted by a service member requesting that a TSP contribution be deducted from bonus pay. Within 30 days of receiving the employing agency's acknowledgment of the error, a service member may establish a schedule of makeup contributions with his or her employing agency to replace the missed contribution through future payroll deductions. These makeup contributions can be made in addition to any TSP contributions that the service member is otherwise entitled to make.</P> <P>(1) The schedule of makeup contributions may not exceed four times the number of months it would take for the service member to earn basic pay equal to the dollar amount of the missed contribution. For example, a service member who earns $29,000 yearly in basic pay and who missed a $2,500 bonus contribution to the TSP can establish a schedule of makeup contributions with a maximum duration of 8 months. This is because it takes the service member 2 months to earn $2,500 in basic pay (at $2,416.67 per month).</P> <P>(2) At its discretion, an employing agency may set a ceiling on the length of a schedule of employee makeup contributions. The ceiling may not, however, be less than twice the number of months it would take for the service member to earn basic pay equal to the dollar amount of the missed contribution.</P> </SECTION> <SECTION> <SECTNO>§ 1604.7</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <P>A service member may withdraw all or a portion of his or her account under the rules in 5 CFR part 1650, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> If the TSP maintains a service member account and a civilian account for an individual, a separate withdrawal request must be made for each account.</P> <P>(b) <E T="03">Spousal rights.</E> The spouse of a service member participant has the same TSP spousal rights as the spouse of a civilian participant covered under the Federal Employees' Retirement System; those spousal rights in the <PRTPAGE P="192"/>context of a withdrawal (and the process by which a service member may obtain an exception to them) are explained at 5 CFR part 1650.</P> <P>(c) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the withdrawal will be distributed <E T="03">pro rata</E> from all sources. If a participant requests the TSP to transfer all, or a portion, of a withdrawal to an Individual Retirement Account (IRA) or other eligible retirement plan, the share of the withdrawal attributable to combat zone contributions (if any) can be transferred only if the IRA or retirement plan accepts such funds.</P> <P>(d) <E T="03">Separation.</E> The definition of separation from service at § 1604.2 applies when determining a service member's eligibility for a withdrawal.</P> </SECTION> <SECTION> <SECTNO>§ 1604.8</SECTNO> <SUBJECT>Death benefits.</SUBJECT> <P>The account balance of a deceased service member will be paid as described at 5 CFR part 1651, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> To designate a beneficiary for a TSP death benefit, a service member must file a valid beneficiary designation form. If the TSP maintains a service member account and a civilian account for an individual, a separate beneficiary designation form must be filed for each account.</P> <P>(b) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the death benefit payment will be made <E T="03">pro rata</E> from all sources.</P> <P>(c) <E T="03">Trustee-to-trustee transfers.</E> The surviving spouse of a TSP participant can request the TSP to transfer a death benefit payment to an Individual Retirement Account (IRA) or other eligible retirement plan. The share of the death benefit payment that is attributable to combat zone contributions (if any) can be transferred only if the IRA or retirement plan accepts such funds.</P> <P>(d) <E T="03">Transfer to a TSP account.</E> If the TSP maintains an account for a death benefit beneficiary who is the surviving spouse of the participant, the spouse can request the TSP to transfer the death benefit payment to his or her TSP account; the share attributable to combat zone contributions (if any) cannot be transferred into a civilian account.</P> </SECTION> <SECTION> <SECTNO>§ 1604.9</SECTNO> <SUBJECT>Court orders and legal processes.</SUBJECT> <P>A TSP account can be divided in an action for divorce, annulment, or legal separation, and is subject to legal process relating to child support, alimony, or child abuse. The TSP will make a payment from a service member's account under such orders or processes as described at 5 CFR part 1653, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> To qualify for enforcement against the TSP, a court order or legal process must expressly relate to the TSP. Therefore, if the TSP maintains a service member account and a civilian account for an individual, a qualifying court order or legal process must expressly state from which account payment is to be made.</P> <P>(b) <E T="03">Combat zone contributions.</E> If a service member account contains combat zone contributions, the payment will be made <E T="03">pro rata</E> from all sources, unless the court order or legal process directs otherwise.</P> <P>(c) <E T="03">Trustee-to-trustee transfers.</E> The current or former spouse of a TSP participant can request the TSP to transfer a court-ordered payment to an Individual Retirement Account (IRA) or other eligible retirement plan. If the payee requests the TSP to transfer all or a portion of the court-ordered payment to an IRA or other eligible retirement plan, the share of the payment attributable to combat zone contributions (if any) can be transferred only if the IRA or plan accepts such funds.</P> <P>(d) <E T="03">Transfer to a TSP account.</E> If the TSP maintains an account for a court order payee who is the current or former spouse of the participant, the payee can request the TSP to transfer the court-ordered payment to the payee's TSP account; the <E T="03">pro rata</E> share attributable to combat zone contributions (if any) cannot be transferred.</P> </SECTION> <SECTION> <SECTNO>§ 1604.10</SECTNO> <SUBJECT>Loans.</SUBJECT> <P>A service member may be eligible for a TSP loan as described at 5 CFR part 1655, with the following exceptions:</P> <P>(a) <E T="03">Separate accounts.</E> If the TSP maintains a service member account <PRTPAGE P="193"/>and a civilian account for an individual:</P> <P>(1) A separate loan application must be made for each account;</P> <P>(2) A participant may have no more than two loans outstanding from each account at any time; one loan from each account may be a loan for the purchase of a primary residence;</P> <P>(3) The Internal Revenue Code maximum loan amount test, which is described in 5 CFR part 1655, will be applied using the combined balances in both TSP accounts; and</P> <P>(4) Separate TSP loan statements will be issued for each account.</P> <P>(b) <E T="03">Spousal rights.</E> Before a loan agreement is approved for a service member account, the participant's spouse must consent to the loan by signing the loan agreement. A request for an exception to the spousal consent requirement will be evaluated under the rules explained in 5 CFR part 1650.</P> <P>(c) <E T="03">Combat zone contributions.</E> The portion of a loan that is attributable to combat zone contributions (if any) will be determined when the loan is declared a taxable distribution, and that portion will not be reported as taxable income to the participant as a result of the declaration.</P> </SECTION> </PART> <PART> <EAR>Pt. 1605</EAR> <HD SOURCE="HED">PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1605.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD> <SECTNO>1605.11</SECTNO> <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT> <SECTNO>1605.12</SECTNO> <SUBJECT>Removal of erroneous contributions.</SUBJECT> <SECTNO>1605.13</SECTNO> <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT> <SECTNO>1605.14</SECTNO> <SUBJECT>Misclassified retirement coverage.</SUBJECT> <SECTNO>1605.15</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1605.16</SECTNO> <SUBJECT>Claims for correction of employing agency errors; time limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Board or TSP Record Keeper Errors</HD> <SECTNO>1605.21</SECTNO> <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT> <SECTNO>1605.22</SECTNO> <SUBJECT>Claims for correction of Board or TSP record keeper errors; time limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD> <SECTNO>1605.31</SECTNO> <SUBJECT>Contributions missed as a result of military service.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8351, 8432a, and 8474(b)(5) and (c)(1).</P> <P>Section 1605.14 also issued under Title II, Pub. L. 106-265, 114 Stat. 770.</P> <P>Subpart D also issued under 5 U.S.C. 8432b(b)(4) and (i), 8440e.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 44277, Aug. 22, 2001, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1605.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">“As of” date</E> means the date on which a TSP contribution or other transaction should have taken place.</P> <P> <E T="03">Attributable pay date</E> ordinarily means the pay date of an erroneous contribution with respect to which a negative adjustment is being made. If, however, the erroneous contribution was a makeup or late contribution, the attributable pay date is the “as of” date associated with the erroneous makeup or late contribution.</P> <P> <E T="03">Board error</E> means any act or omission by the Board which is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Contribution allocation of record</E> means the last contribution allocation on file for the participant's account, which either will have been derived pursuant to § 1601.12 of this chapter or will result from the participant's filing of an election pursuant to § 1601.13 of this chapter.</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">Employing agency error</E> means any act or omission by an employing agency that is not in accordance with all applicable statutes, regulations, or administrative procedures, including internal procedures promulgated by the employing agency and TSP procedures provided to employing agencies by the Board.</P> <P> <E T="03">FERCCA correction</E> means the correction of a retirement coverage error <PRTPAGE P="194"/>pursuant to the Federal Erroneous Retirement Coverage Corrections Act, title II, Public Law 106-265, 114 Stat. 770.</P> <P> <E T="03">Late contributions</E> means: Employee contributions that were timely deducted from a participant's basic pay but were not timely reported to the TSP record keeper for investment; employee contributions that were timely reported to the TSP but were not posted to the participant's account by the TSP because the payment record on which they were submitted contained errors; and attributable agency matching contributions and agency automatic (1%) contributions that were not timely reported.</P> <P> <E T="03">Lost earnings record</E> means a data record containing information enabling the TSP system to compute lost earnings.</P> <P> <E T="03">Makeup contributions</E> are employee contributions that should have been deducted from a participant's basic pay, or employer contributions that should have been charged to an employing agency, on an earlier date but were not deducted or charged and, consequently, are being deducted or charged currently.</P> <P> <E T="03">Negative adjustment</E> means the removal of money from a participant's TSP account by an employing agency.</P> <P> <E T="03">Negative adjustment record</E> means a data record submitted by an employing agency to remove from a participant's TSP account money which was previously submitted in error.</P> <P> <E T="03">Pay date</E> means the date established by an employing agency for payment of its employees.</P> <P> <E T="03">Payment record</E> means a data record submitted by an employing agency to report contributions or loan payments to a participant's TSP account.</P> <P> <E T="03">Record keeper error</E> means any act or omission by the TSP record keeper that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Source of contributions</E> means employee contributions, agency automatic (1%) contributions, or agency matching contributions.</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD> <SECTION> <SECTNO>§ 1605.11</SECTNO> <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section applies whenever, as the result of an employing agency error, a participant does not receive all of the TSP contributions to which he or she is entitled. This includes situations in which an employing agency error prevents a participant from making an election to contribute to his or her TSP account, in which an employing agency fails to implement a contribution election properly submitted by a participant, in which an employing agency fails to make agency automatic (1%) contributions or agency matching contributions that it is required to make, or in which an employing agency otherwise erroneously contributes less to the TSP for a participant's account than it should have. The corrections required by this section must be made in accordance with this part and the procedures provided to employing agencies by the Board in bulletins or other guidance. It is the responsibility of the employing agency to determine whether it has made an error that entitles a participant to error correction under this section.</P> <P>(b) <E T="03">Employer makeup contributions.</E> If an employing agency has failed to make agency automatic (1%) contributions that are required under 5 U.S.C. 8432(c)(1)(A), agency matching contributions that are required under section 8432(c)(2), or conversion contributions that are required under section 8432(c)(3), the following rules apply:</P> <P>(1) The employing agency must promptly submit all missed contributions to the TSP record keeper on behalf of the affected participant. For each pay date involved, the employing agency must submit a separate payment record showing the “as of” date <PRTPAGE P="195"/>for the contributions. Employer makeup contributions will be invested in accordance with the participant's contribution allocation of record at the time the makeup contributions are posted to the account.</P> <P>(2) If the participant is entitled to lost earnings on employer makeup contributions pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(c) <E T="03">Employee makeup contributions.</E> Within 30 days of receiving information from his or her employing agency indicating that the employing agency acknowledges that an error has occurred which has caused less in employee contributions to be made to the participant's account than should have been made, a participant may elect to establish a schedule of makeup contributions to replace the missed contributions through future payroll deductions. Employee makeup contributions can be made in addition to any TSP contributions that the participant is otherwise entitled to make. The following rules apply to employee makeup contributions:</P> <P>(1) The schedule of makeup contributions elected by the participant must establish the dollar amount of the contributions to be made each pay period over the duration of the schedule. The contribution amount per pay period may vary during the course of the schedule, but the amounts to be contributed must be established when the schedule is created. The schedule may not exceed four times the number of pay periods over which the error occurred.</P> <P>(2) At its discretion, an employing agency may set a ceiling on the length of a schedule of employee makeup contributions which is less than four times the number of pay periods over which the error occurred. The ceiling may not, however, be less than twice the number of pay periods over which the error occurred.</P> <P>(3) The employing agency must implement the participant's schedule of makeup contributions as soon as practicable.</P> <P>(4) For each pay date involved, the employing agency must submit a separate payment record showing the “as of” date for the employee makeup contribution. An employee is not eligible to make up contributions with an “as of” date occurring within six months after a financial hardship in-service withdrawal, as provided in § 1650.33 of this chapter.</P> <P>(5) Employee makeup contributions will be invested in accordance with the participant's contribution allocation of record at the time the makeup contributions are posted to the account. If no contribution allocation is on file, the contributions will be invested in the G Fund.</P> <P>(6) Employee makeup contributions will not be considered in applying the maximum amount per pay period that a participant is permitted to contribute to the TSP, but will be included for purposes of applying the annual limits contained in sections 402(g) and 415(c) of the Internal Revenue Code (I.R.C.) (26 U.S.C. 402(g) and 415(c)). For purposes of applying the annual limits of sections 402(g) and 415(c) of the I.R.C., employee makeup contributions will be applied against the limit for the year in which the contributions should have been made (i.e., the year of the “as of” date).</P> <P>(i) Before establishing a schedule of employee makeup contributions, the employing agency must review any schedule proposed by the affected participant, as well as the participant's prior TSP contributions, if any, to determine whether the makeup contributions, when combined with prior contributions for the same year, would exceed the annual contribution limit(s) contained in sections 402(g) and 415(c) of the I.R.C. for the year(s) with respect to which the contributions are being made.</P> <P>(ii) The employing agency must not permit contributions that, when combined with prior contributions, would exceed the applicable annual contribution limits contained in sections 402(g) and 415(c) of the I.R.C.</P> <P>(7) A schedule of employee makeup contributions may be suspended if a participant has insufficient net pay to permit the makeup contributions. If this happens, the period of suspension should not be counted against the maximum number of pay periods to which the participant is entitled in order to <PRTPAGE P="196"/>complete the schedule of makeup contributions.</P> <P>(8) A participant may elect to terminate a schedule of employee makeup contributions at any time, but a termination is irrevocable. If a participant separates from Government service, the participant may elect to accelerate the payment schedule by a lump sum contribution from his or her final paycheck.</P> <P>(9) At the same time that a participant makes up missed employee contributions, the employing agency must make any agency matching contributions that would have been made had the error not occurred. Agency matching contributions must be submitted pursuant to the rules set forth in paragraph (b) of this section. A participant may not receive matching contributions associated with any employee contributions that are not actually made up. If employee makeup contributions are suspended in accordance with paragraph (c)(7) of this section, the payment of agency matching contributions must also be suspended.</P> <P>(10) If a participant transfers to an employing agency different from the one at which the participant was employed at the time of the missed contributions, it remains the responsibility of the former employing agency to determine whether employing agency error was responsible for the missed contributions. If it is determined that such an error has occurred, the current agency must take any necessary steps to correct the error. The current agency may seek reimbursement from the former agency of any amount that would have been paid by the former agency had the error not occurred.</P> <P>(11) Employee makeup contributions may be made only by payroll deduction from basic pay. Contributions by check, money order, cash, or other form of payment directly from the participant to the TSP, or from the participant to the employing agency for deposit to the TSP, are not permitted.</P> <P>(12) If the participant is entitled to lost earnings on the makeup contributions pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(d) <E T="03">Late contributions.</E> If, as a result of agency error, the TSP posts a late contribution to a participant's account more than 30 calendar days after the “as of” date that is reported by the employing agency on the payment record, the employing agency must submit any lost earnings records pursuant to 5 CFR part 1606. Late contributions will be invested in accordance with the participant's contribution allocation of record on the posting date.</P> </SECTION> <SECTION> <SECTNO>§ 1605.12</SECTNO> <SUBJECT>Removal of erroneous contributions.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section applies to negative adjustments. These include situations in which, because of an employing agency error, employee contributions in excess of the amount elected by a participant are contributed to a participant's account, employee contributions (and any attributable agency matching contributions) are made on behalf of a participant who did not elect to make contributions, or excess employer contributions are made to a participant's account. Negative adjustments resulting from a FERCCA correction are addressed in § 1605.14.</P> <P>(b) <E T="03">Method of correction.</E> Negative adjustment records must be submitted by employing agencies in accordance with this part and with any other procedures provided by the Board.</P> <P>(1) To remove money from a participant's account, the employing agency must submit, for each attributable pay date involved, a negative adjustment record stating the amount of the erroneous contribution being removed, the attributable pay date with respect to which the erroneous contribution was made, and the source(s) of the contributions. The TSP record keeper will derive the investment of the negative adjustment from the allocation of any contribution which was reported for the attributable pay date. If no contribution was submitted for the attributable pay date, the negative adjustment will not be processed.</P> <P>(2) A negative adjustment record may be for all or a part of the contributions made for the attributable pay date and source of contributions; however, for each source of contributions, the negative adjustment may not exceed the amount of contributions made for that <PRTPAGE P="197"/>date, less any prior negative adjustments for the same date.</P> <P>(c) <E T="03">Processing negative adjustments.</E> Negative adjustments will be processed in accordance with the following rules:</P> <P>(1) Negative adjustment records received and accepted by the TSP record keeper by the second-to-last business day of a month will be processed effective as of the end of that month. Negative adjustment records accepted by the TSP record keeper after the second-to-last business day of a month will be processed effective as of the end of the following month; and</P> <P>(2) For each negative adjustment record, the TSP record keeper will determine attributable earnings on the amount of the adjustment by source of contribution and investment fund. Thus, earnings and losses from different sources will not be netted against each other, and earnings and losses from different investment funds will not be netted against each other. Further, interfund transfers occurring between the attributable pay date of the negative adjustment and the date the adjustment is processed by the TSP record keeper will not be considered.</P> <P>(d) <E T="03">Employee contributions.</E> The following rules apply to negative adjustments involving employee contributions:</P> <P>(1) If, on the posting date, the amount calculated under paragraph (c) of this section is greater than the amount of the proposed negative adjustment, the full amount of the adjustment will be returned to the employing agency. Subject to paragraph (d)(4) of this section, the earnings on the erroneous contribution will remain in the participant's account;</P> <P>(2) If, on the posting date, the amount calculated under paragraph (c) of this section is less than the amount of the proposed negative adjustment, the amount of the adjustment, reduced by the investment loss, will be returned to the employing agency. However, an investment loss will not affect the employing agency's obligation to refund to the participant the full amount of the erroneous contribution;</P> <P>(3) If an employing agency removes erroneous employee contributions from a participant's account, it must also remove, under paragraph (e) of this section, any attributable agency matching contributions; and</P> <P>(4) If all employee contributions are removed from a participant's account under the rules set forth in this section, the participant may choose to leave any earnings in the account unless he or she was not eligible to have an account in the TSP at the time earnings were credited to the account, and remains ineligible. If the participant was ineligible for a TSP account (and remains ineligible), the earnings will be paid to the participant. If earnings remain in the account, upon the participant's separation from Government service, they will be subject to the same withdrawal rules as apply to any other funds in a participant's account.</P> <P>(e) <E T="03">Employer contributions.</E> The following rules apply to negative adjustments involving erroneous employer contributions:</P> <P>(1) Erroneous employer contributions will be returned to the employing agency only if the negative adjustment record is posted by the TSP record keeper within one year of the date the erroneous contribution was posted. If one year or more has elapsed when the negative adjustment record is posted, the amount computed under paragraph (c) of this section will be removed from the participant's account and used to offset TSP administrative expenses;</P> <P>(2) If the erroneous contribution has been in the participant's account for less than one year when the negative adjustment record is posted and the amount computed under paragraph (c) of this section is greater than the amount of the adjustment, the employing agency will receive the full amount of the erroneous contribution. Any earnings attributable to the erroneous contribution will be removed from the participant's account and used to offset TSP administrative expenses;</P> <P>(3) If the erroneous contribution has been in the participant's account for less than one year when the negative adjustment record is posted and the amount computed under paragraph (c) of this section is less than the amount of the adjustment, the employing agency will receive the amount of the erroneous contribution reduced by the investment loss; and<PRTPAGE P="198"/> </P> <P>(4) An employing agency's obligation to submit negative adjustment records to remove erroneous contributions from a participant's account is not affected by the length of time the contributions have been in the account.</P> <P>(f) <E T="03">Each negative adjustment to be processed separately.</E> For purposes of paragraphs (d) and (e) of this section—</P> <P>(1) If multiple negative adjustments for a participant are posted on the same business day, the amount removed from the participant's account and/or returned to the employing agency will be determined separately for each adjustment, for each source of contributions, and for each investment fund. Earnings and losses for erroneous contributions made on different dates will not be netted against each other. Instead, each source of contributions and each fund will be treated as separate for purposes of these calculations;</P> <P>(2) The amount computed by application of the rules in this section will be removed from the participant's account pro rata from all investment funds, by source, based on the allocation of the participant's most recent month-end valued account balance; and</P> <P>(3) If there is insufficient money in the same source of contributions to cover the amount to be removed, the negative adjustment record will be rejected.</P> </SECTION> <SECTION> <SECTNO>§ 1605.13</SECTNO> <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT> <P>(a) <E T="03">Participant not employed.</E> The following rules apply to participants who receive a back pay award or other retroactive pay adjustment for a period during which the participant was separated from Government employment:</P> <P>(1) If the participant is reinstated to Government employment, immediately upon reinstatement the employing agency must give the participant the opportunity to submit a contribution election to make current contributions. The contribution election will be effective as soon as administratively feasible, but no later than the first day of the first full pay period after it is received;</P> <P>(2) The employing agency must give the participant the following options for electing makeup contributions:</P> <P>(i) If the participant had a contribution election on file when he or she separated, upon the participant's reinstatement to Government employment, that election will be reinstated for purposes of the makeup contributions; or</P> <P>(ii) Instead of making contributions for the period of separation in accordance with the reinstated contribution election, the participant may submit a new contribution election for any open season(s) that occurred during the period of separation;</P> <P>(3) All makeup contributions under this section will be invested based on the participant's contribution allocation of record at the time the makeup contributions are posted to the account; and</P> <P>(4) The employing agency must submit lost earnings records pursuant to 5 CFR part 1606. Lost earnings will be calculated and credited to a participant's account in accordance with 5 CFR part 1606 using the rates of return for the G Fund unless otherwise requested by the agency (with the concurrence of the participant), or as ordered by a court or other tribunal with jurisdiction over the participant's back pay case.</P> <P>(b) <E T="03">Participant employed.</E> The following rules apply to participants who receive a back pay award or other retroactive pay adjustment for a period during which the participant was not separated from Government employment:</P> <P>(1) The participant will be entitled to make up contributions for the period covered by the back pay award or retroactive pay adjustment only if for that period—</P> <P>(i) The participant had designated a percentage of basic pay to be contributed to the TSP; or</P> <P>(ii) The participant had designated a dollar amount of contributions each pay period which equaled the applicable ceiling (FERS or CSRS) on contributions per pay period, and which, therefore, was limited as a result of the reduction in pay that is made up by the back pay award or other retroactive pay adjustment;</P> <P>(2) The employing agency must compute the amount of additional employee contributions, agency matching contributions, and agency automatic <PRTPAGE P="199"/>(1%) contributions that would have been contributed to the participant's account had the reduction in pay leading to the back pay award or other retroactive pay adjustment not occurred; and</P> <P>(3) If the participant is entitled to lost earnings pursuant to 5 CFR part 1606, the employing agency must also submit lost earnings records.</P> <P>(c) <E T="03">Contributions to be deducted before payment or other retroactive pay adjustment.</E> Employee makeup contributions required under paragraphs (a) and (b) of this section:</P> <P>(1) Must be computed before the back pay award or other retroactive pay adjustment is paid, deducted from the back pay or other retroactive pay adjustment, and submitted to the TSP record keeper;</P> <P>(2) Must not cause the participant to exceed the annual contribution limit(s) contained in sections 402(g) and 415(c) of the I.R.C. (26 U.S.C. 402(g) and 415(c)) for the year(s) with respect to which the contributions are being made, taking into consideration the TSP contributions already made in (or with respect to) that year; and</P> <P>(3) Must be accompanied by attributable agency matching contributions. In any event, regardless of whether a participant elects to make up employee contributions, the employing agency must make all appropriate agency automatic (1%) contributions associated with the back pay award or other retroactive pay adjustment.</P> <P>(d) <E T="03">Prior withdrawal of TSP account.</E> If a participant has withdrawn his or her TSP account, other than by purchasing an annuity, and the separation from Government employment upon which the withdrawal was based is reversed, resulting in reinstatement of the participant without a break in service, the participant will have the option to restore the amount withdrawn to his or her TSP account. The right to restore the withdrawn funds will expire if notice is not provided by the participant to the Board within 90 days of reinstatement. If the participant returns the funds that were withdrawn, they will be posted to the participant's account based on his or her contribution allocation of record at the time of separation. If no contribution allocation is on file, the contributions will be invested in the G Fund. No lost earnings will be paid on any restored funds.</P> <P>(e) Participants who are covered by paragraph (d) of this section and who elect to return funds that were withdrawn may also elect to reinstate a loan which was previously declared to be a taxable distribution.</P> </SECTION> <SECTION> <SECTNO>§ 1605.14</SECTNO> <SUBJECT>Misclassified retirement coverage.</SUBJECT> <P>(a) If a CSRS participant is misclassified by an employing agency as a FERS participant, when the misclassification is corrected:</P> <P>(1) Employee contributions that exceed the applicable contribution percentage for the pay period(s) involved may remain in the participant's account. However, the participant may choose to have such employee contributions or all of the employee contributions made during the period of misclassification removed from his or her account and refunded to the participant. If the participant requests a refund of employee contributions, the employing agency must submit negative adjustment records, under the procedures of § 1605.12, to request removal of these funds;</P> <P>(2) The employing agency must, under the procedures of § 1605.12, remove all employer contributions made to the participant's account during the period of misclassification. Employer contributions that have been in the account for less than one year will be returned to the employing agency; employer contributions that have been in the participant's account for one year or more will be removed from the account and used to offset TSP administrative expenses; and</P> <P>(3) If the employing agency fails to submit a negative adjustment record under the procedures of § 1605.12(b) to remove employer contributions, after all such contributions have been in the participant's account for more than one year the TSP recordkeeper will remove them from the account and use such amounts to offset TSP administrative expenses.</P> <P>(b) If a FERS participant is misclassified by an employing agency as a CSRS participant, when the misclassification is corrected:<PRTPAGE P="200"/> </P> <P>(1) The participant may not elect to have the contributions made while classified as CSRS removed from his or her account;</P> <P>(2) The participant may, under the rules of § 1605.11, elect to make up contributions that he or she would have been eligible to make as a FERS participant during the period of misclassification;</P> <P>(3) The employing agency must, under the rules of § 1605.11, make agency automatic (1%) contributions and agency matching contributions on employee contributions that were made while the participant was misclassified;</P> <P>(4) The employing agency must submit lost earnings records for makeup employer contributions pursuant to 5 CFR part 1606; and</P> <P>(5) If the retirement coverage correction is a FERCCA correction, the participant is entitled to lost earnings on makeup employee contributions and the employing agency must submit lost earnings records pursuant to 5 CFR part 1606. However, if employee contributions were made up before the Office of Personnel Management implements its regulations on FERCCA corrections, the amount of lost earnings will be calculated by the Office of Personnel Management, pursuant to its regulations, and provided to the employing agency for transmission to the TSP record keeper.</P> <P>(c) If a participant was misclassified as either FERS or CSRS and the retirement coverage is corrected to FICA only, the participant is no longer eligible to participate in the TSP.</P> <P>(1) Employee contributions in the account are subject to the rules in paragraph (a)(1) of this section.</P> <P>(2) Employer contributions in the account are subject to the rules in paragraphs (a)(2) and (a)(3) of this section.</P> <P>(3) The participant will be deemed to be separated from Federal service for all TSP purposes. If the participant has an outstanding loan, it will be subject to the provisions of 5 CFR 1655.13. The participant may make a TSP post-employment withdrawal election pursuant to 5 CFR part 1650, subpart B, and the withdrawal will be subject to the provisions of 5 CFR 1650.60(b).</P> <P>(d) If a FERS or CSRS participant is misclassified by an employing agency as FICA only, when the misclassification is corrected the participant may, pursuant to § 1605.11 of this part, elect to make up contributions that he or she would have been eligible to make as a FERS or CSRS participant during the period of misclassification. If the participant makes up employee contributions, the rules in paragraph (b)(5) of this section apply. If the participant is corrected to FERS, the rules in paragraphs (b)(3) and (b)(4) of this section also apply.</P> </SECTION> <SECTION> <SECTNO>§ 1605.15</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1605.16</SECTNO> <SUBJECT>Claims for correction of employing agency errors; time limitations.</SUBJECT> <P>(a) <E T="03">Agency's discovery of error.</E> (1) Upon discovery of an error made within the past six months involving the correct or timely remittance of payments to the TSP (other than a contribution allocation error as covered in paragraph (a)(2) of this section or a retirement system misclassification error, as covered in paragraph (c) of this section), an employing agency must promptly correct the error on its own initiative. If the error was made more than six months before its discovery, the agency may exercise sound discretion in deciding whether to correct it, but, in any event, the agency must act promptly in doing so.</P> <P>(2) An employing agency must promptly correct a contribution allocation error that occurred before May 1, 2001, on its own initiative if it is discovered within 30 days of its first occurrence. No contribution allocation error that occurred before May 1, 2001, may be corrected if it is not the subject of a timely discovery.</P> <P>(b) <E T="03">Participant's discovery of error.</E> (1) If an agency fails to discover an error of which a participant has knowledge involving the correct or timely remittance of a payment to the TSP (other than a contribution allocation error as covered by paragraph (b)(2) of this section, or a retirement system misclassification error as covered by paragraph (c) of this section), the participant may file a claim for correction of the error with his or her employing <PRTPAGE P="201"/>agency without a time limit. The agency must promptly correct any such error for which the participant files a claim within six months of its occurrence; the correction of any such error for which the participant files a claim after that time is in the agency's sound discretion.</P> <P>(2) A participant may file a claim for correction of a contribution allocation error made before May 1, 2001, with his or her employing agency no later than 30 days after the participant receives a TSP participant statement first reflecting the error. The agency must promptly correct such errors.</P> <P>(3) If a participant fails to file a claim for correction of an error described in paragraph (b)(2) of this section in a timely manner, the error will not be corrected.</P> <P>(c) <E T="03">Retirement system misclassification error.</E> Errors arising from retirement system misclassification must be corrected no matter when they are discovered, whether by an agency or a participant.</P> <P>(d) <E T="03">Agency procedures.</E> Each employing agency must establish procedures for participants to submit claims for correction under this subpart. Each employing agency's procedures must include the following:</P> <P>(1) The employing agency must provide the participant with a decision on any claim within 30 days of its receipt, unless the employing agency provides the participant with good cause for requiring a longer period to decide the claim. A decision to deny a claim in whole or in part must be in writing and must include the reasons for the denial, citations to any applicable statutes, regulations, or procedures, a description of any additional material that would enable the participant to perfect the claim, and a statement of the steps necessary to appeal the denial;</P> <P>(2) The employing agency must permit a participant at least 30 days to appeal the employing agency's denial of all or any part of a claim for correction under this subpart. The appeal must be in writing and addressed to the agency official designated in the initial decision or in procedures promulgated by the agency. The participant may include with his or her appeal any documentation or comments that the participant deems relevant to the claim;</P> <P>(3) The employing agency must issue a written decision on a timely appeal within 30 days of receipt of the appeal, unless the employing agency provides the participant with good cause for requiring a longer period to decide the appeal. The employing agency decision must include the reasons for the decision, as well as citations to any applicable statutes, regulations, or procedures; and</P> <P>(4) If the agency decision on the appeal is not issued in a timely manner, or if the appeal is denied in whole or in part, the participant will be deemed to have exhausted his or her administrative remedies and will be eligible to file suit against the employing agency under 5 U.S.C. 8477. There is no administrative appeal to the Board of a final agency decision.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Board or TSP Record Keeper Errors</HD> <SECTION> <SECTNO>§ 1605.21</SECTNO> <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT> <P>(a) <E T="03">Plan-paid lost earnings.</E> (1) Subject to paragraph (a)(3) of this section, if, because of an error committed by the Board or the TSP record keeper, a participant's account is not credited or charged with the earnings or losses that he or she would have received had the error not occurred, the participant's TSP account will be credited (or charged) with the difference between the earnings (or losses) it actually received and the earnings (or losses) it would have received had the error not occurred.</P> <P>(2) Errors that warrant the crediting of earnings or charging of investment losses under paragraph (a)(1) of this section include, but are not limited to:</P> <P>(i) Delay in crediting contributions or other monies to a participant's account;</P> <P>(ii) Improper issuance of a loan or withdrawal payment to a participant or beneficiary which requires the money to be restored to the participant's account; and</P> <P>(iii) Investment of all or part of a participant's account in the wrong investment fund(s).<PRTPAGE P="202"/> </P> <P>(3) A participant will not be entitled to earnings under paragraph (a)(1) of this section if, during the period the participant's account received credit for less earnings than it would have received but for Board or record keeper error, the participant had the use of the money on which the earnings would have accrued.</P> <P>(4) If the participant continued to have a TSP account, or would have continued to have a TSP account but for the Board or TSP record keeper error, earnings or losses under paragraph (a)(1) of this section will be computed for the relevant period based upon the investment funds in which the affected monies would have been invested had the error not occurred. If the participant did not have, and should not have had, an account in the TSP during this period, then the earnings will be computed using the G Fund rate of return for the relevant period and the monies returned to the participant.</P> <P>(b) <E T="03">Other corrections.</E> The Executive Director may, in his discretion and consistent with the requirements of applicable law, correct any other errors not specifically addressed in this section, including payment of lost earnings, if the Executive Director determines that the correction would serve the interests of justice and fairness and equity among all participants of the TSP.</P> </SECTION> <SECTION> <SECTNO>§ 1605.22</SECTNO> <SUBJECT>Claims for correction of Board or TSP record keeper errors; time limitations.</SUBJECT> <P>(a) <E T="03">Filing claims.</E> Claims for correction of Board or TSP record keeper errors under this subpart may be submitted initially either to the TSP record keeper or the Board. The claim must be in writing and may be from the affected participant or beneficiary.</P> <P>(b) <E T="03">Board's or TSP record keeper's discovery of error.</E> (1) Upon discovery of an error made within the past six months involving a receipt or a disbursement, the Board or TSP record keeper must promptly correct the error on its own initiative. If the error was made more than six months before its discovery, the Board or the TSP record keeper may exercise sound discretion in deciding whether to correct the error, but, in any event, must act promptly in doing so.</P> <P>(2) For errors concerning contribution allocations or interfund transfers, the Board or the TSP record keeper must promptly correct the error if it is discovered before 30 days after the issuance of the earlier of the most recent TSP participant (or loan) statement or transaction confirmation that reflected the error. If it is discovered after that time, the Board or TSP record keeper may use its sound discretion in deciding whether to correct it, but, in any event, must act promptly in doing so.</P> <P>(c) <E T="03">Participant's or beneficiary's discovery of error.</E> (1) If the Board or TSP record keeper fails to discover an error of which a participant or beneficiary has knowledge involving a receipt or a disbursement, the participant or beneficiary may file a claim for correction of the error with the Board or the TSP record keeper without time limit. The Board or the TSP record keeper must promptly correct any such error for which the participant or beneficiary filed a claim within six months of its occurrence; the correction of any such error for which the participant or beneficiary filed a claim after that time is in the sound discretion of the Board or TSP record keeper.</P> <P>(2) For errors involving contribution allocations or interfund transfers of which a participant or beneficiary has knowledge, he or she may file a claim for correction with the Board or TSP record keeper no later than 30 days after receipt of the earlier of a TSP participant (or loan) statement or transaction confirmation reflecting the error. The Board or TSP record keeper must promptly correct such errors.</P> <P>(3) If a participant or beneficiary fails to file a claim for correction of contribution allocations or interfund transfers in a timely manner, the Board or TSP record keeper may nevertheless, in its sound discretion, correct any such error that is brought to its attention.</P> <P>(d) <E T="03">Processing claims.</E> (1) If the initial claim is submitted to the TSP record keeper, the TSP record keeper may either respond directly to the claimant, or may forward the claim to the Board for response. If the TSP record keeper <PRTPAGE P="203"/>responds to a claim, and all or any part of the claim is denied, the claimant may request review by the Board within 90 days of the date of the record keeper's response.</P> <P>(2) If the Board denies all or any part of a claim (whether upon review of a TSP record keeper denial or upon an initial review by the Board), the claimant will be deemed to have exhausted his or her administrative remedy and may file suit under 5 U.S.C. 8477. If the claimant does not submit a request to the Board for review of a claim denial by the TSP record keeper within the 90 days permitted under paragraph (d)(1) of this section, the claimant will be deemed to have accepted the TSP record keeper's decision.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD> <SECTION> <SECTNO>§ 1605.31</SECTNO> <SUBJECT>Contributions missed as a result of military service.</SUBJECT> <P>(a) <E T="03">Applicability.</E> This section applies to employees who meet the conditions specified at 5 CFR 1620.40 and who are eligible to make up employee contributions or to receive employing agency contributions missed as a result of military service.</P> <P>(b) <E T="03">Missed employee contributions.</E> An employee who separates or enters nonpay status to perform military service may be eligible to make up TSP contributions when he or she is reemployed or restored to pay status in the civilian service. Eligibility for making up missed employee contributions will be determined in accordance with the rules specified at 5 CFR part 1620, subpart E. Missed employee contributions must be made up in accordance with the rules set out in § 1605.11(c) and the following procedures:</P> <P>(1) The employing agency will use the contribution election on file for the employee at the time he or she separated or was placed in nonpay status. If an employee terminated TSP contributions within two months before entry into military service, he or she may make a retroactive election to resume contributions for the first open season following the termination. The employee may also make retroactive contribution elections for any open season that occurred during the period of military service, as described at 5 CFR 1620.42.</P> <P>(2) The pay used to determine the amount of contributions eligible for makeup is the pay the employee would have earned had he or she remained continuously employed in the position held immediately before the separation or placement in nonpay status.</P> <P>(3) If the employee contributed to a uniformed services TSP account during the period of military service, the amount of employee contributions available for makeup will be reduced by the total amount of employee contributions made to the uniformed services TSP account. (This includes contributions from basic pay, incentive pay, and special pay, including bonus pay.)</P> <P>(c) <E T="03">Missed agency contributions.</E> This paragraph (c) applies only to an employee who would have been eligible to receive agency contributions had he or she remained in civilian service or pay status. A FERS employee who separates or enters nonpay status to perform military service is eligible to receive agency makeup contributions when he or she is reemployed or restored to pay status in the civilian service, as follows:</P> <P>(1) The employee is entitled to receive the agency automatic (1%) contributions that he or she would have received had the employee remained in civilian service or pay status. Within 60 days of the employee's reemployment or restoration to pay status, the employing agency must calculate the agency automatic (1%) makeup contributions and report those contributions to the record keeper. After the contribution has been reported, the agency must submit lost earnings records for the contribution.</P> <P>(2) An employee who contributed to a uniformed services TSP account during the period of military service is also immediately entitled to receive agency matching makeup contributions to his or her civilian account for the employee contributions to the uniformed services account that were deducted from his or her basic pay, subject to any reduction in matching contributions required by paragraph (c)(4) of this section. However, an employee is <PRTPAGE P="204"/>not entitled to receive agency matching makeup contributions on contributions that were deducted from his or her incentive pay or special pay, including bonus pay, while performing military service.</P> <P>(3) An employee who makes up missed contributions is entitled to receive attributable agency matching makeup contributions (unless the employee has already received the maximum amount of matching contributions, as described in paragraphs (c)(2) and (c)(4) of this section).</P> <P>(4) If the employee received uniformed services matching contributions, the agency matching makeup contributions will be reduced by the amount of the uniformed services matching contributions.</P> <P>(d) <E T="03">Lost earnings.</E> The employee is entitled to lost earnings on missed agency contributions made under paragraph (c) of this section. The employee will elect to have the lost earnings calculated using either the rates of return based on the contributions allocation(s) on file for the participant during the period of military service or using the rates of return for the G Fund; the participant must make this election at the same time his or her makeup schedule is established pursuant to § 1605.11(c).</P> <CITA>[67 FR 49525, July 30, 2002]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1606</EAR> <HD SOURCE="HED">PART 1606—LOST EARNINGS ATTRIBUTABLE TO EMPLOYING AGENCY ERRORS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>1606.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1606.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1606.3</SECTNO> <SUBJECT>General rule.</SUBJECT> <SECTNO>1606.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Lost Earnings Attributable to Delayed or Erroneous Contributions</HD> <SECTNO>1606.5</SECTNO> <SUBJECT>Failure to timely make or deduct TSP contributions when participant received pay.</SUBJECT> <SECTNO>1606.6</SECTNO> <SUBJECT>Agency delay in paying employee.</SUBJECT> <SECTNO>1606.7</SECTNO> <SUBJECT>Contributions to incorrect investment fund made before May 1, 2001.</SUBJECT> <SECTNO>1606.8</SECTNO> <SUBJECT>Late payroll submissions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Lost Earnings Not Attributable to Delayed or Erroneous Contributions</HD> <SECTNO>1606.9</SECTNO> <SUBJECT>Loan allotments.</SUBJECT> <SECTNO>1606.10</SECTNO> <SUBJECT>Miscellaneous lost earnings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Lost Earnings Records</HD> <SECTNO>1606.11</SECTNO> <SUBJECT>Agency submission of lost earnings records.</SUBJECT> <SECTNO>1606.12</SECTNO> <SUBJECT>Agency responsibility.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing Lost Earnings Records</HD> <SECTNO>1606.13</SECTNO> <SUBJECT>Calculation and crediting of lost earnings.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Participant Claims for Lost Earnings</HD> <SECTNO>1606.14</SECTNO> <SUBJECT>Employing agency procedures.</SUBJECT> <SECTNO>1606.15</SECTNO> <SUBJECT>Time limits on participant claims.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8432a, 8474(b)(3), and (c)(1). Section 1606.5 also issued under Title II, Pub. L. 106-265, 114 Stat. 770.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 606, Jan. 7, 1991, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 1606.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part 1606 is to implement section 2 of the Thrift Savings Plan Technical Amendments Act of 1990 (TSPTAA), Public Law 101-335, enacted July 17, 1990. The TSPTAA amended chapter 84 of title 5, United States Code by inserting section 8432a, authorizing the Executive Director to prescribe regulations pursuant to which employing agencies shall be required to pay to the Thrift Savings Fund amounts representing lost earnings caused by employing agency errors relating to the Thrift Savings Plan (TSP) described in subchapter III of chapter 84.</P> </SECTION> <SECTION> <SECTNO>§ 1606.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432(c)(1) and (c)(3).</P> <P> <E T="03">Agency matching contributions</E> means any contributions made under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">“As of” date</E> means the date on which TSP contributions or other transactions should have been made.<PRTPAGE P="205"/> </P> <P> <E T="03">Board error</E> means any act or omission by the Board that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440e.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3) and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual eligible to contribute to the TSP and that has authority to make personnel compensation decisions for the individual.</P> <P> <E T="03">Employing agency error</E> means any act or omission by an employing agency that is not in accordance with all applicable statutes, regulations, or administrative procedures, including internal procedures promulgated by the employing agency and TSP procedures provided to employing agencies by the Board.</P> <P> <E T="03">FERCCA correction</E> means the correction of a retirement coverage error pursuant to the Federal Erroneous Retirement Coverage Corrections Act, Public Law 106-265, 114 Stat. 770.</P> <P> <E T="03">Late contributions</E> means employee contributions that were timely deducted from a participant's basic pay but were not timely reported to the TSP record keeper for investment; employee contributions that were timely reported to the TSP but were not posted to the participant's account by the TSP because the payment record on which they were submitted contained errors; and attributable agency matching contributions and agency automatic (1%) contributions that were not timely reported.</P> <P> <E T="03">Lost earnings record</E> means a data record containing information enabling the TSP system to compute lost earnings.</P> <P> <E T="03">Makeup contributions</E> are employee contributions that should have been deducted from a participant's basic pay, or employer contributions that should have been charged to an employing agency, on an earlier date but were not deducted or charged and, consequently, are being deducted or charged currently.</P> <P> <E T="03">Negative adjustment</E> means the removal of money from a participant's TSP account by an employing agency.</P> <P> <E T="03">Negative adjustment record</E> means a data record submitted by an employing agency to remove money from a participant's TSP account previously submitted in error.</P> <P> <E T="03">Pay date</E> means the date established by an employing agency for payment of its employees.</P> <P> <E T="03">Payment record</E> means a data record submitted by an employing agency to report contributions or loan payments to a participant's TSP account.</P> <P> <E T="03">Record keeper error</E> means any act or omission by the TSP record keeper that is not in accordance with applicable statutes, regulations, or administrative procedures made available to employing agencies and/or TSP participants.</P> <P> <E T="03">TSP record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the Thrift Savings Plan. The TSP record keeper is the National Finance Center, United States Department of Agriculture, located in New Orleans, Louisiana.</P> <CITA>[66 FR 44283, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.3</SECTNO> <SUBJECT>General rule.</SUBJECT> <P>Except as otherwise provided, employing agencies shall pay to the Thrift Savings Fund any amount, computed by the TSP recordkeeper in a manner consistent with this part 1606, that is required to restore to the TSP account of the participant or participants involved earnings lost as a result of an employing agency error. Where lost earnings are required, the employing agency must, in accordance with this part 1606 and any instructions provided by the Board or the TSP recordkeeper, submit to the TSP recordkeeper all information and certification that is required to enable the TSP recordkeeper to compute the amount of lost earnings payable by the employing agency, and to charge that amount to the appropriate employing agency.</P> </SECTION> <SECTION> <SECTNO>§ 1606.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">In general.</E> Except as otherwise provided, the provisions of this part <PRTPAGE P="206"/>1606 apply in any case where, due to employing agency error, the Thrift Savings Fund has not invested or had the use of money that would have been invested in the Thrift Savings Fund had the employing agency error not occurred, or where the money would have been invested in a different investment fund had the error not occurred.</P> <P>(b) <E T="03">Back pay awards and other retroactive pay adjustments.</E> The application of this part 1606, as described in paragraph (a) of this section, includes TSP contributions derived from payments associated with back pay awards or other retroactive pay adjustments that are based on a determination that the employing agency paid a participant less than the full amount of basic pay to which the participant was entitled.</P> <P>(c) <E T="03">Timing of errors.</E> This part 1606 applies regardless of whether the employing agency error that caused the effects described in paragraph (a) of this section occurred prior to, at, or after the inception of the TSP.</P> <P>(d) <E T="03">De minimis rules.</E> Notwithstanding paragraphs (a) through (c) of this section or any other provision of this part 1606:</P> <P>(1) Lost earnings shall not be payable where the amount of money for a source of contributions in a participant's account that is not invested in the Thrift Savings Fund due to an employing agency error, or that is invested in the wrong investment fund due to an employing agency error, is less than one dollar ($1.00) for that source of contributions. Where the employing agency error caused delayed or erroneous contributions for more than one pay period, this paragraph shall apply separately to each pay period involved.</P> <P>(2) Where the employing agency error caused delay in submission of TSP payment records or loan allotments, lost earnings shall not be payable unless the belated contributions or loan allotments were received by the TSP recordkeeper more than 30 days after the pay date associated with the pay period for which the contributions or loan allotments would have been submitted had the employing agency error not occurred.</P> <P>(3) For employing agency errors not covered by paragarph (d)(2) of this section, lost earnings shall not be payable unless, as the result of an employing agency error, money was not invested in the Thrift Savings Fund for a period extending more than 30 days after the date it would have been invested had the error not occurred.</P> <P>(4) The 30-day requirements contained in paragraphs (d)(2) and (d)(3) of this section do not apply where, due to employing agency error, money in a participant's account has been invested in an incorrect investment fund.</P> <P>(e) <E T="03">Contributions for pre-1987 service.</E> This part does not apply to errors involving employing agency delay in submitting contributions required by 5 U.S.C. 8432(c)(3).</P> <P>(f) <E T="03">Contributions for service in January through March 1987.</E> Notwithstanding any other provision of this section, lost earnings shall be payable with respect to contributions made pursuant to 5 U.S.C. 8432(c)(1) (B) or (C) if the payment records containing those contributions were received by the TSP recordkeeper after April 30, 1987.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Lost Earnings Attributable to Delayed or Erroneous Contributions</HD> <SECTION> <SECTNO>§ 1606.5</SECTNO> <SUBJECT>Failure to timely make or deduct TSP contributions when participant received pay.</SUBJECT> <P>(a) If a participant receives pay, but as the result of an employing agency error all or any part of the agency automatic (1%) contribution associated with that pay to which the participant is entitled is not timely received by the TSP record keeper, then the makeup or late contributions will be subject to lost earnings. In such cases:</P> <P>(1) The employing agency must, for each pay period involved, submit to the TSP record keeper a lost earnings record indicating the pay date for which the contributions would have been made had the error not occurred (i.e., the beginning date), the investment fund to which the contributions would have been deposited had the error not occurred if the beginning date on the record was before May 1, 2001, the amount of the contributions, and the pay date for which the contributions were actually made. If the beginning date on the record was on or <PRTPAGE P="207"/>after May 1, 2001, the TSP record keeper will use the contribution allocation of record for the beginning date and calculate lost earnings;</P> <P>(2) The TSP record keeper will compute the amount of lost earnings associated with each lost earnings record submitted by the employing agency pursuant to paragraph (a)(1) of this section. In performing the computation, the TSP record keeper will not take into consideration any interfund transfers;</P> <P>(3) Where the lost earnings computed in accordance with paragraph (a)(2) of this section are positive, the TSP record keeper will charge that amount to the appropriate employing agency and will credit the participant's TSP account. If the lost earnings are negative, the amount computed will be removed from the participant's account and used to offset TSP administrative expenses; and</P> <P>(4) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent valued account balance.</P> <P>(b) If a participant receives pay from which employee contributions were properly deducted, but as a result of an employing agency error all or any part of the associated agency matching contributions to which the participant is entitled were not timely received by the TSP record keeper, then the makeup agency contributions will be subject to lost earnings. In such cases, the procedures described in paragraphs (a)(1) through (a)(4) of this section will apply to the makeup agency matching contributions.</P> <P>(c) If a participant receives pay from which employee contributions were properly deducted, but as the result of an employing agency error all or any part of those employee contributions were not timely received by the TSP record keeper, or if the employee contributions were received in connection with a FERCCA correction, the makeup employee contributions will be subject to the procedures described in paragraphs (a)(1) through (a)(4) of this section.</P> <P>(d) Except for employee contributions received in connection with a FERCCA correction, if a participant receives pay from which employee contributions should have been deducted but, as the result of employing agency error, all or any part of those deductions were not made, the makeup employee contributions will not be subject to lost earnings even if the participant makes up the employee contributions pursuant to part 1605 of this chapter. However, where the participant makes up the employee contributions pursuant to part 1605 of this chapter, the agency matching contributions associated with the makeup employee contributions (which must be made in accordance with part 1605 of this chapter) will be subject to lost earnings. With respect to such makeup agency matching contributions the procedures described in paragraphs (a)(1) through (a)(4) of this section will apply.</P> <CITA>[66 FR 44283, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.6</SECTNO> <SUBJECT>Agency delay in paying employee.</SUBJECT> <P>Where, as the result of an employing agency error, a participant does not timely receive all or any part of the basic pay to which he or she is entitled, and as a result of that delay in receiving pay all or any part of the Employee Contributions, Agency Automatic (1%) Contributions, or Agency Matching Contributions are not submitted when they would have been had the employing agency error not occurred, all such belated Employee Contributions, Agency Automatic (1%) Contributions, and Agency Matching Contributions shall be subject to lost earnings. The procedures described in paragraphs (a)(1) through (a)(4) of § 1606.5 shall apply to all such belated contributions.</P> </SECTION> <SECTION> <SECTNO>§ 1606.7</SECTNO> <SUBJECT>Contributions to incorrect investment fund made before May 1, 2001.</SUBJECT> <P>Where, as the result of an employing agency error, money was deposited to a participant's TSP account in an incorrect investment fund(s), the erroneous contribution will be subject to lost earnings if a claim is submitted within the time limits set forth in § 1605.16(a)(2) of this chapter. In such cases:</P> <P>(a) The employing agency must submit a lost earnings record indicating <PRTPAGE P="208"/>the amount of the contributions submitted to the incorrect investment fund(s), the pay date for which it was submitted, the investment fund(s) to which it would have been deposited had the employing agency error not occurred, and the investment fund(s) to which it was actually deposited;</P> <P>(b) The TSP record keeper will compute the amount of lost earnings associated with each lost earnings record submitted by the employing agency pursuant to paragraph (a)(1) of this section. The TSP record keeper will not take into consideration any interfund transfers;</P> <P>(c) Where the lost earnings computed in accordance with paragraph (a)(2) of this section are positive, the TSP record keeper will charge the amount of lost earnings computed to the appropriate employing agency and will credit that amount to the account of the participant involved. If the earnings computed are negative, the amount computed will be removed from the participant's account and used to offset TSP administrative expenses; and</P> <P>(d) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent valued account balance.</P> <CITA>[66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.8</SECTNO> <SUBJECT>Late payroll submissions.</SUBJECT> <P>All contributions on payment records contained in a payroll submission received from an employing agency and processed by the TSP record keeper more than 30 days after the pay date associated with the payroll submission (as reported on Form TSP-2, Certification of Transfer of Funds and Journal Voucher) will be subject to lost earnings, as follows:</P> <P>(a) The TSP record keeper will generate a lost earnings record for each payment record contained in the late payroll submission. The lost earnings records generated by the TSP record keeper will reflect that the contributions on the payment records should have been made on the pay date associated with the payroll submission, that the contributions should have been deposited to the investment fund(s) indicated on the payment records if the pay date was before May 1, 2001, or based on the participant's contribution allocation on file as of the pay date if the pay date was on or after May 1, 2001, and that the contributions were actually made on the date the late payroll submission was processed.</P> <P>(b) The procedures applicable to lost earnings records submitted by employing agencies which are set forth in § 1606.5(a)(2) through (a)(4) will be applied to lost earnings records generated by the TSP record keeper pursuant to paragraph (a)(1) of this section.</P> <CITA>[66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Lost Earnings Not Attributable to Delayed or Erroneous Contributions</HD> <SECTION> <SECTNO>§ 1606.9</SECTNO> <SUBJECT>Loan allotments.</SUBJECT> <P>(a) Loan allotments deducted from a participant's pay but not timely received by the TSP recordkeeper due to employing agency error shall be subject to lost earnings. In such cases:</P> <P>(1) The employing agency must submit a lost earnings record indicating the amount of the loan allotment, the pay date for which the loan allotment was actually submitted, and the pay date for which the loan allotment should have been submitted;</P> <P>(2) The TSP recordkeeper shall compute lost earnings on the belated loan allotment using the G Fund rates of return for each month of the calculation;</P> <P>(3) The lost earnings will be posted to the participant's account pro rata to all investment funds within the same source of contributions based on the most recent month-end valued account balance.</P> <P>(b) Loan allotments not deducted from a participant's pay due to employing agency error will not be subject to lost earnings.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.10</SECTNO> <SUBJECT>Miscellaneous lost earnings.</SUBJECT> <P>Where lost earnings result from employing agency errors not specifically covered by this subpart or subpart B, the employing agency must consult with the Board or TSP Recordkeeper to <PRTPAGE P="209"/>determine the manner in which the employing agency shall submit lost earnings records or other data necessary to facilitate the payment of lost earnings.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Lost Earnings Records</HD> <SECTION> <SECTNO>§ 1606.11</SECTNO> <SUBJECT>Agency submission of lost earnings records.</SUBJECT> <P>(a) All lost earnings records required to be submitted pursuant to this part must be submitted to the TSP Recordkeeper in the manner and format prescribed in instructions provided to employing agencies by the Board or TSP recordkeeper.</P> <P>(b) Where this part requires submission of lost earnings records, the employing agency must submit a separate lost earnings record for each pay period affected by the error. A lost earnings record may include all three sources of contributions, or it may include loan allotments, but may not include both loan allotments and contributions.</P> <P>(c) Where this part requires the employing agency to indicate on a lost earnings record the investment fund to which a contribution would have been deposited had an employing agency error not occurred, that determination must be made solely on the basis of a properly completed allocation election that was accepted by the employing agency before the date the contribution should have been made, and that was still in effect as of that date. Where no such allocation election was in effect as of the date the contribution would have been made had the error not occurred, the lost earnings record submitted by the employing agency must indicate that the contributions should have been made to the G Fund.</P> <P>(d) With respect to employing agency errors that cause money not to be invested in the Thrift Savings Fund, lost earnings records may not be submitted until the money to which the lost earnings relate has been invested in the Thrift Savings Fund. Where the employing agency error involved delayed TSP contributions, no lost earnings will be payable unless the associated payment records are submitted in accordance with the provisions of 5 CFR part 1605. Lost earnings records and the delayed payment records to which they relate should be submitted simultaneously.</P> <P>(e) Where an employing agency erroneously submits a lost earnings record that is processed by the TSP record keeper, the employing agency must consult with the Board or TSP record keeper to determine the method to be used in removing the erroneous lost earnings.</P> <P>(f) Lost earnings records that contain contributions for which lost earnings must be determined at the G Fund rate of return pursuant to §§ 1605.22(a)(4) or 1605.41(a)(3) of this chapter must be accompanied by the special Journal Voucher, Form TSP-2-EG.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44284, Aug. 22, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1606.12</SECTNO> <SUBJECT>Agency responsibility.</SUBJECT> <P>(a) The employing agency whose error caused the delayed or erroneous investment of money in the Thrift Savings Fund shall, in a manner consistent with paragraph (b) of this section, be ultimately responsible for payment of any lost earnings resulting from that error.</P> <P>(b) The employing agency that submitted payment records or loan allotments that are subject to lost earnings shall be responsible for submitting lost earnings records relating to those submissions, and any lost earnings calculated shall be charged to that employing agency. Where another employing agency committed the error that caused the delayed or erroneous submission by the first employing agency, the employing agency that was charged for the lost earnings may seek reimbursement from the other employing agency.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing Lost Earnings Records</HD> <SECTION> <SECTNO>§ 1606.13</SECTNO> <SUBJECT>Calculation and crediting of lost earnings.</SUBJECT> <P>(a) Lost earnings records submitted or generated pursuant to this part will be processed by the TSP record keeper monthly.</P> <P>(b) Lost earnings records received, edited, and accepted by the TSP record keeper by the next-to-last business day of a month will be processed in the <PRTPAGE P="210"/>processing cycle for the month following acceptance. Lost earnings records received, edited, and accepted by the TSP record keeper on the last business day of a month will be processed in the processing cycle for the second month following acceptance.</P> <P>(c) In calculating lost earnings attributable to a lost earnings record, earnings and losses for different sources of contributions or investment funds within a source will not be offset against each other.</P> <P>(d) Where the <E T="03">de minimis</E> rule of paragraph (d)(1) of § 1606.3 of this part is met with regard to delayed contributions or loan allotments, the calculation of lost earnings shall commence with the pay date for the pay period for which the contributions would have been made had the employing agency error not occurred. With regard to lost earnings not related to delayed contributions or loan allotments, lost earnings shall commence with the month during which the employing agency error caused the failure to invest in the Thrift Savings Fund money that would have been invested had the employing agency error not occurred, or with the month that the money was invested in an incorrect investment fund. Lost earnings calculations shall conclude as of the end of the month prior to the month during which the lost earnings records are processed.</P> <P>(e) <E T="03">Negative lost earnings.</E> Notwithstanding any other provision of this part, where the net lost earnings computed in accordance with this part on any lost earnings record are less than zero within a source of contributions, the employing agency account shall not be charged or credited with respect to that source of contributions. The amount of the negative lost earnings shall be removed from the participant's account and applied against TSP administrative expenses.</P> <P>(f) With respect to the period prior to December 31, 1990, in calculating lost earnings or determining the investment fund in which money would have been invested had an employing agency error not occurred, the TSP recordkeeper shall take into account the investment restrictions that were effective under 5 U.S.C. 8438 prior to the effective date of section 3 of the TSPTAA.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44285, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Participant Claims For Lost Earnings</HD> <SECTION> <SECTNO>§ 1606.14</SECTNO> <SUBJECT>Employing agency procedures.</SUBJECT> <P>(a) Each employing agency must provide procedures for participants to file claims for lost earnings under this part. The employing agency procedures must include the following provisions:</P> <P>(1) The employing agency shall review each claim and provide the participant with a decision within 30 days of its receipt of the participant's written claim. The employing agency's decision to deny a claim in whole or in part shall be in writing and shall contain the following information—</P> <P>(i) The employing agency's determination on the claim and the reasons for it, including any appropriate references to applicable statutes or regulations;</P> <P>(ii) A description of any additional material or information which, if provided to the employing agency, would enable the employing agency to grant the participant's claim; and</P> <P>(iii) A description of the steps the participant must take if he or she wishes to appeal and initial denial of the claim, including the name and title of the employing agency official to whom the appeal may be taken;</P> <P>(2) Within 30 days of receipt of the employing agency decision denying the claim, a participant may appeal the employing agency decision. The appeal must be in writing and must be addressed to the employing agency official designated in the initial employing agency decision. The appeal may contain any documents and comments that the employee deems relevant to the claim;</P> <P>(3) The employing agency must take a decision on the participant's appeal not later than 30 days after it receives the appeal. The agency's decision on the appeal must be written in an understandable manner and must include the reasons for the decision as well as <PRTPAGE P="211"/>any appropriate references to applicable statutes and regulations. If the decision on the employee's appeal is not made within this 30-day time period, or if the appeal is denied in whole or in part, the participant will have exhausted his or her administrative remedy and will be eligible to file suit against the employing agency in the appropriate Federal district court pursuant to 5 U.S.C. 8477. There is no administrative appeal to the Board of an agency final decision.</P> <P>(b) Where it is determined that lost earnings resulted from an employing agency error, nothing in this part shall be deemed to preclude an employing agency from paying lost earnings in the absence of a claim from the employee.</P> </SECTION> <SECTION> <SECTNO>§ 1606.15</SECTNO> <SUBJECT>Time limits on participant claims.</SUBJECT> <P>(a) Participant claims for lost earnings pursuant to § 1606.14 must be filed within six months of the participant's receipt of the earliest of a TSP participant statement, TSP loan statement, employing agency earnings and leave statement, or any other document that indicates that an employing agency error has affected the participant's TSP account.</P> <P>(b) Nothing in this section changes the provision of paragraph (d) of § 1606.11 that no lost earnings shall be payable with respect to delayed contributions unless and until the contributions are submitted to the TSP recordkeeper in accordance with 5 CFR part 1605, nor does anything in this section extend any time limits for correcting contributions under 5 CFR part 1605. Thus, notwithstanding paragraph (a) of this section, if a participant is unable to have contributions corrected due to time limits contained in 5 CFR part 1605, no lost earnings shall be payable with respect to those contributions.</P> <CITA>[56 FR 606, Jan. 7, 1991, as amended at 66 FR 44285, Aug. 22, 2001]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1620</EAR> <HD SOURCE="HED">PART 1620—EXPANDED AND CONTINUING ELIGIBILITY</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1620.1</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>1620.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1620.3</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1620.4</SECTNO> <SUBJECT>Notices.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Cooperative Extension Service, Union, and Intergovernmental Personnel Act Employees</HD> <SECTNO>1620.10</SECTNO> <SUBJECT>Definition.</SUBJECT> <SECTNO>1620.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.12</SECTNO> <SUBJECT>Employing authority contributions.</SUBJECT> <SECTNO>1620.13</SECTNO> <SUBJECT>Retroactive contributions.</SUBJECT> <SECTNO>1620.14</SECTNO> <SUBJECT>Payment to the record keeper.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Article III Justices and Judges; Bankruptcy Judges and U.S. Magistrates; and Judges of the Courts of Federal Claims and Veterans Appeals</HD> <SECTNO>1620.20</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.21</SECTNO> <SUBJECT>Contributions.</SUBJECT> <SECTNO>1620.22</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <SECTNO>1620.23</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Nonappropriated Fund Employees</HD> <SECTNO>1620.30</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.31</SECTNO> <SUBJECT>Definition.</SUBJECT> <SECTNO>1620.32</SECTNO> <SUBJECT>Employees who move to a NAF instrumentality on or after August 10, 1996.</SUBJECT> <SECTNO>1620.33</SECTNO> <SUBJECT>Employees who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965.</SUBJECT> <SECTNO>1620.34</SECTNO> <SUBJECT>Employees who move from a NAF instrumentality to a Federal Government agency.</SUBJECT> <SECTNO>1620.35</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <SECTNO>1620.36</SECTNO> <SUBJECT>Transmission of information.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Uniformed Services Employment and Reemployment Rights Act (USERRA)—Covered Military Service</HD> <SECTNO>1620.40</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1620.41</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1620.42</SECTNO> <SUBJECT>Processing TSP contribution elections.</SUBJECT> <SECTNO>1620.43</SECTNO> <SUBJECT>Agency payments to record keeper; agency ultimately responsible.</SUBJECT> <SECTNO>1620.44</SECTNO> <SUBJECT>Restoring forfeited agency automatic (1%) contributions.<PRTPAGE P="212"/> </SUBJECT> <SECTNO>1620.45</SECTNO> <SUBJECT>Suspending TSP loans, restoring post-employment withdrawals, and reversing taxable distributions.</SUBJECT> <SECTNO>1620.46</SECTNO> <SUBJECT>Agency responsibilities.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 8474(b)(5) and (c)(1).</P> <P>Subpart C also issued under 5 U.S.C. 8440a(b)(7), 8440b(b)(8), and 8440c(b)(8).</P> <P>Subpart D also issued under sec. 1043(b), Pub. L. 104-106, 110 Stat. 186, 434-435; and sec. 7202(m)(2), Pub. L. 101-508, 104 Stat. 1388.</P> <P>Subpart E also issued under 5 U.S.C. 8432b(i) and 8440e.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 31057, June 9, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1620.1</SECTNO> <SUBJECT>Application.</SUBJECT> <P>The Federal Employees’ Retirement System Act of 1986 (codified as amended largely at 5 U.S.C. 8351 and 8401 through 8479) originally limited TSP eligibility to specifically named groups of employees. On various occasions, Congress has since expanded TSP eligibility to other groups. Depending on the circumstances, that subsequent legislation requires retroactive contributions, waives open season rules, or provides other special features. Where necessary, this part describes those special features. The employees and employing agencies covered by this part are also governed by the other regulations in 5 CFR chapter VI to the extent that they do not conflict with the regulations of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1620.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Account balance</E> means the nonforfeitable valued account balance of a TSP participant as of the most recent month-end.</P> <P> <E T="03">Basic pay</E> means basic pay as defined in 5 U.S.C. 8331(3). For CSRS and FERS employees, it is the rate of pay used in computing any amount the individual is otherwise required to contribute to the Civil Service Retirement and Disability Fund as a condition for participating in the Civil Service Retirement System or the Federal Employees’ Retirement System, as the case may be.</P> <P> <E T="03">Board</E> means the Federal Retirement Thrift Investment Board established under 5 U.S.C. 8472.</P> <P> <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C).</P> <P> <E T="03">CSRS</E> means the Civil Service Retirement System established by 5 U.S.C. chapter 83, subchapter III, or any equivalent retirement system.</P> <P> <E T="03">CSRS employee</E> or <E T="03">CSRS participant</E> means any employee or participant covered by CSRS or an equivalent retirement system, including employees authorized to contribute to the TSP under 5 U.S.C. 8351.</P> <P> <E T="03">Election period</E> means the last calendar month of a TSP open season and is the earliest period in which an election to make or change a TSP contribution election can become effective.</P> <P> <E T="03">Employee contributions</E> means any contributions to the Thrift Savings Plan made under 5 U.S.C. 8351(a), 8432(a), or 8440a through 8440d.</P> <P> <E T="03">Employer contributions</E> means agency automatic (1%) contributions under 5 U.S.C. 8432(c)(1) or 8432(c)(3), and agency matching contributions under 5 U.S.C. 8432(c)(2).</P> <P> <E T="03">Employing agency</E> means the organization that employs an individual described at § 1620.1 as being eligible to contribute to the TSP and that has authority to make personnel compensation decisions for such employee.</P> <P> <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board under 5 U.S.C. 8474.</P> <P> <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B).</P> <P> <E T="03">FERS</E> means the Federal Employees’ Retirement System established by 5 U.S.C. chapter 84, and any equivalent Federal Government retirement system.</P> <P> <E T="03">FERS employee</E> or <E T="03">FERS participant</E> means any employee or participant covered by FERS.</P> <P> <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A).</P> <P> <E T="03">Individual account</E> means the account established for a participant in the Thrift Savings Plan under 5 U.S.C. 8439(a).</P> <P> <E T="03">In-service withdrawal</E> means an age-based or financial hardship withdrawal from the TSP obtained by a participant before separation from Government employment.<PRTPAGE P="213"/> </P> <P> <E T="03">Investment fund</E> means either the G Fund, the F Fund, or the C Fund, and any other TSP investment funds created after December 27, 1986.</P> <P> <E T="03">Monthly processing cycle</E> means the process, beginning on the evening of the fourth business day of the month, by which the TSP record keeper allocates the amount of earnings to be credited to participant accounts in the TSP, implements interfund transfer requests, and authorizes disbursements from the TSP.</P> <P> <E T="03">Open season</E> means the period during which employees may choose to begin making contributions to the TSP, to change or discontinue (without losing the right to recommence contributions the next open season) the amount currently being contributed to the TSP, or to allocate prospective contributions to the TSP among the investment funds.</P> <P> <E T="03">Plan participant or participant</E> means any person with an account in the TSP, or who would have an account in the TSP but for an employing agency error.</P> <P> <E T="03">Post-employment withdrawal</E> means a withdrawal from the TSP obtained by a participant who has separated from Government employment.</P> <P> <E T="03">Separation from Government employment</E> means the cessation of employment with the Federal Government or the U.S. Postal Service (or with any other employer from a position that is deemed to be Government employment for purposes of participating in the TSP) for 31 or more full calendar days.</P> <P> <E T="03">Spouse</E> means the person to whom a TSP participant is married on the date he or she signs forms on which the TSP requests spouse information including a spouse from whom the participant is legally separated, and includes a person with whom a participant is living in a relationship that constitutes a common law marriage in the jurisdiction in which they live.</P> <P> <E T="03">Thrift Savings Fund</E> means the Fund described in 5 U.S.C. 8437.</P> <P> <E T="03">Thrift Savings Plan,</E> <E T="03">TSP,</E> or <E T="03">Plan</E> means the Thrift Savings Plan established under subchapters III and VII of the Federal Employees’ Retirement System Act of 1986, 5 U.S.C. 8351 and 8401-8479.</P> <P> <E T="03">Thrift Savings Plan (TSP) contribution election</E> means a request by an employee to start contributing to the TSP, to terminate contributions to the TSP, to change the amount of contributions made to the TSP each pay period, or to change the allocation of future TSP contributions among the investment funds, and made effective pursuant to 5 CFR part 1600.</P> <P> <E T="03">Thrift Savings Plan Service Computation Date</E> means the date, actual or constructed, that includes all “service” as defined at 5 CFR 1603.1.</P> <P> <E T="03">Thrift Savings Plan Service Office</E> means the office established by the Board to service participants. This office's current address is: Thrift Savings Plan Service Office, National Finance Center, P.O. Box 61500, New Orleans, Louisiana 70161-1500.</P> </SECTION> <SECTION> <SECTNO>§ 1620.3</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>The employing agency is responsible for transmitting to the Board's record keeper, in accordance with Board procedures, any employee and employer contributions that are required by this part.</P> </SECTION> <SECTION> <SECTNO>§ 1620.4</SECTNO> <SUBJECT>Notices.</SUBJECT> <P>An employing agency must notify affected employees of the application of this part as soon as practicable.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Cooperative Extension Service, Union, and Intergovernmental Personnel Act Employees</HD> <SECTION> <SECTNO>§ 1620.10</SECTNO> <SUBJECT>Definition.</SUBJECT> <P>As used in this subpart, <E T="03">employing authority</E> means the entity that employs an individual described in § 1620.11 and which has the authority to make personnel compensation decisions for such employee.</P> </SECTION> <SECTION> <SECTNO>§ 1620.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart applies to any individual participating in CSRS or FERS who:</P> <P>(a) Has been appointed or otherwise assigned to one of the cooperative extension services, as defined in 7 U.S.C. 3103(5);<PRTPAGE P="214"/> </P> <P>(b) Has entered on approved leave without pay to serve as a full-time officer or employee of an organization composed primarily of employees as defined by 5 U.S.C. 8331(1) and 8401(11); or</P> <P>(c) Has been assigned, on an approved leave-without-pay basis, from a Federal agency to a state or local government under 5 U.S.C. chapter 33, subchapter VI.</P> </SECTION> <SECTION> <SECTNO>§ 1620.12</SECTNO> <SUBJECT>Employing authority contributions.</SUBJECT> <P>The employing authority, at its sole discretion, may choose to make employer contributions under 5 U.S.C. 8432(c) for employees who are covered under FERS. Such contributions may be made for any period of eligible service after January 1, 1984, provided that the employing agency must treat all its employees who are eligible to receive employer contributions in the same manner. The employing authority can only commence or terminate employer contributions during an open season and must provide all affected employees with notice of a decision to commence or terminate such contributions at least 45 days before the beginning of the applicable election period. The employing authority may not contribute to the TSP on behalf of CSRS employees.</P> </SECTION> <SECTION> <SECTNO>§ 1620.13</SECTNO> <SUBJECT>Retroactive contributions.</SUBJECT> <P>(a) An employing authority can make retroactive employer contributions on behalf of FERS employees described in this subpart, but cannot duplicate employer contributions already made to the TSP.</P> <P>(b) An employing authority making retroactive employing agency contributions on behalf of a FERS employee described in § 1620.12 must continue those contributions (but only to the extent they relate to service with the employing authority) if the employee returns to his or her agency of record or is transferred to another Federal agency without a break in service.</P> <P>(c) CSRS and FERS employees covered by this subpart can make retroactive employee contributions relating to periods of service described in § 1620.12, unless they already have been given the opportunity to make contributions for these periods of service.</P> </SECTION> <SECTION> <SECTNO>§ 1620.14</SECTNO> <SUBJECT>Payment to the record keeper.</SUBJECT> <P>(a) The employing authority of a cooperative extension service employee (described at § 1620.11(a)) is responsible for transmitting employer and employee contributions to the TSP record keeper.</P> <P>(b) The employing authority of a union employee or an Intergovernmental Personnel Act employee (described at § 1620.11(b) and (c), respectively) is responsible for transmitting employer and employee contributions to the employee's Federal agency of record. Employee contributions will be deducted from the employee's actual pay. The employee's agency of record is responsible for transmitting the employer and employee's contributions to the TSP record keeper in accordance with Board procedures. The employee's election form (TSP-1) will be filed in the employee's official personnel folder or other similar file maintained by the employing authority.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Article III Justices and Judges; Bankruptcy Judges and U.S. Magistrates; and Judges of the Courts of Federal Claims and Veterans Appeals</HD> <SECTION> <SECTNO>§ 1620.20</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) This subpart applies to:</P> <P>(1) A justice or judge of the United States as defined in 28 U.S.C. 451;</P> <P>(2) A bankruptcy judge appointed under 28 U.S.C. 152 or a United States magistrate appointed under 28 U.S.C. 631 who has chosen to receive a judges’ annuity described at 28 U.S.C. 377 or section 2(c) of the Retirement and Survivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988, Public Law 100-659, 102 Stat. 3910-3921;</P> <P>(3) A judge of the United States Court of Federal Claims appointed under 28 U.S.C. 171 whose retirement is covered by 28 U.S.C. 178; and</P> <P>(4) A judge of the Court of Veterans Appeals appointed under 38 U.S.C. 7253.</P> <P>(b) This subpart does not apply to a bankruptcy judge or a United States <PRTPAGE P="215"/>magistrate who has not chosen a judges’ annuity, or to a judge of the United States Court of Federal Claims who is not covered by 28 U.S.C. 178. Those individuals may participate in the TSP only if they are otherwise covered by CSRS or FERS.</P> </SECTION> <SECTION> <SECTNO>§ 1620.21</SECTNO> <SUBJECT>Contributions.</SUBJECT> <P>(a) An individual covered under this subpart can contribute up to 5 percent of basic pay per pay period to the TSP, and, unless stated otherwise in this subpart, he or she is covered by the same rules and regulations that apply to a CSRS participant in the TSP.</P> <P>(b) The following amounts are not basic pay and no TSP contributions can be made from them:</P> <P>(1) An annuity or salary received by a justice or judge of the United States (as defined in 28 U.S.C. 451) who is retired under 28 U.S.C. 371(a) or (b), or 372(a);</P> <P>(2) Amounts received by a bankruptcy judge or a United States magistrate under a judges’ annuity described at 28 U.S.C. 377;</P> <P>(3) An annuity or salary received by a judge of the United States Court of Federal Claims under 28 U.S.C. 178; and</P> <P>(4) Retired pay received by a judge of the United States Court of Veterans Appeals under 38 U.S.C. 7296.</P> </SECTION> <SECTION> <SECTNO>§ 1620.22</SECTNO> <SUBJECT>Withdrawals.</SUBJECT> <P>(a) <E T="03">Post-employment withdrawal.</E> An individual covered under this subpart can make a post-employment withdrawal election described at 5 U.S.C. 8433(b):</P> <P>(1) Upon separation from Government employment.</P> <P>(2) In addition to the circumstance described in paragraph (a)(1) of this section, a post-employment withdrawal election can be made by:</P> <P>(i) A justice or judge of the United States (as defined in 28 U.S.C. 451) who retires under 28 U.S.C. 317(a) or (b) or 372(a);</P> <P>(ii) A bankruptcy judge or a United States magistrate receiving a judges’ annuity under 28 U.S.C. 377;</P> <P>(iii) A judge of the United States Court of Federal Claims receiving an annuity or salary under 28 U.S.C. 178; and</P> <P>(iv) A judge of the United States Court of Veterans Appeals receiving retired pay under 38 U.S.C. 7296.</P> <P>(b) <E T="03">In-service withdrawals.</E> An individual covered under this subpart can request an in-service withdrawal described at 5 U.S.C. 8433(h) if he or she:</P> <P>(1) Has not separated from Government employment; and</P> <P>(2) Is not receiving retired pay as described in paragraph (a)(2) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1620.23</SECTNO> <SUBJECT>Spousal rights.</SUBJECT> <P>(a) The current spouse of a justice or judge of the United States (as defined in 28 U.S.C. 451), or of a Court of Veterans Appeals judge, possesses the rights described at 5 U.S.C. 8351(b)(5).</P> <P>(b) A current or former spouse of a bankruptcy judge, a United States magistrate, or a judge of the United States Court of Federal Claims, possesses the rights described at 5 U.S.C. 8435 and 8467 if the judge or magistrate is covered under this subpart.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Nonappropriated Fund Employees</HD> <SECTION> <SECTNO>§ 1620.30</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart applies to any employee of a Nonappropriated Fund (NAF) instrumentality of the Department of Defense (DOD) or the U.S. Coast Guard who elects to be covered by CSRS or FERS and to any employee in a CSRS- or FERS-covered position who elects to be covered by a retirement plan established for employees of a NAF instrumentality pursuant to the Portability of Benefits for Nonappropriated Fund Employees Act of 1990, Public Law 101-508, 104 Stat. 1388, 1388-335 to 1388-341, as amended (codified largely at 5 U.S.C. 8347(q) and 8461(n)).</P> </SECTION> <SECTION> <SECTNO>§ 1620.31</SECTNO> <SUBJECT>Definition.</SUBJECT> <P>As used in this subpart, <E T="03">move</E> means moving from a position covered by CSRS or FERS to a NAF instrumentality of the DOD or Coast Guard, or <E T="03">vice versa,</E> without a break in service of more than one year.</P> </SECTION> <SECTION> <PRTPAGE P="216"/> <SECTNO>§ 1620.32</SECTNO> <SUBJECT>Employees who move to a NAF instrumentality on or after August 10, 1996.</SUBJECT> <P>Any employee who moves from a CSRS- or FERS-covered position to a NAF instrumentality on or after August 10, 1996, and who elects to continue to be covered by CSRS or FERS, will be eligible to contribute to the TSP as determined in accordance with 5 CFR part 1600.</P> </SECTION> <SECTION> <SECTNO>§ 1620.33</SECTNO> <SUBJECT>Employees who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965.</SUBJECT> <P>(a) <E T="03">Future TSP contributions.</E>—(1) <E T="03">Employee contributions.</E> An employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS or FERS as of the date of that move may elect to make any future contributions to the TSP in accordance with 5 U.S.C. 8351(b)(2) or 8432(a), as applicable, within 30 days of the date of his or her election to be covered by CSRS or FERS. Such contributions will begin being deducted from the employee's pay no later than the pay period following the election to contribute to the TSP. Any TSP contribution election which may have been in effect at the time of the employee's move will not be effective for any future contributions.</P> <P>(2) <E T="03">Employer contributions.</E> If an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, elects to be covered by FERS:</P> <P>(i) The NAF instrumentality must contribute each pay period to the Thrift Savings Fund on behalf of that employee any amounts that the employee is eligible to receive under 5 U.S.C. 8432(c)(1), beginning no later than the pay period following the employee's election to be covered by FERS; and</P> <P>(ii) If the employee elects to make contributions to the TSP pursuant to paragraph (a)(1) of this section, the NAF instrumentality must also contribute each pay period to the Thrift Savings Fund on behalf of that employee any amounts that the employee is eligible to receive under 5 U.S.C. 8432(c)(2), beginning at the same time as the employee's contributions are made pursuant to paragraph (a)(l) of this section.</P> <P>(b) <E T="03">Retroactive TSP contributions.</E> (1) Without regard to any election to contribute to the TSP under paragraph (a)(l) of this section, the NAF instrumentality will take the following actions with respect to an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS or FERS as of the date of the move:</P> <P>(i) <E T="03">Agency automatic (1%) makeup contributions.</E> The NAF instrumentality must, within 30 days of the date of the employee's election to be covered by FERS, contribute to the Thrift Savings Fund an amount representing the agency automatic (1%) contribution for all pay periods during which the employee would have been eligible to receive the agency automatic (1%) contribution under 5 U.S.C. 8432, beginning with the date of the move and ending with the date that agency automatic (1%) contributions begin under paragraph (a)(2) of this section. Lost earnings will not be paid on these contributions unless they are not made by the NAF instrumentality within the time frames required by these regulations.</P> <P>(ii) <E T="03">Employee makeup contributions.</E> (A) Within 60 days of the election to be covered by FERS, an employee who moved to a NAF instrumentality before August 10, 1996, but after December 31, 1965, and who elects to be covered by FERS, may make an election regarding employee makeup contributions. The employee may elect to contribute all or a percentage of the amount of employee contributions which the employee would have been eligible to make under 5 U.S.C. 8432 between the date of the move and the date employee contributions begin under paragraph (a)(1) of this section or, if no such election is made under paragraph (a)(1) of this section, the date that agency automatic (1%) contributions begin under paragraph (a)(2) of this section.</P> <P>(B) Within 60 days of the election to be covered under CSRS, an employee who moved to a NAF instrumentality <PRTPAGE P="217"/>before August 10, 1996, but after December 31, 1965, and who elects to be covered by CSRS, may make an election regarding make-up contributions. The employee may elect to contribute all or a percentage of the amount of employee contributions that the employee would have been eligible to make under 5 U.S.C. 8351 between the date of the move and the date employee contributions begin under paragraph (a)(1) of this section or, if no such election is made under paragraph (a)(1) of this section, the pay period following the date the election to be covered by CSRS is made.</P> <P>(C) Deductions made from the employee's pay pursuant to an employee's election under paragraph (b)(1)(ii)(A) or (B) of this section, as appropriate, must be made according to a schedule that meets the requirements of 5 CFR 1505.2(c). The payment schedule must begin no later than the pay period following the date the employee elects the schedule.</P> <P>(iii) <E T="03">Agency matching makeup contributions.</E> The NAF instrumentality must pay to the Thrift Savings Fund any matching contributions attributable to employee contributions made under paragraph (b)(1)(ii)(A) of this section which the NAF instrumentality would have been required to make under 5 U.S.C. 8432(c), at the same time that those employee contributions are contributed to the Fund.</P> <P>(2) Makeup contributions must be reported for investment by the NAF instrumentality when contributed, according to the employee's election for current TSP contributions. If the employee is not making current contributions, the retroactive contributions must be invested according to an election form (TSP-1-NAF) filed specifically for that purpose.</P> <P>(c) <E T="03">Noneligible employees.</E> An employee who is covered by a NAF retirement system is not eligible to participate in the TSP. Any TSP contributions relating to a period for which an employee elects retroactive NAF retirement system coverage must be removed from the TSP as required by the regulations at 5 CFR part 1605.</P> <P>(d) <E T="03">Elections.</E> If a TSP election was made by an employee of a NAF instrumentality who elected to be covered by CSRS or FERS before August 10, 1996, and the election was properly implemented by the NAF instrumentality because it was valid under then-effective regulations, the election is effective under the regulations in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1620.34</SECTNO> <SUBJECT>Employees who move from a NAF instrumentality to a Federal Government agency.</SUBJECT> <P>(a) An employee of a NAF instrumentality who moves from a NAF instrumentality to a Federal Government agency and who elects to be covered by a NAF retirement system is not eligible to participate in the TSP. Any TSP contributions relating to a period for which an employee elects retroactive NAF retirement coverage must be removed from the TSP as required by the regulations at 5 CFR part 1605.</P> <P>(b) An employee of a NAF instrumentality who moves from a NAF instrumentality to a Federal Government agency and who elects to be covered by CSRS or FERS will become eligible to participate in the TSP as determined in accordance with 5 CFR part 1600.</P> </SECTION> <SECTION> <SECTNO>§ 1620.35</SECTNO> <SUBJECT>Loan payments.</SUBJECT> <P>NAF instrumentalities must deduct and transmit TSP loan payments for employees who elect to be covered by CSRS or FERS to the record keeper in accordance with 5 CFR part 1655 and Board procedures. Loan payments may not be deducted and transmitted for employees who elect to be covered by the NAF retirement system. Such employees will be considered to have separated from Government service and must prepay their loans or the TSP will declare the loan to be a taxable distribution.</P> </SECTION> <SECTION> <SECTNO>§ 1620.36</SECTNO> <SUBJECT>Transmission of information.</SUBJECT> <P>Any employee who moves to a NAF instrumentality must be reported by the losing Federal Government agency to the TSP record keeper as having transferred to a NAF instrumentality of the DOD or Coast Guard rather than as having separated from Government service. If the employee subsequently elects not to be covered by CSRS or FERS, the NAF instrumentality must submit an Employee Data Record to report the employee as having separated <PRTPAGE P="218"/>from Federal Government service as of the date of the move.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Uniformed Services Employment and Reemployment Rights Act (USERRA)—Covered Military Service</HD> <SECTION> <SECTNO>§ 1620.40</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>To be covered by this subpart, an employee must have:</P> <P>(a) Separated from Federal civilian service or entered leave-without-pay status in order to perform military service; and</P> <P>(b) Become eligible to seek reemployment or restoration to duty by virtue of a release from military service, discharge from hospitalization, or other similar event that occurred on or after August 2, 1990; and</P> <P>(c) Been reemployed in, or restored to, a position covered by CSRS or FERS pursuant to the provisions of 38 U.S.C. chapter 43.</P> </SECTION> <SECTION> <SECTNO>§ 1620.41</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P> <E T="03">Current contributions</E> means contributions that must be made for the current pay date which is reported on the journal voucher that accompanies the payroll submission.</P> <P> <E T="03">Nonpay status</E> means an employer-approved temporary absence from duty.</P> <P> <E T="03">Reemployed or returned to pay status</E> means reemployed in or returned to a pay status, pursuant to 38 U.S.C. chapter 43, to a position that is subject to 5 U.S.C. 8351 or chapter 84.</P> <P> <E T="03">Retroactive period</E> means the period for which an employee can make up missed employee contributions and receive missed agency contributions. It begins the day after the employee separates or enters nonpay status to perform military service and ends when the employee is reemployed or returned to pay status.</P> <P> <E T="03">Separate from civilian service</E> means to cease employment with the Federal Government, the U.S. Postal Service, or with any other employer from a position that is deemed to be civilian Government employment for purposes of participating in the TSP, for 31 or more full calendar days.</P> <CITA>[67 FR 49525, July 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1620.42</SECTNO> <SUBJECT>Processing TSP contribution elections.</SUBJECT> <P>(a) <E T="03">Time for filing election.</E> Upon reemployment or return to pay status, an employee has 60 days to submit contribution elections to make current contributions and to make up missed contributions. An employee's right to make a retroactive TSP contribution election will expire if the election is not made within 60 days of the participant's reemployment or return to pay status. After the 60-day contribution election period expires, the employee must wait for an open season to submit a contribution election to make current contributions.</P> <P>(b) <E T="03">Current contributions.</E> If the employee entered nonpay status with a valid contribution election on file, the agency must immediately reinstate that election for current contributions when the employee returns to pay status, unless the employee files a new contribution election as described in paragraph (a) of this section. If the employee separated to perform military service, the agency is not required to reinstate a prior contribution election. An election to make current contributions will be effective as soon as administratively feasible, but no later than the first day of the first full pay period after it is received by the employing agency.</P> <P>(c) <E T="03">Makeup contributions.</E> An election to make up contributions will be processed as follows:</P> <P>(1) If the employee had a valid contribution election on file when he or she separated or entered nonpay status to perform military service, that election form will be reinstated for purposes of makeup contributions, unless the employee submits new contribution elections effective for any missed open season.</P> <P>(2) An employee who terminated contributions within two months of entering military service will be eligible to make a retroactive contribution election for the first open season that occurs after the effective date that the contributions were terminated. This election may be made even if the termination was made outside an open season.</P> <CITA>[67 FR 49526, July 30, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="219"/> <SECTNO>§ 1620.43</SECTNO> <SUBJECT>Agency payments to record keeper; agency ultimately responsible.</SUBJECT> <P>(a) <E T="03">Agency making payments to record keeper.</E> The current employing agency always will be the agency responsible for making payments to the record keeper for all contributions (both employee and agency) and lost earnings, regardless of whether some of that expense is ultimately chargeable to a prior employing agency.</P> <P>(b) <E T="03">Agency ultimately chargeable with expense.</E> The agency ultimately chargeable with the expense of agency contributions and lost earnings attributable to the retroactive period is ordinarily the agency that reemployed the employee. However, if an employee changed agencies during the period between the date of reemployment and October 13, 1994, the employing agency as of October 13, 1994, is the agency ultimately chargeable with the expense.</P> <P>(c) <E T="03">Reimbursement by agency ultimately chargeable with expense.</E> If the agency that made the payments to the record keeper for agency contributions and lost earnings is not the agency ultimately chargeable for that expense, the agency that made the payments to the record keeper may, but is not required to, obtain reimbursement from the agency ultimately chargeable with the expense.</P> </SECTION> <SECTION> <SECTNO>§ 1620.44</SECTNO> <SUBJECT>Restoring forfeited agency automatic (1%) contributions.</SUBJECT> <P>If an employee's agency automatic (1%) contributions were forfeited because the employee was not vested when he or she separated to perform military service, the employee must notify the employing agency that a forfeiture occurred. The employing agency will follow the procedure described in § 1620.46(e) to have those funds restored.</P> <CITA>[64 FR 31057, June 9, 1999, as amended at 67 FR 49526, July 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1620.45</SECTNO> <SUBJECT>Suspending TSP loans, restoring post-employment withdrawals, and reversing taxable distributions.</SUBJECT> <P>(a) <E T="03">Suspending TSP loans during nonpay status.</E> If the TSP is notified that an employee entered into a nonpay status to perform military service, any outstanding TSP loan from a civilian TSP account will be suspended, that is, it will not be declared a taxable distribution while the employee is performing military service.</P> <P>(1) Interest will accrue on the loan balance during the period of suspension. When the employee returns to civilian pay status, the employing agency will resume the deduction of loan payments from the participant's basic pay and the TSP will reamortize the loan (which will include interest accrued during the period of military service). The loan repayment term will be extended by the employee's period of military service. Consequently, when the employee returns to pay status, the TSP record keeper must receive documentation to show the beginning and ending dates of military service.</P> <P>(2) If the TSP does not receive documentation that the employee entered into nonpay status to perform military service and the period of missed loan repayments extends beyond one year, the loan will be closed and the outstanding loan balance (including accrued interest) will be declared a taxable distribution. However, the taxable distribution can be reversed in accordance with paragraph (c) of this section.</P> <P>(b) <E T="03">Restoring post-employment withdrawals.</E> An employee who separates from civilian service to perform military service and who receives an automatic cashout of his or her account may return to the TSP an amount equal to the amount of the payment. The employee must notify the TSP record keeper of his or her intent to return the withdrawn funds within 90 days of the date the employee returns to civilian service or pay status; if the employee is eligible to return a withdrawal, the TSP record keeper will then inform the employee of the actions that must be taken to return the funds.</P> <P>(c) <E T="03">Reversing taxable distributions.</E> An employee may request that a taxable loan distribution be reversed if the taxable distribution resulted from the employee's separation or placement in nonpay status to perform military service. The TSP will reverse the taxable distribution under the process described as follows:<PRTPAGE P="220"/> </P> <P>(1) An employee who received a post-employment withdrawal when he or she separated to perform military service can have a taxable distribution reversed only if the withdrawn amount is returned as described in paragraph (b) of this section;</P> <P>(2) A taxable loan distribution can be reversed either by reinstating the loan or by repaying it in full. The TSP loan can be reinstated only if the employee agrees to repay the loan within the original loan repayment term plus the length of military service, and if, after reinstatement of the loan, the employee will have no more than two outstanding loans, only one of which is a residential loan; and</P> <P>(3) The employee must notify the TSP record keeper of his or her intent to reverse a taxable loan distribution within 90 days of the date the employee returns to civilian service or pay status; if the employee is eligible to reverse a taxable loan distribution, the TSP record keeper will then inform the employee of the actions that must be taken to reverse the distribution.</P> <P>(d) <E T="03">Earnings.</E> Employees will not receive retroactive earnings on amounts returned to their accounts under this section.</P> <CITA>[67 FR 49526, July 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1620.46</SECTNO> <SUBJECT>Agency responsibilities.</SUBJECT> <P>(a) <E T="03">General.</E> Each employing agency must establish procedures for implementing these regulations. These procedures must at a minimum require agency personnel to identify eligible employees and notify them of their options under these regulations and the time period within which these options must be exercised.</P> <P>(b) <E T="03">Agency records; procedure for reimbursement.</E> The agency that is making the payments to the record keeper for all contributions (both employee and agency) and lost earnings will obtain from prior employing agencies whatever information is necessary to make accurate payments. If a prior employing agency is ultimately chargeable under § 1620.43(b) for all or part of the expense of agency contributions and lost earnings, the agency making the payments to the record keeper will determine the procedure to follow in order to collect amounts owed to it by the agency ultimately chargeable with the expense.</P> <P>(c) <E T="03">Payment schedule; matching contributions report.</E> Agencies will, with the employee's consent, prepare a payment schedule for making retroactive employee contributions which will be consistent with the procedures established at 5 CFR part 1605 for the correction of employing agency errors.</P> <P>(d) <E T="03">Agency automatic (1%) contributions.</E> Employing agencies must calculate the agency automatic (1%) contributions for all reemployed (or restored) FERS employees, report those contributions to the record keeper, and submit lost earnings records to cover the retroactive period within 60 days of reemployment.</P> <P>(e) <E T="03">Forfeiture restoration.</E> When notified by an employee that a forfeiture of the agency automatic (1%) contributions occurred after the employee separated to perform military service, the employing agency must submit to the record keeper Form TSP-5-R, Request to Restore Forfeited Funds, to have those funds restored.</P> <P>(f) <E T="03">Thrift Savings Plan Service Computation Date.</E> The agencies must include the period of military service in the Thrift Savings Plan Service Computation Date (TSP-SCD) of all reemployed FERS employees. If the period of military service has not been credited, the agencies must submit an employee data record to the TSP record keeper containing the correct TSP Service Computation Date.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1630</EAR> <HD SOURCE="HED">PART 1630—PRIVACY ACT REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1630.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1630.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1630.3</SECTNO> <SUBJECT>Publication of systems of records maintained.</SUBJECT> <SECTNO>1630.4</SECTNO> <SUBJECT>Request for notification and access.</SUBJECT> <SECTNO>1630.5</SECTNO> <SUBJECT>Granting access to a designated individual.</SUBJECT> <SECTNO>1630.6</SECTNO> <SUBJECT>Action on request.</SUBJECT> <SECTNO>1630.7</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <SECTNO>1630.8</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <SECTNO>1630.9</SECTNO> <SUBJECT>Access to the history (accounting) of disclosures from records.</SUBJECT> <SECTNO>1630.10</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <SECTNO>1630.11</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <SECTNO>1630.12</SECTNO> <SUBJECT>Action on request to amend a record.<PRTPAGE P="221"/> </SUBJECT> <SECTNO>1630.13</SECTNO> <SUBJECT>Procedures for review of determination to deny access to or amendment of records.</SUBJECT> <SECTNO>1630.14</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <SECTNO>1630.15</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1630.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1630.17</SECTNO> <SUBJECT>Federal agency requests.</SUBJECT> <SECTNO>1630.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 18852, May 7, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1630.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>These regulations implement the Privacy Act of 1974, 5 USC 552a. The regulations apply to all records maintained by the Federal Retirement Thrift Investment Board that are contained in a system of records and that contain information about an individual. The regulations establish procedures that (a) authorize an individual's access to records maintained about him or her; (b) limit the access of other persons to those records; and (c) permit an individual to request the amendment or correction of records about him or her.</P> </SECTION> <SECTION> <SECTNO>§ 1630.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purposes of this part—</P> <P>(a) <E T="03">Agency</E> means agency as defined in 5 USC 552(e);</P> <P>(b) <E T="03">Board</E> means the Federal Retirement Thrift Investment Board;</P> <P>(c) <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence;</P> <P>(d) <E T="03">Maintain</E> means to collect, use, or distribute;</P> <P>(e) <E T="03">Record</E> means any item, collection, or grouping of information about an individual that is maintained by the Board or the record keeper, including but not limited to education, financial transactions, medical history, and criminal or employment history and that contains the individual's name, identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;</P> <P>(f) <E T="03">Record keeper</E> means the entity that is engaged by the Board to perform record keeping services for the TSP;</P> <P>(g) <E T="03">Routine use</E> means, with respect to the disclosure of a record, the use of that record for a purpose which is compatible with the purpose for which it was collected;</P> <P>(h) <E T="03">System manager</E> means the official of the Board who is responsible for the maintenance, collection, use, distribution, or disposal of information contained in a system of records;</P> <P>(i) <E T="03">System of records</E> means a group of any records under the control of the Board from which information is retrieved by the name of the individual or other identifying particular assigned to the individual;</P> <P>(j) <E T="03">Statistical record</E> means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by 13 U.S.C. 8;</P> <P>(k) <E T="03">Subject individual</E> means the individual by whose name or other identifying particular a record is maintained or retrieved;</P> <P>(l) <E T="03">TSP</E> means the Thrift Savings Plan which is administered by the Board pursuant to 5 U.S.C. 8351 and chapter 84 (subchapters III and VII);</P> <P>(m) <E T="03">TSP participant</E> means any individual for whom a TSP account has been established. This includes former participants, <E T="03">i.e.,</E> participants whose accounts have been closed;</P> <P>(n) <E T="03">TSP records</E> means those records maintained by the record keeper;</P> <P>(o) <E T="03">VRS</E> (Voice Response System) means the fully automated telephone information system for TSP account records;</P> <P>(p) <E T="03">Work days</E> as used in calculating the date when a response is due, includes those days when the Board is open for the conduct of Government business and does not include Saturdays, Sundays and Federal holidays.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67693, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.3</SECTNO> <SUBJECT>Publication of systems of records maintained.</SUBJECT> <P>(a) Prior to the establishment or revision of a system of records, the Board will publish in the <E T="04">Federal Register</E> notice of any new or intended use of the information in a system or proposed system and provide interested persons with a period within which to comment on the new or revised system. Technical or typographical corrections <PRTPAGE P="222"/>are not considered to be revisions of a system.</P> <P>(b) When a system of records is established or revised, the Board will publish in the <E T="04">Federal Register</E> a notice about the system. The notice shall include:</P> <P>(1) The system name,</P> <P>(2) The system location,</P> <P>(3) The categories of individuals covered by the system,</P> <P>(4) The categories of records in the system,</P> <P>(5) The Board's authority to maintain the system,</P> <P>(6) The routine uses of the system,</P> <P>(7) The Board's policies and practices for maintenance of the system,</P> <P>(8) The system manager,</P> <P>(9) The procedures for notification, access to and correction of records in the system, and</P> <P>(10) The sources of information for the system.</P> </SECTION> <SECTION> <SECTNO>§ 1630.4</SECTNO> <SUBJECT>Request for notification and access.</SUBJECT> <P>(a) <E T="03">TSP records.</E> (1) Records on TSP participants and the spouses, former spouses, and beneficiaries of TSP participants are maintained in the Governmentwide system of records, FRTIB-1, Thrift Savings Plan Records. A participant or a spouse, former spouse, or beneficiary of a participant must make his or her inquiry in accordance with the chart set forth in this paragraph. The mailing address of the Thrift Savings Plan Service Office is: National Finance Center, PO Box 61500, New Orleans, LA, 70161-1500. Telephone inquiries are subject to the verification procedures set forth in § 1630.7. A written inquiry must include the name and Social Security number of the participant or of the spouse, former spouse, or beneficiary of the participant, as appropriate. </P> <EXTRACT> <FP>To obtain information about or gain access to TSP records about you</FP> </EXTRACT> <GPOTABLE CDEF="s25, r50, r25" COLS="3" OPTS="L2, i1"> <BOXHD> <CHED H="1">If you want:</CHED> <CHED H="1">If you are a participant who is a current Federal employee:</CHED> <CHED H="1">If you are a participant who has separated from Federal employment or a spouse, former spouse, or beneficiary:</CHED> </BOXHD> <ROW> <ENT I="01">To make inquiry as to whether you are a subject of this system of records. </ENT> <ENT>Call or write to your employing agency in accordance with agency procedures for personnel or payroll records </ENT> <ENT>Call or write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">To gain access to a record about you </ENT> <ENT>Call or write to your employing agency to request access to personnel and payroll records regarding the agency's and the participant's contributions, and adjustments to contributions. Call or write to the TSP record keeper to gain access to loan status and repayments, earnings, contributions allocation elections, interfund transfers, and withdrawal records </ENT> <ENT>Call or write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">To learn the history of disclosures of records about you to entities other than the participant's employing agency or the Board or auditors see § 1630.4 (a)(4) </ENT> <ENT>Write to TSP record keeper. </ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> </GPOTABLE> <P>(2) Participants may also inquire whether this system contains records about them and access certain records through the account access section of the TSP Web site and the ThriftLine (the TSP's automated telephone system). The TSP Web site is located at <E T="03">www.tsp.gov.</E> To use the TSP ThriftLine, the participant must have a touch-tone telephone and call the following number (504) 255-8777. The following information is available on the TSP Web site and the ThriftLine: account balance; available loan amount; the status of a monthly withdrawal payment; the current status of a loan <PRTPAGE P="223"/>or withdrawal application; and an interfund transfer request. To access these features the participant will need to provide his or her SSN and PIN.</P> <P>(3) A Privacy Act request which is incorrectly submitted to the Board will not be considered received until received by the record keeper. The Board will submit such a Privacy Act request to the record keeper within three workdays. A Privacy Act request which is incorrectly submitted to the record keeper will not be considered received until received by the employing agency. The record keeper will submit such a Privacy Act request to the employing agency within three workdays.</P> <P>(4) No disclosure history will be made when the Board contracts for an audit of TSP financial statements (which includes the review and sampling of TSP account balances).</P> <P>(5) No disclosure history will be made when the Department of Labor or the General Accounting Office audits TSP financial statements (which includes the review and sampling of TSP account balances) in accordance with their responsibilities under chapter 84 of title 5 of the U.S. Code. Rather, a requester will be advised that these agencies have statutory obligations to audit TSP activities and that in the course of such audits they randomly sample individual TSP accounts to test for account accuracy.</P> <P>(b) <E T="03">Non-TSP Board records.</E> An individual who wishes to know if a specific system of records maintained by the Board contains a record pertaining to him or her, or who wishes access to such records, shall address a written request to the Privacy Act Officer, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The request letter should contain the complete name and identifying number of the pertinent system as published in the annual <E T="04">Federal Register</E> notice describing the Board's Systems of Records; the full name and address of the subject individual; the subject's Social Security number if a Board employee; a brief description of the nature, time, place, and circumstances of the individual's prior association with the Board; and any other information the individual believes would help the Privacy Act Officer determine whether the information about the individual is included in the system of records. In instances where the information is insufficient to ensure disclosure to the subject individual to whom the record pertains, the Board reserves the right to ask the requester for additional identifying information. The words “PRIVACY ACT REQUEST” should be printed on both the letter and the envelope.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994; 64 FR 67693, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.5</SECTNO> <SUBJECT>Granting access to a designated individual.</SUBJECT> <P>(a) An individual who wishes to have a person of his or her choosing review a record or obtain a copy of a record from the Board or the TSP record keeper shall submit a signed statement authorizing the disclosure of his or her record before the record will be disclosed. The authorization shall be maintained with the record.</P> <P>(b) The Board or the TSP record keeper will honor any Privacy Act request (e.g., a request to have access or to amend a record) which is accompanied by a valid power of attorney from the subject of the record.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 26409, May 20, 1994; 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.6</SECTNO> <SUBJECT>Action on request.</SUBJECT> <P>(a) For TSP records, the record keeper designee, and for non-TSP records, the Privacy Act Officer will answer or acknowledge the inquiry within 10 work days of the date it is received. When the answer cannot be made within 10 work days, the record keeper or Privacy Act Officer will provide the requester with the date when a response may be expected and, whenever possible, the specific reasons for the delay.</P> <P>(b) At a minimum, the acknowledgement to a request for access shall include:</P> <P>(1) When and where the records will be available;</P> <P>(2) Name, title and telephone number of the official who will make the records available;</P> <P>(3) Whether access will be granted only by providing a copy of the record <PRTPAGE P="224"/>through the mail, or only by examination of the record in person if the Privacy Act Officer after consulting with the appropriate system manager has determined the requester's access would not be unduly impeded;</P> <P>(4) Fee, if any, charged for copies (See § 1630.16); and</P> <P>(5) If necessary, documentation required to verify the identity of the requester (See § 1630.7).</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 67694, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.7</SECTNO> <SUBJECT>Identification requirements.</SUBJECT> <P>(a) <E T="03">In person.</E> An individual should be prepared to identify himself or herself by signature, i.e., to note by signature the date of access, Social Security number, and to produce one photographic form of identification (driver's license, employee identification, annuitant card, passport, etc.). If an individual is unable to produce adequate identification, the individual must sign a statement asserting his or her identity and acknowledging that knowingly or willfully seeking or obtaining access to records about another person under false pretenses may result in a fine of up to $5,000 (see § 1630.18). In addition, depending upon the sensitivity of the records, the Privacy Act Officer or record keeper designee after consulting with the appropriate system manager may require further reasonable assurances, such as statements of other individuals who can attest to the identity of the requester.</P> <P>(b) <E T="03">In writing.</E> An individual shall provide his or her name, date of birth, and Social Security number and shall sign the request. If a request for access is granted by mail and, in the opinion of the Privacy Act Officer or record keeper designee after consulting with the appropriate system manager, the disclosure of the records through the mail may result in harm or embarrassment (if a person other than the subject individual were to receive the records), a notarized statement of identity or some other similar assurance of identity will be required.</P> <P>(c) <E T="03">By telephone.</E> (1) Telephone identification procedures apply only to requests from participants and spouses, former spouses, or beneficiaries of participants for information in FRTIB-1, Thrift Savings Plan Records, which is retrieved by their respective Social Security numbers.</P> <P>(2) A participant or a spouse, former spouse, or beneficiary of a participant must identify himself or herself by providing to the record keeper designee his or her name, Social Security number, and any other information requested. If the record keeper designee determines that any of the information provided by telephone is incorrect, the requester will be required to submit a request in writing.</P> <P>(3) A participant may also access the TSP Web site or call the TSP ThriftLine to obtain account information. These systems require the participant's Social Security number and PIN. Because a PIN is required to use these features, they are not available to former participants, whose PINs are canceled when their accounts are closed.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.8</SECTNO> <SUBJECT>Access of others to records about an individual.</SUBJECT> <P>(a) The Privacy Act provides for access to records in systems of records in those situations enumerated in 5 U.S.C. 552a(b) and are set forth in paragraph (b) of this section.</P> <P>(b) No official or employee of the Board, or any contractor of the Board or other Federal agency operating a Board system of records under an interagency agreement, shall disclose any record to any person or to another agency without the express written consent of the subject individual, unless the disclosure is:</P> <P>(1) To officers or employees (including contract employees) of the Board or the record keeper who need the information to perform their official duties;</P> <P>(2) Pursuant to the requirements of the Freedom of Information Act, 5 U.S.C. 552;</P> <P>(3) For a routine use that has been published in a notice in the <E T="04">Federal Register</E> (routine uses for the Board's systems of records are published separately in the <E T="04">Federal Register</E> and are available from the Board's Privacy Act Officer);<PRTPAGE P="225"/> </P> <P>(4) To the Bureau of the Census for uses under title 13 of the United States Code;</P> <P>(5) To a person or agency which has given the Board or the record keeper advance written notice of the purpose of the request and certification that the record will be used only for statistical purposes. (In addition to deleting personal identifying information from records released for statistical purposes, the Privacy Act Officer or record keeper designee shall ensure that the identity of the individual cannot reasonably be deduced by combining various statistical records);</P> <P>(6) To the National Archives of the United States if a record has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;</P> <P>(7) In response to a written request that identifies the record and the purpose of the request made by another agency or instrumentality of any Government jurisdiction within or under the control of the United States for civil or criminal law enforcement activity, if that activity is authorized by law;</P> <P>(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, if upon such disclosure a notification is transmitted to the last known address of the subject individual;</P> <P>(9) To either House of Congress, or to a Congressional committee or subcommittee if the subject matter is within its jurisdiction;</P> <P>(10) To the Comptroller General, or an authorized representative, in the course of the performance of the duties of the General Accounting Office;</P> <P>(11) Pursuant to the order of a court of competent jurisdiction; or</P> <P>(12) To a consumer reporting agency in accordance with section 3711(f) of Title 31.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.9</SECTNO> <SUBJECT>Access to the history (accounting) of disclosures from records.</SUBJECT> <P>Rules governing access to the accounting of disclosures are the same as those for granting access to the records as set forth in § 1630.4.</P> </SECTION> <SECTION> <SECTNO>§ 1630.10</SECTNO> <SUBJECT>Denials of access.</SUBJECT> <P>(a) The Privacy Act Officer or the record keeper designee for records covered by system FRTIB-1, may deny an individual access to his or her record if:</P> <P>(1) In the opinion of the Privacy Act Officer or the record keeper designee, the individual seeking access has not provided proper identification to permit access; or</P> <P>(2) The Board has published rules in the <E T="04">Federal Register</E> exempting the pertinent system of records from the access requirement.</P> <P>(b) If access is denied, the requester shall be informed of the reasons for denial and the procedures for obtaining a review of the denial.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.11</SECTNO> <SUBJECT>Requirements for requests to amend records.</SUBJECT> <P>(a) <E T="03">TSP records.</E> (1) A spouse, former spouse or beneficiary of a TSP participant who wants to correct or amend his or her record must write to the TSP record keeper. A participant in the TSP who wants to correct or amend a TSP record pertaining to him or her shall submit a written request in accordance with the following chart:</P> <GPOTABLE CDEF="s50,r25,r25" COLS="3" OPTS="L2,i1"> <BOXHD> <CHED H="1">To correct or amend a TSP record</CHED> <CHED H="2">If the type of record is:</CHED> <CHED H="2">If you are a participant who is a current Federal employee write to:</CHED> <CHED H="2">If you are a participant who has separated from Federal employment write to:</CHED> </BOXHD> <ROW> <ENT I="01">Personnel or personal records (e.g., age, address, Social Security number, date of birth). </ENT> <ENT>Write to your employing agency. </ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> <ROW> <ENT I="01">The agency's and the participant's contributions, and adjustments to contributions.</ENT> <ENT>Write to your employing agency.</ENT> <ENT>Write to your former employing agency.</ENT> </ROW> <ROW> <ENT I="01">Earnings, investment allocation, interfund transfers, loans, loan repayments, and withdrawals</ENT> <ENT>Write to TSP record keeper.</ENT> <ENT>Write to TSP record keeper.</ENT> </ROW> </GPOTABLE> <PRTPAGE P="226"/> <P>(2) The address of the record keeper is listed in § 1630.4(a).</P> <P>(3) Requests for amendments which are claims for money because of administrative error will be processed in accordance with the Board's Error Correction regulations found at 5 CFR part l605. Sections 1630.12(b)-1630.14 of this part do not apply to such money claim amendments to TSP records as the Error Correction regulations are an equivalent substitute. Non-money claim TSP record appeals are covered by §§ 1630.12-1630.14, or if covered by the above chart the employing, or former employing, agency's Privacy Act procedures.</P> <P>(4) Corrections to TSP account records which are made by the Board, its recordkeeper or the employing agency or the former employing agency on its own motion because of a detected administrative error will be effected without reference to Privacy Act procedures.</P> <P>(5) A participant in the TSP who is currently employed by a Federal agency should be aware that the employing agency provides to the Board personal and payroll records on the participant, such as his or her date of birth, Social Security number, retirement code, address, loan repayments, the amount of participant's contribution, amount of the Government's contribution, if the participant is covered by the Federal Employees’ Retirement System Act (FERSA, 5 U.S.C. Chapter 84), and adjustments to contributions. Requests submitted to the Board, or its recordkeeper, to correct information provided by the employing Federal agency will be referred to the employing agency. The reason for this referral is that the Board receives information periodically for the TSP accounts; if the employing agency does not resolve the alleged error, the Board will continue to receive the uncorrected information periodically regardless of a one-time Board correction. The employing agency also has custody of the election form (which is maintained in the Official Personnel Folder). Requests for amendment or correction of records described in this paragraph should be made to the employing agency.</P> <P>(b) <E T="03">Non-TSP records.</E> (1) Any other individual who wants to correct or amend a record pertaining to him or her shall submit a written request to the Board's Privacy Act Officer whose address is listed in § 1630.4. The words “Privacy Act—Request to Amend Record” should be written on the letter and the envelope.</P> <P>(2) The request for amendment or correction of the record should, if possible, state the exact name of the system of records as published in the <E T="04">Federal Register</E>; a precise description of the record proposed for amendment; a brief statement describing the information the requester believes to be inaccurate or incomplete, and why; and the amendment or correction desired. If the request to amend the record is the result of the individual's having gained access to the record in accordance with §§ 1630.4, 1630.5, 1630.6 or § 1630.7, copies of previous correspondence between the requester and the Board should be attached, if possible.</P> <P>(3) If the individual's identity has not been previously verified, the Board may require documentation of identification as described in § 1630.7.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.12</SECTNO> <SUBJECT>Action on request to amend a record.</SUBJECT> <P>(a) For TSP records, the record keeper will acknowledge a request for amendment of a record, which is to be decided by that office in accordance with the chart in § 1630.11, within 10 work days. Requests received by the record keeper which are to be decided by the current or former employing agency will be sent to that agency by the record keeper within 3 work days of the date of receipt. A copy of the transmittal letter will be sent to the requester.</P> <P>(b) For non-TSP records, the Privacy Act Officer will acknowledge a request for amendment of a record within 10 work days of the date the Board receives it. If a decision cannot be made within this time, the requester will be informed by mail of the reasons for the delay and the date when a reply can be expected, normally within 30 work days from receipt of the request.</P> <P>(c) The final response will include the decision whether to grant or deny the <PRTPAGE P="227"/>request. If the request is denied, the response will include:</P> <P>(1) The reasons for the decision;</P> <P>(2) The name and address of the official to whom an appeal should be directed;</P> <P>(3) The name and address of the official designated to assist the individual in preparing the appeal;</P> <P>(4) A description of the appeal process with the Board; and</P> <P>(5) A description of any other procedures which may be required of the individual in order to process the appeal.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.13</SECTNO> <SUBJECT>Procedures for review of determination to deny access to or amendment of records.</SUBJECT> <P>(a) Individuals who disagree with the refusal to grant them access to or to amend a record about them should submit a written request for review to the Executive Director, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The words “PRIVACY ACT—APPEAL” should be written on the letter and the envelope. Individuals who need assistance preparing their appeal should contact the Board's Privacy Act Officer.</P> <P>(b) The appeal letter must be received by the Board within 30 calendar days from the date the requester received the notice of denial. At a minimum, the appeal letter should identify:</P> <P>(1) The records involved;</P> <P>(2) The date of the initial request for access to or amendment of the record;</P> <P>(3) The date of the Board's denial of that request; and</P> <P>(4) The reasons supporting the request for reversal of the Board's decision.</P> <FP>Copies of previous correspondence from the Board denying the request to access or amend the record should also be attached, if possible.</FP> <P>(c) The Board reserves the right to dispose of correspondence concerning the request to access or amend a record if no request for review of the Board's decision is received within 180 days of the decision date. Therefore, a request for review received after 180 days may, at the discretion of the Privacy Act Officer, be treated as an initial request to access or amend a record.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.14</SECTNO> <SUBJECT>Appeals process.</SUBJECT> <P>(a) Within 20 work days of receiving the request for review, the Executive Director, after consultation with the General Counsel, will make a final determination on the appeal. If a final decision cannot be made in 20 work days, the Privacy Act Officer will inform the requester of the reasons for the delay and the date on which a final decision can be expected. Such extensions are unusual, and should not exceed an additional 30 work days.</P> <P>(b) If the original request was for access and the initial determination is reversed, the procedures in § 1630.7 will be followed. If the initial determination is upheld, the requester will be so informed and advised of the right to judicial review pursuant to 5 U.S.C. 552a(g).</P> <P>(c) If the initial denial of a request to amend a record is reversed, the Board or the record keeper will correct the record as requested and inform the individual of the correction. If the original decision is upheld, the requester will be informed and notified in writing of the right to judicial review pursuant to 5 U.S.C. 552a(g) and the right to file a concise statement of disagreement with the Executive Director. The statement of disagreement should include an explanation of why the requester believes the record is inaccurate, irrelevant, untimely, or incomplete. The Executive Director shall maintain the statement of disagreement with the disputed record, and shall include a copy of the statement of disagreement to any person or agency to whom the record has been disclosed, if the disclosure was made pursuant to § 1630.9.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.15</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) Pursuant to subsection (k) of the Privacy Act, 5 U.S.C. 552a, the Board may exempt certain portions of records within designated systems of records from the requirements of the Privacy Act, (including access to and review of <PRTPAGE P="228"/>such records pursuant to this part) if such portions are:</P> <P>(1) Subject to the provisions of section 552(b)(1) of the Freedom of Information Act, 5 U.S.C. 552;</P> <P>(2) Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of the Privacy Act, 5 U.S.C. 552a: Provided, however, that if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence;</P> <P>(3) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18 of the United States Code;</P> <P>(4) Required by statute to be maintained and used solely as statistical records;</P> <P>(5) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosures of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence;</P> <P>(6) Test or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or</P> <P>(7) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material be held in confidence, or, prior to the effective date of the Privacy Act, 5 U.S.C. 552a, under an implied promise that the identity of the source would be held in confidence.</P> <P>(b) Those designated systems of records which are exempt from the requirements of this part or any other requirements of the Privacy Act, 5 U.S.C. 552a, will be indicated in the notice of designated systems of records published by the Board.</P> <P>(c) Nothing in this part will allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 1630.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) Individuals will not be charged for:</P> <P>(1) The search and review of the record; and</P> <P>(2) Copies of ten (10) or fewer pages of a requested record.</P> <P>(b) Records of more than 10 pages will be photocopied for 15 cents a page. If the record is larger than 8<FR>1/2</FR> × 14 inches, the fee will be the cost of reproducing the record through Government or commercial sources.</P> <P>(c) Fees must be paid in full before requested records are disclosed. Payment shall be by personal check or money order payable to the Federal Retirement Thrift Investment Board, and mailed or delivered to the record keeper or to the Privacy Act Officer, depending upon the nature of the request, at the address listed in § 1630.4.</P> <P>(d) The Head, TSP Service Office or the Privacy Act Officer may waive the fee if:</P> <P>(1) The cost of collecting the fee exceeds the amount to be collected; or</P> <P>(2) The production of the copies at no charge is in the best interest of the Board.</P> <P>(e) A receipt will be furnished on request.</P> <CITA>[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 1630.17</SECTNO> <SUBJECT>Federal agency requests.</SUBJECT> <P>Employing agencies needing automated data processing services from <PRTPAGE P="229"/>the Board in order to reconcile agency TSP records for TSP purposes may be charged rates based upon the factors of:</P> <P>(a) Fair market value;</P> <P>(b) Cost to the TSP; and</P> <P>(c) Interests of the participants and beneficiaries.</P> </SECTION> <SECTION> <SECTNO>§ 1630.18</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(a) Title 18, U.S.C. 1001, Crimes and Criminal Procedures, makes it a criminal offense, subject to a maximum fine of $10,000 or imprisonment for not more than five years, or both, to knowingly and willfully make or cause to be made any false or fraudulent statements or representation in any matter within the jurisdiction of any agency of the United States. Section (i)(3) of the Privacy Act, 5 U.S.C. 552a(i)(3), makes it a misdemeanor, subject to a maximum fine of $5,000 to knowingly and willfully request or obtain any record concerning an individual under false pretenses. Sections (i) (1) and (2) of 5 U.S.C. 552a provide penalties for violations by agency employees of the Privacy Act or regulations established thereunder.</P> <P>(b) [Reserved]</P> </SECTION> </PART> <PART> <EAR>Pt. 1631</EAR> <HD SOURCE="HED">PART 1631—AVAILABILITY OF RECORDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECHD>Sec.</SECHD> <SECTNO>1631.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1631.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1631.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <SECTNO>1631.4</SECTNO> <SUBJECT>Public reference facilities and current index.</SUBJECT> <SECTNO>1631.5</SECTNO> <SUBJECT>Records of other agencies.</SUBJECT> <SECTNO>1631.6</SECTNO> <SUBJECT>How to request records—form and content.</SUBJECT> <SECTNO>1631.7</SECTNO> <SUBJECT>Initial determination.</SUBJECT> <SECTNO>1631.8</SECTNO> <SUBJECT>Prompt response.</SUBJECT> <SECTNO>1631.9</SECTNO> <SUBJECT>Responses—form and content.</SUBJECT> <SECTNO>1631.10</SECTNO> <SUBJECT>Appeals to the General Counsel from initial denials.</SUBJECT> <SECTNO>1631.11</SECTNO> <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT> <SECTNO>1631.12</SECTNO> <SUBJECT>Waiver or reduction of fees.</SUBJECT> <SECTNO>1631.13</SECTNO> <SUBJECT>Prepayment of fees over $250.</SUBJECT> <SECTNO>1631.14</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <SECTNO>1631.15</SECTNO> <SUBJECT>Information to be disclosed.</SUBJECT> <SECTNO>1631.16</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1631.17</SECTNO> <SUBJECT>Deletion of exempted information.</SUBJECT> <SECTNO>1631.18</SECTNO> <SUBJECT>Annual report.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Production in Response to Subpoenas or Demands of Courts or Other Authorities</HD> <SECTNO>1631.30</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1631.31</SECTNO> <SUBJECT>Production prohibited unless approved by the Executive Director.</SUBJECT> <SECTNO>1631.32</SECTNO> <SUBJECT>Procedure in the event of a demand for disclosure.</SUBJECT> <SECTNO>1631.33</SECTNO> <SUBJECT>Procedure in the event of an adverse ruling.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 41052, Oct. 9, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Production or Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552</HD> <SECTION> <SECTNO>§ 1631.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Board</E> means the Federal Retirement Thrift Investment Board.</P> <P>(b) <E T="03">Agency</E> means agency as defined in 5 U.S.C. 552(e).</P> <P>(c) <E T="03">Executive Director</E> means the Executive Director of the Federal Retirement Thrift Investment Board, as defined in 5 U.S.C. 8401(13) and as further described in 5 U.S.C. 8474.</P> <P>(d) <E T="03">FOIA</E> means Freedom of Information Act, 5 U.S.C. 552, as amended.</P> <P>(e) <E T="03">FOIA Officer</E> means the Board's Director of Administration or his or her designee.</P> <P>(f) <E T="03">General Counsel</E> means the General Counsel of the Federal Retirement Thrift Investment Board.</P> <P>(g) <E T="03">Working days</E> or <E T="03">workdays</E> means those days when the Board is open for the conduct of Government business, and does not include Saturdays, Sundays, and Federal holidays.</P> <P>(h) <E T="03">Requester</E> means a person making a FOIA request.</P> <P>(i) <E T="03">Submitter</E> means any person or entity which provides confidential commercial information to the Board. The term includes, but is not limited to, corporations, state governments, and foreign governments.</P> </SECTION> <SECTION> <SECTNO>§ 1631.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains the regulations of the Federal Retirement Thrift Investment Board, implementing 5 U.S.C. <PRTPAGE P="230"/>552. The regulations of this subpart describe the procedures by which records may be obtained from all organizational units within the Board and from its recordkeeper. Official records of the Board, except those already published in bulk by the Board, available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public only as prescribed by this subpart. To the extent that it is not prohibited by other laws the Board also will make available records which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the interest of the Thrift Savings Plan.</P> </SECTION> <SECTION> <SECTNO>§ 1631.3</SECTNO> <SUBJECT>Organization and functions.</SUBJECT> <P>(a) The Federal Retirement Thrift Investment Board was established by the Federal Employees’ Retirement System Act of 1986 (Pub. L. 99-335, 5 U.S.C. 8401 <E T="03">et seq.</E>). Its primary function is to manage and invest the Thrift Savings Fund for the exclusive benefit of its participants (<E T="03">e.g.</E>, participating Federal employees, Federal judges, and Members of Congre